Section Review

What every Massachusetts criminal lawyer needs to know about impeachment law

What every Massachusetts criminal lawyer needs to know about impeachment law1

I. Introduction

As a criminal defense lawyer, frequently I have been confronted with disagreement, misinformation, ignorance and occasionally even malice, when I tried to impeach or object to the impeachment of a witness. In at least one case, the resolution of a disputed battle was outcome-determinative.2 I am very fortunate to have learned evidentiary nuances from some of the best lawyers and judges the commonwealth has to offer. I have found myself fighting the same battles with judges and adversaries over and over again. However, I have also been victimized by my own ignorance of the law. Over the years, I have compiled a list of impeachment issues that seem to repeat themselves in criminal cases.

Impeachment traditionally is thought of as an advocate's weapon: equal parts art and science.3 When done properly, impeachment is perhaps the most deadly arrow in the cross examination quiver.4 However, this article is not about impeachment technique. Nor is it about the constant strategic issues facing litigants: Should I impeach or not? Does it matter if this evidence comes in for all purposes? Should I confront the witness I am trying to impeach? Rather, my intent is to raise common evidentiary issues relating to the rich, often misunderstood and nuanced law that governs impeachment, and to provide the correct answers, or at least an analytical framework for approaching the issues.5

II. Hypothetical6

Ian Defendant is charged with one count of rape. On New Year's Eve, Ian went to a party in Boston with his friend Tommy. At the party, Tommy re-introduced Ian to his younger sister Ally Victim. Ally and Ian had met before in passing a couple of times. There were approximately 20 people at the party. The party was thrown by Felicia Complaint. Everyone at the party was over 18, but the majority of the people were under 21. Felicia was 20 at the time of the party. The apartment was owned by Felicia's parents, who were out of town for the night. Ally was 18 at the time of the party. Marijuana cigarettes were being passed around liberally.7 Felicia served beer, mixed drinks and "jello" shots.

Ally arrived at the party at around 10 p.m., and Ian arrived about a half an hour later. At about 2 a.m., Felicia kicked everyone out of the party except Ally, Ian and Tommy, whom she was dating at the time. By all accounts, Tommy, Felicia and Ian were buzzed if not drunk. At about 2:30 a.m., Tommy and Felicia went to bed in Felicia's bedroom. Ally and Ian stayed up to watch TV. At approximately 3:30 a.m., Ally went to sleep in Felicia's guest room. Ian lay down on the couch to fall asleep.

At around 4:30 a.m., Tommy got up to go to the bathroom and heard a squeaking noise coming from the guest room. When he opened the door, he saw Ian lying on top of Ally. Ally's pants were down by her ankles. When he entered the room, Tommy saw his sister push Ian off of her and yell: "Get off of me." Tommy went ballistic. Ally got up and stood between Tommy and Ian. She started crying and said: "I don't know what was happening, I just woke up, I am not sure what happened." Tommy yelled at Ian to leave or he would "kill him." Ian ran out of the house saying "I didn't do anything."

As he left the building, Ian passed by Danny the Doorman. Danny later told the police that he saw Ian run out of the building, partially concealing his face with a newspaper.

Tommy woke up Felicia and they started talking to Ally. When they asked her what happened, she said: "I must have been raped, I went to bed drunk and woke up and he was there and his penis was out."

At about 5 a.m., Felicia's parents Mr. and Mrs. Complaint unexpectedly came home early from a weekend away. Mrs. Complaint pulled Ally aside to talk to her. Ally was crying and visibly upset. Before she was asked a question, Ally blurted out, "Ian forced me to have sex."

Tommy called the police. When the police arrived, Detective Dooright, the lead investigator in the case, interviewed Tommy. Tommy told the detective that on the night of the party, Ally had commented that "Ian was kind of creepy and looking at her funny."

The next morning, Ian was arrested. The following day, Ian was arraigned in the BMC Central Division and charged with rape. Ian was held on $10,000 bail. Polly Defender was assigned to represent Ian. Peter Attorney was the prosecutor.

The morning after the party, Ally refused to go to the hospital. She did provide the police with her underpants and the sheets from the bed. Semen was located on both the underpants and the sheet. The court issued an order for the production of Ian's DNA, and following DNA testing, Ian's DNA was determined to be a positive match to the semen left on the sheets.

Two days after the arraignment, Ralph Rat was sharing a cell with Ian and they started talking about their cases. According to Ralph, Ian told him that "Ally had been flirting with him all night. She was pretty tipsy. He followed her into the guest room, they started kissing and one thing led to another." Ralph asked Ian how Ally had responded. According to Ralph, Ian said "She seemed to like it, she did say no once or twice, but her words were slurred and I don't think she really meant it." Ralph wrote a letter to the DA's office about what Ian had said to him. Ralph had a meeting with Detective Dooright and Peter Prosecutor. After the meeting, Peter offered Ralph a deal to testify. Through investigation, Polly learned that Ralph had an open-ended arrangement with the U.S. Attorney's Office that predated his jail cell conversation with Ian. If Ralph discovered any useful information about any pending criminal cases, his cooperation would be taken into consideration if he pled guilty to his pending charges in federal court.

About a month after the arraignment, a probable cause hearing was held in the BMC. Probable cause was found and the case was bound over to the Suffolk Superior Court for trial. Mrs. Complaint testified at the probable cause hearing. She testified that on that morning at around 5 a.m., Ally had told her that "Ian forced me to have sex."

Polly filed a motion to suppress the statement made to Ralph, and the judge ruled the statement was obtained in violation of Ian's right to counsel under the 6th Amendment to the U.S. Constitution and Article 12 of the Massachusetts Declaration of Rights.8

Polly hired a private investigator to speak to everyone at the party. Paul Drake, the investigator, spoke to Felicia. Felicia said that she was "pretty busy hosting the party, but she did keep a close eye on Ally because she did not want her to get really drunk. She said she saw Ally drink a couple of beers but nothing else. She had no personal knowledge about whether Ally smoked any pot and she is pretty sure that Ally did not do any jello shots." She believed, "Ally may have been a little buzzed, but she did not seem too bad."

Mr. Drake also spoke to Felicia's mother. Mrs. Complaint told him that she "could not really understand what Ally told her that night but candidly she was more concerned about being charged criminally or sued civilly because it happened at her apartment and underage people were drinking."

Right before trial, Felicia told Peter Prosecutor that she "was watching Ally most of the night and Ally must have had five beers, definitely smoked some pot and [she] saw Ally do at least three Jell-O shots." During trial preparation, Tommy also told Detective Dooright and Peter Prosecutor that his sister had told him in the past that "Ian was cute" and she wanted to know "if he had a girlfriend."

The prosecution's theory is that Ally was too incapacitated to consent. The defense theory is that there was a consensual sexual encounter.

III Legal issues:

A. Can Ian's statement to Ralph be used against him at trial?

Against the advice of counsel, Ian insists on testifying at trial. Because the statement to Ralph was suppressed, it is not admissible for all purposes. If it had not been suppressed, the statement would have been admissible as a confession or an admission. In this scenario, the statement is inadmissible in the commonwealth's case-in-chief. Once Ian takes the stand, however, it is admissible to impeach him even though it was obtained in violation of his 6th Amendment9 and Article 1210 rights to counsel.

If the statement had been taken in violation of Ian's Miranda rights, the answer to the question would be the same.11 However, if a judge had determined that the statement was involuntary, or the result of excessive coercion by the police, the statement would be inadmissible for all purposes.12

Because the statement is so damaging, Polly should object, request a limiting instruction and propose a jury instruction that reflects the limited purpose for which the jury can consider the statement. If Polly fails to object to the substantive use of the statement, and seek a limiting instruction, Ian's statement to Ralph would be admissible for all purposes. The distinction may be important in this case, because if Peter is allowed to argue the statement substantively, Ian's acknowledgment that Ally said "no" can and will be argued as the truth.13 The "fact" that the statement was even made is harmful enough, but it would be even more harmful as substantive evidence. Furthermore, any fact that is admissible for all purposes can also be used to defeat an otherwise legitimate motion for a required finding of not guilty.14

B. Before impeaching Felicia with her prior statement to the private investigator, does Polly have to confront Felicia?

Felicia was very credible on direct examination. She testified consistently with what she told Peter and Detective Dooright right before trial: that Ally drank several beers, did several jello shots and smoked pot. Polly called Mr. Drake to impeach Felicia without having confronted her on cross examination with her prior inconsistent statement. Peter objected, arguing that Polly was required to confront Felicia first.

In Massachusetts, there is no requirement that counsel first confront an adverse witness before impeaching her.15 For the purpose of impeaching the testimony of an adverse witness, the party "may show that the witness has made prior inconsistent … statements, either by eliciting such statements upon cross examination of the witness himself or proving them by other witnesses."16 Therefore, a lawyer has the strategic option of calling the witness who heard or took the inconsistent statement, "proving up" or completing the impeachment collaterally rather than first calling the declarant's attention to her prior statement.17 This tactical choice enables the advocate to avoid the possibility of a messy confrontation with a witness whom she believes may either offer a palatable explanation for the inconsistent statement, or who may convincingly flat-out deny ever making the contrary statement.18 The trial judge always has the discretion to exclude this or any other type of impeachment if it only involves a collateral issue.19 In this instance, however, the inconsistency is clearly material and Polly would have the absolute right to impeach Felicia, independent of whether she chose to confront the witness first.

C. Can Polly argue Felicia's prior inconsistent statement substantively?

After losing his argument that Polly could not impeach Felicia without first confronting her with her prior inconsistent statement, Peter neither objects to the impeachment nor seeks a limiting instruction. In her closing, Polly wants to argue the prior inconsistent statement, that Ally only had two beers, substantively. Can she?

The general rule is that "prior inconsistent statements of a witness … may be used for the limited purpose of impeaching a witness."20 This rule derives from the principle that an out-of-court statement introduced for the exclusive purpose of impeachment is not hearsay.21 However, when there has been no objection and no request for a limiting instruction, a prior inconsistent statement may be considered as substantive evidence.22 Therefore, Polly may properly argue the contents of Felicia's prior statement as a fact or as the truth.

As a general proposition, this distinction may not be terribly meaningful. In fact, the Supreme Judicial Court ("SJC") has acknowledged as much.23 This hypothetical highlights one of the rare exceptions to this proposition, a circumstance where the distinction can be significant.24 If Peter had objected and requested a limiting instruction, Polly would have been confined to attacking Felicia's credibility by pointing out that she had told different versions. Polly's ability to argue substantively, that is, as the truth, Felicia's statement that Ally had only two beers, is a necessary cornerstone of her defense, bolstering the argument that Ally was not incapacitated, but rather that she was both capable of consenting and in fact did consent.25

The standard jury instructions used by both the Superior Court and District Court explicitly limit the use of prior statements to the assessment of credibility.26 Therefore, Polly would want to request a jury instruction accurately reflecting how the evidence could be used.

D. Can Polly impeach Mrs. Complaint's prior testimony, even if she does not testify at trial?

Felicia's mother successfully invokes her 5th Amendment right against self incrimination. Peter then convinces the judge in limine that her invocation renders Mrs. Complaint legally unavailable as a witness, and Polly had sufficient opportunity to cross examine her at the probable cause hearing and, therefore, her previous testimony regarding Ally's allegation that "Ian forced me to have sex," is admissible at trial.27 In her case-in-chief, Polly calls Paul Drake to impeach Mrs. Complaint's statement to the police with the inconsistent statement she gave to the defense investigator. Peter objects, arguing that Polly can't impeach a witness who did not testify.

A statement of a non-testifying witness, that has been deemed admissible as an exception to the hearsay rule, may be impeached in the same manner as if the witness had actually testified.28 The rationale is that it would be fundamentally unfair for one side to derive a windfall because an adverse declarant was unavailable and her previous statement constituted an exception to the general evidentiary principle barring hearsay. The statement should be subject to the same rules of impeachment as the declarant would have been subjected to had she testified. "Otherwise, the fact finder [would be presented with] a distorted and incomplete view of the evidence."29 Therefore, Polly should be allowed to impeach the declarant's (Mrs. Complaint) credibility by calling Paul to testify that Mrs. Complaint told him she was not sure what Ally told her and that she, Mrs. Complaint, was concerned about her own liability.

E. Can Polly impeach Ally if Ally says "I don't remember"?

On direct, Ally testifies that she was raped and that she saw Ian pull her pants down. On cross examination, Polly confronts Ally with the prior statement she made to Tommy the night of the incident in which she claimed she did not know what happened. Ally responds that she "can't remember." Peter objects to the question and asks the judge to instruct the jury to disregard the question because if Ally cannot remember, then there is nothing to impeach. How should the judge rule?

The answer depends on exactly what Ally is claiming she does not remember. Generally, "there is no inconsistency between a present failure of memory on the witness stand and a past existence of a memory."30 However, this principle of law is often misunderstood. The analysis begins with the question: What is it that Ally cannot remember? When a witness is found to have "no present memory as to the substance of a prior statement, its admissibility is precluded."31

In this case, Ally is not claiming a present loss of memory about the incident, because she testified on direct to substantive facts contradicted by her previous statement. As such, she must be alleging either that she does not remember talking to Tommy or she does not remember telling Tommy that she does not know what happened. In either case, Polly may impeach her with her prior inconsistent statement.32 Of course, the impeachment would have to be completed during Tommy's testimony.

If, on the other hand, on during direct examination, Peter asked Ally "Did you see Ian do anything to you?" and she answered that she "did not remember," Ally would have no present memory of the fact being sought or contested. In that scenario, Polly would be barred from impeaching Ally with her prior statement that she did not see anything happen. However, under those circumstances, if the testimony was important to Polly to elicit, she might have one more card to play: she could ask the judge to find that the present loss of memory was feigned.33 If the judge agreed, then the judge could permit Polly to introduce the prior inconsistent statement.34

F. Can Polly impeach Detective Dooright if he testifies to a fact that was omitted from his police report?

On direct examination, Detective Dooright testified that when he arrested Ian, Ian laughed and said, "She asked for it."35 Polly wants to impeach Dooright with the fact that this statement does not appear in any prior police report.

A witness may be impeached with an omission from an earlier statement if the omission is "inconsistent with a later statement of fact when it would have been natural to include the fact in the initial statement."36 Accordingly, Polly would be entitled to cross examine the officer, and highlight how Ian's admission was not contained in Dooright's initial police report.37 Finally, Polly should propose a jury instruction that accurately reflects this principle of law.38

G. Can Peter impeach Danny the Doorman with his prior statement to the police?

Peter calls Danny the Doorman as a witness. Danny testifies that he saw Ian run from the apartment. When Peter asks Danny if he noticed anything else, Danny says no. Peter is unable to successfully refresh Danny's memory. Peter then tries to impeach Danny with his prior statement that he saw Ian holding a newspaper up, concealing part of his face. Polly objects, arguing that Peter cannot do that.

A party may not call a witness solely to impeach him with a prior inconsistent statement that is contrary to his current trial testimony.39 Otherwise, the jury might infer that the question itself, attempting to elicit the contradiction, is entitled to some evidentiary weight.

However, if another probative reason to call the witness exists, then the party may be permitted to call and then impeach its own witness.40 In the hypothetical, Polly would want to argue that Peter's exclusive reason for calling Danny was to impeach him and any other proffered reason is subterfuge. Peter should counter that he had another legitimate reason for putting Danny on the stand: Danny is the only witness who can testify that he saw Ian running from the apartment, a material fact that is admissible as consciousness of guilt evidence.41

H. Are there any special rules governing the impeachment of a party's own witness?

What if Peter was intrigued by Polly's strategic choice in not confronting Felicia with her prior inconsistent statement and is considering the same tactical decision with Danny? Can he avoid confronting Danny and impeach him extrinsically through Detective Dooright?

Peter does not have the same option that was available to Polly. The difference is that Polly was impeaching an adverse witness. In fact, this precise scenario is controlled by statute, Mass. Gen. Law. ch. 233 § 23: "The party who produces a witness … may also prove that he has made at other times statements inconsistent with his present testimony; but before proof of such inconsistent statements is given, the circumstances thereof sufficient to designate the particular occasion shall be mentioned to the witness, and he shall be asked if he has made such statements, and, if so, shall be allowed to explain them."42 Therefore, if the judge accepts Peter's argument in number 7, that he is not calling Danny just to impeach him, and if he follows the steps prescribed by the statute, Peter may impeach Danny the Doorman with what he previously told Detective Dooright.43

I. If Polly successfully impeaches Tommy, may Peter rehabilitate Tommy with his "prior" consistent statement?

On direct examination, Tommy testified that his sister told him that she thought "Ian was very strange and he always stared at her."44 Polly impeached Tommy with his prior statement, made to Detective Dooright, that his sister had told him "Ian was cute" and she was curious "if he had a girlfriend." Peter wants to rehabilitate Tommy with the statement he made to the police the night of the incident: Ally had told him she thought Ian "was creepy and he was always looking at her funny."45 Polly objects, arguing the previous statement is inadmissible hearsay.

The law surrounding the admissibility of prior consistent statements is widely misunderstood. Simply because a witness said something consistent with his trial testimony on another occasion does not magically render it admissible. In fact, the general rule "is that a witness's prior consistent statement is not admissible, even though the witness's prior inconsistent statement has already been admitted."46 Most consistent statements are hearsay. Moreover, the inference of unreliability based on the making of an inconsistent statement does not disappear solely because, at some previous time, a witness said something consistent with his trial testimony.47

A prior consistent statement is admissible to rehabilitate a witness in very narrow circumstances, specifically; such a statement can be admitted either 1) to rebut a claim that the witness's in-court statement is "of a recent contrivance" or 2) if the statement "is the product of a particular inducement or bias."48 However, before the prior consistent statement can be admitted, "it must appear that the statement was made before the witness possessed a possible motive to fabricate or before the inducements or bias … developed."49

The seminal and often disputed question is whether the adverse party is suggesting the declarant's current testimony is the result of a recent contrivance.50 Polly would argue that she is not suggesting that Tommy is prevaricating now for the first time, but rather, that he has been lying all along. Furthermore, Tommy's motive to lie and to corroborate the allegation of rape arose the moment he entered the room and thought Ian was assaulting his sister.51 Thus, Tommy's motive to fabricate his testimony existed before he first spoke to the police. If that argument prevails, Polly would not be suggesting that Tommy's testimony was a recent contrivance, but rather a contrivance that existed before he made the initial consistent statement to the police.

Peter would come at this reasoning by arguing that Polly is suggesting Tommy is lying on the stand for a reason that did not exist when he first spoke to the police and, therefore, the prior consistent statement should be admitted.

If the judge rules in Peter's favor, Polly should request an appropriate instruction, limiting the jury's consideration of the prior consistent statement to assessing Tommy's credibility.52

IV. Conclusion

Properly navigating the nuances of impeachment law can be challenging. In the heat of the moment, recognizing some of the subtle issues and advocating effectively is no easy task. Often, knowing the arguments, making proper objections and requesting appropriate instructions from the judge can play an important role in a criminal trial.

Notes

1.  Although criminal practitioners are the target audience for this article, most of the legal principles govern civil trials as well.

2.  In one case, I have a very vivid memory of fighting with both the judge and my adversary before, during and after closing arguments and before, during and after the jury charge about whether I could argue a critical prior inconsistent statement as substantive evidence. The answer, like most evidentiary questions, is it depends. It depends on the circumstances; it depends on your knowledge of the law and it depends on your persuasive abilities as an advocate.

3.  If cross-examination is "beyond any doubt the greatest legal engine ever invented for the discovery of truth," then impeachment would, beyond any doubt, be a V-8. See 5J. Wigmore, Evidence § 1367, p. 32 (J. Chadbourn rev., 1974).

4.  Robin Hood would have been a fabulous litigator (a public defender of course) because he had deadly aim and he always had that one special arrow to penetrate deep into the heart of his adversary.

5.  Massachusetts has a rich and distinct common law evidentiary tradition. The case law often references the Massachusetts Proposed Rules of Evidence (1980). Those rules, which essentially echo the Federal Rules of Evidence, have never been codified. The SJC "invited parties to cite the rules in their briefs." Announcement Concerning the Proposed Massachusetts Rules of Evidence (December 30, 1982); Commonwealth v. Daye, 393 Mass. 55, 66 (1984). At times, Massachusetts appellate courts have relied on the value of the proposed Rules "as a comparative standard for the common law evolution of evidentiary law." Daye, 393 Mass. at 66. Occasionally, the SJC has specifically adopted the principles embodied in individual provisions of the proposed rules. See Daye, 393 Mass. at 75; Commonwealth v. Sineiro, 432 Mass. 735, 742 (2000); see generally Massachusetts Guide to Evidence (2008)(SJC Advisory Committee on Evidence law relies on language in Proposed Rules of evidence when it accurately reflects current Massachusetts law).

Some of the answers to my hypothetical questions are unique to Massachusetts law. Where appropriate, I briefly contrast the answer with federal law. However, I offer one important caveat: this article is about litigating in Massachusetts state court, not the Federal District Court or any other jurisdiction, for that matter.

6.  The hypothetical is loosely based on an amalgamation of cases I have been involved in. However, that fit is loose and any perceived similarities between real cases and real people and my fact pattern are merely coincidental, at least for the most part.

7.  To the extent it may be relevant, the party took place before the passage and effective date of Ballot Question 2, the law decriminalizing possession of an ounce or less of marijuana.

8.  See Commonwealth v. Murphy, 448 Mass. 452, 465-72 (2007) (SJC concludes that under both the 6th Amendment and Article 12, a jail house informant who has a general cooperation agreement with the government does not have to target a specific defendant to qualify as an agent of the government).

9.  See Kansas v. Ventris, 129 S. Ct. 1841, 1847(2009); Michigan v. Harvey, 494 U.S. 344, 348 (1990).

10.  The precise issue clarified by the Supreme Court in Ventris has not been decided by the SJC under Article 12. See generally Commonwealth v. Anderson, 448 Mass. 548, 556-57 (2007) (stating, as a general proposition, the right to counsel provision of Art 12 has been interpreted to afford the accused the same protections as the 6th Amendment). However, because the SJC has interpreted Article 12 to provide greater protection for criminal defendants than its federal counterpart in certain circumstances, Polly should continue to object, citing Article 12, in the hopes that the issue will be decided differently under the Massachusetts Constitution. See, e.g. Commonwealth v. Mavredakis, 430 Mass. 848, 858-60 (2000); Murphy, 448 Mass. at 465-68. The substantive argument would essentially mirror the dissent in Ventris.

11.  Harris v. New York, 401 U.S. 222, 225-26 (1971); Commonwealth v. Harris, 364 Mass. 236, 237 (1973).

12.  New Jersey v. Portash, 440 U.S. 450, 458-59 (1979); Harris, 364 Mass. at 237.

13.  Contra Commonwealth v. Woods, 455 Pa.1, 4-5 (1973) (a statement obtained in violation of a testifying defendant's constitutional rights is not admissible for impeachment purposes if it corroborates the government's case).

14.  See, e.g.,Commonwealth v. Costello, 411 Mass. 371, 378 (1991) (SJC overturned conviction because absent impermissible substantive reliance on a prior inconsistent statement, the jury heard insufficient evidence to convict).

15.  Peter would have been correct in federal court. See Fed. R. Evid.613(b) (requiring counsel to afford the witness the opportunity to explain or deny the statement before any extrinsic evidence of an inconsistent statement may be admitted).

16.  Robinson v. Old Colony St. Ry Co., 189 Mass. 594, 595 (1905) (emphasis added); see Commonwealth v. West, 312 Mass. 438, 440 (1942).

17.  Sirk v.Emery, 184 Mass. 22 (1903); see also Commonwealth v. Street, 56 Mass. App. Ct. 301, 309 (2002) (holding extrinsic evidence of an inconsistent statement is admissible in Massachusetts even without cross examination). Compare Hubley v. Lilley, 28 Mass. App. Ct. 468, 472 (1990) (finding opposing counsel is always entitled to see the inconsistent statement upon request).

18.  Peter would not be precluded from recalling Felicia to explain or deny the inconsistency.

19.  Street, 56 Mass. App. Ct. at 309-10.

20.  Commonwealth v. Jones, 432 Mass. 623, 627 (2000); cf. Advisory Committee Notes to Fed. R. Evid. 801(d) ("Prior inconsistent statements traditionally have been admissible to impeach but not as substantive evidence").

21.  Commonwealth v. Donnelly, 33 Mass. App. Ct. 189, 197 (1997).

22.  See Commonwealth v. Luce, 399 Mass 479, 481-83 (1987).

23.  Commonwealth v. Daye, 393 Mass. 55, 69 (1984) ("juries cannot, and perhaps, should not be expected to discriminate between impeachment and probative use of inconsistent statements"); cf. Commonwealth v. Bregoli, 431 Mass. 265, 278 (2000) (prosecutor's improper use of limited evidence substantively was clearly error, but because it did not appear to influence the jury, the error was deemed harmless). Most trial lawyers whom I have asked accept this general proposition and frequently make the tactical decision not to object under similar circumstances.

24.  There are other circumstances where a prior inconsistent statement may be argued substantively. See e.g., Jones, 432 Mass. at 627 (when a witness adopts the prior statement as true it is admissible for all purposes; [accord Fed. R. Evid, 801(d)(2)(B)]. See also Commonwealth v. Le, 444 Mass. 431, 439-41 (2005) (changing the rule, consistent with Fed. R. Evid. 801(d)(1), SJC holds that any prior statement of identification is admissible substantively); Commonwealth v. Daye, 393 Mass. 55, 65-75 (1984) (permitting the probative use of a prior inconsistent grand jury testimony at trial if the statement is uncoerced, based on personal knowledge and the declarant can be cross examined at trial); Commonwealth v. Sineiro, 432 Mass. 735, 741-42 (2000) (allowing prior testimony at a probable cause hearing to be relied on substantively in limited circumstances similar to those enunciated in Daye); Commonwealth v. Fort, 33 Mass. App. Ct. 181, 183 (1992); see generally Fed. R. Evid. 804(b)(1) (authorizing the substantive admissibility of prior testimony if certain criteria, unavailability and the opportunity to cross examine when the testimony was taken, have been met.); Commonwealth v. Leo, 379 Mass. 34, 41-42 (1979 (holding a prior inconsistent statement that constitutes an admission by a party opponent is admissible for all purposes).

25.  This hypothetical is one example of when this distinction is important. Another more common example would be a typical domestic violence scenario. A defendant is accused of assaulting his spouse. Initially, the alleged victim tells the police the defendant did hit her. Then she tells a defense investigator that nothing happened. Assuming for argument's sake the alleged victim's statement to the police was both non-testimonial under Crawford and the statement qualified as an excited utterance, if she did not testify at trial, the defendant would want to call the investigator to impeach her statement to the police officer. If her inconsistent statement was not objected to, the investigator's contrary statement could be considered substantively, thus supplying the key to an acquittal or perhaps a successful argument for a Required Finding of Not Guilty. See generally Crawford v. Washington, 541 U.S. 36 (2004); Commonwealth v. Gonsalves, 445 Mass. 1 (2005).; See Costello, 411 Mass. at 378.

26.  See Model Jury Instructions for Use in the District Court, Instruction 3.700 (2009) ("the prior statement is relevant only as to the witness's credibility, and you may not take it as proof of any fact contained in it"); Model Jury Instructions for the Superior Court, Instruction § 4.10.1 (2003) ("you may not consider the earlier statement as evidence or proof of the truth of any fact contained in the statement").

The concern is less about crafting a legally correct instruction, which assumes the jury would appreciate the distinction, and more about avoiding an instruction that would explicitly undermine Polly's defense. Cf. Commonwealth v. Martin, 19 Mass. App. Ct. 117,119 n. 3 (1984) (judge committed error in failing to charge the jury as to the appropriate evidentiary use of prior inconsistent statement; however, the error was harmless).

27.  See Sineiro, 432 Mass. at 741-42. This example raises totem pole hearsay and confrontation issues as well. However, Ally's initial statement to Mrs. Complaint would not offend the 6th Amendment because Ally was available to testify. Further, Ally's statement could also qualify as an excited utterance and therefore, qualifying as an exception to hearsay rule.

28.  Commonwealth v. Mahar, 430 Mass. 643, 649-50 (2000); Commonwealth v. Sellon, 380 Mass. 220, 224 n. 6 (1980). Accord Fed. R. Evid. 806 ("the credibility of the declarant may be attacked … by any evidence that which would be admissible for those purposes if declarant had testified as a witness").

29.  Mahar, 430 Mass. at 650.

30.  Commonwealth v. Martin, 417 Mass. 187, 197 (1994).

31.  Id. (emphasis added).

32.  "A witness who actually made a statement contradictory to trial testimony cannot escape impeachment by saying he does not remember making the statement." Commonwealth v. Gil, 393 Mass. 204, 220 (1984) (citing Langan v.Pianowski, 307 Mass. 149, 152 (1940)). The loss of memory is functionally treated as if the witness denied making the statement, and therefore is inconsistent with the substance of the prior statement.

Polly also could try refreshing Ally's memory with the police report that contained Tommy's statement. If this did not work, Polly would have to impeach her extrinsically through Tommy. If Polly anticipated that Ally was going to say "I don't remember," she could skip the confrontation and instead simply introduce the prior statement through Tommy.

33.  Sineiro, 432 Mass at 742-45.

34.  Pianowski, 307 Mass. at 149 (holding prior inconsistent statement was properly admitted both to impeach and substantively as an admission); Sineiro, 432 Mass. at 745 (finding probable cause testimony admissible for all purposes, in part because the witness's lack of memory was deemed false by the trial judge).

35.  If Polly had no prior knowledge of the statement, an admission being attributed to Ian, she should also move to strike the testimony, arguing the late disclosure of automatic discovery warrants the sanction of preclusion. See Mass. R. Crim. P. 14(a)(1 )(A)(i), 14(c)(2).

36.  Commonwealth v. West, 312 Mass. 438, 440 (1942); see also Commonwealth v. Clayton, 52 Mass. App. Ct. 198, 207 (2001); Commonwealth v. Ortiz, 39 Mass. App. Ct. 70, 72 (1995).

37.  As with every case, Polly should undergo the strategic calculus. In this instance, the omission is critical; however, with a fact of lesser significance, the impeachment might not be worth the candle. Effective impeachment by omission is an art form and, when done properly, is very effective. When it is not, it is fraught with peril. For tips on how to do this well I suggest Larry S. Pozner & Roger J. Dodd, Cross-Examination: Science and Techniques (Michie 2003) and anything written on the topic by Professor James McElhaney.

38.  See Ortiz, 39 Mass. App. Ct. at 72. (overturning conviction because the trial judge declined to give an appropriate jury instruction on the use of prior inconsistent statements in assessing the credibility of an officer who had omitted significant details from his police report).

39.  Commonwealth v. Benoit, 32 Mass. App. Ct. 111, 116-17 (1992); see also Commonwealth v. McAfee, 430 Mass. 483, 489-90 (1990) (endorsing Benoit rule).

40.  Commonwealth v. Melo, 67 Mass. App. Ct. 71, 77 (2006) (upholding decision allowing commonwealth to impeach its own witness who had testified to other relevant facts); Commonwealth v. Hailey, 62 Mass. App. Ct. 250, 252 (2004) (distinguishing Benoit because the witness provided additional probative evidence at trial).

41.  This type of scenario raises a host of other potential concerns, for example: does it necessarily matter if the party calling the witness knew beforehand that its witness was going to deny a critical fact? See Commonwealth v. Kicelemos, 66 Mass. App. Ct. 114 (2006) (inferring prior knowledge of witness' intention to disavow an earlier statement is relevant to the analysis). What if the inconsistent fact contained in the prior statement is highly prejudicial and of limited probative value? What if the prior inconsistent fact satisfied an element of the offense? What if the prior inconsistent fact was an admission by a defendant? Cf. Benoit, 32 Mass. App. Ct. at 117 (eliciting a damaging admission attributed to the defendant as a prior inconsistent statement was reversible error because the witness had no other relevant testimony to offer).

42.  Commonwealth v. Rosa, 412 Mass. 147, 156 (1992). However, a party is not subject to the same formalities if it chooses to elicit evidence of its own witness' prior record, Commonwealth v. Caldwell, 374 Mass. 308, 312 (1978), or in the case of the commonwealth, an agreement for leniency. Commonwealth v. Griffith, 404 Mass. 256, 265-66 (1989). Cf. generally Fed. R. Evid. 607 ("the credibility of a witness may be attacked by either party, including the party calling the witness").

43.  If Peter is allowed to impeach Danny, and Danny still denied making the previous statement, Peter would have to complete the impeachment through the detective. At that time, Polly would want to request an appropriate limiting instruction.

44.  Assume Tommy's statement was admitted by the judge over objection because it was not being offered for the truth of the matter asserted, but rather to show Ally's state of mind, rebutting the defense of consent.

45.  Mechanically, Peter probably would have to re-call Detective Dooright in rebuttal to testify about the previous consistent statement.

46.  Commonwealth v. Brookins, 416 Mass. 97, 102 (1993); see also Commonwealth v. Binienda, 20 Mass. App. Ct. 756, 758-9 (1985) (overturning a conviction because a prior consistent statement was improperly allowed in evidence).

47.  Brookins, 416 Mass. at 102.

48.  Commonwealth v.Gaudette, 56 Mass. App. Ct. 494, 499-501(2002); Commonwealth v. Healy, 27 Mass. App. Ct. 30, 34-35 (1989); cf. Commonwealth v. Tennison, 440 Mass. 553, 562-64 (2003) (holding a statement that does not meet the technical requirements for admission as a "prior" consistent statement may, nonetheless, be admissible under the doctrine of verbal completeness); A judge may also admit a prior consistent statement on direct examination when a claim of recent contrivance is inevitable on cross examination. See Commonwealth v. Knight, 437 Mass. 487, 496-98 (2002).

49.  Healey, 27 Mass. App. Ct. at 35(emphasis added); accord Fed. R. Evid. 801(d)(1)(B). The exception has also been characterized as applying when the other party is suggesting that the inconsistent "statement was the product of some peculiar or transient bias or pressure of some kind … " Commonweal v. Horne, 26 Mass. App. Ct. 996, 998 (1988); cf. Commonwealth v. Rodriquez, 454 Mass 215, 222 and n. 6 (2009) (deciding the substance of a witness' prior statement and the reason the statement was made were properly admitted to rehabilitate a witness even though the statement was made after any motive to fabricate arose).

50.  Trial judges have a wide range of discretion in deciding whether a suggestion of recent contrivance exists. See Brookins, 416 Mass. at 103.

51.  This is similar to the argument that the Appeals Court found persuasive in Binienda, Mass. App. Ct. at 499-501.

52.  Model Jury Instructions for Use in the District Court, Instruction 3.700 (2009) (In assessing the permissible use of a prior consistent statement that has been admitted into evidence, "the prior statement is relevant only as to the witness's credibility, and you may not take it as proof of any fact contained in it."); accord Gaudette, 56 Mass. App. Ct. at 499.

The Author

Chris Dearborn is an assistant clinical professor at Suffolk University Law School, where he runs the Suffolk Defenders Clinic and teaches classes on trial practice and the Massachusetts Constitution.

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