A Hearsay Conundrum: The Admissibility of Statements Made by Testifying Witnesses Outside of Court

Lawyers are often faced during trial with statements that a testifying witness previously made outside of court. There is much debate among trial lawyers as to whether these statements—if offered to prove the truth of the matter asserted—should be admissible as substantive and direct evidence solely because the declarant is now testifying and subject to meaningful cross-examination. The rationale for admitting such statements into evidence is that the declarant’s availability in court for cross-examination is enough to achieve transparency and allow the prior statements to be tested.

The Controversy Surrounding Extrajudicial Statements Made by Testifying Witnesses

Generally, federal and corollary state evidentiary rules require out-of-court statements, offered to prove the truth of the matter asserted, to fall within either an exclusion from the hearsay definition or an exception to the hearsay rule. Many jurists have taken the position that the declarant’s presence in court is irrelevant for hearsay purposes unless one of the enumerated exclusions apply (explained in the next section). If a statement is offered for its truth, does not fall within a hearsay exception, is not expressly excluded from the hearsay definition, and does not “originate[] while a declarant is testifying at trial,” they would hold the statement inadmissible. United States v. Lewis, 436 F.3d 939, 944 (8th Cir. 2006).

The primary justification for barring the admission of hearsay—even where the declarant takes the stand—is that deferred cross-examination is not enough to ensure the reliability of an out-of-court statement. The Minnesota Supreme Court put it this way:

The chief merit of cross-examination is not that at some future time it gives the party opponent the right to dissect adverse testimony. Its principal virtue is in its immediate application of the testing process. Its strokes fall while the iron is hot. False testimony is apt to harden and become unyielding to the blows of truth in proportion as the witness has opportunity for reconsideration and influence by the suggestions of others, whose interest may be, and often is, to maintain falsehood rather than truth.

State v. Saporen, 285 N.W. 898, 901 (Minn. 1939).

The Michigan Supreme Court has similarly characterized admitting extrajudicial statements into evidence as a deprivation of “the right to be the declarant’s adversary” and a transformation of cross-examination into “re-direct examination and rehabilitation.” Ruhala v. Roby, 150 N.W.2d 146, 156, 379 Mich. 102, 125 (Mich. 1967). This rationale presupposes the witness’s inability to recant a prior statement when confronted with it because it was made outside the courtroom and not under oath.

This logic has been met with criticism. California v. Green, 399 U.S. 149, 161 n.13 (1970). Judge Learned Hand once famously wrote: “If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court.” Di Carlo v. United States, 6 F.2d 364, 368 (2d Cir. 1925).

The Hearsay Exclusions for Declarant Witnesses

Notwithstanding the controversy as to whether out-of-court statements become admissible when the declarant takes the stand, there are three situations when such statements are expressly excluded from the hearsay definition. Critically, none of these exclusions apply unless “[t]he declarant testifies and is subject to cross-examination about [the] prior statement.” Fed. R. Evid. 801(d)(1).

First, prior inconsistent statements that the witness declarant made while under oath or affirmation “at a trial, hearing, or other proceeding or in a deposition” are not hearsay. Fed. R. Evid. 801(d)(1)(A). “[A] witness’s ‘feigned’ memory loss can be considered inconsistent under the Rule, for ‘the unwilling witness often takes refuge in a failure to remember.’” United States v. Cisneros-Gutierrez, 517 F.3d 751, 757 (5th Cir. 2008). According to the Seventh Circuit,

we do not read the word “inconsistent” in Rule 801(d)(1)(A) to include only statements diametrically opposed or logically incompatible. Inconsistency “may be found in evasive answers, . . . silence, or changes in positions.” In addition, a purported change in memory can produce “inconsistent” answers. Particularly in a case of manifest reluctance to testify, “if a witness has testified to [certain] facts before a grand jury and forgets . . . them at trial, his grand jury testimony . . . falls squarely within Rule 801(d)(1)(A).”

United States v. Williams, 737 F.2d 594, 608 (7th Cir. 1984) (citations omitted).

Alternatively, where the witness testifies as to a lack of memory, the witness may be considered “unavailable” under Rule 804(a)(3). Provided there’s an opportunity to cross-examine the declarant witness, the statement may be admitted if the declarant witness can’t remember making it.

Second, a testifying declarant’s prior consistent statement offered “to rebut an express or implied charge” of fabrication or “a recent improper influence or motive in so testifying,” or “to rehabilitate the declarant’s credibility as a witness when attacked on another ground,” is not hearsay. Fed. R. Evid. 801(d)(1)(B)(i)–(ii). However, this exclusion embodies a temporal requirement in that the statement must have been “made before the charged recent fabrication or improper influence or motive” arose. Tome v. United States, 513 U.S. 150, 167 (1995).

Third, a declarant’s prior statement of identification is not hearsay, i.e., a statement that “identifies a person as someone the declarant perceived earlier.” Fed. R. Evid. 801(d)(1)(C). Notably, such a statement can be offered into evidence through the testimony of either the declarant or a third party. See United States v. Fritz, 580 F.2d 370, 376 (10th Cir. 1978).

All that is contemplated is an out-of-court statement of identification (which is simply a particular type of prior statement) and that the out-of-court declarant be subject to cross-examination “concerning” the statement. . . . Further, there is no distinction regarding whether the out-of-court statement is offered by a third party or is the statement of identification of a witness on the stand regarding something the witness previously said. Under the orthodox definition of hearsay, an out-of-court statement offered for the truth is inadmissible, whether offered through its maker or a third party. A statement of identification defined as nonhearsay is substantively admissible under Rule 801, without regard to its proponent.

People v. Malone, 518 N.W.2d 418, 422 (Mich. 1994).

Finally, even if none of these three exclusions apply, a statement is not hearsay when the declarant testifies to making the statement and admits it was true. Fed. R. Evid. 801 advisory committee’s note to 1972 proposed rules (“If the witness admits on the stand that he made the statement and that it was true, he adopts the statement and there is no hearsay problem.”). Thus, the issue may be avoided altogether simply by framing the question the right way. For example: “Do you remember saying . . . ?” If a hearsay objection is raised, the proponent should be prepared to explain to the court that the statement is not offered for its truth but simply to establish whether the witness can remember making the statement (or otherwise offer an admissible purpose). If the witness then admits to making the statement, the next question should be: “From what you know and remember sitting here today, was that statement true?” Of course, there is no guarantee a hearsay objection will be overruled; but having thoroughly prepared for trial, an astute litigator should be able to skillfully navigate these questions, counter any hearsay objection, and—if the court agrees with the Federal Rules’ Advisory Committee—have the witness affirm the statement.

Conclusion

In sum, a witness’s presence on the stand under oath does not guarantee the admissibility of the witness’s prior out-of-court statements. While considerable debate on this issue persists, practitioners should be cautious about eliciting such statements at trial and be prepared to argue why the statement falls into one of the above exclusions to the hearsay definition or why it’s exempted from the hearsay rule. As with all other issues that can arise during trial, adequate preparation is essential to the proceedings running smoothly, avoiding adverse evidentiary rulings, and ultimately providing effective legal representation and a compelling case for the fact finder.