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Can prior inconsistent statement be used as substantive evidence?

By Randall Hodgkinson

I saw this entry over at Appellate Review noting a split of authority on whether prior inconsistent statements can be used as substantive evidence. This issue comes up periodically in Kansas and I even saw it just in the last few weeks on some discussion boards.

The issue often comes up when you have a recanting witness. Witness A tells police that client committed offense. At trial, A recants and says client did not do it. If there is no other substantive evidence, should client be acquitted?

Kansas law right now says prior inconsistent statements can be substantive evidence and are sufficient to support conviction. See State v. Davis, 236 Kan. 538, 540-41, 694 P.2d 418 (1985); State v. Fisher, 222 Kan. 76, 82, 563 P.2d 1012 (1977). But in light of the Confrontation Clause reformation of the last 5 years, I wonder if this law is not suspect. And in any case, many other jurisdictions don't allow prior inconsistent statements as substantive evidence.

So if you have a case where the state is using such statements, be sure to object, ask for a limiting instruction, and raise the issue on appeal.

Full post as published by Kansas Defenders on April 02, 2008 (boomark / email).