adding Missouri to the majority of jurisdictions so holding, stating "the time has come for us to recognize the right of any party to introduce a prior inconsistent statement to impeach any witness regardless of by whom the witness may have been subpoenaed or called”
How later courts described this case
- adding Missouri to the majority of jurisdictions so holding, stating "the time has come for us to recognize the right of any party to introduce a prior inconsistent statement to impeach any witness regardless of by whom the witness may have been subpoenaed or called”
- The insurance company refused to pay proceeds to insured because it believed he conspired to commit arson. At trial, the insurance company should have been allowed to cross-examine its own witness, Carroll, and to ask him for substantive evidence purposes whether he had told a police officer that he had overheard the insured tell another man that he was going to burn his car to collect insurance proceeds. The insurance company should have also been allowed to question the police officer about Carroll's prior inconsistent statements.
- allows impeachment by prior inconsistent statement of a party’s own witness and substantive use of prior inconsistent statements where the declarant is available for cross-examination in civil cases
Written by the judges who cited it.
The opinion
BLACKMAR, Judge,
concurring.
I concur, for the reasons set out in Judge Welliver’s thorough opinion, and also for the reasons stated in Judge Finch’s concurring opinion in State v. Granberry, 491 S.W.2d 528, 533 (Mo. banc 1973).
Two witnesses gave statements to an investigating officer supportive of the defendant’s position. When their depositions were taken, both disclaimed their prior statements. The jury well might believe that the initial statements represented the truth and that the disclaimers were the result of subsequent importunities. Yet, by the orthodox rule, these initial statements are unavailable to the trier of the facts. This defendant could not even get the statements into evidence through the back door by claiming surprise, for the disclaimers came before the trial. 1
After giving careful attention to Judge Billings’ eloquent arguments I am persuaded that the disadvantages of the orthodox rule outweigh the advantages and that we should make a change. In so doing we simply perform our duty of developing the common law of evidence. 2 The remonstrance of the Washington Council of Lawyers, quoted in the dissent, reflects the natural conservatism of the legal profession, and raises questions similar to those I raised at the time the Supreme Court’s proposed rules of evidence were before Congress. 3 Our ultimate faith, nevertheless, is in the ability of jurors to separate *429 the sound evidence from the infirm. I opt in favor of giving the jury full information and letting it make the decision. The law of evidence deals in probabilities. Neither certainty nor absence of the possibility of abuse is required as a condition of admissibility.
I do not agree with the assertion that there may be no meaningful cross-examination about a claimed prior inconsistent statement which a witness disavows at trial. (C f. concurring opinion of Judge Seiler in Granberry, 491 S.W.2d at 532 , and Judge Billings’ similar arguments). Cross-examination is not simply an effort to get a witness to disaffirm his testimony. There is ample room for exploration. Does the witness deny making the statement, or does he profess lack of memory? Did he initiate the conversation or was he questioned? Was he in a position to observe? If the witness admits making the earlier statement, he may explain the inconsistency. If he does not, then the person reporting the statement is subject to cross-examination. The surrounding circumstances may be fully explored so that the jury may be better enabled to determine where the truth lies.
One of my earlier concerns was as to whether an essential element of a case could be established simply by a prior statement of a witness which the witness repudiates at trial. The Washington Council of Lawyers expresses similar concern. Missouri, however, disclaims the scintilla rule 4 and holds that every element of a case must be established by substantial evidence. 5 So the courts do not have to countenance the submission of wholly unsubstantial cases to juries.
The enactment of Senate Committee Substitute for House Committee Substitute for House Bills 366, 248, 372 and 393, 83rd General Assembly, represents a recognition that prior inconsistent statements of a witness who is present at trial have value as evidence. I do not find, in that bill’s limitation of the change to certain chapters of the criminal statutes, an affirmative policy of maintaining the orthodox view elsewhere. It is absolutely unnecessary, moreover, to deal with the problem of face to face confrontation in criminal cases as expounded by Judge Donnelly. 6
I concur in reversal and remand.
. Does the orthodox rule sometimes operate to punish the diligent?
. See, e.g. Pulitzer v. Chapman, 337 Mo. 298 , 85 S.W.2d 400 (1935); (sanctioning the admission of prior sworn testimony which the witness repudiates at trial); Sutter v. Easterly, 354 Mo. 282 , 189 S.W.2d 284 (1945) (sanctioning the admission of declarations against penal interest as well as those contrary to pecuniary interest).
. Blackmar, "The Proposed Federal Rules of Evidence — How Will They Affect the Trial of Cases?” 27 Washington and Lee L.Rev. 17, 29 (1970).
. Hardwick v. Kansas City Gas Co., 352 Mo. 986 , 180 S.W.2d 670 (1944); Boring v. Kansas City Life Insurance Company, 274 S.W.2d 233 (Mo.1955).
. Jones v. Garney Plumbing Company, 409 S.W.2d 637 (Mo.1966).
. In State v. Griffin, 662 S.W.2d 854 (Mo. banc 1983), this Court sanctioned a broad expansion of the "excited utterance” rule in a capital case, so as to admit very damaging, unconfronted testimony.