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
DONNELLY, Judge,
concurring.
In Pulitzer v. Chapman, 337 Mo. 298 , 85 5.W.2d 400 (1935), this Court followed the weight of existing authority in holding that extrajudicial statements not made by a party to the suit were hearsay and not admissible. The Court stated:
It is true the rule generally is said to be that prior contradictory statements of a witness may be shown only for the purpose of impeachment. The reason assigned, where any is given, is that if such statements were taken as proof of the facts stated, the testimony would be hearsay.
Pulitzer v. Chapman, supra, 85 S.W.2d at 410 (citations omitted). However, the Court then held that prior contradictory statements made during a deposition were not hearsay and could be admitted as substantive evidence. This was an innovation when decided, but it was reasoned that the requirements of the hearsay rule were met because the prior statement was made under oath and subject to cross-examination. The Court declined to set down a rule that would extend beyond the facts of the case to extrajudicial statements, but noted that the opinion went beyond the general rule and some authority supported “going even further.” Pulitzer v. Chapman, supra, at 411.
*430 In 1973, this Court was presented for the first time with the question of whether prior inconsistent statements made during a deposition could be used as substantive evidence as well as for impeachment in a criminal case. State v. Granberry, 491 S.W.2d 528 (Mo. banc 1973). In Granberry , we determined that such statements were admissible as substantive evidence of a criminal defendant’s guilt but were careful to articulate our belief that the interests of the public and the accused would be better served and protected by preserving the basics of the orthodox view. Granberry, supra at 531 . It now appears that almost all jurisdictions have adopted our position in Pulitzer and Granberry and allow prior statements made during a deposition to be used as substantive evidence. In both civil and criminal cases a majority of these jurisdictions also have extended the rule to encompass extrajudicial statements where the witness is present at trial and subject to cross-examination. I believe that it is now time to take the next logical step from Pulitzer in civil cases and allow prior inconsistent statements to be used both for impeachment and for substantive evidence where the witness is at trial and subject to cross-examination by either party.
However, in my view, admission of prior inconsistent statements as substantive evidence in criminal cases would violate the Missouri Constitution, Article I, Section 18(a) which provides: “That in criminal prosecutions the accused shall have the right * * * to meet the witnesses against him face to face * *
The Court’s opinion today adopts the modern trend rule in civil cases as a policy choice after weighing the usual reasons for excluding hearsay against “the theory that the usual dangers of hearsay are largely nonexistent where the witness testifies at trial.” California v. Green, 399 U.S. 149, 155 , 90 S.Ct. 1930, 1933 , 26 L.Ed.2d 489 (1970). Whether the orthodox rule should be abandoned in criminal cases involves not only a policy determination, but more importantly a determination of its effect on our Constitution’s guarantee that an accused shall have the right to meet his accusers “face to face.”
In considering this latter question, it is appropriate to note that the United States Supreme Court has indicated that the application of the rule we adopt today to criminal cases would not violate an accused’s federal constitutional right “to be confronted with the witnesses against him * * *.” U.S. Const., amend. VI; California v. Green, supra. In Green , the Court stated:
While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law.
399 U.S. at 155 , 90 S.Ct. at 1933-34 .
The Supreme Court upheld the use of out-of-court statements where the declar-ant was available at trial “and subject to full and effective cross-examination,” 399 U.S. at 158 , 90 S.Ct. at 1935 , because it found the underlying intent of the Sixth Amendment Confrontation Clause was “to prevent depositions or ex parte affidavits * * ⅜ being used against the prisoner in lieu of a personal examination and cross-examination of the witness * * 399 U.S. at 157 , 90 S.Ct. at 1935 , quoting Mattox v. United States, 156 U.S. 237, 242-43 , 15 S.Ct. 337, 339 , 39 L.Ed. 409 (1895).
This finding, as Justice Harlan’s concurrence emphasizes, results from an examination of the historical evidence surrounding the framing of the Sixth Amendment. 399 U.S. at 174-180 , 90 S.Ct. 1943 -1946 (Harlan, J., concurring):
From the scant information available it may tentatively be concluded that the Confrontation Clause was meant to con-stitutionalize a barrier against flagrant abuses, trials by anonymous accusers, and absentee witnesses. That the Clause was intended to ordain common law rules of evidence with constitution *431 al sanction is doubtful, notwithstanding English decisions that equate confrontation and hearsay. Rather, having established a broad principle, it is far more likely that the Framers anticipated it would be supplemented, as a matter of judge-made common law, by prevailing rules of evidence.
Id. at 179, 90 S.Ct. at 1946 . (Emphasis added.)
However, Green sheds little light when we turn to the Constitution of Missouri. Its guarantee “That in criminal prosecutions the accused shall have the right ⅜ * * to meet the witnesses against him face to face ⅜ * ⅜ ” has existed unchanged since the Constitution of 1820. Mo. Const.1820, art. XIII, sec. 9, Mo. Const.1865, art. I, sec. XVIII, Mo. Const.1875, art. II, sec. 22, Mo. Const.1945, art. I, sec. 18(a). It was early recognized that this language derives from the biblical account of St. Paul’s prosecution before the Roman governor Festus, who recounted:
the chief priests and the elders of the Jews gave information about him, asking for a sentence against him. I answered them that it was not the custom of the Romans to give up any one before the accused met the accusers face to face
Acts 25:15-16 (Revised Standard Version 1971) cited in State v. McO’Blenis, 24 Mo. 402, 412 (1857).
And it was in McO’Blenis that this Court first contoured our Constitution’s right of confrontation:
The great security of the accused * * is in the fundamental principle of the common law, that legal evidence consists in facts testified to by some person who has personal knowledge of them; thus excluding all suspicions, public rumors, second-hand statements, and generally all mere hearsay testimony, whether oral or written, from the consideration of the jury * * * The people have incorporated into their frame of government a great living principle of the common law under which they and their ancestors had lived, and it is the duty of the court so to construe it as to make it effectual to answer the great purpose they had in view. And this principle, we think, is no other than the principle of the common law in reference to criminal evidence that it consists in facts within the personal knowledge of the witness, to be testified to in open court in the presence of the accused. * * ⅝ It is not, however, a stiff, unbending rule, extending to every case without exception, falling within its letter, but is limited and controlled by subordinate rules, which render it safe and useful in the administration of public justice, and are as well established as the great principle itself, which, with all its exceptions and limitations, was taken from the existing law of the land and incorporated into the Constitution. The purpose of the people was not, we think, to introduce any new principle into the law of criminal procedure, but to secure those that already existed as part of the law of the land from future change by elevating them into constitutional law. (Emphasis in original.)
24 Mo. at 414-416 .
This understanding of our Constitution has endured through succeeding generations and is alive today, even after three revisions of our Constitution. Indeed, the constitutional prohibition against hearsay was understood to be so strict in 1945, when our current Constitution was adopted, that the framers deemed it necessary to enact an amendment to secure the admissibility of pretrial depositions taken outside the context of a preliminary hearing. It is especially important to note the extensive convention debate that accompanied the adoption of Mo. Const.1945, art. I, § 18(b).
Unlike the final adopted amendment, the Committee Report left to the legislature the definition of the State’s power to take such depositions, stating:
Provisions may be made by law to provide for the taking of depositions within or without the state in all criminal causes and for the use thereof at any *432 trial, provided that where such depositions are taken by the state, the right of personal confrontation and cross-examination of the witness by .the accused shall be carefully preserved ⅜ * *.
6 Debates of the Missouri Constitution 1945, 1531 (hereafter “Debates ”). Senator Cope interposed an amendment striking out all of the proposed amendment objecting that:
The all important thing in the trial of any case is for the jury to see the witness who is testifying, to study his countenance, study something about the character of the man so that they can, themselves, make up their minds whether to believe or disbelieve the testimony which the witness gives.
Id., at 1533 (emphasis added).
In support of Senator Cope’s amendment to strike the deposition provision, Senator Williams argued to the inconsistency of the proviso of the Committee Report that the accused’s rights of confrontation and cross-examination “be carefully preserved”:
There is a difference between that [the confrontation “carefully preserved”] and the confrontation which the law affords to the accused in a court. There is only one place where confrontation can take place, and that is in a court where the trial takes place. Where the judge presides and where he is charged by law with the duty of seeing that the accused is protected in all of his rights as well as the state and society protected in all of their rights. So that the very use of the term “personal confrontation” recognizes a distinction and attempts to get around a definite right prescribed by the Constitution itself.
Id. at 1565 (emphasis added).
The original committee recommendation was rejected with the approval of Senator Cope’s amendment to strike. Two reasons appear from the record of the debates: those reservations discussed above with respect to an accused’s rights and the impracticality of the amendment’s extra-territorial scope. See, 6 Debates 1571 (Remarks of Mr. Mayer).
Thereafter a proposal was submitted that eventually became what is now Article I, § 18(b), which states:
Upon a hearing and finding by the circuit court in any case wherein the accused is charged with a felony, that it is necessary to take the deposition of any witness within the state, other than defendant and spouse, in order to preserve the testimony, and on condition that the court make such orders as will fully protect the rights of personal confrontation and cross-examination of the witness by defendant, the state may take the deposition of such witness and either party may use the same at the trial, as in civil cases, provided there has been substantial compliance with such orders. The reasonable personal and traveling expenses of defendant and his counsel shall be paid by the state or county as provided by law.
The limited scope of this amendment bears emphasis. First, a deposition may only be taken upon a hearing before the circuit court. Second, a deposition may only be taken in a felony case. Third, the witness must be within the state. Fourth, the defendant’s spouse may not be deposed. Fifth, the court must find that the deposition is necessary to preserve testimony. It may not, therefore, be used at trial unless the witness is dead or outside the jurisdiction. Sixth, the court must make orders protecting the accused’s rights to confrontation and cross-examination, which orders must be substantially complied with. Finally, the State must pay the reasonable personal and travel expenses of the accused and his counsel.
The limitations and protections in the amendment are so detailed that the proposal was objected to during the Convention on the ground that it was in the nature of legislation and inappropriate for inclusion in a constitution. See, e.g., 7 Debates 1905-1906 (Remarks by Governor Park). Nevertheless, this narrowly tailored exception to the strict common law protections embodied in our Constitution prevailed over attempts to broaden legislative authority to *433 define an exception. This reluctance on the part of the Constitutional Convention to countenance a tampering with the long-established protections indicates that no other change in the traditional rule was contemplated or effected. The scope of our Constitution’s guarantee that an accused must meet witnesses against him face to face continues to be as this Court held in McO’Blenis :
The purpose of the people was not * * to introduce any new principle into the law of criminal procedure, but to secure those that already existed * * * from futhre [legislative or judicial] change by elevating them into constitutional law.
McO’Blenis, supra, at 416 .
Furthermore, whether the continuing vitality of the ancient common law rules “be wise or unwise, is not submitted to our judgment. [The common law rules] were well established at the time, and * * * went into the Constitution as part of the * * * clause now under consideration.” Id. at 417 .
The foregoing indicates that the Missouri Constitution preserves against legislative or judicial modification the panoply of the common law proscriptions against hearsay in criminal cases. Unlike the Federal Constitution, which did not codify the common law of hearsay, we have longstanding and venerable precedent to the contrary.
The full extent of the dangers posed by applying the rule adopted today to criminal cases may be seen in State v. Gorden, 356 Mo. 1010 , 204 S.W.2d 713 (1947). There, the only evidence adduced at trial consisted of the contents of the prosecutrix’s prior unsworn statement and a signed, but un-sworn, statement made by the accused wherein he confessed committing the offense. This Court reversed the conviction holding the admission of the prosecutrix’s statement unconstitutional and barring the confession as unsupported by an independent corpus delicti. Assume that there had been no confession. If today’s rule were applied in such a case, the accused could be convicted solely by the contents of the extrajudicial statement.
It is of little consolation to such an accused to say that he may cross-examine the witness at trial as to the prior statement. It would be impossible to recapture, at that late date, the demeanor and appearance of the witness at the time of the declaration. Yet, it is precisely those observations that are critical to evaluating the credibility of the statement. But not only is it important for the jury to see the witness, it is equally important for the witness to see the jury and confront the accused when he makes damning testimony. It is only then that he' can fully appreciate the impact of his words and properly contemplate their ultimate consequences for human life and liberty.
My present view is that neither this Court nor the General Assembly (§ 491.-074, Laws of Mo.1985 notwithstanding) has power to abrogate the common law protections given constitutional stature by Mo. Const, art. I, § 18(a).
I concur.