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
BILLINGS, Judge,
dissenting.
In one fell swoop, and relying in the main on codes of evidence enacted by legislatures or courts with the requisite rule making authority, all from other jurisdictions, or model codes, modified and amended from jurisdiction to jurisdiction and sometimes rejected in toto, plus treatises which have been rejected time and time again over the years by this Court, the principal opinion, by plain old-fashioned judicial legislation, and contrary to the Constitution of Missouri, adopts two new rules of evidence.
If the principal opinion had been as thorough in researching Missouri law as it was eager to engage in naked judicial legislation, it would have discovered that under Missouri’s common law rule governing the impeachment of a party’s own witness, a witness will not be permitted to obscure or prevent the emergence of truth. Because I firmly believe that Missouri’s common law rule operates fairly and effectively and in no way impedes the ascertainment of truth; *434 and because I also believe that the use of any prior inconsistent statement as substantive evidence will very much impede the ascertainment of truth, I respectfully dissent.
Preliminarily, I wish to point out that the principal opinion’s imperceptive and seemingly unquestioning support for a common law rule that gives a party the unrestricted right to impeach his own witness is intimately connected to the misguided theory that any prior inconsistent statement should be deemed substantive evidence if the declarant is presently available for cross-examination. This being so, I direct my remarks first to the general question of whether any prior inconsistent statement should be used as substantive evidence when the declarant is available for cross-examination at the time the prior statement is sought to be admitted into evidence.
When Congress conducted hearings on the Proposed Federal Rules of Evidence, they wisely solicited the views of dozens of leading lawyers, respected jurists, law professors and professional associations. Mr. Herbert Semmel, representing the Washington Council of Lawyers, 1 directed part of his testimony to the Advisory Committee’s version of Rule 801(d)(1)(A), which as then proposed, would have made any prior inconsistent statement non-hearsay and thus, admissible as substantive evidence. Mr. Semmel articulated with chilling eloquence the unreliability of and dangers inherent in coloring any prior inconsistent statement as substantive evidence.
There are substantial dangers in allowing any prior inconsistent statement to be introduced in evidence.
1. Inaccurate repetition of oral statements made months or years before the trial.
2. Misleading statements subject to unintended interpretations made when the witness had no appreciation for the necessity for accurate reporting.
3. Incomplete statements leading to unintended meaning, made when the witness had no appreciation for the necessity of complete reporting.
4. Inaccurate or unintended statements made by a witness as a result of suggestion or coercion.
Trials occur months and often years after the events sought to be recreated at trial. Memory lapses are an obvious problem in the trial process. The problem becomes more acute when a witness tries to repeat what are often casual remarks by another person at a time when the listener may not have even been aware of the importance of the remarks or that he will later be called upon to repeat them. Moreover, people often hear what they want to hear and remember what they want to remember. A perfectly “honest” witness who favors one party to a lawsuit may have a distorted memory of what a witness for the other party said months or years before trial. And, of course, there are cases of out-right perjury by one witness testifying as to prior statements by an earlier witness. These dangers are not entirely alleviated because both the principal witness and the secondary witness, who testifies as to the former’s alleged inconsistent statements, are both present at trial and available for corss-examination [sic]. The jury becomes diverted from the principal issues of the case to collateral questions of what one witness said on a prior occasion.
Many seemingly inconsistent statements are the result of casual comments made by persons who are unaware of the significance which may later be attached to these remarks. The comment may be incomplete; details are omitted which were unimportant to the declarant at the time but which may be crucial at a trial. Language may be employed in a loose, ambiguous manner which later aapears [sic] contradictory to testimony at trial. An observation may be conelusory. Or *435 the declarant may have indulged in the very human tendency to subconsciously fill in the details where only a portion of an observed event remains in the memory-
The problems of inaccurate repetition, ambiguity and incompleteness of out-of-court statements may be found in both written and oral statements, although the problem is more acute in oral statements. But written statements are also subject to distortion. We are all familiar with the way a skilled investigator, be he a lawyer, police officer, insurance claim agent, or private detective, can listen to a potential witness and then prepare a statement for signature by the witness which reflects the interest of the investigator’s client or agency. Adverse details are omitted; subtle changes of emphasis are made. It is regrettable but true that some lawyers will distort the truth to win a case and that some police officers will do the same to “solve” a crime, particularly one which has aroused the public interest or caused public controversy. Or the police officer may be seeking to put away a “dangerous criminal” who the officer “knows” is guilty but ngnist [sic] whom evidence is lacking. Examples of such conduct sometimes become public and undoubtedly represent the tip of the iceberg. The latest of such incident was reported in the New York Times of June 2, 1974, revealing testimony by a New York policeman who admitted perjury in courtroom testimony on a number of occasions to cover up illegal wiretaps.
The potential witness may very well sign a distorted statement. He may have little interest in whether it is accurate or he may not perceive the significance of an omission or a change. He may sign what is put before him out of a genuine desire to cooperate or out of fear of reprisals if he objects. Witnesses in criminal cases often are those who themselves have police records, are awaiting sentencing, or are on probation or parole. The Supreme Court in its current Term has again emphasized the danger that such witnesses may tailor their statements or testimony to appease the police or even to divert suspicion from themselves to others. Davis v. Alaska, 415 U.S. 308 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974).
It is one thing to admit such extra-judicial statements for impeachment purposes and quite another to allow a finding of guilt or a determination of liability or non-liability to rest on such statements. Use of prior inconsistent statements to impeach is an inherent part of the adversary system. Each party may make its own judgment as to whether the value of a witness’s [sic] testimony at trial will be outweighed by adverse consequences when a prior inconsistent statement is introduced to impeach. On the other hand, under the Rules as proposed by the Advisory Committee and pronounced by the Supreme Court, any party to litigation could call a witness whose testimony at trial might be vague, incomplete or who might even be unable to recall the events in issue after the passage of considerable time. At that point, any prior statement, oral or written, inconsistent with testimony at trial could be introduced as substantive evidence. (Proposed Federal Rules of Evidence, promulgated November 20, 1972, Rule 801(d)(1)(A)). In theory, a criminal conviction or civil liability could rest solely on such evidence. (Emphasis ours.)
Statement of Herbert Semmel, 2 Hearings on H.R. 5463, Before the Senate Committee *436 on the Judiciary, 93d Congress, 2d Sess. at 302-03 (1974).
The principal opinion suggests that these dangers are rendered harmless if the de-clarant is available for cross-examination at the time the prior inconsistent statement is offered for admission into evidence. In State v. Granberry, 491 S.W.2d 528 (Mo. banc 1973) 3 , five members of this Court refused to adopt the position advanced today by the principal opinion. I submit that the position taken by the principal opinion elevates theory over the demanding realities of litigation and grossly underestimates the crucial role that timely cross-examination has in the search for truth.
The essential importance of the hearsay rule was noted by Professor Wigmore in his exhaustive treatise. Wigmore described the common law rule prohibiting the use of hearsay as “that most characteristic rule of the Anglo-American Law of Evidence — a rule which may be esteemed, next to jury trial, the greatest contribution of that eminently practical legal system to the world’s method of procedure.” 5 Wig-more, Evidence § 1364 (Chadbourn rev. 1974).
Hearsay is excluded from admission into evidence primarily because it has not been subjected to the penetrating heat of an effective cross-examination. A cross-examination which is postponed and stale simply cannot substitute for one which is fresh and immediate. The disparity between the former and the latter was delineated with unparalleled cogency and insight by the Michigan Supreme Court in Ruhala v. Roby, 379 Mich. 102 , 150 N.W.2d 146 (1967).
Ruhala involved a witness to an automobile accident who at the scene of the accident stated that he saw a man driving the car. The estate of a woman killed in the accident, the plaintiff, filed an action and at trial the witness was going to testify that the woman was driving. The plaintiff sought to introduce the prior inconsistent statement and rely upon it as substantive evidence. The trial court excluded the statement for its substantive value and the Michigan Supreme Court affirmed. In so holding, the court made the following observations concerning the utility of postponed cross-examination:
Cross-examination presupposes a witness who affirms a thing being examined by a lawyer who would have him deny it, or a witness who denies a thing being examined by a lawyer who would have him affirm it. Cross-examination is in its essence an adversary proceeding
!⅝ ⅜ * ⅜ ⅜
... If [a witness] refuses to adopt his prior statement as true, there can be no adversary cross-examination upon it. If he refuses to affirm, no question can be put to him which would shake his own confidence in his affirmation.
The would-be cross-examiner is not only denied the right to be the declarant’s adversary, he is left with no choice but to *437 become the witness’ friend, protector and savior.
Id. at 156 .
The court went on to state further that “no matter how deadly the thrust of the cross-examiner, the ghost of the prior statement stands.” Id. at 157 .'
I wholly subscribe to Professor Wig-more’s view that cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 Wigmore, Evidence, § 1367 (Chadbourn rev. 1974). However, if this great legal engine for the discovery of truth is allowed to run out of time and with a better late than never attitude, I fail to see how it can any longer be depended upon to consistently satisfy the purpose of the hearsay rule. For all of these reasons, I cannot subscribe to the principal opinion’s view that any prior inconsistent statement should be relied upon for its substantive value if the declarant is presently available for cross-examination.
Remaining is the question of whether Missouri’s common law rule prohibiting a party from impeaching his own witness— absent entrapment, surprise or hostility— has continued vitality and purpose. There can be little debate over the fact that Missouri’s common law rule is of ancient origin. Notwithstanding this fact, the rule, as it has been developed and applied by Missouri’s courts over the past 131 years, 4 has evolved into an effective and useful modern evidentiary principle — which has proven successful in accommodating the realities of litigation while safeguarding the integrity of our primary means of searching out the truth.
It is true that the traditional rationale offered in support of the common law rule — that a party vouches for his witnesses — has been discredited and no longer has a secure place in modern jurisprudence. However, even a cursory examination of this Court’s most recent decisions involving this issue would reveal the obvious absence of this rationale. See State v. Byrd, 676 S.W.2d 494 (Mo. banc 1984), cert. denied, — U.S. —, 105 S.Ct. 1233 , 84 L.Ed.2d 370 (1985); State v. Armbruster, 641 S.W.2d 763 (Mo.1982); State v. Franco, 544 S.W.2d 533 (Mo. banc 1976), cert. denied, 431 U.S. 957 , 97 S.Ct. 2682 , 53 L.Ed.2d 275 (1977); State v. Renfro, 408 S.W.2d 57 (Mo.1966); State v. Gordon, 391 S.W.2d 346 (Mo.1965).
Despite the rule’s primitive beginnings, Missouri’s courts have steadfastly refused to give it a primitive application. In 1906 in Beier v. St. Louis Transit Company, 197 Mo. 215 , 94 S.W. 876 (1906), this Court — in connection with the application of Missouri’s common law rule — declared that “the law has nowhere shown greater wisdom than in refusing to lay down a hard and fast rule to be followed ... [by] ... leaving to the trial judge the exercise of a wise discretion to be applied to suit the varying conditions presented to him ...” id. at 235 , 94 S.W. at 882 . Accord Mooney v. Terminal R. Ass’n, 352 Mo. 245 , 176 S.W.2d 605 (1944); Crabtree v. Kurn, 351 Mo. 628 , 173 S.W.2d 851 (1943); Dauber v. Josephson, 209 Mo.App. 531 , 237 S.W. 149 (1922).
The precise contours of the rule proceed along the following lines. Under the rule, a party may not impeach his witness if the witness’ testimony merely fails to meet the expectations of the party. However, if the witness should suffer from a faulty memory, the rule allows the party, “for the purpose of refreshing his memory, to direct the attention of [the] witness to statements previously made by him as to the subject *438 matter of his testimony....” Brown v. Chicago, R.I. & P.R. Co., 315 Mo. 409 , 286 S.W. 45 (1926). Furthermore, the rule would not prevent a party from exhibiting to his witness, for the purpose of refreshing his memory, a former written statement made by the witness. State v. Renfro, supra, at 59 .
Moreover, the rule has no application when a party calls his adversary as a witness. Wells v. Goforth, 443 S.W.2d 155, 160 (Mo. banc 1969). In Wells we held that an adverse party called as a witness under § 491.030, RSMo 1959 [now found at § 491.030, RSMo 1978] may be impeached by prior inconsistent statements. In connection with this principle, Wells expressly overruled Chandler v. Fleeman, 50 Mo. 239 (1872), which held that Missouri’s rule prohibiting impeachment of a party’s own witness applied with equal force when the witness is the adverse party.
Missouri’s common law rule does not operate to preclude a party from impeaching his own witness when the witness’ testimony results in surprise to or entrapment of the party. State v. Byrd, supra at 502 . The concept of entrapment speaks to improprieties on the part of either the witness or the adverse party. It also encompasses collusion. Beier v. St. Louis Transit Company, supra 197 Mo. at 235 , 94 S.W. at 882 .
The separate element of surprise covers the situation where a party calls a witness expecting the witness to give favorable testimony and is genuinely surprised and damaged by the witness’ unexpected and unfavorable testimony. Malone v. Gardner, 362 Mo. 569, 582 , 242 S.W.2d 516, 523 (1951). Additionally, the rule permits a party to impeach his own witness when the witness is truly hostile to the party calling him. Mooney v. Terminal R. Ass’n, supra 352 Mo. at 260 , 176 S.W.2d at 611 . In Mooney this Court recognized that this exception to the general rule applies with even greater purpose when the party has no alternative but to call the witness. Id. at 260 , 176 S.W.2d at 611 . Accompanying each of the exceptions just delineated is the requirement that a party must have suffered actual affirmative damage as a result of the witness’ testimony. Crabtree v. Kurn, supra 351 Mo. at 647 , 173 S.W.2d at 859 .
Missouri’s common law rule which denies a party the unrestricted right to impeach his own witness does have continued vitality and purpose. It prevents a party from setting up straw men solely for the purpose of knocking them down before an impressionable jury and it prevents a party from bringing in through the back door unreliable hearsay evidence which would not be allowed admission through the front door. Giving a party the unfettered right to impeach his own witness will serve only to expose the jury to an unending flood of hearsay.
Finally, it should not go unnoticed that a convincing majority of the jurisdictions identified by the principal opinion as having addressed the issues under consideration in the present case did so by legislation or by court promulgated rule. Only two of the thirty jurisdictions cited by the principal opinion in footnote 1, supporting its position on the question of whether a party should have the unrestricted right to impeach his own witness, acted by way of judicial decision. The other twenty-eight jurisdictions addressed the question legislatively or by court rule. This latter course of action, however, is not available to us because Mo. Const, art. V, § 5 prohibits this Court from promulgating rules of evidence.
In connection with the question of whether any prior inconsistent statement should be used for its substantive value, only five of the thirty-five jurisdictions cited by the principal opinion in footnotes 2 and 4 as having modified or abandoned the common law rule did so by judicial decision. This past legislative session, the Missouri General Assembly passed a legislative act, that was signed by the Governor on July 19, 1985, which allows “a prior inconsistent statement of any witness testifying in a criminal trial under the provisions of chapters 565, 566, or 568, RSMo, [to] be received as substantive evidence.... ” CCS for SCS for HCS for H.B. 366, 248, 372 and 393, 83rd General Assembly, 1st Regular Session (1985). The fact that the legisla *439 ture has begun to act in the criminal area, but has not yet acted in the area of civil litigation does not justify this Court donning its legislative hat. Moreover, the recent action taken by the Missouri General Assembly in this area of the law clearly demonstrates that the modification of Missouri’s law of evidence is a matter which lies more appropriately within the province of the legislature.
It would be all but too easy for this Court to legislate under the guise of deciding cases and controversies if we allowed ourselves to take up every matter the legislature has not yet acted upon. The result of such unrestrained and ill-advised judicial activism would be a hodgepodge of common law rules and statutory enactments— which would bring us no closer to a thorough and comprehensive treatment of our law of evidence. In this complex area of the law, which clamors for legislative attention, the orderly administration of justice dictates deference to rather than usurpation of the legislative process.
. The Washington Council of Lawyers was a voluntary association of over 400 lawyers engaged in private practice, government employment and the teaching of law. It drew its membership from the Washington, D.C. area.
. It should be noted that Mr. Semmel did express support for the version of Rule 801(d)(1)(A) which is presently embodied in the Federal Rules of Evidence. The current Rule only admits as substantive evidence those prior inconsistent statements which are inconsistent with the declarant’s testimony and which were given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition. And, in addition, the declarant must presently be available for cross-examination.
These protective measures serve to guard against the very real danger of exposing a jury to an unfiltered stream of fabricated prior inconsistent statements. The following jurisdic *436 tions, either by legislative act or by court rule, have wisely decided to incorporate the prophylactic measures embodied in Fed.R.Evid. 801(d)(1)(A). See e.g„ Ark.R.Evid. 801(d)(1) (criminal only); Fla.C.Evid. § 90-801(2)(a) (Fla. Statutes, 1981); Hawaii R.Evid. 802.1(1)(A); Iowa R.Evid. 801(d)(1)(A); Me.R.Evid. 801(d)(1)(A); Minn.R.Evid. 801(d)(1)(A); Neb. Rev.Stat. § 27-801(4)(a) (1979); N.D.R.Evid. 801(d)(l)(i) (criminal only); Ohio R.Evid. 801(d)(1)(a) (the prior statement must have been subject to cross-examination by the party against whom it is being offered); Okla.Stat. Ann. tit. 12, § 2801(4)(a) (1980); Or.R.Evid. 801(4)(a)(A); S.D.Comp.Laws Ann. § 19-16-2 (1979); Tex.R.Evid. 801(e)(1)(A); Vt.R.Evid. 801(d)(1)(A); Wash.R.Evid. 801(d)(l)(i); Wyoming R.Evid. 801(d)(1)(A) (criminal only); W.Va.R.Evid. 801(d)(1)(A).
. Granberry is good authority for the proposition that Missouri rejects the use of prior inconsistent statements as substantive evidence. However, in 1935 in Pulitzer v. Chapman, 337 Mo. 298 , 85 S.W.2d 400 (banc 1935), this Court created a very narrow exception to the general rule. The exception applies only where a witness testifies at trial and has given a deposition at which he was under oath and subject to cross-examination. Pulitzer has limited utility beyond the circumstances set forth in the opinion. Additionally, a deposition taken in compliance with Mo. Const, art. I, § 18(b) can be used as substantive evidence. See Granberry, supra at 531 .
. Missouri’s common law rule made its first appearance in Missouri’s reported jurisprudence in 1854 in the case of Brown v. Wood, 19 Mo. 475 (1854). Brown was an action for labor and materials in which the plaintiff attempted to establish an agency between defendant and the defendant's brother — who was called as a witness by plaintiff. The witness’ testimony failed to establish the agency and plaintiff sought to impeach him by introducing a written document, but was precluded from doing so by the trial court. Without much elaboration, this Court affirmed the action of the trial court and held that a party cannot impeach his own witness. Id. at 476.
Despite the prohibition of the rule, the Court did point out that “the fact may be proved by another witness, although the first witness will thereby be impliedly discredited." Id.