In this business, we often see witnesses changing their stories regarding what happened. Sometimes the changes are major and sometimes the changes are small, but often the changes make a world of difference. The question is always how we can provide the fact finder (judge or jury) with evidence of the prior statements to help our case. While we can always ask the witness whether he has ever given an inconsistent answer, if the witness denies the prior statement, it is important to know if a physical copy of the statement can be admitted into evidence.

In Wardell Monroe Brooks v. State of Maryland (August 2014), the Court of Appeals revisited the issue of when physical notes of the prior oral statement of a witness could be used against him. In this case, the police officer had taken notes while obtaining a statement of the victim, and then later used these notes to prepare his report. The report and notes were inconsistent with the testimony of the victim at the trial. The criminal defendant, Brooks, wanted the report and notes of the officer admitted into evidence to show the inconsistency of the victim’s testimony. The Court of Appeals determined that the inconsistent statement in this case could not be admitted into evidence to impeach the witness.

There were two different grounds for admissibility considered: admissibility under hearsay rules, and admissibility under impeachment rules.

Hearsay Rules

Hearsay is a statement made outside of the trial being used to prove the matter asserted. A statement can be hearsay only if it is being used to prove that a statement is true. If the statement is being used for other purposes, such as to prove the witness has a bias, or the witness is not credible, then hearsay does not apply. In order for the prior inconsistent hearsay statement of a witness to be admissible, the statement must be either 1) given under oath, 2) written and signed by the witness, or 3) recorded substantially verbatim contemporaneously with the making of the statement. In Brooks, the officer’s notes were not substantially verbatim, and the report was neither substantially verbatim nor contemporaneous with the statement. Therefore, the notes and the report were both inadmissible under hearsay.

Impeachment Rules

Under the impeachment rules, there is an initial hurdle: the witness must be allowed the chance to admit or deny that the prior statement was made. If the witness admits to the statement, then the statement does not come into evidence, but the fact finder hears the admission. If on the other hand, the witness denies the prior statement, then it may be admissible. The next hurdle is whether the inconsistent statement is about a “non-collateral” (or material) issue at the trial. For example, if the trial is about a car accident, and the inconsistency was about whether or not the witness had a blue house, the statement would not be admissible under the impeachment rules because it was a collateral issue.

In Brooks, the final question was whether the officer’s notes and his report were actually a statement of the witness for impeachment. The Court held these items were not a statement of the witness and specifically stated:

… it would be unfair to impeach a witness with a statement ‘which could not fairly be said to be the witness’s own rather than the product of the investigator’s selections, interpretations, and interpolations. We hold that a witness may not be impeached with extrinsic written evidence of a prior allegedly inconsistent oral statement, unless the written evidence is a substantially verbatim version of the oral statement or was previously acknowledged by the witness as an accurate version.

So what does this all mean for people interviewing witnesses regularly? First, it highlights the importance of recorded statements. By having the statement recorded, you have a verbatim version of the oral statement that can be used to impeach the witness. Second, notes or summaries of an interview are not enough to be admissible at a future trial. This rule applies to both notes that a police officer wrote at the scene of an accident, and notes that may be taken by someone handling the claim from an insurance company.

What do you do if the witness refuses to submit to a recorded interview? There are a few options. If possible, have the witness write a statement and sign it. These statements may not be as detailed as a recorded interview, but at least it is clearly a statement by the witness. Alternatively, after writing the notes of the statement, send a copy of the notes to the witness, and ask them to either: 1) confirm that it is an accurate version of their statement or 2) correct any inaccuracies. The witness should confirm or correct in writing and sign it.

By having a writing signed by the witness, you are increasing the chances that you can use the witness’s own words against him.