Rule 801 states expressly that two classes of out-of-court statements are not hearsay.24  One of these classes, “admissions by a party opponent,” is discussed in a separate chapter.25 The other of these exceptions is for certain prior out-of-court statements as identified by a witness in court.

Where the witness testifies in court and is subject to cross-examination, prior statements made by that witness are admissible non-hearsay if either (i) the statement is inconsistent with the witness’s testimony, (ii) the statement is consistent with the witness’s testimony and is offered to refute an expressed or implied charge against the witness of recent fabrication or improper influence or motive, or (iii) the statement is one of identification of a person made after perceiving that person.26

By statute, in criminal cases the rule is broadened to permit prior statements of a witness, whether consistent or not, to be offered as substantive evidence.27 Further, special provision is made for the admission of out-of-court statements by a victim of child abuse.28

Prior Inconsistent Statements By A Witness. Because a prior in-consistent statement of a witness is excluded from the category of hearsay,29 the statement, if not objectionable on a non-hearsay ground, is admissible as substantive evidence.30 The formulation of the rule to permit the prior inconsistent statement to have substantive value adopts the view of Wigmore that since the witness is present and subject to cross-examination, the reason for rejecting the statement as hearsay is no longer present. The witness is subject to cross-examination as to the former statement, and so the finder of fact can give such credit to it as seems warranted, and everyday experience confirms that the previous statement is just as useful to consider as the in-court statement.31

It has been observed that even where the statement is used for impeachment, it is nevertheless likely to make its mark as substantive evidence on both the judge and the jury. It may assume even greater importance where a key element of the plaintiff’s or defendant’s case must be supplied by a single witness. Such witness may have provided that evidence in the way of extrajudicial statements in a deposition or in a previous trial in the same case or a different case. Then for some reason when the witness shows up at the trial, the testimony is inconsistent with the witness’s previous statements and is unfavorable. Under Rule 801(d)(1)(A), the previous statement is accepted as affirmative evidence. This protects against the entry of judgment as a matter of law and permits the jury to determine the probative value of the prior statement.

Under the rules of civil procedure of certain courts, depositions of any person may be used by any party for the purpose of impeaching the deponent’s testimony at trial, and the deposition of a party may be used for any purpose. Further, except in special circumstances, the deposition of a witness not a party may be used as independent evidence if the witness is not available to testify.32 Where the witness is available and testifies, Rule 801(d)(1)(A) permits statements in a deposition to be used as affirmative evidence to the extent that the testimony on deposition is inconsistent with the deponent’s testimony at trial.33

There are a number of potential circumstances where a party may seek to introduce a previous statement inconsistent with the testimony of the witness. For example:

(i) the witness may admit making the statement and admit that it was true, in which case the witness has adopted the prior statement and the cross-examiner has no further problem;34

(ii) the witness may admit making the statement but deny that the previous statement was true, in which case the witness is subject to cross-examination and the jury can judge as to credibility.  By statute in criminal cases, if the witness testifies about the event perceived and the out-of-court statement, there is no requirement that the witness either affirm the truthfulness of the out-of-court statement or offer trial testimony consistent with the out-of-court statement in order to admit the out-of-court statement as substantive evidence;34.1

(iii) the witness may admit making the statement but deny any recollection as to whether or not it was true. This was the situation in California v. Green,35 where the United States Supreme Court treated the statement as inconsistent with the testimony of the witness and ruled that the use of the prior statement as affirmative evidence did not violate the Confrontation Clause since the witness was on the stand and subject to cross-examination, the witness admitted making the statement, and the danger of faulty reproduction of the statement was negligible. In criminal cases, the Delaware Supreme Court has ruled out admissibility of prior statements lacking at least some content verification;36

(iv) the witness may deny both making the statement and its truth. In that case, in the absence of a deposition or other recording of the statement, there will be a problem of proof. Under the rules, a party is permitted to put another witness on the stand who will testify that the previous witness made the statement.37  However, the witness denying making the statement will already be on the stand, and the cross-examiner may have to complete cross-examination at that time, although the cross-examiner may reserve the right to recall the witness. In any event, cross-examination can proceed by confronting the witness with the hypothesis that another witness will testify that the present witness made the statement and then pressing the present witness as to whether he or she stands by the original denial. The ability to proceed in ways such as this is subject to the discretion of the court;38

(v) the witness may deny making the statement and also deny any recollection of the underlying fact. A prior statement would be admissible in both civil and criminal cases as an inconsistent statement;39

(vi) the witness may deny recollection of both the statement and the fact. In that case, unless the cross-examiner can succeed in refreshing the witness’s recollection, there will be nothing to which cross-examination can be directed. If, in this situation, the prior statement were proved by other evidence, it would become the present testimony of the witness because there is no other testimony of the witness relating to the event ‘on record. Absent such other proof, the statement would not be admissible under the Rule or any statute. In a criminal case, it would not necessarily violate the constitutional right of confrontation.40

Prior Consistent Statements By A Witness. A party may introduce evidence of the prior statement of the witness on the stand where the statement is consistent with his or her testimony and is offered to refute an express or implied charge against the witness of recent fabrication or improper influence or motive.41 The prior statement can be used only to counteract a suggestion that the witness changed his or her story in respect to some threat or scheme or bribe or other improper influence or motive. It may not be used merely to accumulate the evidence. This is the generally accepted use of a prior consistent statement.42  A charge of recent fabrication can be made by several means of impeachment, including opposing counsel’s questions and the introduction of prior inconsistent statements.42.1

By statute, in criminal trials prior consistent voluntary statements of a witness may be introduced as affirmative evidence, provided that the witness is present and subject to cross-examination and, prior to the introduction of the prior consistent statement, testifies as to the truthfulness of the statement and as to the events perceived or heard.43 The proponent of the out-of-court statement must establish by a preponderance of the evidence that the statement was voluntary. This must be done either during the direct examination of the witness or, if the witness denies that the statement was voluntary, on voir dire.  The trial judge must render an explicit determination of the issue before admitting the statement for the jury’s consideration.43.1 The fact that the witness has limited recall while on the stand will not of itself preclude the use of the prior statement.43.2  The state may not examine the witness and then offer the statement at a later time, as this would force a defendant either to cross-examine the witness about a statement before it was in evidence, thus calling attention to it, or else risk the possibility that the State might introduce the statement later, and so lose the opportunity to cross-examine the witness about the statement.  Thus, the State must offer the statement into evidence no later than the conclusion of the direct examination of the declarant.43.3 Satisfying this foundation requirement will not automatically result in the introduction of the statement into evidence.  Such statements remain subject to the Rules of Evidence regarding relevance, prejudice, confusion, undue delay, completeness and whether the statements are merely cumulative and a waste of time.  Thus, statements admissible under the statute may be challenged  as to their admissibility on other grounds.43.3

The requirements described above are applicable only where the State tries to introduce the prior consistent statement. These requirements are not applicable where a defendant seeks to introduce the prior statement.43.4

On occasion, the witness will have changed his or her statement before the trial and will have made previous statements both consistent and inconsistent with the witness’s trial testimony. The consistent statement would be admitted whether it was made before or after the inconsistent statement if under the circumstances of the case it would aid the jury in determining when the witness was telling the truth.

Identification. A party may introduce a previous statement of identification of the person made after the witness perceived that person.44 The rule does not set any preconditions on the admission of this testimony. It is not necessary to show that the witness’s recollection needs refreshing, nor are questions of inconsistency or consistency to refute an inference of recent fabrication relevant. The reason for this rule is that the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial have intervened, with the possible result of creating a fancied recognition in the mind of the witness. The lapse of time between the original recognition and the courtroom testimony in some cases may be considerable, thus dimming the recollection which forms the basis for the identification.45

Prior to the adoption of the Rules of Evidence, the Delaware Supreme Court had permitted evidence of previous identification to bolster in-court identifications by the witness.46

The identification testimony of a witness may be given not only by the witness, but by persons who were at the scene at the time the witness identified the person. If the purpose of the testimony is merely to bolster the eyewitness credibility, no hearsay problem is presented. The statement of the observer or recipient of the fact of identification is being offered not to show the truth of the statement, but to show that a statement of identification was made.

The Delaware cases do not deal with the situation where the witness remembers making the previous identification but is unable to make an in-court identification. The rules appear to permit the identification to be proved by other witnesses.47 Since the witness on the stand admits to making the statement, the witness is subject to cross-examination about it, and there would seem to be no violation of any confrontation rights.  If the witness in court is unable to make the identification and denies everything or claims to have no present knowledge of the circumstances of the previous identification, there would be serious questions as to violation of the right of confrontation. The rule would seem to permit observers to testify as to the identification, but there would be a serious doubt as to whether, in a criminal case, a conviction could meet the test of sufficiency if the identification cannot be established by independent evidence.

Statement of a Child Abuse Victim. By statute, an out-of-court statement made by a child under eleven years of age at the time of the proceeding concerning an act that is a material element of an offense relating to sexual or physical abuse that is not otherwise admissible  in evidence may  be admissible in any judicial proceeding under two circumstances.48 The first circumstance is where the child is present in court and his or her testimony touches upon the event and is subject to cross-examination.49  The second circumstance permits an out-of-court statement of a victim of child abuse where the child does not testify, but this is subject to two preconditions to its admissibility.

The first precondition to the admissibility of an absent child’s out-of-court statement is that the child is unavailable to testify. Grounds for a finding of unavailability are (i) the child’s death; (ii) the child’s absence from the jurisdiction; (iii) the child’s total failure of memory; (iv) the child’s persistent refusal to testify despite judicial requests to do so; (v) the child’s physical or mental disability; (vi) the existence of a privilege involving the child; (vii) the child’s incompetency, including the child’s inability to communicate about the offense because of fear or a similar reason; or (viii) a substantial likelihood, as established by expert testimony, that the child would suffer severe emotional trauma from testifying at the proceeding or by means of a videotaped deposition or closed-circuit television.50  The prosecutor must show either that good faith efforts to procure the child’s presence at trial were made, or, alternatively, that such efforts would be futile.50.1

The second precondition is that the child’s out-of-court statement be shown to possess  particularized guarantees of trustworthiness.51 In determining whether a statement possesses particularized guarantees  of trustworthiness,  the court may consider, without limitation, (i) the child’s personal knowledge of the event; (ii) the age and maturity of the child; (iii) the certainty that the statement was made, including the credibility of the person testifying about the statement; (iv) any apparent motive the child may have to falsify or distort the event, including bias, corruption or coercion; (v) the timing of the child’s statement; (vi) whether more than one person heard the statement; (vii) whether the child was suffering pain or distress when making the statement; (viii) the nature and duration of any alleged abuse; (ix) whether the child’s young age makes it unlikely that the child fabricated a statement that represents a graphic, detailed account beyond the child’s knowledge and experience; (x) whether the statement has a “ring of verity,” has internal consistency and uses terminology appropriate to the child’s age;  (xi) whether the statement is spontaneous or directly responsive to questions; (xii) whether the statement is suggestive due to improperly leading questions; and (xiii) whether extrinsic evidence exists to show the defendant’s opportunity to commit the act complained of in the child’s statement.52

A party intending to introduce such evidence must inform the adverse party of such intention and the content of the statement sufficiently in advance of the proceeding to provide the adverse party with a fair opportunity to prepare a response to the statement before the proceeding at which it is offered.53 The court must make findings on the record in ruling on the child’s unavailability and the trustworthiness of the out-of-court statement.54 It has been held that the admission of such evidence in the absence of the child does not violate a party’s right to confront witnesses.55

If the child is called to the witness stand by the prosecution and is unable to answer questions, before finding on this basis that the child is “unavailable,” a court must permit the defense to cross-examine the child on the issue of whether the child is in fact “unavailable” as defined by the statute.  Failure to permit such cross-examination constitutes a violation of the Confrontation Clause of both the State and federal Constitutions.55.1

24. D.R.E. 801(d).

25. See § 17:3.

26. D.R.E. 801(d)(1).

27. 11 Del. C. § 3507.

28. 11 Del. C. § 3513.

29. D.R.E. 801(d)(l)(A).

30. This overturns the previous Delaware rule which restricted the use of such prior statements to impeaching or rehabilitating a witness and rejected the prior statement as substantive evidence. See, e.g., Tollin v. State, 78 A.2d 810, 813 (Del. Gen. Sess. 1951).

31. 3A Wigmore on Evidence § 1018 (Chadbourn rev. ed. 1970).

32. Ch. Ct. R. 32(a); Super. Ct. Civ. R. 32(a); Comm. Pls. Ct. Civ. R. 32(a); Fam. Ct. Civ. R. 32(a). For a discussion of the use of depositions at trial, see § 12:13.

33. D.R.E. 801(d)(1)(A). See also 11 Del. C. § 3507 (applying same rule in criminal cases).

34. See Fed. R. Evid. 801(d) advisory committee’s note.

34.1.  11 Del. C. § 3507(b).  Moore v. State, No. 63, 1994, slip op. at 5, Veasey, J. (Del. Feb. 17, 1995) (ORDER), disposition reported at 655 A.2d 308 (Del. 1995) (TABLE).

35. California v. Green, 399 U.S. 149 (1970).

36. See 11 Del. C. § 3507; Feleke v. State, 620 A.2d 222, 226-27 (Del. 1993); Ray v. State, 587 A.2d 439, 443 (Del. 1991); Keys v. State, 337 A.2d 18, 23 (Del. 1975).

37. D.R.E. 613.

38. D.R.E. 104(b), 611.

39. D.R.E. 801(d)(1)(A). The Delaware Supreme Court has indicated that in criminal cases where the witness has limited recall, the admissibility of the statement will depend on the facts on a case-by-case basis in light of the constitutional right of a defendant in a criminal case to confront witnesses. Johnson v. State, 338 A.2d 124, 128 (Del. 1975).

40. Nelson v. O’Neil, 402 U.S. 622 (1971).

41. D.R.E. 801(d)(l)(B).

42. See Wisniewski v. State, 138 A.2d 333, 340-41 (Del. 1957). See also 4 Wigmore on Evidence § 1128 (Chadbourn rev. ed. 1972).

42.1.  Adams v. State, 124 A.3d 38, 45 (Del. 2015).

43. 11 Del. C. § 3507; Russell v. State, 5 A.3d 622, 625-26 (Del. 2010); Smith v. State, 669 A.2d 1, 6(Del. 1995); Jackson v. State, 643 A.2d 1360, 1368 (Del. 1994), cert. denied, 513 U.S. 1136 (1995); Feleke v. State, 620 A.2d 222, 226-27 (Del. 1993); Ray v. State, 587 A.2d 439 (Del. 1991).

43.1. Hatcher v. State, 337 A.2d 30, 32 (Del. 1975).

43.2. Johnson v. State, 338 A.2d 124, 127 (Del. 1975).

43.3. Smith v. State, 669 A.2d 1, 7-8 (Del. 1995).

43.4. State v. Mason, Cr. A. Nos. IN93-02-0279-0291-RI & IN93-02-0282-RI, slip op. at 14-20, Barron, J. (Del. Super. Apr. 14, 1996); State v. Sailer, ID No. 9412990559 & 9412009572, slip op. at 25, Carpenter, J. (Del. Super. Sept. 13, 1995).

44. D.R.E. 801(d)(1)(C).

45. See Fed. R. Evid. 801(d)(1)(C) advisory committee’s note.

46. Watson v. State, 349 A.2d 738, 741 (Del. 1975); Brown v. State, 329 A.2d 153, 155-56 (Del. 1974); Miller v. State, 224 A.2d 592, 595 (Del. 1966).

47. See D.R.E. 613(c).

48. 11 Del. C. § 3513(a).

49. 11 Del. C. § 3513(b)(1).

50. 11 Del. C. § 3513(b)(2)(a), (c).

50.1. State v. Hearn, 697 A.2d 756 (Del. Super. 1997).

51. 11 Del. C. § 3513(b)(2)(b).

52. 11 Del. C. § 3513(e).

53. 11 Del. C. § 3513(d).

54. 11 Del. C. § 3513(f).

55. Thomas v. State, 725 A.2d 424 (Del. 1999); State v. Krick, 643 A.2d 521 (Del. Super. 1993).

55.1. McGriff v. State, 672 A.2d 1027 (Del. 1996).

© 2016  David L. Finger