People v. Blakey, 2015 IL App (3d) 130719 (November). Episode 571 (Duration 16:52)
We use this case as an example on to how to think through and analyze a prior inconsistent statement problem when it comes up at trial.
The focus in this example is simple analyze the thought process an attorney would run through if they were confronted with the following example. Let’s say we have an Aggravated DUI where the defendant was accused of huffing a can of of compressed air when he blacked out, crashed and rolled the car he was driving. 3 male passengers in the back seat all were killed while defendant and the front seat passenger survived.
The Recorded Statement
The front seat passenger (Frizzy) tells the police at the hospital that,
“I was looking out the window listening to some music that was playing and then Larry asked me a question so I started talking to him and that’s when I turned around and you know looking at the backseat started talking to Larry and I can’t remember if it was Ben or Ken that said hey Morgan you shouldn’t be doing that.”
Frizzy’s interview at the hospital was recorded on a small digital audio recorder.
Despite the death of three of his friends, Frizzy is still friends with defendant and doesn’t want to see him get in any more trouble over the accident. In defendant’s trial the state calls Frizzy to the stand and he testifies, in part that,
“I was in the process of thinking of a way to convince my mom to let me out of school the next day because we had a half a day, so I was busy on my phone, and a little bit before, Larry had asked me what we were going to do when we got back, and I said I thought we were going over–we were going to go over to one of my friend’s house, and he said yeah, that’s fine, and we didn’t talk after that. And then we just kept riding. The music was on. It was fine. And then they kept saying his name over and over again, and I wasn’t sure what was happening, so I looked back, and they were all–they–all their attentions were focused on him, trying to wake him up. I’m not sure what had happened.”
It becomes obvious that the prosecution is laying the foundation to impeach Frizzy with the recorded interview from the hospital. It’s clear to both sides what is missing. Frizzy keeps out the part where one of the boys from the back seat says to defendant,
“Hey Morgan, you shouldn’t be doing that.”
The prosecution obviously wants to argue to the jury that defendant was seen huffing from the can and the back seat passengers were trying to discourage him from doing that. The defense attorneys stands up and objects, then asks the judge for a few moments to gather her thoughts. The judge says,
“Take all the time that you need.”
Is The Statement In Or Out?
So, can the defense attorney keep that recorded statement out? Or is it coming in? What should counsel tell the judge?
To begin with the defense attorney quickly runs through the threshold questions.
⛾ Is the in court testimony inconsistent with the hospital recorded statement? If there is an inconsistency here, it’s inconsistent by omission, but that counts. Counsel isn’t going to put any chips on betting she can convince the court the statement is not inconsistent.
⛾ Next threshold question. Is the prior inconsistent statement material? Hellz yea. Was the kid taking a puff from a can right before the crash? Yes. That’s material. Ok.
⛾ Now we quickly need to rule in or out if Frizzy’s recorded hospital statement is consistent with 725 ILCS 5/115-10.1? Can it come in under the statute as substantive evidence?
⛾ Let’s see was the prior statement, made under oath in a sworn statement? No. No way. Frizzy didn’t testify about this in any other trial, proceeding, or hearing. The state didn’t put him in front of a grand jury either, so no.
⛾ Next question: Was the prior statement recorded? Bingo. They got tape on the kid at the hospital. This looks like it could be a prior consistent statement under the statute. But there is one one quick last question.
⛾ Did Frizzy have personal knowledge of the contents of the statement? Frizzy said he heard a back seat passenger say to defendant, “hey Morgan you shouldn’t be doing that.” Frizzy didn’t say the thing. He heard someone in the back say it. Actually, Frizzy was distracted on his phone either texting his mom or listening to music or both. Frizzy was not paying attention to what the driver was doing. No way. Frizzy has no personal knowledge of the contents of the statement. Bingo. Happy lights are going off in the attorney’s head because she knows what she is going to tell the judge.
⛾ But counsel can’t be done asking questions because even if the state loses on substantive evidence you can bet for darn sure they will try to impeach Frizzy with the statement for impeachment purposes only. This attorney would try that, so she’s pretty sure the prosecutor will try that as well.
⛾ Ok. Who witness is? This is the state’s own witness. If defense counsel was trying to impeach it would be allowed, but this is the state’s own witness so…
⛾ Did this witness affirmatively damage the state’s case? The state has to establish that the witness has affirmative damaged their case if they want to impeach him with a prior inconsistent statement. If the state has just been disappointed they can’t impeach their own witness. The kid actually gave it all up. He just left out that one crucial part. But you know it’s not like Frizzy is saying, he saw the driver and he didn’t have an aerosol can in his hand and he didn’t see him huffing. He’s not saying that. He’s just saying they kept saying his name over and over but he admits he doesn’t know what was happening. That’s not affirmative damage. The kid still admits he doesn’t know what happened. The state is no worse off had they never called Frizzy to the stand. There is no affirmative damage here so they can’t impeach the witness with the prior recorded inconsistent statement.
After the attorney has taken a few moments to run all these ideas through her head she tells the judge,
“Judge may we approach?”
Judge says, “Sure. Why not?”
At the bench away from the jury counsel tells the judge,
“Judge it’s pretty clear the state wants to confront this witness with his recorded hospital statement to the police, specifically the part where he tells them he heard a back seat passenger say ‘hey Morgan you shouldn’t be doing that.’ Well judge there is no rule of evidence that allows that. This is not a prior inconsistent statement under 725 ILCS 5/115-10.1 because although the statement is recorded the declarant had no personal knowledge of the events being described in the statement. Frizzy admitted he didn’t know what the driver was doing. Only the passengers could see what was going on in the front. Additionally, judge this is not a case where the state can impeach their own witness. I say this because Frizzy has not affirmatively damaged their case. He’s only disappointed them by leaving out one small, but crucial line. Nonetheless, it’s not like he’s saying he saw defendant and he didn’t see him do anything wrong.”
That’s pretty much it.
In this example the judge tells the attorney,
“Well thank you counsel. You have a very well thought out argument. I was a bit confused on some of the issues, so I’m glad you laid it out like that, counsel for the state what do you have to say?”
At this point, the prosecutor is pretty much agreeing with you and kind of knows they don’t got much hope for a prior inconsistent statement under the statute nor getting it in for impeachment purposes only.
Instead counsel says,
“How about excited utterance judge?”
At this point, the judge says he is going to grant the defendant’s objection. He tells the prosecutor to ask another question unless he’s got a better argument.
You can get an idea from this example why attorneys might choke under pressure.
There is a lot to keep organized and keep straight in a very small amount of time. As we said before, it helps if much of the brain power was applied well before the trial, especially with recorded statements. Although you don’t know for sure what a witness will say, flagging this witnesses recorded statement before trial may have given counsel a leg up on being ready to react quickly and accurately during the trial.
I wanted to run through one thought analytical example so you had an idea of what needs to be going through your head when this issue comes up.
- People v. Lewis, 2017 IL App (4th) 150124 (April) Episode 353 (Duration 14:28) (Steigmann On How To Conduct Proper Impeachment In An Illinois Courtroom)
- Interview: How Judge Steigmann Really Feels About Impeachment, Prior Inconsistent Statements, And 725 ILCS 5/115-10.1 – Episode 256 (Duration 47:16)
- Interview: Paul Meyers On Why Experienced Attorneys Still Commit Error With Prior Inconsistent Statements – Episode 236 (Duration 36:20)
- Episode 120 – Prior Inconsistent Statement: The Most Important Case On The Subject (Duration 7:13)
- Episode 223 – People v. Evans, 2016 IL App (3d) 140120 (July) (Duration 6:52) (Episode 1: Prior Inconsistent Statement Mini-Course Introduction)
- Episode 224 – People v. Brothers, 2015 IL App (4th) 130644 (September)(Duration 3:54) (Episode 2: The Big Picture Of Prior Inconsistent Statements)
- Episode 225 – People v. Cruz, 162 Ill.2d 314 (1994) (Duration 12:09)(Episode 3: Threshold Questions A Prior Inconsistent Statement Mini Course)
- Episode 226 – People v. Simpson, 2015 IL 116512 (January) (Duration 11:16) (Episode 4: Prior Sworn Or Not Sworn Statement A Prior Inconsistent Statement Mini Course)
- Episode 052 – People v. Simpson, 2015 IL 116512 (January) (Duration 23:08) (Prior Inconsistent Statement Impeachment Is Not Necessarily a Thing)
- Episode 285 – People v. Applewhite, 2016 IL App (4th) 140558 (December) (Duration 5:49) (115-10 statements trumps Rule 613(c) which prohibits prior consistent statements.)
- Episode 482 – People v. Anderson, 2018 IL App (1st) 150931 (March) (Duration 8:41) (Prior Inconsistent Statement Error Leads To A Do-Over)
- People v. Fillyaw, 2018 IL App (2d) 150709 (December) Episode 575 (Duration 5:52) (When Prior Testimony Of An Unavailable Witness Is Admitted The Testimony May Be Impeached)
- See People v. Lofton, 2015 IL App (2d) 130135 (July). Episode 085 (Duration 25:55) (a two step formula is presented but I’v upgraded by thinking on this topic)