In the case of People v. Simpson, 2015 IL 116512 (January), the Illinois Supreme Court, settles a recurring issue in regards to the admissibility of prior inconsistent statements as substantive evidence.
Prior inconsistent statement impeachment is different and distinct from just impeachment.
In fact, it makes more sense to talk about the differences between a substantive prior inconsistent statement and a nonsubstantive inconsistent statement admitted for impeachment only.
However, the real jewel of information in the decision comes from a throw-away line.
The Main News
First, let me report the main news from the decision.
The case deals with the “personal knowledge” requirement of section 725 ILCS 5/115-10.1, Admissibility of Prior Inconsistent Statements, from the Illinois Code of Criminal Procedure.
That section provides that
“In all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement–
(1) was made under oath at a trial, hearing, or other proceeding, or
(2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and
(A) the statement is proved to have been written or signed by the witness, or
(B) the witness acknowledged under oath the making of the statement either in his testimony at the hearing or trial in which the admission into evidence of the prior statement is being sought, or at a trial, hearing, or other proceeding, or
(C) the statement is proved to have been accurately recorded by a tape recorder, videotape recording, or any other similar electronic means of sound recording.
Nothing in this Section shall render a prior inconsistent statement inadmissible for purposes of impeachment because such statement was not recorded or otherwise fails to meet the criteria set forth herein.”
The case involved a murder trial against a defendant who was accused of being one of six men who beat the victim to death with a bat and a medal bar.
The case involved flippers who came off their statements to police at trial, an elderly eyewitness with a sketchy identification, and an occurrence witness who told police that he talked to Defendant the day of the beating.
This witness told the police at the time of the investigation that Defendant had told him that when he caught the victim he bashed his head in and hit him around 30 times with the bat.
At the trial, this witness testified that he did not remember exactly what Defendant had told him.
This witness was not present for the beating and did not see it.
The State’s attorney then impeached the witness with his prior statement to police and proceeded to argue it as substantive evidence in closing.
Was trial counsel ineffective by failing to object to the impeachment evidence consisting of a “confession” to the witness wherein the witness told police that Defendant admitted to the beating?
The State took the position that there was no error because the statement was admissible under 115-10.1 as substantive evidence.
The state argued that the statement “narrates, describes, or explains an event or condition of which the witness has personal knowledge” because the witness was present for the conversation with the Defendant. See 725 ILCS 5/115-10.1(c)(2).
Thus, the State was arguing that the “event” in question is the defendant’s verbal admission to the witness not the actual beating.
“Defendant maintains that the State’s interpretation ignores that the crime is also an event and arbitrarily assumes that the admission is the only event subject to the personal knowledge requirement. Moreover, the State’s reading is contrary to the legislative intent, purpose and history, and is contrary to numerous appellate court decisions that have rejected the State’s interpretation.” ¶ 28.
The Illinois Supreme Court noted that if they were to adopt the State’s interpretation of the section then part of the law would be rendered meaningless because “the personal knowledge” requirement would appear to serve no purpose.
Even without subsection (c)(2), a witness cannot testify to hearsay that they did not personally hear themselves.
The court rejected-
“the State’s argument that it is the legislative intent to require that the witness simply have personal knowledge of the defendant’s admission, and not the crime being described, for a prior inconsistent statement to be admissible.” ¶ 32.
Thus, the court did find that trial counsel was ineffective for allowing the witness’s prior statement to the police to be admitted.
Advancing a Legal Theory
As a defense attorney, I understand taking up legal positions which may not necessarily be the majority opinion.
There is a time and place for advancing a legal cause or trying to uproot and end unfair or illogical precedence.
However, I do wonder if this was the right issue for the state to be advancing. What would have happened had they won the issue. Would trials have become more or less fair? Think of all the snitch cases that could be advanced with this rule.
This is where the Illinois Supreme Court noted:
“Given the quarter of a century that the appellate court has repeatedly and consistently interpreted the statute as noted above, it seems clear that the statute has a settled meaning and it would not be appropriate for us to change it (see Young, 2011 IL 111886, ¶ 16), especially in light of the State’s less than persuasive argument for a contrary interpretation.1 We note, however, that if the legislature disagrees with interpretation placed on section 115-10.1(c)(2) by the courts, it should of course feel free to amend the statute.” ¶ 33.
Ok, so above you have the main point to this decision. The court refuses to undue 25 years of law because it hurts the State’s case.
But I found the true piece of valuable information in the case from this line in the decision:
“The State conceded that if defense counsel had objected to the recording, the court would not have admitted it to impeach [the witness] because his testimony did not affirmatively damage the State’s case. See People v. Cruz, 162 Ill. 2d 314, 359-60, 643 N.E.2d 636, 658 (1994).” ¶ 25.
This was news to me.
I have always operated with a general assumption that if a statement is admissible under 115-10.1 then it was also impeachable. Is this not true?
What Does Cruz Say?
Cruz was a messy case. The case is before 1996 and is not publicly available without having to pay a publisher.
But I can tell you that the case involved a nasty child murder and prosecution of an innocent man.
The case involved many statements against him that he allegedly made. Witnesses came off the statements but the State still admitted them. Sound familiar?
In Cruz, the Illinois Supreme Court quoted Weaver and wrote:
“A court’s witness, or any witness for that matter, cannot be impeached by prior inconsistent statements unless his testimony has damaged, rather than failed to support the position of the impeaching party. The reason for this is simple: No possible reason exists to impeach a witness who has not contradicted any of the impeaching party’s evidence, except to bring inadmissible hearsay to the attention of the jury. Impeachment is supposed to cancel out the witness’ testimony. It is only when the witness’ testimony is more damaging than his complete failure to testify would have been that impeachment is useful.” People v. Weaver, 92 Ill.2d 545, 563 (1982).
In regards to what is considered “damaging” the Cruz court said that:
“Damage” as referred to in Weaver does not occur where a party interrogates a witness about a fact which would be favorable to the examiner if true, but then receives a reply which is merely negative in its effect on the examiner’s case. Such testimony is merely disappointing and not damaging since the examiner’s case is no worse off than if the witness had not testified.” Cruz, 162 643 N.E.2d at 658.
The Cruz court talked about the delicate dance going on here.
Impeachment is premised on the fact that excluding it would deprive the examining party an opportunity to exhibit the truth with a clearly hostile witness. Yet, these extrajudicial statements are clearly hearsay, often highly incriminating, and deprives a defendant of the chance to cross examine on the statement.
So the system invented the rule that a statement could be admitted for the limited purpose of impeachment evidence which only serves to destroy the credibility of the witness. And we say that the same evidence cannot be used substantively to establish the truth of the statement.
Impeachment is Separate from a 115-10.1 statement.
So for me, this language in Cruz definitely helps me distinguish and separate as truly distinctive ideas, the notions of impeachment evidence and substantive evidence under 115-10.1.
True scholars may have always known this. For me though, in practice, it just always felt that if a statement was coming in substantively it was just automatic that it was also coming in for impeachment purposes.
That may not always be true.
How to Impeach / How to Admit Inconsistent Substantive Evidence
As far as I can tell, in trial you are always going to want to admit these kinds of statements the same way.
This is where the the C’s kick in:
It took me a while to figure out that all the action is really with the second C. I think a trial attorney’s first instinct is to emphasise the last “C”. I definitely thought that was where the value of impeachment lay.
When can figure this out, that’s when impeaching a witness really has great value and can even be fun.
It’s in this middle phase that you can really let things go a bit.
Strictly speaking, the Illinois Rules of Evidence 613(a) and (b) would not apply to a statement coming in under 115-10.1.
But like I said above, 613(b) is describing the three C’s, and you are going to want to follow that playbook.
So Simpson settles the “personal knowledge” sort of non-issue of substantive inconsistent statements.
More importantly, Simpson began the digging for me which revealed the true differences between inconsistent statements that we call impeachment and the ones we describe as substantive.