See People v. Lofton, 2015 IL App (2d) 130135 (July). Episode 085 (Duration 25:55)

 I present a two step formula trial attorneys can use to avoid prior inconsistent statement error.

Errors with prior inconsistent statements have been fueling findings of ineffective assistance of counsel.

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Findings of Ineffectiveness

Appellate courts have quite consistently been making findings of ineffective assistance of counsel in situations where a defense attorney failed to object when a prior inconsistent statement was used as substantive evidence improperly.

The problem in these situation is that it is quite easy for a defense attorney to “miss” this objection. The flow and pace of the trial is quite often controlled by the other attorney.

Thus, the opposing party often has to be quick on the draw to catch this kind of trial error. I have to admit, that I may have gotten complacent in this area of my trial skills. I have not focused on learning to be faster and more efficient in recognizing trial errors in this area.

I depended on easy access to legal information that is all around me. I realize now I must make a concentrated effort to learn to quickly identify exactly when a prior inconsistent statement may be used as substance evidence.

725 ILCS 5/115-10.1 Statements

I, of course, am talking about coming up with some kind of foolproof mental shortcut for the information contained in 725 ILCS 5/115-10.1, the Admissibility of Prior Inconsistent Statements, section of the Illinois Code of Criminal Procedure. This is technically a rule of evidence, but we are not getting nit picky here.

In podcast Episode 052 of the Criminal Nuggets Podcast, I discuss The Illinois Supreme Court case that clarified the issue of what it means to have “prior knowledge” of the statement as it relates to 115-10.1. I’m talking about the case of People v. Simpson, 2015 IL 116512 (01/23/2015), where the Illinois Supreme Court settled the issue and said once and for all that an individual only has “prior knowledge” of a statement if the witness had first hand knowledge of the substance of the statement. 

Additionally, learn more about Illinois evidence.

In other words, in order to have “prior knowledge” the witness needed to be at the shooting not just be involved in a conversation about the shooting. 

This “prior knowledge” element is the exact thing that is causing so many problems for attorneys at trial. This is the one element that we are more likely to forget if we don’t have a system that actively roots it out.

Big Picture

Now, before I show you my simple two step formula that diagrams an easy way to remember what kind of impeachment evidence may be argued substantively, I want to take a step back. It is helpful to take a broader view of things to see where we are at exactly.

When it comes to inconsistent statements, I like to think of three mental paradigms that are in effect during a trial.

One

First, we must determine if we can impeach the witness? This includes keeping tabs on whether a statement is inconsistent at all. Even if a statement is inconsistent, we still must ask if the statement is material. Does the inconsistent statement hurt the opposition’s case? These are threshold issues we ask to decide if we can impeach.

Two

Second, after we know that impeachment is proper then our mental scheme for effecting the impeachment kicks in. Our models for how to impeach get to the join the party. This the familiar RAC (Recommit, Accredit, Confront) or CCC (Commit, Credit, Confront) system that you may have learned. They’re the same thing. I address this a little more in Episode 052.

Three

Finally, the last question is where I think we are lacking. We are not preparing ourselves to ask if the prior inconsistent statement is substantive.  Is it substantive? Can it be argued at closing substantively?

Avoid Prior Inconsistent Statement Error

So, to get a quick mental handle on the last question, we just need a “memory” that highlights:

• The preference for Sworn Statements
• The “Personal Knowledge” Element for Unsworn Statements

I came up with a simple two step simple formula that diagrams the mental process. The idea is to remember the flow of the diagram to quickly determine if a prior inconsistent statement may be argued substantively.  Remember, this analysis has to be fast and reliable.

The diagram illustrates how a sworn statement has precedence over an unsworn statement. More importantly ,the diagram emphasis the one element that is often overlooked in this analysis: the “prior knowledge” element.

If we are dealing with an unsworn statement, and only after we have asked if the declarant had “personal knowledge” of the substance of the element do we allow ourselves to inquire about the final elements.