State v. Canady

In State v. Canady, 80 Hawai'i 469, 911 P.2d 104 (App. 1996) the Court stated, in relevant part, as follows: Unlike the contrasting language of FRE Federal Rules of Evidence Rules 801(d)(1)(C) and 804(a)(3) that the Owens Court relied on, the "inconsistent statement" provision of HRE Rule 802.1(1) and the "lack of memory" provision of HRE Rule 804(a)(3) are not significantly distinguishable. HRE Rule 804(a)(3) employs the same "subject matter" language as HRE Rule 802.1(1), stating that a witness is unavailable if the witness "testifies to a lack of memory of the subject matter of the declarant's statement." HRE Rule 804(a)(3) . Although the commentary to HRE Rule 802.1 is not evidence of legislative intent, it is "an aid in understanding" the rule. HRE Rule 102.1. The commentary to HRE Rule 802.1 explains that under the common law, prior inconsistent statements were considered hearsay and could only be used to impeach a witness. Commentary to HRE Rule 802.1 (1993). The FRE modified the common-law rule and allowed prior inconsistent statements to be used as substantive proof of the matters asserted in the statement, if the statement was " 'given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.' " Id. (quoting FRE Rule 801(d)(1)(A)). HRE Rule 802.1 adopted this federal exception to the common law, and went further by adding two more exceptions to the hearsay objection for signed or adopted statements and recorded statements. Id. These exceptions were justified if the statements' trustworthiness was assured on two grounds: (1) the statements could "fairly be attributed" to the witness; and (2) the witnesses themselves were "subject to cross examination concerning the subject matter of the statement." Id. The situation envisioned is one where the witness has testified about an event and his or her prior written statement also describes that event but is inconsistent with his or her present testimony. Since the witness can be cross-examined about the event and the statement, the trier of fact is free to credit his or her present testimony or his or her prior statement in determining where the truth lies. Id. Consequently, the rule was intended to exclude the prior statements of a witness who could no longer remember the underlying events described in the statement. See id. Absent the opportunity to cross-examine a witness about the material events described in a prior statement, the statement would lack one of the twin guarantees of trustworthiness supporting its admissibility as substantive evidence of the matters asserted in the statement. Hence, unlike FRE Rule 801(d)(1), HRE Rule 802.1(1) requires more of the witness than just that he or she be "placed on the stand, under oath and respond willingly to questions." Owens, 484 U.S. at 561, 108 S. Ct. at 844. We hold that HRE Rule 802.1(1) requires, as a guarantee of the trustworthiness of a prior inconsistent statement, that the witness be subject to cross-examination about the subject matter of the prior statement, that is, that the witness be capable of testifying substantively about the event, allowing the trier of fact to meaningfully compare the prior version of the event with the version recounted at trial before the statement would be admissible as substantive evidence of the matters stated therein. Here, the subject matter of the Statement referred to the identity of Complainant's assailant and how Complainant sustained her injuries. At trial, Complainant testified that she could not recall the events that she allegedly described in the Statement. She was, therefore, not able to testify about the substantive events reported in the Statement. Because the witness could not be "cross-examined about the events," the trier of fact was not "free to credit the present testimony or the prior statement" to determine "where the truth lay." Commentary to HRE Rule 802.1. Accordingly, under the present state of the record, the Statement was not admissible under HRE Rule 802.1(1) because Complainant could not be "subjected to cross examination concerning the subject matter of the statement" as "envisioned" under the Rule. Id. (Canady, 80 Hawai'i at 479-81, 911 P.2d at 114-16.)