WA Supreme Court: Bad Acts Can't be Used to Prove Prior Inconsistent Statement When There is No Prior Statement to Be Inconsistent With
This is a fairly simple matter. It revolves around the rules of evidence. Normally, you cannot admit evidence of someone’s prior bad actions in order to prove that they committed this bad action. Now, there are exceptions to this, like pretty much every rule under the law. For instance, you can use the prior bad actions to show a similar motive, which could be evidence of the motive in this case matches those in the prior cases. Additionally, if someone makes a statement, and it is inconsistent, you can impeach them with the prior inconsistent statement. This usually goes down something like this:
Lawyer: And is it true that you are playing video games on March 4, 2012?
Witness: I don’t even play video games!
Lawyer: Isn’t it true that your online moniker is gameplayer12?
Witness: Yeah, so?
Lawyer: And didn’t you post as gameplayer12 on March 1, 2014, “I love video games, I love love love them!”?
Witness: I don’t recall.
Here, what happened was something slightly different. This is a domestic violence case, and the victim testified at trial that there was no assault. She’d given no other statements to the police before this. There had been other instances of domestic violence against her by the defendant. The state introduced these prior instances as evidence that her statement there was no assault here was inconsistent.
Kind of a sneaky way to get around the prior bad acts requirement. The only problem is, there has to abandon an actual statement that was made prior, and that was about the current event, in order for there to be a later inconsistent statement about the current event. Simply the fact that there were prior events cannot be used to show that the event actually did happen here. That is the very reason that rule is in place.
This doesn’t mean the prior bad acts are never admissible, for instance, the court noted that where there is an inexplicable recantation of her prior statement, that the prior bad acts may sometimes come in. Note: I am not a criminal defense attorney, nor do I defend domestic violence cases. There is a whole litany of case law that has to do with when prior bad acts may come in in limited circumstances. However, a run-of-the-mill inconsistent statement, where there was no prior statement to be inconsistent with, does not count.