Legal Intelligencer: A Word on Hearsay: Using Prior Statements Under Pennsylvania and Federal Rules

Witness testimony is often central to establishing the facts of a case in court. But memories can fade, perspectives can change, and witnesses themselves are not infallible. This is where prior statements—statements made by witnesses before the current trial—can play a vital role in either supporting or challenging their courtroom testimony. Although hearsay evidence is generally prohibited, the definitional carve-outs and exceptions provide trial judges with the latitude to admit trustworthy evidence that would otherwise be excluded. Both the Pennsylvania Code and the Federal Rules of Evidence recognize such exceptions, but they approach their admissibility and use with distinct priorities and limitations.

Under both sets of rules, prior statements can be used for several purposes, such as demonstrating inconsistency in a witness’s account, bolstering credibility through consistency, or confirming identification in cases where a witness’s recollection might be questioned. Yet these broad similarities are offset by nuanced differences between the two bodies of rules.

Pennsylvania’s rules are often more flexible, allowing for a broader range of prior statements to be admitted under certain circumstances. By contrast, federal rules emphasize procedural safeguards, particularly the requirement that some statements be made under oath or before any alleged motive for fabrication arises. Practitioners should have a firm grasp of these distinctions to tailor their use of evidence to the specific rules of each jurisdiction, leveraging the unique advantages—and navigating the constraints—of both Pennsylvania and federal rules on prior statements.

Prior Inconsistent Statements as Nonhearsay Under FRE 801(d)(1)(A)

In federal courts, prior inconsistent statements made by a testifying witness are often used to undermine the witness’s credibility and do not have to be introduced for the truth of the matter asserted. However, these prior statements can also be admitted as substantive evidence if they meet certain qualifying conditions. According to FRE 801(d)(1)(A), for a prior inconsistent statement to be considered as nonhearsay and thus admissible substantively, it must meet three criteria:

• The declarant must testify at the current trial or hearing;
• The declarant must be subject to cross-examination concerning the statement; and
• The statement must have been made under penalty of perjury during a formal proceeding, such as a trial, hearing, or deposition.

If such a prior inconsistent statement also fulfills the usual other requirements for admissibility, such as relevance, it is admissible as substantive evidence. See e.g., United States v. Tolliver, 730 F.3d 1216, 1227–28 (10th Cir. 2013) (“[A] prior statement made by a declarant-witness who is subject to cross-examination about the statement is not hearsay as long as the prior statement is inconsistent with the declarant’s testimony and was given under penalty of perjury …”

A common issue that arises is whether the prior statement is truly inconsistent with the witness-declarant’s testimony given in court, especially when the witness claims a lack of memory at trial. The majority of authorities consider a prior factual statement to be inconsistent with a current claim of a lack of memory for the purposes of FRE 801(d)(1)(A) and thus consider admissible the prior testimony of witnesses who could not recall the event at trial. See United States v. Butterworth, 511 F.3d 71, 74–75 (1st Cir. 2007); United States v. Mayberry, 540 F.3d 506, 516 (6th Cir. 2008); United States v. Cooper, 767 F.3d 721, 728 (7th Cir. 2014).

Pennsylvania’s Broader Approach Under Pa.R.E. 803.1(1)

In contrast, Pennsylvania allows for a wider range of prior inconsistent statements to be admitted substantively. This approach evolved from Pennsylvania’s common law, specifically shaped by the landmark case Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986). In Brady, the Pennsylvania Supreme Court ruled that prior inconsistent statements could be admitted as substantive evidence if the witness was available for cross-examination at trial, marking a substantial departure from the traditional rule allowing such statements only for impeachment purposes.

Following Brady, Pennsylvania codified the broader rule in Pa.R.E. 803.1(1). The Pennsylvania rule allows for the substantive use of statements made under oath, subject to the penalty of perjury during a trial, hearing, or deposition, aligning with the admissibility standard under F.R.E. 801(d)(1)(A). However, Pa.R.E. 803.1(1) goes further by permitting the substantive use of two additional types of prior inconsistent statements not covered by the federal rule: statements that are in writing, signed and adopted by the declarant, and those that are verbatim contemporaneous recordings, whether audio, video, or electronic. Pennsylvania courts now admit prior inconsistent statements from all three categories.

Courts provided the rationale behind the rules and elaborated on the criteria for substantive admissibility. In Commonwealth v. Enix, 92 A.3d 78 (2018), the Superior Court explained that a prior inconsistent statement must meet two criteria for substantive admissibility: reliable circumstances surrounding the statement’s creation and the availability of the declarant for cross-examination. The first inquiry centers on whether the statement is given under reliable circumstances. A statement falls under either Pa.R.E. 803.1(1)(B) and (C) is deemed reliable. See Commonwealth v. Lively, 610 A.2d 7 (Pa. 1992) (providing prior inconsistent statement is “demonstrably reliable and trustworthy” where the statement “had been reduced to a writing signed and adopted by the witness; or a statement that is a contemporaneous verbatim recording of the witness’s statements”). The second inquiry centers on whether the declarant is available for cross-examination. The inconsistent statement itself must be the subject of the cross-examination in order to satisfy the test. See Enix.

Otherwise admissible prior inconsistent statements of a declarant who is a witness in a trial and is available for cross-examination may be used as substantive evidence to prove the truth of the matters asserted therein. In Brady, the most incriminating evidence against the defendant was a tape-recorded statement provided by a witness to the police on the night of the murder, with the witness’s attorney present. In the witness’s statement, she described the events surrounding the murder at a certain location. However, when called to testify for the commonwealth at trial, the witness recanted her earlier statement, testifying that neither she nor the defendant had entered the location. The court allowed the commonwealth to admit the tape-recorded statement as substantive evidence, rather than solely for impeaching the witness’s credibility. See also Commonwealth v. Buford, 101 A.3d 1182 (Pa. Super. 2014) (finding that defendants’ prior inconsistent statements to law enforcement were admissible as substantive evidence because both declarants testified at trial and were subject to cross-examination, and their prior inconsistent statements were writings signed and adopted by them); Commonwealth v. Stays, 70 A.3d 1256 (Pa. Super. 2013) (finding that a signed photo array and an eyewitness’s written statement were fully admissible when the defendant had an opportunity to cross-examine the witness at the preliminary hearing).

The Takeaways

In federal court, attorneys seeking to use a prior inconsistent statement substantively must ensure the statement was made under penalty of perjury in a formal setting. In Pennsylvania, however, attorneys can use a wider range of prior inconsistent statements substantively, provided they meet the criteria for reliability and cross-examination specified in Pa.R.E. 803.1(1). This flexibility can be particularly advantageous in cases where a witness may have recanted or altered their testimony, allowing the introduction of prior statements that might otherwise be excluded in federal court.