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WHERE A WITNESS STATES SHE DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION AS A PRIOR INCONSISTENT STATEMENT.

The Third Department determined County Court properly denied defense counsel’s request to enter the victim’s statement in evidence as a prior inconsistent statement. The court explained that, where a witness states she does not recall making a statement, it is necessary to call a witness who was present when the statement was made to lay a proper foundation for admission. The court also noted that the statement was not so inconsistent with the witness’ testimony as to warrant its use in cross-examination. With respect to the foundation for the evidence, the court wrote:

 

“It is well established that a witness’ prior inconsistent statements may be used to impeach his [or her] trial testimony [a]nd the test of inconsistency . . . is not limited to outright contradictions between a witness’ prior statements and his [or her] trial testimony” … . However, before a witness may be impeached with such a statement, a proper foundation must be laid … , and, “[i]f the witness denies that the statement was made or does not remember making it, he or she may be impeached by the testimony of others who heard the statement” … .

Here, while cross-examining the victim at trial, defense counsel questioned her about the statement that she gave to State Trooper Joseph Smith several hours after the attack occurred. Specifically, counsel asked the victim if she remembered giving a statement to Smith, to which she said, “I don’t recall. I don’t remember a lot.” Counsel then asked, “You don’t remember giving a statement?” to which the victim answered, “I remember giving a statement, yes, I do, but everything was jumbled.” Counsel then asked if the victim remembered telling Smith that she was sleeping on the couch just before the altercation. The victim denied making such statement and explained that she told Smith that she was lying on the couch trying to go to sleep. After being shown the statement by counsel, the victim confirmed that it was, in fact, the statement she vaguely recalled being read to her by Smith and that she had signed. Defendant then unsuccessfully attempted to offer the victim’s statement into evidence. County Court sustained the People’s hearsay objection, noting that Smith was available to be called as a witness and questioned with regard to the victim’s statement. Inasmuch as defendant failed to lay a proper foundation for admission of this hearsay evidence, we find no abuse of discretion in County Court’s ruling. People v Maxam, 2016 NY Slip Op 00391, 3rd Dept 1-21-16

 

CRIMINAL LAW (WHERE WITNESS DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION AS A PRIOR INCONSISTENT STATEMENT)/EVIDENCE (CRIMINAL LAW, WHERE WITNESS DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION AS A PRIOR INCONSISTENT STATEMENT)/PRIOR INCONSISTENT STATEMENT (CRIMINAL LAW, WHERE WITNESS DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION)

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