Prior Inconsistent Statements: Presently Inconsistent Doctrine

The common law has come a long way since Sir Walter Raleigh was convicted of treason on the basis of accusations contained in unproduced letters and the hearsay declarations of unproduced witnesses. However, despite the painstaking development and innumerable formulations and reformulations of the hearsay rule over the past several centuries, there are areas of that body of law which are as yet unsettled and the subject of heated controversy. One such area is that of prior inconsistent statements of witnesses, the controversy over which has continued over the years and has surfaced once again with promulgation of the new Federal Rules of Evidence. Legal theories, like social and cultural philosophies, often follow marked trends and patterns. A few years ago exclusionary rules were on the ascendancy, especially in the area of criminal law, while today it is increased admissibility which is in vogue. Both had their advocates throughout common law history, and will probably always find support. It is a reflection of this current trend that the traditional rules governing substantive use of prior inconsistent statements, once unquestioningly accepted, have since been roundly criticized by authorities from Wigmore to the Supreme Court. The purpose of this article is to attempt to redress the balance just slightly, by setting out some of the counterarguments which lie behind the traditional substantive exclusion of prior inconsistent statements. An attempt will be made to emphasize practical, rather than merely theoretical, considerations