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8. The evidence of the friend's statement is
A man and his friend were charged with burglary of a warehouse. They were tried separately. At the man's trial, the friend testified that he saw the man commit the burglary. While the friend was still subject to recall as a witness, the man calls the friend's cellmate to testify that the friend said, «I broke into the warehouse alone because [the man] was too drunk to help.»
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To impeach the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Under the Federal Rules of Evidence (FRE), an inconsistent statement may be proved by either cross-examination or extrinsic evidence. Generally, extrinsic evidence of a witness's prior inconsistent statement is admissible only if: (i) the witness is given an opportunity to explain or deny the allegedly inconsistent statement; and (ii) the adverse party is given an opportunity to examine the witness about the statement. See Fed. R. Evid. 613.
In most cases, prior inconsistent statements are hearsay, admissible only to impeach the witness. This is in contrast to the hearsay exemption for prior inconsistent statements, when the prior statement was made under oath at a trial, hearing, or another proceeding, or in a deposition, and may then be admitted as substantive proof of the facts stated. See Fed. R. Evid. 801(d)(1)(A).
A statement of a person, now unavailable as a witness, can be admissible if it was against that person's pecuniary, proprietary, or penal interest when made. To qualify as a statement against interest, the following requirements must be met: (i) the statement must have been against pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant's position would have made it only if she believed it to be true; (ii) the declarant must have had personal knowledge of the facts; (iii) the declarant must have been aware that the statement was against her interest and she must have had no motive to misrepresent when she made the statement; and (iv) the declarant must be unavailable as a witness. Fed. R. Evid. 804(b)(3).
B is correct. A prior inconsistent statement may be admissible to impeach the witness or substantively as non-hearsay. When an out-of-court statement is being offered to impeach in-court testimony of a witness who has the chance to explain or deny it, as well as be cross-examined about it, such evidence is admissible for impeachment purposes (i.e., not for the truth of the matter asserted). In this case, the prior statement is inconsistent (it contradicts the friend's earlier testimony that he saw the man commit the burglary), and the friend is still subject to recall and thus may be given a chance to explain or deny it. See Fed. R. Evid. 613; Fed R. Evid. 801(d).
The prior inconsistent statement exemption to the hearsay rule, however, applies only to previous out-of-court statements made under oath, which are then admissible as substantive evidence. Here, the prior statement was not made under oath, and therefore, this exemption does not apply.
A is incorrect. This answer reaches the correct answer with the wrong reasoning. Under FRE 804(b)(3), a statement against one's penal interest may be admissible, but only when the declarant is unavailable to testify. In this case, the friend, as the declarant, is available to testify. Therefore, this hearsay exception is inapplicable.
C is incorrect. If the friend's statement to the cellmate, as testified to in court by the cellmate, were being offered for the truth of the matter asserted, it would be inadmissible hearsay. However, the testimony is being introduced solely to impeach the friend by his prior inconsistent statement, not as substantive evidence.
D is incorrect. There is no rule requiring clear corroboration of a prior inconsistent statement that is being used to impeach a witness. Although corroborating evidence may be required when a statement against interest exposes the declarant to criminal liability, that requirement does not apply when using a prior inconsistent statement merely to impeach the witness. See Fed. R. Evid. 804. As explained above, the cellmate's testimony containing the friend's prior statement is exclusively being used for impeachment, not as substantive evidence, rendering it admissible.