Forward Progress: A New Pattern Criminal Jury Instruction for Impeachment with Prior Inconsistent Statements Will Ease the Court’s Burden by Emphasizing the Prosecutor’s, 84 Fordham L. Rev. 1455 (2016)

Authors

Hugh Mundy, John Marshall Law SchoolFollow

Document Type

Article

Publication Date

2016

Abstract

Due in part to the “difficult-to-follow” instruction, the Advisory Committee on the Federal Rules of Evidence (“the Advisory Committee” or “the Committee”) is now contemplating the expansion of Rule 801(d)(1)(A) to allow for the substantive admissibility of all prior inconsistent statements. While a revised rule would obviate the need for a limiting instruction, the change would enable federal prosecutors to offer out-of-court statements of tenuous reliability as proof against criminal defendants. A more just approach lies in a recrafted jury instruction—one which frames the admissibility of prior inconsistent statements in terms of the prosecutor’s burden of proof.

In this Article, I discuss the history of Rule 801(d)(1)(A), focusing on the origins and importance of the Rule’s restrictive language. In addition, I review the current federal landscape of pattern criminal jury instructions for witness impeachment with a prior inconsistent statement. Finally, I propose a revised jury instruction designed to clarify juror confusion while maintaining the critical safeguards for substantive admissibility of prior inconsistent statements.

Recommended Citation

Hugh Mundy, Forward Progress: A New Pattern Criminal Jury Instruction for Impeachment with Prior Inconsistent Statements Will Ease the Court’s Burden by Emphasizing the Prosecutor’s, 84 Fordham L. Rev. 1455 (2016)