This is a pretrial appeal by the state pursuant to Rule 29.03, Rules of Criminal Procedure, from an evidentiary ruling of the district court in a criminal prosecution of defendant. The issue raised by the state is whether the court erred in barring the prosecution from impeaching one of its own witnesses with extrinsic evidence of prior inconsistent statement she allegedly made to friends. We affirm and remand for trial.

The state in its brief admits that the alleged prior inconsistent statements are not admissible substantively. Under Rule 801(d)(1)(A), Rules of Evidence, prior inconsistent statements are admissible substantively only if the declarant "testifies at the trial or hearing and is subject to cross-examination concerning the statement" and the inconsistent statement was given "under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition." Further, the alleged statements in this case would not be admissible substantively even if they came within the provisions of Rule 801(d)(1)(A), because they do not satisfy Rules 602 and 701, Rules of Evidence.

Rule 602 provides that "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter."
Rule 701 provides that "If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue."

What the prosecution is seeking then is to present, in the guise of impeachment, evidence which is not otherwise admissible. It is true, as the prosecution points out in its brief, that Rule 607 provides that "credibility of a witness may be attacked by any party, including the party calling him." Federal Rule 607, with which our rule is identical, was drafted in conjunction with a prior version of Federal Rule 801(d)(1)(A), which provided that all prior inconsistent statements were admissible substantively. However, Congress amended Rule 801(d)(1)(A) to limit the substantive admissibility of prior inconsistent statements to those given "under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition." Minnesota Rule 801(d)(1)(A) is identical to Federal Rule 801(d)(1)(A), as amended by Congress. As stated in Graham, The Relationship Among Federal Rules of Evidence 607, 801(d)(1)(A), and 403: A Reply to Weinstein's Evidence, 55 Tex. L.Rev. 573, 574, "This restriction of the prior inconsistent statements that are admissible as substantive evidence without any corresponding restriction of the right of a calling party under rule 607 to impeach his or her own witness again raises the problem of a calling party's potential misuse of impeachment by prior inconsistent statements."

There are two basic ways which have been suggested of resolving the problem. One commentator has urged a reliance on the factors of surprise and affirmative damage. Graham, supra. Judge Weinstein in his treatise on the Federal rules urges relying on Rule 403, requiring a determination of whether the potential of the impeaching evidence for unfair prejudice outweighs its probative value. 3 Weinstein's Evidence, United States Rules, § 607[1], pp. 29-33 (Cum.Supp. Dec. 1977).

We think Judge Weinstein's suggested approach is preferable, but we need not decide the matter because under either approach the district court's ruling must be affirmed.

Affirmed and remanded for trial.

Summaries of

State v. Dexter

Supreme Court of Minnesota

Jun 23, 1978

269 N.W.2d 721 (Minn. 1978)

holding that hearsay evidence that is otherwise inadmissible cannot be presented under the guise of impeachment

Summary of this case from State v. Perry

holding that state is not entitled to impeach "its own witness with extrinsic evidence of prior inconsistent statement [witness] allegedly made to friends"

Summary of this case from State v. Kadel

In Dexter, the State conceded that the statements at issue were not admissible as substantive evidence under Rule 801(d)(1)(A).

Summary of this case from State v. King

explaining that the State cannot misuse the rules to expose the jury to hearsay under the guise of impeachment when the sole purpose in calling the witness is to introduce the witness's prior statement

Summary of this case from State v. Fardan

In State v. Dexter, 269 N.W.2d 721 (Minn. 1978), we first addressed the problem created by a party's impeachment of its own witness with a prior inconsistent statement and the interplay between Minn.R.Evid. 801(d)(1)(A) and Minn.R.Evid. 607. Under Rule 801(d)(1)(A), a prior inconsistent statement is admissible substantively only if the declarant "testifies at the trial or hearing and is subject to cross-examination concerning the statement" and that statement "was given under oath subject to the penalty of perjury at trial, hearing, or other proceeding, or in a deposition.

Summary of this case from State v. Ortlepp

observing that the state was "seeking . . . to present, in the guise of impeachment, evidence which is not otherwise admissible"

Summary of this case from State v. Banjo

observing that the state was "seeking . . . to present, in the guise of impeachment, evidence which is not otherwise admissible"

Summary of this case from State v. Patterson

observing that the state was "seeking . . . to present, in the guise of impeachment, evidence which is not otherwise admissible"

Summary of this case from State v. Harmon

observing that the state was "seeking . . . to present, in the guise of impeachment, evidence which is not otherwise admissible"

Summary of this case from State v. Garbow

In Dexter, the supreme court affirmed a district court ruling "barring the prosecution from impeaching one of its own witnesses with extrinsic evidence of prior inconsistent statement she allegedly made to friends."

Summary of this case from State v. Weaver

discussing the "surprise and affirmative damage" and "probative-value-versus-unfair-prejudice" approaches to analyzing whether prior inconsistent statements may be used for impeachment purposes even where inadmissible substantively

Summary of this case from State v. Waltz

stating that Minn. R. Evid. 801(d) precludes a prosecutor from calling a witness solely for the purpose of impeaching the witness with a prior unsworn statement that is otherwise inadmissible hearsay

Summary of this case from State v. Tate

In Dexter, the supreme court ruled that the impeachment could not take place because the impeachment evidence was not independently admissible as substantive evidence.

Summary of this case from Matthews v. State

State v. Dexter

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State v. Dexter

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State v. Dexter

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State v. Dexter

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