One of my favorite bloggers, Professor Colin Miller has this:
Arizona Rule of Evidence 801(d)(1)(A) provides that
A statement is not hearsay if…[t]he declarant testifies at the trial or hearing…and is subject to cross-examination concerning the statement, and the statement is…inconsistent with the declarant’s testimony
So, let’s say that an alleged victim gives a detailed statement to the police on the night of an alleged crime. Then, at trial, the victim testifies in response to certain questions that she “would rather not say…” Does such testimony render her prior statement “inconsistent,” permitting its admission under Rule 801(d)(1)(A)? According to the recent opinion of the Court of Appeals of Arizona, Division 1, in State v. Joe, 2014 WL 212591 (Ariz.App. Div. 1 2014), the answer is “yes.”
The Arizona rule tracks both the federal and military rule.
According to the trial court, such testimony rendered the alleged victim’s prior statement to police admissible under Rule 801(d)(1)(A). The Court of Appeals of Arizona later agreed, concluding that
As applied to these facts, the victim repeatedly sought to avoid answering specific questions regarding the assault, stating (after follow up) that she “would rather not say.” Those responses differed from, and were inconsistent with, her detailed description provided to Detective Sutton on the night of the assault.
Keep in mind that, in Damatta-Olivera, 37 M.J. 474 (C.M.A. 1993) and United States v. Meghdadi, 60 M.J. 438, 444 (C.A.A.F. 2005), the court has noted that an inconsistency, for purposes of M.R.E. 613, may be found “not only in diametrically opposed answers,” but also in “inability to recall,” Damatta-Olivera, 37 M.J. at 478, or equivocation. See Meghdadi, 60 M.J. at 444.