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Wash. R. Evid. 801(d)(1)(i) provides as follows: A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with his testimony, and is given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.
The assault victim first signed a statement under oath under penalty of perjury that named defendant as her attacker. One month later at trial, she named another person as her attacker. The victim testified that she was upset with defendant over a fight the night before and blamed him for her having to stay in the motel room overnight with the new named attacker. She testified that she lived with defendant both before and after the assault. The trial court allowed the assault victim’s prior inconsistent statement to be used as substantive evidence ruling it was not hearsay under Rule of Evidence 801(d)(1)(i). The jury found defendant guilty of assault in the second degree. Thereafter, the judge granted a new trial, reasoning that ER 801(d)(1)(i) did not authorize the statement's admissibility as it was not given in a "proceeding". The State appealed.
Did ER 801(d)(1)(i) permit the admission of a trial witness' prior inconsistent statement, as substantive evidence, when that statement was made as a written complaint (under oath subject to penalty of perjury) to investigating police officers?
The court reversed the grant of a new trial by the trial court and reinstated the jury verdict. The court reasoned that the statement was admissible as substantive evidence under Wash. R. Evid. 801(d)(1)(i). It did not interpret the rule broadly to always exclude or always admit such evidence but looked to the particular case facts. Here, it found that the statement was made under oath subject to perjury charges, was written by the victim herself, and was subject to cross-examination. Further, the jury was in a position to determine which statement was true.