This rule effects a reorganization of certain of the hearsay provisions found in Article VIII of the federal rules. The formulation follows generally the scheme of Cal. Evid. Code in treating all appropriate prior witness statements in a single rule. The federal rules, in contrast, treat certain prior inconsistent statements, prior consistent statements, and prior identifications as non-hearsay, Fed. R. Evid. 801(d)(1); and place past recorded recollections among the hearsay exceptions for which the availability of the declarant is immaterial, Fed. R. Evid. 803(5).
This rule should be understood in connection with Rule 613, "Prior statements of witnesses." Rule 613(b) governs the use of prior inconsistent statements for impeachment purposes, and Rule 613(c) governs the use of prior consistent statements for rehabilitation purposes. The present rule, in contrast, defines those prior statements by witnesses that may in addition be considered by the trier of fact to prove the truth of the matters asserted, that is, as exceptions to the hearsay ban of Rule 802.
Paragraph (1): At common law all prior inconsistent statements of witnesses were classed as hearsay and thus required instructions limiting consideration to impeachment purposes. Prior Hawaii law was to the same effect, see generally Kekua v. Kaiser Foundation Hosp., 61 H. 208, 601 P.2d 364 (1979). Fed. R. Evid. 801(d)(1)(A) modified the common-law rule to permit one class of inconsistent statements--those "given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition"--to be used substantively for the truth of the contents. The present paragraph retains this exempted federal class in paragraph (1)(A) and adds two new classes of inconsistent statements that become exceptions to the hearsay rule, paragraph (1)(B) and (C). The intent is to include in paragraph (1) all written or recorded statements that can fairly be attributed to the witness-declarant. The language of paragraph (1)(A) is virtually identical with Fed. R. Evid. 801(d)(1)(A); the language of paragraph (1)(B) and (C) is borrowed from the federal "Jencks Act," 18 U.S.C. §3500(e)(1) and (2).
The "Jencks Act" governs the production or discovery, in federal criminal trials, of written or recorded statements made to government agents by government witnesses. Subdivision (e)(1) statements are those "signed or otherwise adopted or approved" by a witness. Subdivision (e)(2) statements, although not signed or approved by the witness, are "substantially verbatim" written or recorded accounts of oral statements made "contemporaneously with the making" of the oral statements. The language of subdivisions (e)(1) and (e)(2) is virtually the same as that of paragraph (1)(B) and (C) of the present rule. The purpose of subdivisions (e)(1) and (e)(2) of the Jencks Act, according to the Supreme Court in Palermo v. United States, 360 U.S. 343, 349-52 (1959), is to define the "most trustworthy class of statements" of witnesses to be turned over to the defense for impeachment purposes. Regarding the requirement that (e)(2) subdivision statements be "substantially verbatim," the court said: "It is clear that Congress was concerned that only those statements which could properly be called the witness' own words should be made available" under the Act. Since the purpose of Congress in writing subdivision (e) of the Jencks Act was similar to the legislative intent in adopting paragraph (1)(B) and (C) of the present rule, the Palermo case and other cases construing the Jencks Act, e.g., Williams v. United States, 338 F.2d 286 (D.C. Cir. 1964), will be helpful in defining the parameters of this rule.
The trustworthiness of statements defined in paragraph (1)(A), (B), and (C) is further assured by the requirement that the witness-declarant be "subject to cross-examination concerning the subject matter of the statement." The situation envisioned is one where the witness has testified about an event and his prior written statement also describes that event but is inconsistent with his testimony. Since the witness can be cross-examined about the event and the statement, the trier of fact is free to credit his present testimony or his prior statement in determining where the truth lies. Because the witness is subject to cross-examination, the substantive use of his prior inconsistent statements does not infringe the sixth amendment confrontation rights of accused in criminal cases, see California v. Green, 399 U.S. 149 (1970).
Paragraph (2): Rule 613(c) identifies three classes of prior consistent statements that are admissible for rehabilitation purposes. The present paragraph permits substantive use of these statements. This is consistent with prior Hawaii law, see State v. Altergott, 57 H. 492, 559 P.2d 728 (1977).
Paragraph (3): The substantive use of prior identifications is allowed in Fed. R. Evid. 801(d)(1)(C), the Advisory Committee's Note to which says: "The basis is the generally unsatisfactory and inconclusive nature of courtroom identifications as compared with those made at an earlier time under less suggestive conditions." Note that this paragraph addresses only the hearsay issue. The use of prior identifications in criminal cases may present constitutional problems as well, see, e.g., Foster v. California, 394 U.S. 440 (1969); Gilbert v. California, 388 U.S. 263 (1967).
Paragraph (4): This paragraph is identical with Fed. R. Evid. 803(5), and it restates the common-law hearsay exception for recorded recollection, see State v. Altergott, 57 H. 492, 559 P.2d 728 (1977).
