Rowe v. Farmers Ins. Co., Inc.

WELLIVER, Judge. ROWE, Respondent,

Richard appellant, Farmers Insurance Com- pany, appeals from verdict of insur- appellant held liable on a contract COMPANY, FARMERS INSURANCE respondent, to the Richard ance issued INC., Corporation, Appellant. Appeals, Southern Rowe. Court District, judgment. No. This 66595. affirmed ordered transfer to consider whether Court Missouri, Supreme could his own witness. En Banc. reverse and remand the case for new We trial. Oct. 1985. burning by

Respondent’s car was found Highway Overbey, Patrol Missouri Officer A.M., August on 1982. at about 1:00 L.T.D. aflame in a The 1981 Ford was approximately rural field 7 miles lonely respondent’s Respondent home. filed in- appellant, his automobile claim with company. surance The claim was disal- respondent brought this action. lowed and trial, appellant respon- contended that At dent either had his car torched to collect learned who proceeds the insurance or later infor- report his car and did not this burned police appellant. Appel- or to mation as a witness. lant called Chester Carroll respondent’s first cousin. On Carroll 22, 1982, allegedly made November Carroll Overbey. several statements Officer testify Overbey prepared to Officer was him that Carroll told on November an- respondent he overheard tell respondent going to other man that acquire L.T.D. in order to burn his Ford pickup truck. This con- four wheel drive Carroll, versation, occurred overheard the Ford was burned. before deposition had been taken on Carroll’s Respondent visited Carroll June deposition. week before the about one talked meeting, respondent and Carroll this against appel- respondent’s suit about deposition, Carroll trial and in his lant. At be- overhearing any conversation denied Wilke, Daniel E. Richard R. Korden- another man. respondent and tween brock, Clayton, appellant. for appellant allow the did not court trial expose pri- Carroll’s Bluff, Spain, Poplar respon- James E. introduce for to Officer statement made or inconsistent dent. 424

Overbey, relying overruled, GoForth, party on the rule that a 443 v. S.W.2d Wells (Mo. 1969); Wood, impeach not his witness. own 155 Brown 19 (1854). Mo. 475

Appellant sought depo- also to introduce Peggy Slavings. sition of Ms. No valid reason for this anachronistic Slavings today. rule would seem to exist living respondent with Commen- at the abolishing tators have favored the rule time his car was burned. She could not during the last decades the found few overwhelm- subpoenaed testify to be and she ing majority jurisdictions of have followed appear did not at trial. evening On the of by allowing party impeach his own September 1982, Slavings gave signed witnesses with inconsistent state- Overbey statement to Officer which she Comment, Impeaching ments. One’s Own respondent give stated that she saw his car Missouri, Witness 37 Mo.L.Rev. people night to three it was burned. (1972). McCormick, 522-23 also Hand- See addition, respondent’s she stated that later (3d book of the Law of Evidence 38 ed. § respondent son told that someone saw the 1984); Ladd, Impeachment of One’s Own Clyde Lloyd son deliver the car to Developments, Witness —New 4 U.Chi.L. night Brown on the the car was set ablaze. (1936); Morgan Maguire, Rev. 69 & Look- appellant The court did not allow to read Evidence, ing Backward and Forward at 50 portion Slavings’ deposition in which (1937); Schatz, Impeach- Harv.L.Rev. 926 making she denied the assertions contained ment of One’s Own Witness: Present New signed statement. The court also Proposed Changes, York Law and 27 Cor- signed refused to allow the statement ob- (1942); L.Q. Comment, nell Impeaching by Trooper Overbey tained to be admitted Witness, One’s Own 49 U.Va.L.Rev. 996 gave into evidence. The court as its reason (1963). Morgan Professor stated that the party impeach that a cannot its own wit- place system rule “has rational no ness. investigation today.” Morgan, Basic respon- The returned verdict for (1954). Problems of Evidence 64 dent. pick longer freely Parties no their wit- they freely picked help- nesses as “oath II Today, parties ers.” are forced to take consistently Missouri has followed the their witnesses as find them. Since party ancient rule that a cannot parties know their may not witnesses or be Armbruster, his own witness. State v. honesty credibility, familiar with their it (Mo.1982). S.W.2d 763 This rule had its party guaran- seems foolish to talk about a beginnings primitive English practice in the teeing credibility of his witnesses. dispute gathering of each side to a oath not made to order.—at Witnesses are helpers against help- to swear off oath least, people.... honest If a not opposing Wigmore, ers for side. 3A manufacture, par- lawsuit was a and the (Chadbourn 1970). Evidence rev. § ty bringing it select his materials— could helpers partisans and never Oath were might be facts and witnesses—there were in the modern sense of witnesses holding respon- him propriety in some having personal knowledge of the matter materials; for the character of these sible credibility accorded oath issue. control, but, beyond his his as both helpers outcome of the could influence the responsibility for their character is out questioning litigation. practice of not question. helpers credibility party’s of a own oath (Chadbourn Wigmore, 3A Evidence § applied party’s later was own wit- 1970) May, Rules of (quoting rev. Some by English nesses common law courts and (1876)). Evidence, Am.L.Rev. 264 Wigmore, later Missouri courts. 3ASee (Chadbourn 1970); juries to deter- ability of courts Evidence rev. Dunnaker, an event is not served mine the truth of Dunn v. 87 Mo. 597 im- (1872), that a not Fleeman, creating a limitation 50 Mo. 239 Chandler by calling party. peachment of a witness Wigmore, 3A peach his own witnesses. (Chadbourn Rules Evidence rev. Uniform Evidence by impeach- provided With the information analysis and upon our own Based ment, jury can consider the witness’s juris majority the vast experience accurately infer- credibility and more draw courts, including federal we dictions jury should testimony. from the ences has come for us to that the time conclude credi- information about the not be denied any party to intro recognize of solely witnesses because of who bility of to im prior duce a inconsistent statement called the witness. regardless of whom peach any witness rule supporters of the orthodox Some may subpoenaed been the witness have permits allowing impeachment contend that prior civil cases called. To extent testi- calling party to coerce favorable contrary, they shall no have held to the Wigmore justi- dismissed this mony. Dean followed. longer be stating: fication But, trifling after all it is a reason of Ill an weight. appreciably It cannot affect Having party decided that a intro- reputable honest and witness. The inconsistent statements to im- duce person really it concern is whom could witness, ad- peach his own we must now witness; shifty disreputable question of whether dress the related good why what reason is there he should can considered inconsistent exposed? not be in civil trials. Mis- as substantive evidence (Chadbourn Wigmore, 3A Evidence 899 § followed the orthodox generally souri has 1970). rev. made inconsistent statements standard that persuaded These reasons the over- of court are by a witness out whelming majority jurisdictions to of aban- the matter for the truth of inadmissible McCormick, don the orthodox rule.1 Hand- asserted. 38, (3d at 84 book of the Law of Evidence § requiring rule the exclu- The traditional 1984). Along jurisdictions, ed. with these statements as sion of all inconsistent the American Law Institute’s Model Code gener- evidence is flawed. See substantive Evidence, adopted years more than 40 491 S.W.2d ally, Granberry, v. State ago, expressly calling party stated that the (Finch, J., 534, (Mo. 1973) concurring). could a witness. Model Code of Appeals for the The United States Court of (1942). recently, Evidence Rule 106 More has Second Circuit observed: that, provide Rules of the Federal Evidence prior state- limiting the use of credibility of a at- The rule witness “[t]he cross-ex- by any party, including ments tacked credibility on his amination to their effect calling him.” Federal R. of Evid. 607. by eminent scholars Evidence, has described promulgated Rules of been Uniform “artificial,” fraud,” “pious provision judges to that of have a identical rit- allowing “basically misguided,” im- “mere verbal the Federal Rules of Evidence (1979); (1979); Nevada 27-607 § Rule Nebraska Rev.Stat. Alaska Rule of Evid. 607 Arizona (1971); (1977); New Mexico Rule 50-075 § Uniform Rule of Rev.Stat. of Evid. 607 Arkansas (1973); of Evid. (1976); North Carolina Rule Evid. 607 § West Ann.Cal.Evid.Code 785 Evid. 607 (1979); (1983); 607 (1965); Rule of Evid. North Dakota 607 Del- 607 Colorado Rule of Evid. (1980); (1977); § tit. 12 Oklahoma Stat.Ann. Rule Evid. 607 Davis aware Uniform (1982); (1980); Comp.Laws 19- State, Ann. South Dakota S.E.2d 273 v. 249 Ga. (1982); (1979); (1980); Evid. 607 Texas Rule of Su- 14-8 Rule of Evid. 607 Illinois Hawaii (1983); cases); (1984) Vermont Rule (criminal Evid. 20 Utah Rule of preme Rule (1983); Washington of Evid. 607 (1983); Rule Evid. 607 Stat.Ann. Iowa Rule of Evid. 607 Kansas (1974); Inc., (1978); (1963); of Evid. 906.07 Storage, Wisconsin Rule Tri-City v. 60-420 Van & (1977); Puerto Slone, Wyoming Rule of Evid. (Ky.1969); S.W.2d 211 Maine Rule IV, (1979); Rico, R.44(A) L.P.R.A.App. Feder- (1976); Evid. 607 Minnesota Rule of Evid. (1975). 607(a) (1976); Rule of Evid. 607 al Montana Rule of Evid. ual,” State, im- 248 Ga. and an anachronism “that still 286 S.E.2d Gibbons pede(s) pursuit our of the truth.” DeSisto, 329 F.2d 929 United States regarding memory human Research indi- (2nd Cir.1964) (quoting Morgan, Hearsay advantages prior cates several Dangers Application and the of the Hear- testimony. statements have over trial say Concept, 62 Harv.L.Rev. ability Studies have disclosed that the (1948)). The chief is that the flaw incon- remember an incident declines as time sistent statements of witnesses often are Marshall, passes. Psychology J. Law and just credibility relevant to more than (2d ed. Conflict 29-30 McCormick Copeland, the witness. State v. 278 S.C. explains that is al- “[t]he (1982); Nugent 300 S.E.2d 63 v. Com- ways usually very nearer and much nearer monwealth, (Ky.1982). 639 S.W.2d 761 testimony. to the event than is the by The inconsistent statement made a wit- memory, the the fresher fuller more ness be more reliable and believable McCormick, [any accurate is.” statement] than a statement made at trial. 251, Handbook of the Law of Evidence at § possible The relevance of inconsistent (3d 1984). Wigmore, ed. 3A See also can seen in the facts of the statements be (Chadbourn 1970); Evidence rev. present case. The trial court did not allow Hearsay Dangers Morgan, Applica- and the learn made the to of the statements Hearsay Concept, tion of the 62 Harv.L. Overbey. Chester to Car- Carroll Officer (1948). 177, Rev. Overbey roll had told Officer that he heard Investigations into human recall also respondent the tell a man that he was prone that witnesses are more have shown going to burn his Ford L.T.D. to collect the support propositions forget to facts which buy a insurance and four wheel drive auto- Marshall, they disagree. J. with which meeting the re- mobile. After a between (Second Psychology Law and in Conflict 29 Carroll, spondent and Carroll denied his 1980). legal dispute a is cre- Edition Once deposition and at trial that he ever over- ated, the honest recollection of witnesses per- respondent. heard the A reasonable may change they the side favor. and favor helpful son could find this statement Prior inconsistent statements are not as resolving falsity the truth or of the wit- prone phenomenon to this as trial testimo- testimony. ness’s are often ny. Inconsistent majority jurisdictions While the of dispute legal made has been com- before rule, question by dealt with this statute or made sooner after the menced and are by opinion. some have done so Gibbons elapsed allowing event when less time has State, (1982), 286 S.E.2d 717 Ga. in- forgetting operate. to Prior selective Supreme Georgia the of held that made consistent statements also be may be ad- prior inconsistent statements arisen and perjury a motive for has before evidence when the mitted as substantive untruthful. perhaps likely are less to be witness is for cross-examination. available jurors The to use instruction allowing in- Georgia The court noted that assessing only for inconsistent statement to be used as sub- consistent statements declarant, not for credibility of the but the salutory ef- evidence has several stantive in the the matter asserted the truth of (1) more fects: trial courts will become statement, is at best confus- inconsistent truth; (2) parties adept determining will calling of atten- ing. repetitive effect partially protected from the erratic wit- prior inconsistent statement tion to the (3) story; parties will changes

ness his who do other probably cannot instruction other protected from the efforts of the in the minds of highlight the matter than (4) testimony; witness and wit- to influence in- them more jurors thereby making ef- partially protected will be from nesses than rely on the statement clined to their to influence since forts Broeder, disregard it. generally See changing testimony less. rewards of Federal Rule of Evidence University Chicago Jury Project, 38 Neb. 801(d)(1)(A), L.Rev. as submitted the United Congress, would Supreme Court States It has been said that when the declarant have allowed inconsistent enough for cross-examination is available who for cross- was available dangers hearsay are absent. Report of to be admitted. examination Copeland, 300 S.E.2d 278 S.C. Fed. Judiciary on Committee (1982), Senate denied, cert. 460 U.S. compromise, political R.Evid. 801. Out of Ad 103 S.Ct. L.Ed.2d 367 Evidence visory present Committee’s Note to Fed.R.Evid. Federal Rule of 801(d)(1)(A); Comment, arose, Prior Inconsistent requirement that for a with Statements: Conflict Between State admissible inconsistent statement to be Evidence, Rules of 34 Mercer Federal inconsistent state- substantive (1983). Wigmore sup L.Rev. oath, in have been under ment must made ports proposition that when the witness subject penalty perju- proceeding, present to cross-examination on the ry. Report of Senate Committee statements, on his “[t]he limita- Judiciary to Fed.R.Evid. 801. These al purpose rule has whole disregarding have been criticized for tions Wigmore, satisfied.” Evi ready been 3A allowing inconsistent state- benefits (Chadbourn Jus dence rev. evi- ments to be considered as substantive “If, all tice Learned Hand asserted: adequacy dence and the of cross-examina- witness, con jury they that the see of the Ordover, Sur- tion of the witness trial. says clude that what he now is not the Damaging That Is prise: Turncoat Witness truth, he but what before said [is An Federal Analysis With Us: Still truth], they deciding are nonetheless Evidence, 607, 801(d)(1)(A) and Rules of person see and what hear of that 403, (1976-1977); 5 Hofstra L.Rev. 65 Gra- States, F.2d court.” DiCarlo v. 6 United ham, Employing Inconsistent Statements 364, (2nd Cir.1925). 368 Evi- Impeachment For And As Substantive The more view” “sensible and realistic Proposed A and dence: Critical Review weight appear of authority would Evidence Amendments of Federal Rules of reject to be orthodox rule and 801(d)(1)(A),613, 607, 75 Mich.L.Rev. view cross-examination of the declarant at (1976-1977). 1565 trial as sufficient.2 2 Evidence Jones on allow jurisdictions Nineteen American (6th 1972). ed. 10.18 The Model Code § of a wit- prior inconsistent statements Evidence and the Uniform Rules of Evi- substantively used where ness to be allow dence both the use of inconsistent is available for cross-examination.3 witness when statements substantive evidence jurisdictions also admit A of other number the declarant for cross-exami- available as sub- prior inconsistent statements Rule nation. Model of Evidence Code limita- 503(b) (1942); evidence to certain Evidence stantive Uniform Rule of (1974). now 63(1) Only jurisdictions a handful of tions.4 (1983); 801(d)(1)(A); R.Evid. 76 L.Ed.2d 367 Utah 2. Alaska R.Evid. Ark.R.Evid. 908.01(4)(a)(1); 801(d)(1)(i) (civil); 801(d)(1)(A); Wyo. 801(d)(1)(A); Wis.R.Evid. Ark.Unif.R.Evid. Rico, 1235; 801(d)(1)(A) (civil); L.P. Colo.R.Evid. R.Evid. Puerto .Evid.Code § Cal 801(d)(1)(A); IV, 3507(a) (1979). R.A.App. R. 63 § Del.Code Ann. tit. 11 (criminal); State, (1979) v. 248 Ga. Gibbons State, (1982); Note 2. 286 S.E.2d 717 Patterson v. 3. See Holt, (1975); 324 N.E.2d State v. Ind. 801(d)(1)(A); (1980); Nugent e.g., Fed.R.Evid. Ark.Unif.R. 4. See 228 Kan. Commonwealth, P.2d 570 (1975) 801(d)(1) (criminal only); Fla.Stat. (Ky.1982); 639 S.W.2d 761 Evid. (Harrison 1979); 90-801(2)(a) 801(d)(1); Hawaii tit. 4 Ann. § Mont.R.Evid. Nev.Rev.Stat. 801(d)(1); 802.1(1); 51.035(2)(a) (1971); Maine R.Evid. N.M.R.Evid. R.Evid. § 801(d)(1); (civil); 27- 801(d)(1)(A); 801(d)(1)(i) § Neb.Rev.Stat. Minn.R.Evid. N.D.R.Evid. 63(1); 801(4)(a) (1979); N.D.R.Evid. Copeland, NJ.R.Evid. State S.C. 300 S.E.2d denied, 801(d)(1) (criminal only); R.Evid. (1982), Ohio cert. 460 U.S. 103 S.Ct. permit prior refuse to BLACKMAR,Judge, inconsistent state- concurring. ments to be used as substantive evidence.5 concur, Judge I for the reasons set out It should be noted that Legis- the Missouri thorough opinion, Welliver’s and also for passed lature a law providing that the Judge the reasons stated in Finch’s concur- inconsistent statement of ring opinion in Granberry, criminal trial is substantive evidence. Mo. (Mo. 1973). S.W.2d Rev.Stat. 491.074 There has been no evidence from experience of other Two gave witnesses statements to an jurisdictions that the admissibility investigating supportive officer of the de- inconsistent statements has in any resulted position. fendant’s When their depositions Maguire, abuse. J. Evidence Common taken, were both disclaimed their Sense and Common Law 63 McCor- statements. The might well believe mick, Handbook of the Law of Evidence that the initial represented statements (3d ed. truth and that the disclaimers were the result subsequent importunities. Yet, We believe that when the de- rule, the orthodox these initial state- clarant for available cross-examination ments are unavailable to the trier of the enough of the dangers facts. This defendant could get not even unreliability absent justify the substan the statements into through tive use of back door by claiming surprise, for the civil cases. The cause is reversed and re disclaimers came before the trial.1 manded for a new trial consistent with this opinion. Judge giving careful attention to After per- Billings’ eloquent arguments am HIGGINS, C.J., FINCH, Senior disadvantages of the suaded that the ortho- Judge, concur. outweigh advantages rule and that dox JJ„ doing we DONNELLY, change. should make a so con- we BLACKMAR and duty developing the simply perform our of separate opinions cur in filed. The remon- common law of evidence.2 BILLINGS, J., separate opin- dissents in Washington Council of Law- strance of the ion filed. dissent, the quoted in the reflects yers, profes- legal of the natural conservatism in RENDLEN, J., and concurs dissents I sion, to those questions and raises similar BILLINGS, J. dissenting opinionof separate Supreme time the Court’s raised at the were before J., proposed rules of evidence ROBERTSON, participating not be- faith, neverthe- Congress.3 Our ultimate when cause not a member of the Court less, separate ability jurors in of is the cause was submitted. (R.I.1979); 2801(4)(a) 801(D)(1); Roddy, Martin v. 401 A.2d 23 tit. 12 State v. Okla.Stat.Ann. State, (Tenn.Cr.App.1979). 801(4)(a)(A); (1980); S.W.2d 830 584 Ore.R.Evid. S.D.C.L.Ann. (1979); 801(e)(1); Vt. 19-16-2 Texas R.Evid. 801(d)(1); 801(d)(1); operate Wash.R.Evid. R.Evid. rule sometimes 1. Does the orthodox 801(d)(1)(A). punish diligent? W.Va.R.Evid. 298, See, e.g. Chapman, Mo. 2. v. 337 85 Pulitzer 33, Moon, e.g., 5. See Cloud v. 290 Ala. 273 So.2d (1935); (sanctioning admission S.W.2d 400 (1973); States, 196 Turner v. United A.2d 443 prior testimony of sworn which the witness Gant, 178, (D.C.1982); People 542 v. 58 Ill.2d trial); repudiates Easterly, Sutter v. 354 Mo. at (1974); Ray, N.E.2d 317 564 State v. 259 La. 282, (1945) (sanctioning the S.W.2d 105, (1971); Capital Raceway 249 So.2d 540 v. against penal declarations interest admission of Smith, 224, (1974); Md.App. 322 A.2d 238 interest). contrary pecuniary as those as well State, (Miss.1975); Sims 313 So.2d 388 Mich. 801(d)(1); Gomes, Blackmar, Proposed R.Evid. State Federal Rules of 116 N.H. "The (1976); Sinclair, They of 352 A.2d 713 N.C. Evidence —How Will Affect the Trial App. Washington and Lee L.Rev. 263 S.E.2d revd. on other Cases?” grounds, 301 N.C. 270 S.E.2d 418 of a wit- opt prior the infirm. that inconsistent statements the sound evidence full information as giving present is at trial have value in favor of ness who find, The law in limita- letting it make the decision. I do not that bill’s evidence. Neither probabilities. chapters evidence deals in of change of tion to certain possibility statutes, certainty policy nor absence affirmative the criminal an required of admissi- abuse is as a condition maintaining the orthodox view else- bility. absolutely unnecessary, more- where. It is over, problem of face to to deal with agree I do not with the assertion that in cases as ex- face confrontation criminal meaningful may there be no cross-examina by Judge Donnelly.6 pounded tion about a claimed which a witness disavows at trial. and remand. I concur reversal (C concurring opinion Judge Seiler f. Granberry, 491 S.W.2d at DONNELLY, Judge, concurring. Judge Billings’ arguments). similar Cross- 337 Mo. Chapman, In Pulitzer v. get a simply examination is not an effort (1935), this Court followed 5.W.2d testimony. disaffirm his There witness to holding that weight existing authority ample exploration. Does the is room for by par- extrajudicial statements not made statement, deny making witness admis- ty to the suit were not profess memory? lack of Did he does he The Court stated: sible. ques initiate the conversation or was he position tioned? Was he to observe? generally rule It is true the is said If making the witness admits the earlier contradictory statements of statement, may explain he the inconsisten a witness be shown for not, cy. person report If he does then the impeachment. The reason as- purpose ing the statement is to cross-exami any given, that if such signed, where surrounding nation. The circumstances proof statements were taken fully explored jury may so that the stated, would be facts be better enabled to determine where the hearsay. truth lies. Chapman, supra, 85 S.W.2d Pulitzer v. my One of earlier concerns as to was omitted). However, (citations an whether essential element of case contradictory then held that simply by could be established during deposition made were statement of a witness which as sub- hearsay and could be admitted not repudiates Washington at trial. The Coun- This an innovation evidence. stantive Lawyers expresses cil of similar concern. decided, that the it was reasoned when but Missouri, however, disclaims the scintilla met hearsay rule were requirements of the every rule4 and holds that element of a was made un- prior statement because the case must be established substantial cross-examination. subject der oath do not have to evidence.5 So courts a rule that declined to set down The Court wholly un- countenance the submission of facts of the case beyond extend would juries. cases to substantial statements, that but noted extrajudicial general rule beyond the opinion went Committee Sub-

The enactment Senate “going authority supported even and some for stitute for House Committee Substitute Chapman, supra, at 366, 248, Pulitzer v. 83rd further.” House Bills 372 and recognition 411. Assembly, represents a General (Mo. Co., Griffin, banc S.W.2d 854 City State v. Kansas In

4. Hardwick v. Gas 352 Mo. expansion City 1983), Boring a broad S.W.2d 670 v. Kansas this Court sanctioned case, (Mo. Company, capital Insurance 274 S.W.2d 233 in a utterance” rule of the "excited Life 1955). very damaging, unconfronted admit so as to testimony. Garney Plumbing Company, 5. Jones (Mo.1966). S.W.2d 637 presented In this Court was for the ac- right cused shall have the to meet his question first time with the of whether cusers face.” “face to during inconsistent statements made considering question, In this latter it is deposition could be used as substantive appropriate to note that the United States impeachment evidence as well as for in a Supreme appli- Court has indicated that the criminal case. Granberry, adopt today cation of the rule we to crimi- (Mo. S.W.2d 528 In Granber nal cases would not violate an accused’s ry, we determined that such statements right constitutional “to be confront- federal were admissible as substantive evidence of * * ed with the him against witnesses *.” a criminal guilt defendant’s but were care Const., VI; U.S. amend. California ful to articulate our belief that the inter Green, Green, supra. the Court stated: public ests of the and the accused would may readily While it conceded that be better protected by preserv served and Confrontation rules and the ing the basics the orthodox view. designed protect Clause generally Granberry, supra appears at 531. It now values, a different quite similar it is that jurisdictions almost all adopted overlap thing suggest is com- position our in Pulitzer and Granberry plete and that the Confrontation Clause and allow during statements made than a cod- nothing more or less deposition to be used as substantive evi hearsay and their ification of the rules of dence. In both civil and criminal cases a historically at majority exceptions existed jurisdictions of these also have encompass extended the rule to common extrajudi law. cial statements where the witness at 1933-34. U.S. at 90 S.Ct. present subject at trial and to cross-exami Supreme upheld the use of nation. I believe that it is now time to take out-of-court statements where declar- logical the next step from Pulitzer in civil subject ant was at trial “and available cases and allow inconsistent state cross-examination,” full and effective ments to be used impeachment both for it U.S. at 90 S.Ct. at because and for substantive evidence where the wit underlying found the intent Sixth ness is at trial and to cross-exami was “to Amendment Confrontation Clause party. nation either prevent depositions parte affidavits or ex * * n However, view, in my admission of prisoner being against used inconsistent statements as substantive evi- personal lieu of a examination cross-ex dence in criminal cases would violate the * * 399 U.S. amination of the witness Constitution, I, Missouri Article Section 1935, quoting Mattox v. at S.Ct. 18(a) provides: “That in criminal 237, 242-43, States, 156 U.S. United

prosecutions the accused shall have the 337, 339, S.Ct. 39 L.Ed. 409 * * * against to meet the witnesses * * finding, Harlan’s concur- This as Justice him face to face emphasizes, from an examina- rence results opinion today adopts Court’s surrounding tion of the historical evidence modern trend rule in policy civil cases as a Amendment. 399 framing of the Sixth after weighing choice the usual reasons for 174-180, (Har- U.S. 90 S.Ct. 1943-1946 excluding hearsay against theory “the that lan, J., concurring): dangers hearsay largely the usual of it From the scant available information nonexistent where the witness testifies at may tentatively concluded that the Green, trial.” 399 U.S. California Confrontation Clause was meant to con- 1930, 1933, 90 S.Ct. 26 L.Ed.2d 489 against flagrant stitutionalize a barrier (1970). Whether the should orthodox rule abuses, accusers, by anonymous trials be abandoned in criminal cases not involves and the policy determination, absentee witnesses. That more im- but portantly a Clause was to common determination of its effect on intended ordain our guarantee Constitution’s law that an ac- rules evidence with constitution- of it as to notwithstanding the court to construe duty of so doubtful, al sanction great effectual answer the confronta- make it to English equate decisions that prin had And this hearsay. Rather, having estab- in view. purpose tion and think, prin the more other than principle, ciple, broad it is far we no lished a to it the common in reference likely anticipated ciple that the of law Framers supplemented, matter of evidence it consists would be as a criminal that law, personal knowledge judge-made by prevailing common within of facts witness, open to be to in rules of evidence. testified presence in the the accused. court (Emphasis Id. at 90 S.Ct. at 1946. * * n not, however, stiff, It is unbend added.) rule, extending every case with ing to However, light when Green sheds little letter, exception, its falling within out turn to the Constitution of Missouri. we by limited and subor but is controlled prosecu “That guarantee Its in criminal n * * rules, which render it safe dinate right tions the accused shall have the public jus in the administration of useful against meet the witnesses him face to to n * n ” tice, are as as the well established unchanged has since face existed itself, which, with all its great principle Const.1820, of 1820. Mo. Constitution limitations, taken exceptions was XIII, Const.1865, I, Mo. sec. art. sec. art. existing from the law of the land XVIII, II, Const.1875, Mo. sec. Mo. art. into incorporated the Constitution. I, Const.1945, 18(a). early art. It was sec. not, think, people purpose of the we was that this from recognized language derives principle introduce into the to new prosecu account of Paul’s biblical St. procedure, secure law of criminal but Festus, governor tion before Roman already part that of the those existed as recounted: who change the land law of from future priests chief and the elders elevating them law. into constitutional him, gave asking Jews information about (Emphasis original.) against for a sentence him. answered 414-416. 24 Mo. at them that it was the custom of the not give up any understanding Romans to one before This of our Constitution met the through succeeding genera- accused accusers endured has face face today, alive after three tions and is even Indeed, the of our revisions Constitution. (Revised Acts 25:15-16 Version Standard hearsay prohibition against constitutional 1971) McO’Blenis, 24 Mo. cited understood be so strict was current when our Constitution And it inwas McO’Blenis that this Court it neces- adopted, that the framers deemed first contoured our Constitution’s sary to enact an amendment to secure confrontation: pretrial depositions * * taken admissibility of great security the accused hear- preliminary the context of a outside principle is in the fundamental especially important to note the ing. It is law, con legal common that accompa- convention extensive debate person sists in some facts testified Const.1945, I, adoption of art. nied the Mo. them; personal knowledge who has 18(b). public excluding suspicions, thus all amendment, the adopted the final Unlike rumors, statements, and second-hand Report legislature left to Committee testimony, mere generally all power to take State’s the definition written, oral or the con whether * * * depositions, stating: such people sideration of made law incorporated their frame Provisions into taking depositions of for of great living principle provide government in all criminal they and or without the state law within the common under which any for thereof lived, it is the causes and the use had their ancestors and trial, provided deposi that where such proposal Thereafter a was submitted state, by tions are taken eventually what became is now Article personal I, confrontation and 18(b), cross-exami which states: nation of the by witness accused .the Upon hearing finding by and n * carefully preserved shall be *. circuit in any court case wherein the charged felony, 6 Debates accused is with a of the Missouri that it Constitution (hereafter ”). necessary deposition is to take the any “Debates Senator Cope interposed state, striking an amendment witness within the out other than de- all proposed objecting spouse, preserve amendment fendant and in order to that: testimony, and on condition that the court make such fully pro- orders as will important

The all thing in the trial rights personal tect the confrontation case is to see the for and cross-examination of the witness who is testifying, study witness to his defendant, countenance, may the state take the study something deposi- about the can, tion of such witness and character of the man so that either themselves, trial, use the same at up make their as in minds wheth- civil cases, provided er to believe or disbelieve the there has been substan- gives. compliance which the witness tial with such orders. The personal reasonable and traveling ex- Id., (emphasis added). at 1533 penses of defendant and his counsel shall support Cope’s of Senator amendment paid by county the state or provid- deposition provision, to strike the Senator ed law. argued Williams to inconsistency scope The limited of this amendment proviso of the Report Committee that the First, emphasis. deposition may bears rights accused’s of confrontation and cross- only upon hearing be taken carefully preserved”: examination “be before the Second, deposition circuit court. There is a difference between that [the Third, only be in a felony taken case. “carefully preserved”] confrontation Fourth, witness must be within the state. the confrontation which the law affords spouse may the defendant’s not be de- to the accused in a court. There is Fifth, posed. the court must find that the place one where can take confrontation deposition necessary preserve to testimo- place, and that is in a court where the not, therefore, ny. may It be used at trial place. trial takes judge pre- Where the unless the is dead or outside the sides and where charged by he is law Sixth, jurisdiction. the court must make duty seeing with the that the accused protecting rights orders the accused’s protected rights all of his as well as cross-examination, confrontation and society protected the state and in all of rights. substantially complied orders must be very their So that the use of the with. “personal Finally, recognizes pay term confrontation” the State must the reasonable attempts get personal a distinction expenses around and travel of the ac- right prescribed a definite by the Consti- cused and his counsel. tution itself. protections The limitations (emphasis added).

Id. at 1565 propos- amendment are so detailed that the objected during al was the Convention original committee recommendation ground on the that it in the nature of was rejected approval with the of Senator legislation inappropriate for inclusion Cope’s amendment to strike. Two reasons See, e.g., a constitution. 7 Debates appear from the record of the debates: (Remarks Park). 1905-1906 Governor those reservations re- discussed above with Nevertheless, narrowly excep- spect rights this tailored imprac- to an accused’s and the ticality protections tion to the strict common law of the amendment’s extra-territorial See, (Remarks prevailed scope. embodied our Constitution over Debates 1571 Mayer). attempts legislative authority Mr. broaden such an ac- It is little consolation to exception. This reluctance on the define an he cross-examine the say of the Convention to cused to that part Constitutional long-es- tampering with the as to the statement. countenance witness at trial no oth- protections indicates that at that impossible recapture, tablished It would be con- change in the traditional rule was date, appearance er the demeanor and late scope of our templated or effected. The the declaration. at the time of the witness guarantee that an accused Constitution’s Yet, those that precisely it is observations against him face to must meet witnesses credibility of evaluating are critical held in face continues to be as this Court only impor- But not is it the statement. McO’Blenis: witness, it is jury to see the tant for * * purpose people of the was not witness to see equally important for the principle into the

to introduce new the accused when he and confront procedure, law of criminal but to secure testimony. only It is then damning makes * * * already from those that existed appreciate impact fully that he' can [legislative judicial] change by futhre or contemplate their properly and his words elevating them into constitutional law. consequences for human life and ultimate liberty. McO’Blenis, supra, at 416.

Furthermore, continuing vi- whether the neither this My present view is that ancient law rules “be tality of the common (§ 491.- Assembly nor the General unwise, to our wise or is not submitted notwithstanding) has Laws of Mo.1985 judgment. common law were protec- power abrogate [The rules] the common law * * * time, well established at and by Mo. given tions constitutional stature Const, part went into the Constitution as I, 18(a). art. * * * clause now under consideration.” Id. I concur. at 417. foregoing indicates that the Missouri BILLINGS, Judge, dissenting. preserves against legislative Constitution swoop, relying in the main In one fell judicial panoply or modification the by legisla- enacted on of evidence codes proscriptions against hearsay common law requisite rule mak- tures or courts with the in criminal cases. Unlike the Federal Con- jurisdictions, other ing authority, all from stitution, codify which did not the common codes, and amended or model modified hearsay, longstanding law of we have jurisdiction and some- jurisdiction precedent contrary. venerable toto, plus rejected times treatises dangers posed by The full extent of the again rejected time and time have been applying adopted today the rule to criminal Court, principal years by this over the Gorden, cases seen in leg- opinion, by plain judicial old-fashioned (1947). There, Mo. 204 S.W.2d 713 islation, contrary to the Constitution at trial consisted adduced Missouri, rules of evi- adopts two new prosecutrix’s prior of the contents of the dence. signed, un- unsworn statement and a but as thor- principal opinion If the had been sworn, statement made the accused researching law as it was ough in Missouri committing the of- wherein he confessed legisla- judicial eager engage naked the conviction fense. This Court reversed under tion, discovered that it would have prosecutrix’s holding the admission of governing law rule barring the Missouri’s common unconstitutional and witness, a party’s own indepen- impeachment of unsupported by an confession as permitted to obscure there witness will not be corpus Assume that dent delicti. emergence truth. Because prevent the today’s If rule had been no confession. common law Missouri’s case, firmly the accused believe applied were in such a effectively and in fairly operates the contents of rule solely by could convicted truth; way impedes the ascertainment no extrajudicial statement. Incomplete leading I that the use of 3. statements to and because also believe meaning, unintended made when the wit- any prior statement as inconsistent sub- for the appreciation ness had no necessi- very impede much stantive evidence will ty complete reporting. truth, respectfully ascertainment unintended 4. Inaccurate or state- dissent. ments made a witness as a result of Preliminarily, point I wish to out that the suggestion or coercion. imperceptive principal opinion’s and seem- years Trials occur months and often ingly unquestioning support for a common sought after the events to be recreated gives party rule that the unrestricted law Memory lapses are an at trial. obvious to his is inti- own witness problem process. prob- in the trial mately misguided theory connected to the lem becomes more acute when a witness any prior inconsistent statement repeat tries to what are often casual deemed evidence if should be substantive person remarks another time presently the declarant available for may not have when the listener even so, being This I direct cross-examination. importance been aware of the of the re- my general question remarks first to the upon marks or that he will later be called any prior statement whether inconsistent Moreover, repeat people them. often should be used substantive they want to hear and remem- hear what when the declarant is available for cross- A what want to remember. ber at the time the statement examination witness who favors perfectly “honest” sought to be admitted into evidence. may a dis- party one to a lawsuit have memory a witness for the torted of what Congress hearings on When conducted years or before other said months Evidence, Proposed Federal Rules of course, And, of there are cases of trial. they wisely solicited the views of dozens testify- out-right perjury by one witness pro- leading lawyers, respected jurists, law by an earlier ing as to statements professional fessors and associations. Mr. dangers entirely are not These witness. Semmel, representing Herbert the Wash- principal because both the wit- alleviated ington Lawyers,1 part Council of directed witness, tes- secondary who ness and Advisory of his Commit- alleged inconsist- as to the former’s tifies 801(d)(1)(A), tee’s version of Rule which as statements, present are at trial ent both proposed, any prior then would have made available for corss-examination [sic]. non-hearsay inconsistent prin- from the diverted becomes thus, admissible as evidence. substantive ques- cipal of the case to collateral issues chilling Mr. articulated with elo- Semmel said on tions of what one witness quence unreliability dangers of and in- occasion. coloring any prior herent seemingly inconsistent state- Many statement as substantive evidence. of casual comments ments are result dangers in allow- There are substantial are unaware of by persons made who ing any inconsistent statement may later be attached significance which be introduced evidence. may remarks. comment to these repetition Inaccurate of oral state- 1. are omitted incomplete; details years before the ments made months at the to the declarant unimportant were trial. at a trial. may be crucial time but which loose, in a Misleading employed Language aapears later ambiguous made manner which interpretations unintended when testimony at trial. contradictory to for the appreciation the witness had no [sic] conelusory. Or may be An observation reporting. necessity for accurate teaching its mem- law. It drew Lawyers ment and Washington 1. The Council of Washington, lawyers bership D.C. area. voluntary en- over 400 association of employ- government gaged private practice, cooperate or out of indulged genuine in the desire the declarant have subconsciously tendency reprisals objects. if he Witnesses very human fear of only portion fill in the details where often are those who in criminal cases records, in the memo- event remains police an observed themselves ry- sentencing, probation on awaiting or are problems repetition, Supreme of inaccurate in its parole.

The or The Court incompleteness of out-of- ambiguity again emphasized the Term has current may found both court statements may tailor such witnesses danger that statements, although written and oral appease testimony or to their statements state- problem is more acute in oral the suspicion even to divert police the or But statements are also ments. written themselves to others. Davis subject to distortion. are all familiar We Alaska, 415 U.S. 94 S.Ct. he way investigator, a skilled with (1974). L.Ed.2d 347 officer, police insurance claim lawyer, a extra-ju- thing to admit such It is one detective, private can listen to a agent, or impeachment dicial for another potential prepare and then witness quite to allow a purposes and signature by for the witness statement finding guilt or a determination of reflects the interest of the investi- which non-liability to rest on such liability or gator’s agency. client or Adverse details Use of inconsistent statements. omitted; changes emphasis subtle part inherent statements to is an that regrettable It is true are made. but party adversary system. Each lawyers some will distort the truth to wheth- may judgment make its own police officers win a case and that some testimony er the value of witness’s [sic] crime, do the same to “solve” a will outweighed by adverse at trial will be one which has aroused the particularly prior inconsistent consequences when a public contro- public interest or caused impeach. On is introduced to versy. police may Or the officer be seek- hand, pro- Rules as under the the other ing put away “dangerous criminal” Advisory by the Committee posed guilty the officer “knows” is but who Court, any Supreme pronounced by the ngnist lacking. is whom evidence [sic] litigation could call a witness Examples of such conduct sometimes be- vague, might be testimony at trial whose public undoubtedly represent come might even be unable incomplete or who tip iceberg. The latest of such in issue after the events to recall the reported incident in the New York was that time. At of considerable passage 2, 1974, revealing Times of June testimo- statement, or any prior oral writ- point, ny by policeman a New York who admit- ten, testimony at trial with inconsistent perjury testimony in courtroom on a ted evi- as substantive introduced could be up illegal number of occasions to cover of Evi- (Proposed Federal Rules dence. wiretaps. 20, 1972, dence, November promulgated very potential may The well theory, a criminal 801(d)(1)(A)). In Rule He sign a distorted statement. liability rest sole- civil could conviction or accu- little interest in it is whether ours.) (Emphasis such evidence. ly on signifi- perceive not rate or he Semmel,2 Hearings Herbert change. He Statement of an omission or a cance Committee Before the Senate on H.R. put him out of may sign what is before trial, hearing proceeding, in a ry or other at a Mr. Semmel did ex- It should be noted that addition, And, declarant deposition. support Rule press for the version for cross-examina- presently be available must 801(d)(1)(A) presently in the embodied tion. Rule of Evidence. The current Federal Rules guard protective serve to measures those These admits as substantive evidence exposing danger very against real are inconsistent inconsistent statements which prior in- of fabricated an unfiltered stream and which were the declarant’s with following jurisdic- perju- statements. penalty of consistent given under oath Supreme Michigan Ruhala Judiciary, Congress, 93d 2d Sess. at on the (1974). 379 Mich. 150 N.W.2d Roby, 302-03 principal opinion suggests that these harmless if the de- dangers are rendered involved a witness to an automo- Ruhala is available for cross-examination clarant who at the scene of the acci- bile accident inconsistent statement the time driving a man dent stated that he saw for admission into evidence. offered of a woman killed car. The estate (Mo. Granberry, 491 S.W.2d accident, and at plaintiff, filed an action 1973)3, five members of this Court going testify trial the witness position advanced to- adopt refused to driving. plaintiff the woman was principal opinion. I submit that day by the sought to introduce the principal opinion position taken rely upon it as substantive statement theory demanding over the reali- elevates excluded the The trial court evidence. grossly underesti- litigation ties of value and the statement for its substantive timely that cross-ex- mates the crucial role In so Michigan Supreme Court affirmed. has in the search for truth. amination following made the ob- holding, the court hearsay importance of the The essential concerning utility post- servations by Wigmore Professor rule was noted poned cross-examination: istic rule of the Evidence—a rule which next to subjected effective ination which is his exhaustive treatise. the world’s method of more, scribed the common Hearsay is excluded from use of Evidence § eminently practical primarily cross-examination. hearsay to the trial, postponed and stale Anglo-American Law of penetrating as “that because 1364 greatest contribution law rule procedure.” 5 may be (Chadbourn rev. most character- legal system to it has not been admission into Wigmore de- A cross-exam- heat of an prohibiting esteemed, simply Wig- prior statement put to confidence who lawyer adversary cross-examination he refuses ined affirm it. Cross-examination sence an Cross-examination ... ! n affirms a If who him which would who denies a [a witness] adversary proceeding n lawyer who would in his affirmation. would have affirm, thing being as ^[*] presupposes a witness true, a refuses to no thing him there question shake his own examined being deny upon n can be no have him adopt his in its es- it, can be exam- it. n by or a If a one which is fresh cannot substitute for only is not cross-examiner The would-be disparity between and immediate. declarant’s to be the denied delineated with and the latter was former no choice but adversary, he is left with by the cogency insight unparalleled (criminal rule, 801(d)(1)(A) only); tions, ming R.Evid. by legislative court act or either 801(d)(1)(A). prophy- W.Va.R.Evid. wisely incorporate decided in Fed.R.Evid. embodied lactic measures 801(d)(1)(A). authority proposi- good for the Granberry is 3. 801(d)(1) e.g„ Ark.R.Evid. See rejects incon- the use of Missouri tion that 90-801(2)(a) (Fla. (criminal only); § Fla.C.Evid. evidence. substantive sistent However, Statutes, 802.1(1)(A); 1981); R.Evid. Hawaii Chapman, 337 v. 1935 Pulitzer 801(d)(1)(A); Me.R.Evid. R.Evid. Iowa 1935), (banc this Court 400 Mo. 85 S.W.2d 801(d)(1)(A); 801(d)(1)(A); Neb. Minn.R.Evid. general exception very narrow created (1979); 27-801(4)(a) N.D.R.Evid. § Rev.Stat. exception applies where a wit- rule. (criminal 801(d)(l)(i) only); Ohio R.Evid. given deposition and has testifies at trial ness 801(d)(1)(a) (the prior must have subject to oath and was under at which he to cross-examination been utility has limited cross-examination. Pulitzer offered); being Okla.Stat. against opin- whom it set forth in the beyond circumstances 2801(4)(a) (1980); Or.R.Evid. compli- Ann. tit. Additionally, deposition § taken in ion. Const, 801(4)(a)(A); I, 18(b) S.D.Comp.Laws § Ann. 19-16-2 be used can art. ance with Mo. 801(e)(1)(A); supra (1979); Granberry, Vt.R.Evid. Tex.R.Evid. See evidence. as substantive 801(d)(l)(i); Wyo- 801(d)(1)(A); Wash.R.Evid. at 531.

437 friend, longer protector become the witness’ es—has been discredited and no has place jurisprudence. a secure in modern savior. However, cursory examination of even Id. involving this Court’s most recent decisions The court went on to state further that this issue would reveal obvious absence deadly “no matter how the thrust of the Byrd, of this rationale. See State v. cross-examiner, ghost (Mo. 1984), denied, S.W.2d 494 banc cert. statement stands.” Id. at 157.' — —, 1233, 84 L.Ed.2d U.S. 105 S.Ct. wholly Wig- subscribe to Professor Armbruster, (1985); State more’s view that cross-examination is “be- Franco, (Mo.1982); S.W.2d 763 State v. engine yond any greatest legal doubt the 1976), denied, (Mo. S.W.2d 533 cert. discovery ever invented for the of truth.” 2682, L.Ed.2d 431 U.S. 97 S.Ct. Evidence, (Chadbourn Wigmore, Renfro, 408 S.W.2d 57 1974). However, great legal rev. if this (Mo.1966); Gordon, 391 S.W.2d State engine discovery for the of truth is allowed (Mo.1965). to run out of time and awith better late Despite primitive beginnings, the rule’s attitude, than never I fail to see how it can steadfastly Missouri’s courts have refused any longer depended upon to consistent- give primitive application. it ly satisfy the purpose rule. Company, Beier v. St. Louis Transit reasons, For all of these I cannot subscribe 215, (1906), 197 Mo. 94 S.W. 876 this principal opinion’s view that application Court—in connection with the prior inconsistent statement should be re- of Missouri’s common law rule—declared upon lied for its substantive value if the greater that “the law has nowhere shown presently declarant is available for cross- refusing lay wisdom than in to a hard down examination. [by] and fast rule to be followed ... ... Remaining question is the of whether leaving judge to the trial the exercise of a Missouri’s common prohibiting law rule a applied wise discretion to suit the be to party impeaching from his witness— own varying presented conditions to him ...” entrapment, surprise hostility— absent or at at 882. Mooney id. 94 S.W. Accord vitality has purpose. continued and There Ass’n, 245, 176 v. Terminal R. 352 Mo. can be little debate over the fact that Mis- (1944); Kurn, 605 v. 351 S.W.2d Crabtree souri’s common law rule is of ancient ori- v. Mo. S.W.2d Dauber gin. fact, rule, Notwithstanding this the as Josephson, Mo.App. 237 S.W. 149 developed it has applied by been Mis- (1922). past years,4 souri’s courts over the has proceed precise contours of the rule evolved into an effective useful mod- rule, along following the lines. Under the evidentiary principle prov- ern has —which party may impeach not his witness if the a accommodating en in successful the reali- testimony merely fails to meet the witness’ litigation safeguarding ties of while the However, expectations party. if the integrity primary of our means of search- faulty suffer from a memo- witness should ing out the truth. ry, party, pur- the the “for the rule allows pose refreshing memory, It is true that the traditional rationale his to direct support of the common law witness to statements offered the attention [the] by party previously rule—that a for his made him as to the vouches witness- ument, doing by precluded from so the 4. Missouri’s common law rule made its first but was elaboration, appearance reported jurisprudence in Missouri’s this trial court. Without much Wood, in the case of Brown v. 19 Mo. the action of the trial court and Court affirmed labor and Brown was an action for impeach party his own wit- held that a cannot plaintiff attempted in which the to materials ness. Id. at 476. agency the establish an between defendant and rule, prohibition Despite the the Court the called a wit- defendant's brother —who was as proved by point did out that “the fact by plaintiff. The witness’ failed ness witness, although will the first witness another agency plaintiff sought to establish thereby impliedly Id. discredited." impeach by introducing him a doc- written testimony. testimony....” Brown v. of the witness’ Crabtree matter his Co., Kurn, supra 351 Mo. at 173 S.W.2d at 315 Mo. Chicago, R.I. & P.R. (1926). Furthermore, the rule S.W. 45 exhibiting from prevent party would not a common law rule which denies Missouri’s witness, purpose to his for the of refresh right impeach party a the unrestricted ing memory, his a former written state have continued his own witness does vitali- Renfro, by ment made witness. State v. prevents ty purpose. party It a from pra, at 59.

su pur- setting up solely straw men for the Moreover, pose knocking them before an application rule has no down impressionable jury prevents party and it adversary as a wit- party calls his when through bringing from the back door Goforth, 443 S.W.2d ness. v.Wells (Mo. evidence which would we held unreliable Wells through front under not be allowed admission party an adverse called as a witness party 491.030, Giving door. unfettered RSMo 1959 found [now 491.030, impeached his own witness will serve may be RSMo 1978] expose unending to an flood of In con- by prior inconsistent statements. principle, expressly hearsay. nection with this Wells Fleeman, 50 Mo. overruled Chandler Finally, go it should not unnoticed that (1872), rule which held that Missouri’s convincing majority jurisdictions party’s own

prohibiting impeachment of a having principal opinion identified equal applied with force when consideration in addressed the issues under party. witness is the adverse by legislation so present case did Only promulgated rule. two op- rule does not court Missouri’s common law principal impeaching thirty jurisdictions cited preclude party erate posi- supporting its opinion testimo- footnote his witness when the witness’ own question of whether a entrapment of tion on the ny surprise results in to or right to im- unrestricted supra at 502. should have the party. Byrd, State witness, by way of peach im- acted entrapment speaks to his own concept twenty-eight other judicial decision. The part of either the witness proprieties on the question legisla- encompasses jurisdictions addressed party. It also or adverse This latter course tively by court rule. Transit or collusion. Beier v. St. Louis Com- action, however, to us 235, is not available at supra 197 Mo. at 94 S.W. pany, Const, V, prohibits Mo. art. because rules of evi- promulgating this Court separate surprise element of covers dence. calls a witness party the situation where a question of wheth- In connection with the give favorable tes- expecting the witness to should surprised and dam- er inconsistent timony genuinely and is value, only five unfa- be used for its substantive unexpected and aged the witness’ cited Gardner, thirty-five jurisdictions of the testimony. Malone v. vorable 2 and 4 as 516, opinion in footnotes 569, 582, principal 242 S.W.2d 362 Mo. common having modified or abandoned (1951). Additionally, permits the rule This by judicial decision. rule did so when the law party his own witness session, the Missouri Gen- legislative party calling past truly hostile to the witness is act, legislative Ass’n, Assembly passed a supra eral R. Mooney him. v. Terminal July on signed by the Governor at 611. In was 176 S.W.2d 352 Mo. at “a which allows recognized that this ex- this Court Mooney in a testifying any witness statement of applies rule with ception general chap- provisions of trial under the party has criminal greater purpose even when 568, RSMo, re- ters witness. Id. [to] but to call the no alternative ” CCS evidence.... ceived as substantive Accompanying 176 S.W.2d at 611. 366, 248, 372 and H.B. for HCS for is the for SCS delineated exceptions just each of the Regular Assembly, 1st suf- 83rd General that a must requirement legisla- The fact that result Session damage as a fered actual affirmative area, begun ture has to act in the criminal yet

but has not acted in the area of civil

litigation justify does not this Court don- Moreover,

ning legislative its hat. the re-

cent action taken the Missouri General

Assembly in this area clearly of the law

demonstrates that the modification of Mis-

souri’s law of evidence ais matter which appropriately province

lies more within the legislature. easy

It would be all but too for this legislate guise

Court to under the of decid-

ing cases and controversies if we allowed up every legis-

ourselves to take matter the yet

lature has upon. not acted The result judicial

of such unrestrained and ill-advised hodgepodge

activism would be a com-

mon statutory law rules and enactments— bring

which would us no closer to a thor-

ough comprehensive treatment of our

law of complex evidence. In this area of law, legislative clamors for at-

tention, orderly jus- administration of

tice dictates deference to rather than usur-

pation legislative process.

Mark HASEMEIER and Donna Hasem

eier, Plaintiffs-Appellants, SALES, INC.,

METRO McBride and Son

Company, and McBride and Son Build

ers, Inc., Defendants-Respondents.

No. 49353.

Missouri Appeals, Court of District,

Eastern

Division Four.

July 1985. Rehearing

Motion for and/or Transfer to

Supreme Court Denied

Sept. 16, 1985.

Application to Denied Transfer

Nov.

Case Details

Case Name: Rowe v. Farmers Ins. Co., Inc.

Court Name: Supreme Court of Missouri

Date Published: Oct 16, 1985

Citation: 699 S.W.2d 423

Docket Number: 66595

Court Abbreviation: Mo.