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In Nance v State, 331 Md. 549 (1993), the Maryland Court of Appeals held that a prior inconsistent statement can sometimes be used as substantive evidence at trial. Since then, Maryland courts have slowly teased out the particulars of this hearsay exception, now codified as Md. Rule 5-802.1(a), which abrogates the common law limitation that such statements could be used only for impeachment. In its most comprehensive review of the new rule to date, the high court has made clear that it is the fact of an inconsistency, rather than the reason for it, that triggers application of the rule. In Wise v. State (No. 73, Sept. Term 2019) (Nov. 24, 2020), the Court also described the extent to which a prior statement must differ from trial testimony before it will be deemed “inconsistent,” holding that it must contain a “material” contradiction of “substance and probative value” before it may be admitted into evidence.  Id. Slip Op at 21.

Wise concerned the statements of Byron Harris, who had observed a friend, Edward Thomas, arguing with two men on his front porch.  As Thomas pushed Harris into the house, Harris observed that the other men had guns.  A short time later, Harris heard shots, and from a window saw the armed men riding away on bicycles. Thomas remained on the porch with fatal gunshot wounds.  Id. at 2.

Detectives later showed Harris a photo array from which he positively identified Eric Wise as one of the men he saw arguing with Thomas before fleeing the scene.  Harris wrote what he witnessed on the back of the photograph, and Wise was thereafter charged with Thomas’ murder. Id. at 2-3.

Several years later, Harris was the victim of a robbery that left him with brain damage, cognitive defects, and memory loss. Id. at 3-4.  When eventually called to testify at Wise’s trial, Harris told the jury about his memory issues (“…since I had this surgery done to my head I been forgetting a lot of things”) and then proceeded to conflate the events of Thomas’ murder with those of the robbery perpetrated against him.  Id. at 5.  Harris testified, for example, that the murder and the robbery occurred on the same day, rather than years apart, and that the murder occurred at a bar, not at his house. While he remembered speaking with homicide detectives, he did not recall Wise or the photo array, but was able to identify his signature and handwriting on the back of Wise’s photo. Id. at 6.  

The trial court admitted the photo and handwritten narrative into evidence under Rule 5-802.1(a), which provides, inter alia, that a prior statement of a trial witness is not excluded by the hearsay rule if it was reduced to a writing signed by the declarant and is inconsistent with the declarant’s trial testimony.  Wise was convicted of first degree assault and received a 45-year sentence.  He appealed, arguing that under a literal reading of Nance, Harris’s prior statement should not have been admitted because a witness’s actual (as opposed to feigned) memory loss does not give rise to a Rule 5-802.1(a) inconsistency. 

To make this argument, Wise seized on a footnote in Nance which identified only two species of inconsistencies covered by this hearsay exception: (i) a positive contradiction between the out-of-court and in-court statements, or (ii) an implied contradiction that arises when the witness knowingly withholds testimony or feigns memory loss at trial. Id. at 7, citing Nance, 331 Md. at 564 n. 5.  A “positive contradiction,” Wise argued, required a “refutation, recantation or express change to key parts of a witness’s observations,” none of which occurred in his case. Id. at 11. Likewise, there could be no “implied contradiction,” because Harris neither withheld testimony nor feigned his memory loss. He honestly did not remember.  Id

In response, the Court noted that Nance involved a witness who had previously identified the perpetrator, but at trial feigned memory loss to avoid having to identify him. The footnote cited by Wise, therefore, simply “clarified that contrived attempts to circumvent the definition of ‘inconsistent’ will not succeed,” and was not an exhaustive recitation of the circumstances under which a qualifying inconsistency might arise.  Id. at 16. “If feigned memory loss may produce an implied contradiction from what the witness does not say, then actual memory loss may produce a positive contradiction from what the witness does say….We conclude an inconsistent statement may arise from memory loss or any other reason.” Id. at 17 (emphasis in original).  

Lest there be any doubt as to the breadth of its holding, the Court cited with approval the observations of Judge Charles E. Moylan, who had reached the same conclusion in a different case:

Neither the Nance opinion specifically nor the mainstream of American law that Nance deliberately joined care one whit why the testimonial inconstancy comes about. It may be through fear or intimidation. It may be for love or affection. It may be for cold hard cash. It may be because of loss of memory, partial or total, genuine or perjurious, as a result of drugs, alcohol, amnesia, senility, mental retardation, the mere passage of time, or for any other reason. It may be out of sheer perversity. It may be for no reason at all. It may be for reasons unknown. The law’s only concern is with what happens in this regard, not with why it happens.

Id. at 17 n. 10, quoting Makell v. State, 104 Md. App. 334, 345 (1995) (emphasis in original).

The Court did, however, impose a limitation on memory loss as the reason for the inconsistency:  “pure memory loss does not form the basis of a prior inconsistent statement under Nance or Md. Rule 5-802.1(a) when it prevents the witness from providing any contradictory testimony at all.”  Id. at 18 (emphasis in original).   Rather, there must be some substantive, conflicting testimony for the jury to evaluate or reconcile, and the absence of any such testimony would preclude application of the rule. See Corbett v. State, 130 Md. App. 408 (2000) (no inconsistency when near total memory loss prevented the witness from offering any substantive testimony at trial).

Turning its attention to statements that might form the basis for a positive contradiction, the Court noted that “[n]either Nance nor its progeny explained to what extent a prior statement must differ from trial testimony to constitute an ‘inconsistency.’” Id. at 24.  In this regard, the Court observed that it had left the question to the “‘I know it when I see it’ analytical canon” once famously employed to define pornography. Id. at n. 13, quoting Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).  To fill in this gap, the Court of Special Appeals determined that “if a witness tells a story that is impossible to square factually with a prior statement he or she has given, that is enough to satisfy the Nance rule.” Id. at 9, quoting Wise v. State, 243 Md. App. 257, 271 (2019).  The intermediate appellate court qualified this by limiting the admission of prior inconsistent statements to those that are material, i.e., “those of substance and value,” id. at 22, as opposed to statements that are “peripheral” to the matter under consideration.  Id. at 27. 

The Court of Appeals accepted this as the admissible floor for inconsistent statements. Materiality, the Court found, “ensures only prior inconsistent statements with sufficient substance and probative value qualify for the hearsay exception enumerated in Nance and codified in Md. Rule 5-802.1(a).”  Id. at 21.  Requiring that the inconsistency be material, the Court continued, will “prevent[] juries from wasting time comparing collateral facts.”  Id. at 23.

By way of illustration, the Court noted that Harris testified at trial that he heard gunshots from a bar, never saw the perpetrators, and could not implicate Wise in the shooting.  In his prior statement, however, Harris wrote that he heard the shots from his house, had seen Wise on the porch beforehand, and saw him flee the scene afterwards, all facts central to the State’s case.   Harris’s trial testimony was both an “‘impossible to square’ and materially inconsistent version of events compared to his prior written statement.” Id. at 27. As it “positively and materially contradicted his written statement to the police [it was] correctly admitted under the prior inconsistent statement exception to the hearsay rule….” Id.

At the other extreme, “[p]roponents may not use ‘the slightest contradiction between a prior statement and the trial testimony to permit wholesale admission of the prior statement as a hearsay exception.’” Id. at 9, quoting Wise, 243 Md. App. at 271.  To illustrate this point, the Court cited with approval the Court of Special Appeals’ hypothetical:  if Harris, who said in his written statement that he was watching a movie called Blade II when he heard the shots, testified at trial that he was watching Dracula II, this “trivial inconsistency” would not be a sufficient basis to allow the admission of the prior statement.  Id. 

The Court suggests that the materiality requirement “leaves no room for ambiguity about the severity of contradiction needed to admit a prior inconsistent statement.”  Id. at 26.  There is, however, a great deal of daylight between statements regarding eyewitness identification of the perpetrator and the title of the movie that the witness was watching at the time the crime was committed.  It is likewise conceivable that the name of the movie could be of significance at trial if, for example, the movie was broadcast only at a particular time and place, and the time and place are at issue in the case. Though the Court’s decision clearly “fills a gap in [its] precedent”, id. at 24, it did not close that gap entirely.