Author: Stephen P. Hurley
Co-author: Marcus J. Berghahn

Note about title1

“Anything you say can and will be used against you” ²

We hold as axiomatic the ability of the prosecution to elicit and admit into evidence our client’s statements through the testimony of others. Such statements are not hearsay³ and they are, almost without exception, inculpatory and damming. Yet the rule of using a party’s statements against them is not exclusively a weapon belonging to the prosecution. In multi-defendant criminal cases, especially in cases which have been severed in order to avoid Bruton problems, there exists an opportunity for the defense to exploit the prosecutor’s own words to impeach the prosecution’s statements and witnesses. This note reviews the use of Wis. Stat. § 908.01(4)(b) to argue the admission of the prosecutor’s own words for impeachment. The admission of a prosecutor’s own statements from another trial has not been widely litigated, nonetheless, courts have held that there can be no per se ban on the admission of statements made by a party’s counsel, even those representing the State.

Imagine the following facts: Your client has been charged, along with two co-defendants (Bill and Al) with being party to the crime of first degree intentional homicide and armed robbery. The criminal complaint alleges that your client drove Bill and Al to a location where they entered Ron’s home, took money from him and them killed Ron. There is no evidence that your client was present when Bill and Al robbed and killed Ron. Bill and Al then returned to your client’s car, and the three of them returned home. Your client tells you that he never knew that Bill and Al were going to Ron’s home to rob him or that they might kill him. Naturally, all three co-defendants have provided a statement to police which, the prosecutor asserts, implies a confession to the alleged acts. ⁴ All three co-defendants have filed motions to sever their trials from another on the grounds that, if joined, they would be unable to question the other co-defendants.⁵ The trial court has severed the trials and your client is scheduled for trial last. Bill and Al each testify at their respective trials on their own behalf. And, in each case, during closing arguments the prosecutor goes through their testimony and characterizes it as “unbelievable,” “incredible,” “a bunch of lies,” and says, in each case, that “Bill’s [Al’s] testimony cannot be trusted.” Both Bill and Al are convicted.

Since your client’s trial is the last of the three you have requested the transcripts from the preceding co-defendants’ trials. The week before your client’s trial, the prosecutor provides notice that she intends to call Bill and/or Al, the convicted co-defendants, as witnesses for the prosecution in order to elicit their testimony concerning your client’s knowledge and involvement in the charged offenses. ⁶ Sitting in your office late one night, reviewing the trial transcripts, it hits you: how can the prosecutor call the same witnesses liars in one trial, and then call them as witnesses in your client’s actions and implicitly suggest that their testimony is truthful? You wonder whether the statements of the prosecutor (that the witnesses are liars, fabricators and do not have a truthful bone in their body) are admissions by a party-opponent and may be admissible in your client’s case if the testimony of the witnesses is the same as it was in the previous cases.

Wisconsin courts have had only one opportunity to examine this issue. And as this issue may still be nascent, the caselaw is not wholly on point. Nonetheless, intrepid counsel should examine whether the statements of the prosecutor can be introduced to your client’s advantage. Perhaps, even, to keep out the only statements implicating your client.

Wis. Stat. § 908.01 provides, in pertinent part, that:

1. Statement. A “statement” is (a) an oral or written assertion or (b) nonverbal conduct of a person, if it is intended by the person as an assertion.
2. Declarant. A “declarant” is a person who makes a statement.
3. Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

1. Statements which are not hearsay. A statement is not hearsay if:
   1. The party’s own statement, in either the party’s individual or a representative capacity, or
      1. A statement of which the party has manifested the party’s adoption or belief in its truth, or
      2. A statement by a person authorized by the party to make a statement concerning the subject, or
      3. A statement by the party’s agent or servant concerning a matter within the scope of the agent’s or servant’s agency or employment, made during the existence of the relationship, or
      4. A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

The intriguing evidentiary question posed is this: Can the prosecutor’s statements be admitted into evidence in your client’s trial. This question was examined by the Wisconsin Supreme Court in State v. Cardenas-Hernandez, 219 Wis. 2d 516, 579 N.W.2d 678 (1998). In Cardenas-Hernandez, the Court examined whether the factual assertions made by an attorney in one criminal proceeding may be admissible against the defendant in a subsequent proceeding pursuant to Wis. Stat. § 908.01(4)(b). Cardenas-Hernandez, 579 N.W.2d 678, 683. The Court concluded that in certain cases, in order to further the interests of justice and to prevent “abuse and sharp practice,” the statements of prosecutors would be admissible as admissions by party opponents. Repeatedly, courts have held that there can be no per se ban on the admission of statements made by the party’s counsel (agents). To so hold would be inimical to the fundamental precepts of fairness guiding our justice system.

The Cardenas-Hernandez court found that due to paucity of precedent on this issue in Wisconsin, it would need to look to federal decisions on this issue because of the similarity of the federal rules of evidence. ⁷ Id. at 684. The Court noted that federal courts have previously concluded that the accused and the government, as represented by prosecutors, constitute party opponents of one another in a criminal case. Id. Federal courts have also determined that an attorney may be the agent of his or her client for purposes of Fed.R.Evid. 801(d)(2)(C)-(D). Id. (internal citations omitted). The Cardenas-Hernandez court therefore began its evaluation of the question with a survey of federal cases addressing this evidentiary issue.

In U.S. v. McKeon, 738 F.2d 26 (2nd Cir. 1984), the court considered the admissibility of statements made by a defense attorney in the opening statement in which he described the defendant’s wife’s role in certain incidents. A mistrial occurred before the defense presented its case. McKeon, 738 F.2d at 28. During the opening statement in the second trial, the same defense attorney described the wife’s role in a manner that was inconsistent with that described in the first trial. Id. The prosecution sought to introduce the opening statements from the first trial under Fed.R.Evid. 801(d)(2) 8 as an admission of the defendant and relevant to the defendant’s statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The content of the statement shall e considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

The McKeon court concluded that the defense attorney’s prior opening statements were not per se inadmissible in a subsequent criminal case. Id. at 31. To avoid “entrenching upon other important policies,” however, the court circumscribed the evidentiary use of such prior statements. Id. at 31 33. The court detailed three specific requirements that must be met before a counsel’s prior statements could be found admissible as evidence in a subsequent criminal case:

First, the circuit court must be satisfied that the prior statement is an assertion of fact that is inconsistent with the assertion at a later trial. Id. at 33. The inconsistency in the statements must be “clear and of a quality which obviates any need for the trier of fact to explore other events at the prior trial.” Id.

Second, the circuit court must determine that the statements of counsel are the equivalent of testimonial statements by the [party]; there must be something beyond the attorney client relationship to show participation by the [party]. ⁹ Id.

Third, the trial court must, in a hearing outside the jury, “determine by a preponderance of the evidence that the inference the prosecution seeks to draw from the inconsistency is a fair one and that an innocent explanation … does not exist.” Id. If opposing inferences are of equal weight, or the preponderance of evidence favors the innocent explanation, the prior statement should be excluded. Id.

Applying these three criteria, the McKeon court concluded that the defense counsel’s prior opening statements were admissible in the subsequent trial as an admission of his client under Fed.R.Evid. 801(d)(2)(B) and (C).

The specific inquiry in McKeon involved a statement made by a defense attorney, and analogous reasoning is applicable to statements made by an assistant district attorney. Federal courts have held that the criteria set forth in McKeon apply equally to statements made by such prosecutors. See, e.g., United States v. DeLoach, 34 F.3d 1001 (11th Cir.1994); United States v. Orena, 32 F.3d 704, 716 (2nd Cir.1994); United States v. Salerno, 937 F.2d 797 (2nd Cir.1991), rev’d on other grounds, 505 U.S. 317 (1992).

In Salerno, the court considered whether a prosecutor’s opening and closing statements in a prior criminal case were admissible as admissions of a party opponent in a subsequent criminal case in which the government presented an inconsistent theory of prosecution. See Salerno, 937 F.2d at 810 11. Relying on the reasoning of McKeon, the court refused to adopt a per se prohibition on the use of the prosecutor’s prior statements in subsequent criminal trials.

The Salerno court explained:

To hold otherwise would not only invite abuse and sharp practice but would also weaken confidence in the justice system itself by denying the function of trials as truth seeking proceedings. That function cannot be affirmed if parties are free, wholly without explanation, to make fundamental changes in the version of facts within their personal knowledge between trials and to conceal knowledge between trials and to conceal these changes from the final trier of fact.

Id. at 811 (quoting McKeon, 738 F.2d at 31). Recognizing that “serious collateral consequences” could result from the “unbridled use of such statements,” the Salerno court circumscribed the use of a prosecutor’s prior opening statement in a subsequent criminal trial by applying the three criteria established in McKeon. Id. Finding that the use of the prosecutor’s prior statement satisfied the McKeon criteria, the Salerno court determined that the statement was admissible in the subsequent criminal trial. Id. at 811 12. The court concluded that “the jury is at least entitled to know that the government at one time believed, and stated, that its proof established something different from what it currently claims.” Id. (quoting U.S. v. GAF Corp., 928 F.2d 1253, 1260 (2nd Cir.1991)).

The Cardenas-Hernandez Court found persuasive the reasoning of Salerno and McKeon. The Cardenas-Hernandez Court, therefore, refused to adopt a per se prohibition on the use of prior statements of prosecutors as admissions of a party opponent under Wis. Stat. § 908.01(4)(b).

The Court stated:

We agree that to adopt such a rule could invite abuse and sharp practice by prosecutors and could weaken the public’s confidence in the justice system itself by denying the function of trials as truth seeking proceedings.

See Salerno, 937 F.2d at 811; cf. McKeon, 738 F.2d at 31.

Nonetheless, the Court also stated that the use of a prosecutor’s prior statements must be circumscribed to avoid the possible collateral consequences that could result from unbridled use of such statements. See DeLoach, 34 F.3d at 1005 06; Orena, 32 F.3d at 716; Salerno, 937 F.2d at 811; cf. McKeon, 738 F.2d at 31 33.

The Court continued and stated that

Although not identical, concerns parallel to those raised by the McKeon court exist in admitting into evidence in a criminal trial unsworn statements made by a prosecutor in a prior criminal proceeding. A particular prosecutor called to testify in a subsequent case may be forced to withdraw from that case due to statements that prosecutor made in a prior proceeding.

Cardenas-Hernandez, 579 N.W.2d at 685 (emphasis added).

A court should not admit into evidence in a criminal proceeding a prior statement made by a prosecutor unless the court concludes that the three guidelines established in McKeon, and applied in Salerno, Orena, and DeLoach, are satisfied. Id.

Cardenas-Hernandez dealt with three separate court proceedings. The first of these concerned the defendant’s 1991 arrest conviction for various drug offenses. The arrest and criminal charges resulted from a search of the defendant’s residence which yielded $5,600 cash in a lock-box and $600 in cash, additionally in the defendant’s clothing police found pre-recorded drug-buy money. Cardenas-Hernandez, 579 N.W.2d at 681. The defendant pled to the drug charges and was sentenced to prison. Id.

After his conviction, the defendant wrote to the Court and requested a John Doe investigation pursuant to Wis. Stat. § 968.26 to investigate alleged police misconduct. Id. The defendant testified in the Doe proceeding and, while under oath, testified that one of the investigating officers had lied when he reported that money found in the defendant’s wallet was pre-recorded and that defendant’s residence was less than 1,000 feet from a day-care center. Id. The defendant further testified that the detective had stolen $3,300 from the defendant’s property during the search of the residence. Id. The Court determined that no further action was necessary. Id.

The State subsequently charged the defendant with two counts of perjury and two counts of criminal defamation as a result of the defendant’s allegedly false testimony before the Doe proceeding. Id. At the perjury trial the defendant attempted to admit into evidence statements made by the prosecutor who had originally prosecuted the original drug case. Id. During the preliminary examination, the prosecutor repeatedly argued that the defendant likely had the ability to post a cash bail since police had found “over $8,000 in cash” when executing the search warrant on his home.

Id. The defendant sought to introduce this statement to corroborate his claim that $8,800 rather than the $5,600 reported by the detective was in the lock-box when the officers seized its contents. Id. at 682.

Applying the McKeon guidelines to these facts, the Court concluded that statements made by the prosecutor made in the prosecution of the defendant on drug charges, prior to the prosecution for perjury were not admissible in the defendant’s perjury trial as admissions of a party opponent under Wis. Stat. § 908.01(4)(b). Id. at 686. Reviewing the three guidelines, the Court found that the statement failed the first guideline which requires that the court “must be satisfied that the prior argument involves an assertion of fact inconsistent with similar assertions in a subsequent trial.” Id. (internal citations omitted). Thus, although the prosecutor’s statements to the circuit court in the drug case were factual assertions, those statements were not clearly inconsistent with the State’s assertions in the perjury trial.

The Cardenas-Hernandez; Court, therefore, concluded that the circuit court properly exercised its discretion. Id.

Now imagine that the same prosecutor in a prior (and related case) called as a witness, convicted defendants whom she had previously described as liars. Where the statement pertains to the same testimony, the outcome would clearly be different than in Cardenas-Hernandez.

Justice and fairness seem to prohibit the State from having it both ways: the witnesses are either untruthful, or they are truthful. Thus to permit the prosecutor to argue in one case that the witness is untruthful, while days later arguing that he is indeed truthful about the same occurrence, is, in essence, for the Court to authorize the “abuse and sharp practice” which the supreme court has sought to foreclose. See State v. Cardenas-Hernandez, 219 Wis. 2d 516, 579 N.W.2d 678, 685 (1998) quoting U.S. v. Salerno, 937 F.2d 797, 811 (2nd Cir. 1991), rev’d on other grounds, 505 U.S. 317 (1992); see also SCR 20:3.3(Candor to Tribunal).

In the fact pattern discussed above the prosecutor’s statements demonstrate clearly that she does not believe that either witness is able to tell the truth. The statements of the prosecutor indicate in every conceivable manner that these are not witnesses to be believed. Thus, for the Court to permit the introduction of such evidence, in the event that convicted co-defendants are called to testify as witnesses would arguably violate the accused’s right to fundamental fairness and justice.

See U.S. Constitution, Amendment V; Wisconsin Constitution Article I, §§ 7 & 8. Moreover, the accused is entitled to produce evidence of a witness’ credibility. Wis. Stat. § 906.08(1); see also Wis. Stat. § 906.09.

In order to seek the admission of the prosecutor’s statements, counsel must be prepared to argue that the statements concerning the witnesses’ truthfulness are viewed, in context, like the opening statements in McKeon, supra, where the defense attorney’s prior opening statement was admitted at the re-trial of the defendant. In McKeon, the defense attorney described the defendant’s wife’s role in certain incidents inconsistently between the first trial and the second. Here, the prosecutor advances inconsistent information concerning the witnesses. The inconsistency of the State’s position is manifest “and obviates any need for the trier of fact to explore other event prior to trial.” McKeon, 738 F.2d 26, 33; Cardenas-Hernandez, 579 N.W.2d at 684. This satisfies the first prong of the McKeon guidelines.

Evaluation of the second prong of the guidelines follows closely behind. The statements of counsel must be the equivalent of the testimonial statements by the client. McKeon, 738 F.2d at 33. Here, the agent of the State has implicitly related to the Court that neither she nor her client find the testimony of witnesses credible; those statements have been clearly adopted by the State and have been propounded.

The third McKeon prong requires the Court to inquire whether the proposition for which the statements admission is sought is a fair one. Id. The answer to this inquiry ought be the affirmative. The inconsistency of the statements is created by the State only if the State determines that it will call Bill and Al as witnesses. As a result, the State can effect whether the inconsistency will occur. However, once called to testify, the shadow of prejudice is cast upon the accused and cannot be readily undone without informing the jury of the prosecutor’s prior position or undertaking alternative measures to cure such prejudice.

Furthermore, it should be argued that the prosecutor, as agent of the State ought be bound to its view of witnesses’ truthfulness as the client’s trial really one single trial, that had to be repeated for each defendant because of confrontation concerns.

On this point, the McKeon court looked to the analogous issue of the admissibility of superceded pleadings in civil litigation. The court noted that the law is quite clear that such pleading constitute the admissions of a party-opponent and are admissible in the case in which they were originally filed as well as in any subsequent litigation involving that party. A party thus cannot advance one version of the facts in its pleadings, conclude that its interests would be better served by a different version, and amend its pleadings to incorporate that version, safe in the belief that the trier of fact will never learn of the change in stories.

McKeon, 738 F.2d at 31. Thus guiding the decisions in McKeon and Cardenas-Hernandez is the precept that no party ought be able to evade the truth by changing their statements merely because it may suit their theory of the case it stands at that time. Due process requires a higher standard of the parties.

Policy grounds further strengthen the argument for the admission of the statements. The judicial system is built on trust and respect of the public and relies on that trust and respect for effectiveness. “It is of fundamental importance that justice should not only, but should manifestly and undoubtedly be seen to be done.” Rex v. Sussex Justices, 1 K.B. 256, 259 (1924), quoted in State v. Love, 218 Wis. 2d 1, 579 N.W.2d 277 (Ct. App. 1998), overruled on other grounds. Similarly, the United States Supreme Court has said that trials themselves are “a reflection of the notion, deeply rooted in the common law, that ‘justice must satisfy the appearances of justice,'” Levine v. U.S., 362 U.S. 610, 616 (1960)(quoted source omitted), and that the perception of fairness of trials and judicial acts is essential to the effectiveness of the system itself. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)(Brennan, J., concurring).

In summary there are three parts to the foundation necessary for the testimony of the prosecutor to be admitted in a subsequent trial as an admission by party opponent:

1. The prior statement is an assertion of fact, which is inconsistent with a subsequent assertion of fact. The inconsistency must be clear and cannot lead to mini-trials within the trial. The statements must show the indicia of reliability which make these statements exceptions to the hearsay rule.
2. Counsel’s statements must be equivalent to testimony by the party. Here one must link the prosecutor as the agent of the State. That is, the prosecutor holds himself out as appearing on behalf of the State of Wisconsin and acts in a representative capacity.
3. Is there an innocent explanation for the discrepancy in the statements?

This rule of evidence may, in the appropriate case, provide intrepid counsel an opportunity to impeach the State with its own words.

1. State v. Cardenas-Hernandez, 219 Wis. 2d 516, 579 N.W.2d 678 (1998).
2. Miranda v. Arizona, 384 U.S. 436, 479 (1966)
3. See Wis. Stat. § 908.01(4).
4. See Wis. Stat. § 908.01(4)(b)(5).
5. See Wis. Stat. § 971.12(3); Bruton v. United States, 391 U.S. 123 (1966); Pohl v. State, 96 Wis. 2d 290, 291 N.W.2d 554 (1980); Cranmore v. State, 85 Wis. 2d 722, 271 N.W.2d 401 (Ct. App. 1978); Richardson v. Marsh, 481 U.S. 200 (1987).
6. When a defendant is charged as party to a crime pursuant to Wis. Stat. § 939.05, the State may present evidence according to two theories: aiding and abetting, or conspiracy. The State is not required to specify the particular subsection of the statute which relates to the defendant’s alleged manner of participation in the crime. The issue may be presented to the jury under either theory. See Holland v. State, 91 Wis. 2d 134, 280 N.W.2d 288 (1979)(while the state must prove every element of the offense charged beyond a reasonable doubt, the jury need not unanimously agree that alternative ways in which a defendant can be held criminally liable for the offense).
7. Where the Wisconsin rules of evidence and the federal rules of evidence overlap with only minor grammatical differences, the Wisconsin courts look to federal cases interpreting and applying the federal rules of evidence as persuasive authority. Cardenas-Hernandez, 579 N.W.2d678, 684, State v. Rodgers, 196 Wis. 2d 817, 830 n.6, 539 N.W.2d 897 (Ct. App. 1995).
8. Fed.R.Evid. 801(d)(2) provides: Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in with an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) consciousness of guilt. Id. at 29.
9. Extrajudicial admissions by a party opponent are admissible as evidence. “The fact of admission is a badge of reliability sufficient to overcome the hearsay objection to out of court statements offered for their truth. People usually don’t make damaging admissions unless they are true. Usually, but not always. People sometimes do make mistaken admissions, which is why an extrajudicial admission, not being made with the same deliberateness as a judicial admission, is not conclusive on the issue admitted. But it is evidence.” Murrey v. U.S., 73 F.3d 1448, 1455 (7th Cir. 1996).

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