Does an inconsistent statement have to be inconsistent to be admissible as an inconsistent statement? What is the meaning of inconsistent? Is there an answer? Not today.

Darweshi McRoy v. United States, No. 12-CF-1797 (Decided January 15, 2015)

Players: Fisher, Thompson, Easterly.  Opinion by Judge Fisher.  PDS for Mr. McRoy.  Trial Judge: William M. Jackson.

Facts: A jury convicted Mr. McRoy of thirteen counts of sex abuse for the alleged abuse of his stepdaughters—D.J. and M.J.—and their friend, E.W.  In 2010, D.J., who was fourteen at the time, gave a videotaped statement at the Child Advocacy Center (“CAC”) describing the first instance of abuse that occurred when she was nine years old.  In her grand jury testimony a year later, D.J. stated that what she said in the CAC statement was true.  At trial, D.J. was reluctant to testify.  When asked by the government to tell the jury what happened, D.J. refused, saying that she did not want to talk about it.  Rather than push her to testify or request that the court order her to testify, the government instead introduced the videotaped CAC statement.  Defense counsel argued that her refusal to testify was not, in fact, inconsistent with her CAC statement, and that the government was introducing the statement simply to bolster its recalcitrant witness’s testimony.  Nevertheless, the court admitted the tape to impeach D.J.’s credibility and to show her demeanor.

Issue 1: Given D.J.’s refusal to testify, was the videotaped statement admissible as an inconsistent statement?

Holding: No.  The Court did not decide whether the outright refusal to testify is inconsistent with a previous statement (although it did offer some musings).  Instead, the Court held that the government did not lay a sufficient foundation for admitting the video, noting that the government did not push D.J. to answer, did not attempt to lead D.J. through her testimony, and did not request that the court order her to testify.  Consequently, the Court was not satisfied of D.J.’s outright refusal to testify.

Issue 2: Should the court have granted a mistrial after D.J.’s and M.J.’s mother referenced the fact that Mr. McRoy spent time in jail?

Holding: No.  The court issued a curative instruction, and the reference to McRoy having been in jail was brief, non-specific, and not intentionally elicited by the government.

Issue 3: Was there sufficient evidence to convict Mr. McRoy of contact with “M.J’s breast . . . between on or about August 1, 2005 and on or about November 30, 2007, at the residence on E Street., NE,” when M.J. testified that she was not touched until the family moved to a residence on Shepherd Street in 2009?

Holding: No.  Even though the Court gives prosecutors leeway when it comes to children witnesses remembering dates and locations, the jury could not have reasonably inferred from M.J.’s unequivocal testimony that the conduct happened at an earlier time in a different place.

Of Note:

·       The Court did not answer the broader question of whether the refusal to testify is inconsistent with a prior statement.  It is important to continue to litigate the issue and to push the government to use all possible measures, including the sanction of contempt, to get a reluctant witness to give live testimony.

·    The Court rejected the government’s argument for issue 3 that defense counsel was really making a constructive amendment or impermissible variance argument.  The Court held that the argument was rightly framed as a failure of proof argument.

Read full opinion here.

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