Keys v. State

¶1(concurring):

¶2While I join in the opinion of the Court, in my judgment, further comment in two respects is desirable beyond that contained in the Court’s opinion. I therefore take the opportunity to make such comment by this concurring opinion.

¶3First, I think it is important to attempt in capsule form to demonstrate for public understanding how the issue in this case is one of broad application and significance which could affect any citizen. It is important to do so because this case and others now pending on appeal, involving similar or related issues, concern criminal actions of some of the most serious crimes in our free society. I am keenly mindful of the seriousness of the allegations, from the State’s point of view as well as the defendant’s. But the principle involved is also vital to the individual freedom of everyone. The decision is not based on an irrelevant technicality. The average citizen accused of speeding would feel great resentment if the State were permitted to prove its case through a single police witness who did not see the incident and who relied solely on what eyewitnesses told him. It would be unfair for the speeding defendant to have to defend against such an attack. The principle is no less valid in a serious case carrying a severe punishment.

¶4Second, I think it is important that there be some comment which attempts to supply theoretical support to the opinion. This is especially so now because the hearsay rule *25is being reviewed constantly and suggestions for reform are in serious conflict. If the Statute were absolutely clear, perhaps legal policy would have no role to play. But the Statute is not absolutely clear. Therefore, it seems to me that there is a duty to justify the interpretation of the Statute as consistent with sound legal theory. This is admittedly difficult because legal writing is far from consistent and because any effort to explore the subject can be met by a reasonable attack, particularly when the effort is not made by an evidence specialist. But I think the effort should be made so that the ultimate conclusion can be better tested.

¶5Not only do the statutory language and practical trial implications lead me to the conclusion that there was error in this case but I think that, tested by the theory and policy of the hearsay rule, our interpretation of the Statute has a sound policy base. The hearsay rule evolved to encourage witnesses to testify as accurately as possible and to expose whatever inaccuracies might appear in their testimony. To this end the rule allows statements to be admitted for substantive purposes only where they are made under oath, before the trier of fact, by a person subject to cross-examination. McCormick’s Handbook of the Law of Evidence, § 245, at 581-82 (2d ed. E. Cleary 1972). The oath is important because it induces a special obligation to tell the truth and impresses upon a witness the danger of a perjury penalty. Cross-examination, the most crucial of the hearsay rule requirements, is important because it affords an opportunity to expose either deliberate falsehood or faults in a witness’s perception and memory. See McCormick, supra, § 245, at 582-83. These requirements will not be discussed further because it is the third requirement, that the witness testify before the jury, which mainly concerns us in this case.

¶6The witness’s presence before the trier of fact, while subordinate to the right of cross-examination, is important because it enables the judge and jury “to obtain the elusive and incommunicable evidence of a witness’ deportment while testifying, and a certain subjective moral effect is produced upon the witness.” 5 J. Wigmore, Evidence, § 1395, at 125-26 (3rd ed. 1940). The value has long been recognized as the following quotes taken from 5 Wigmore, supra, § 1395 at 126 indicate:

“1857, RYLAND, J., in State v. Mc-O’Blenis, 24 Mo. 421: ‘There are many things, aside from the literal import of the words uttered by the witness while testifying, on which the value of his evidence depends. These it is impossible to transfer to paper. Taken in the aggregate, they constitute a vast moral power in eliciting the truth, all of which is lost when the examination is had out of court and the mere words of the witness are reproduced in the form of a deposition.’

“1882, CAMPBELL, J., in People v. Sligh, 48 Mich. 56: ‘The production of witnesses in open court is one of the best means of trying their credit; and every one knows how difficult it is to judge from written testimony of the demeanor and appearance which strike those who examined them. Still more difficult must it be to have the testimony reproduced.’

“1860, Chief Justice APPLETON, Evidence, 220: ‘The witness present, the promptness and unpremeditatedness of his answers or the reverse, their distinctness and particularity or the want of these essentials, their incorrectness in generals or particulars, their directness or evasiveness, are soon detected. The appearance and manner, the voice, the gestures, the readiness and promptness of the answers, the evasions, the reluctance, the silence, the contumacious silence, the contradictions, the explanations, the intelligence or the want of intelligence of the witness, the passions which move or control — fear, love, *26hate, envy, or revenge — are all open to observation, noted and weighed by the jury.’ ”

¶7Live testimony can give rise to contradictions and a demeanor which puts an entirely different light on the bare word. Such contradictions and such demeanor are properly the burden of the offering party. Indeed, some courts go so far as to say demeanor can be used to establish facts contrary to the words used by the witness. For example, Learned Hand has written:

“It is one thing to put in a statement of a person not before the jury: that is indeed hearsay bare and unredeemed. But it is quite a different matter to use them when the witness is before the jury, as part of the evidence derived from him of what is the truth, for it may be highly probative to observe and mark the manner of his denial, which is as much a part of his conduct on the stand as the words he utters. Again and again in all sorts of situations we become satisfied, even without earlier contradiction, not only that a denial is false, but that the truth is the opposite: ‘The lady doth protest too much, methinks.’ This is not to rely upon the statement as a ground of inference, taken apart from the sum of all that appears in court; it is to allow the jury to use the whole congeries of all that they see and hear to tell where the truth lies. We and other courts have a number of times allowed this course to be taken. Indeed to deny this is to hold that nothing that comes from a witness on the stand can be used in support of the issue except his words under oath: the rest of his conduct may be used to refute what he asserts, but for nothing else. In short, out of the whole nexus of his conduct before the jury, they may treat those words alone as affirmatively relevant.” (footnote omitted)

¶8United States v. Allied Stevedoring Corp., 241 F.2d 925, 933 (2d Cir. 1957), cert. denied, 353 U.S. 984, 77 S.Ct. 1282, 1 L.Ed.2d 1143 (1957). This Court has recognized the value to the fact finder of contradictions which were the consequence of live testimony. Husband v. Wife, Del.Supr., 253 A.2d 63 (1968). The Supreme Court of the United States has emphasized the importance of live testimony in factual determinations where credibility is a factor. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 495, 71 S. Ct. 456, 468, 95 L.Ed. 456 (1951). Even the cases which hold that, given an adequate opportunity for cross-examination, a physical confrontation of the witness before the defendant, Court and jury is not required by Confrontation Clause of the Sixth Amendment emphasize the value “of compelling [the witness] to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L. Ed. 409, 411 (1895); Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1077, 13 L.Ed.2d 934, 937 (1965).

¶9The witness’s presence before the tribunal is important because his demeanor while testifying will enable the trier of fact to better determine the worth of his testimony. See 5 Wigmore, supra, at 126. This is why the hearsay rule requires that the tribunal observe the witness testifying in order to receive his testimony.5 A witness’s demeanor is part of his testimony. Thus, to truly present a witness’s testimony, the offering party, where practicable, *27should present the witness. The importance of demeanor evidence is especially great in jury trials. It has been recognized that the need for controlling the use of hearsay is most pronounced in jury cases. McCormick, supra, § 327 at 755. Indeed, some of the evidence modifications in England may be due to the expanded use of trials by court alone.

¶10I recognize that enforcement of the hearsay rule in certain instances has troubled the courts and commentators because blind adherence to the rule has caused the loss of probably reliable, valuable testimony. The law has been influenced by statutory changes. State v. Henson, Del. Super., 319 A.2d 43 (1974), aff’d. Del.Supr., 332 A.2d 773 (1975). The rules are in a state of evolution and minds, including those on appellate courts, must remain open. In particular, I note the contention that affirmative use of the prior statements of witnesses has been barred even though such statements could be thoroughly and properly tested. The loss of this evidence led to a movement to admit the prior statements of witnesses who are available for cross-examination. This movement was countered with a concern that too much liberalization of the hearsay rule would encourage the use of prepared statements in lieu of testimony.6 See McCormick, supra, § 251 at 602-03. One result is a position between the extremes. The recently adopted Federal Rules of Evidence, after Congressional modification, have redefined hearsay to permit the substantive use of a “[pjrior statement by [a] witness [where t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive . . .” Rule 801(d)(1). See U.S.Code, Congressional and Administrative News, No. 12A, January 15, 1975.

¶11Thus, even the draftsmen of the Federal Rules, which make admissible for substantive purposes much evidence that was not heretofore so admissible, have rejected as a general rule the more extreme position taken by the Model Code of Evidence and the Uniform Rules of Evidence. See also California v. Green, 399 U.S. 149, 161, 90 S.Ct. 1930, 26 L.Ed.2d 489, 499 (1970) and Elmer v. State, 20 Ariz. 170, 178 P. 28, 29 (1919). The Model Code and the Uniform Rules can be interpreted as allowing the substantive use of an available declarant's statement without requiring the proponent of the statement to place the declarant’s demeanor before the trier of fact. Model Code Rule 503(b) and Uniform Rule 63(1). But this unnecessarily diminishes the trustworthiness of the evidence utilized by the judicial process. Although there are reasons for allowing prior statements, such as the problem of the turncoat witness, they do not justify dispensing with an available appearance which can be crucial to a jury’s evaluation of the evidence. Demeanor evidence has long been held to be a valuable qualifier of bare statements. The proponent of the declarant’s testimony cannot dispense with demeanor evidence without some risk of failing to present his case accurately. In a criminal prosecution, the State must present the facts accurately. See Bennett v. State, 3 Storey 36, 164 A.2d 442 (Sup.Ct.1960). If the Statute is interpreted to require that,the offering party supply available demeanor evidence when it wishes to supply what is in effect testimonial evidence, it will, in my judgment, serve the best policy of both evidence and criminal law.