State v. Otton

• Court: Washington Supreme Court
• Decided: June 9, 2016
• Docket: 91669-1
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

) STATE OF WASHINGTON, ) ) Respondent, ) No. 91669-1 ) v. ) ) ENBANC NAKIA LEE OTTON, ) ) Petitioner. ) Filed: JUN 0 9 2016 ________________________) YU, J.- While ostensibly concerning the interpretation of an evidentiary

rule, this is actually a case about stare decisis. Petitioner Nalda Lee Otton seeks

reversal of his convictions for second degree assault and felony harassment. The

victim testified at Otton's trial, and because her testimony was inconsistent with

her prior sworn statement to police about the incident, the trial court admitted the

victim's prior statement as substantive evidence. Otton acknowledges that the trial

court's decision and the Court of Appeals opinion affirming that decision were

proper in accordance with this court's long-standing precedent. He asks us to

reject that precedent. We decline the invitation and affirm the Court of Appeals. State v. Otton, No. 91669-1

FACTUAL AND PROCEDURAL HISTORY

Otton and the victim had a romantic relationship and lived in the same

household. The victim was disabled due to a history of multiple brain surgeries

and sometimes had difficulties with memory and speaking. Late one night in

December 2012, Otton and the victim had a confrontation. After Otton left the

house, the victim called 911. When the police arrived, the victim gave a written

statement, signed under penalty of perjury, alleging that Otton held her on the bed

and against the wall by her neck so that she could not breathe and told her he was

going to kill her. The State charged Otton with second degree assault and felony

harassment.

At trial, the victim testified that while she would not have intentionally lied

to police, her allegations against Otton were false, and that she had called 911

because she was "angry" and "had a couple of drinks." 2A Verbatim Report of

Proceedings (VRP) (Aug. 7, 2013) at 132. At the State's request and over Otton's

objection, the trial court admitted the victim's written statement as substantive

evidence pursuant to ER 801 (d)(l )(i), in accordance with State v. Smith, 97 Wn.2d

856,651 P.2d 207 (1982), and State v. Binh Thach, 126 Wn. App. 297, 106 P.3d

782 (2005). !d. at 212. The jury convicted Otton as charged, and the Court of

Appeals affirmed in an unpublished opinion. State v. Otton, noted at 187 Wn.

App. 1001,review granted, 184 Wn.2d 1017, 360 P.3d 819 (2015).

2 State v. Otton, No. 91669-1

ISSUE

Should this court reject Smith's interpretation of ER 801 (d)( 1)(i )?

ANALYSIS

A. Standard of review and principles of stare decisis

A decision to admit or exclude evidence is generally reviewed for abuse of

discretion. State v. Griffin, 173 Wn.2d 467, 473, 268 P.3d 924 (2012). But in this

case, Otton does not challenge the manner in which the trial court exercised its

discretion; he challenges the way this court previously interpreted ER 801 (d)(l )(i).

"'Interpretation of an evidentiary rule is a question of law, which we review de

novo,"' id. (quoting State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007)),

but we have previously addressed the precise question Otton now raises. We must

therefore be mindful of stare decisis.

"Stare decisis is a doctrine developed by courts to accomplish the requisite

element of stability in court-made law, but is not an absolute impediment to

change." In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d

508 (1970). In order to effectuate the purposes of stare decisis, this court will

reject its prior holdings only upon "a clear showing that an established rule is

incorrect and harmful." ld. There are also "'relatively rare' occasions when a

court should eschew prior precedent in deference to intervening authority" where

"the legal underpinnings of our precedent have changed or disappeared altogether."

3 State v. Otton, No. 91669-1

W. G. Clark Constr. Co. v. Pac. Nw. Reg 'l Council of Carpenters, 180 Wn.2d 54,

66,322 P.3d 1207 (2014) (internal quotation marks omitted) (quoting Carpenters

Local Union No. 26 v. US. Fid. & Guar. Co., 215 F.3d 136, 141 (1st Cir. 2000)).

When a party asks this court to reject its prior decision, it "is an invitation

we do not take lightly." State v. Barber, 170 Wn.2d 854, 863, 248 P.3d 494

(20 11 ). The question is not whether we would make the same decision if the issue

presented were a matter of first impression. Instead, the question is whether the

prior decision is so problematic that it must be rejected, despite the many benefits

of adhering to precedent-"'promot[ing] the evenhanded, predictable, and

consistent development of legal principles, foster[ing] reliance on judicial

decisions, and contribut[ing] to the actual and perceived integrity of the judicial

process."' Keene v. Edie, 131 Wn.2d 822, 831,935 P.2d 588 (1997) (quoting

Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 115 L. Ed. 2d 720

(1991)). With these principles in mind, we turn to the precedent Otton asks us to

reject-Smith, 97 Wn.2d 856.

B. The Smith decision and its application in this case

Smith was a case about the proper interpretation ofER 80l(d)(1)(i), an

evidentiary rule concerning the definition of "hearsay." "Hearsay" is defined

generally as "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."

4 State v. Otton, No. 91669-1

ER 801 (c). "Hearsay is not admissible except as provided by these [evidentiary]

rules, by other court rules, or by statute." ER 802. However, ER 801(d)(l)

provides that an out-of-court statement is not hearsay if

[t]he declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is (i) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.

Because such a statement is not hearsay, it is admissible at trial as substantive

evidence, that is, to prove the truth of matter asserted in the statement. 1

As noted, it is undisputed on appeal that the victim in this case testified at

Otton's trial, that she was subject to cross-examination about her prior written

statement, that the prior written statement was inconsistent with the victim's trial

testimony, and that the prior written statement was given under oath and subject to

the penalty of perjury. The only question is whether her police interview was an

"other proceeding" within the meaning ofER 801(d)(1)(i).

When confronted with the same question in 1982, this court declined to issue

a categorical ruling that a police interview is either always or never considered an

"other proceeding." Smith, 97 Wn.2d at 861. Rather, we held that "[t]he purposes

of the rule and the facts of each case must be analyzed. In determining whether

1 The statement's admissibility is subject, of course, to other applicable evidentiary and constitutional limitations.

5 State v. Otton, No. 91669-1

evidence should be admitted, reliability is the key." Id. Applying this approach to

the facts presented, Smith held that the police interview at issue in that case was an

"other proceeding" because "the complaining witness-victim voluntarily wrote the

statement herself, swore to it under oath with penalty of perjury before a notary,

admitted at trial she had made the statement and gave an inconsistent statement at

trial where she was subject to cross examination." !d. at 863. The victim's sworn

statement was therefore admissible as substantive evidence. !d. at 857.

We have not reexamined Smith since it was issued. However, based on

Smith, the Court of Appeals has formulated a four-factor test for determining

whether an out-of-court statement by a nonparty witness is admissible pursuant to

ER 801(d)(1)(i):

(1) whether the witness voluntarily made the statement, (2) whether there were minimal guaranties of truthfulness, (3) whether the statement was taken as standard procedure in one of the four legally permissible methods for determining the existence of probable cause, and (4) whether the witness was subject to cross examination when giving the subsequent inconsistent statement.

Thach, 126 Wn. App. at 308. Otton does not challenge the trial court's

discretionary determinations that the police interview at issue here qualified as an

"other proceeding" and that the victim's written statement was properly admitted

in accordance with this four-factor test. He also does not contend that the four-

6 State v. Otton, No. 91669-1

factor test is anything but a faithful application of Smith. Rather, he argues that we

should reject Smith.

C. Otton has not shown that Smith is incorrect or harmful

Smith reasonably held that the phrase "other proceeding" must be interpreted

in a way that gives effect to its plainly "open-ended" language, Smith, 97 Wn.2d at

861, and the constraints of the four- factor test articulated by the Court of Appeals

prevent the harmfulness that could theoretically flow from an unrestrained,

subjective inquiry into "amorphous notions of 'reliability,"' Crawford v.

Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We

therefore hold that Otton has not shown that Smith's interpretation of an "other

proceeding" for purposes ofER 801(d)(1)(i) is clearly incorrect or harmful.

1. Otton has not shown that Smith is incorrect

Where a party asks this court to reject its previous decision, the party must

show that the previous decision is "incorrect." Stranger Creek, 77 Wn.2d at 653.

Otton contends that Smith is incorrect because it conflicts with (1) the plain

language of ER 801 (d)( 1)(i) and applicable principles of rule interpretation and

(2) decisions of other jurisdictions that have considered similar evidentiary rules.

We disagree with both contentions.

7 State v. Otton, No. 91669-1

a. Interpretation of evidentiary rules

"This court interprets court rules the same way it interprets statutes, using

the tools of statutory construction." State v. Hawkins, 181 Wn.2d 170, 183,332

P.3d 408 (2014). We therefore begin with the plain language of the rule. !d. ER

801 (d)( 1)(i)'s plain language allows prior inconsistent statements by nonparty

witnesses to be admitted as substantive evidence if the statements were "given

under oath subject to the penalty of perjury at a trial, hearing, or other proceeding,

or in a deposition." "Other proceeding" is not defined in the rule, and its meaning

is not apparent from the rule's plain language. Smith therefore appropriately

looked to the "history and purposes" of the federal counterpart to ER 801 (d)(1 )(i).

Smith, 97 Wn.2d at 859; see Dep 't of Ecology v. Campbell & Gwinn, LLC, 146

Wn.2d 1, 12, 43 P.3d 4 (2002) (statutory ambiguity may be resolved by

considering relevant legislative history).

Smith noted that the first proposed version of the federal rule would have

allowed "all prior inconsistent statements to be used as substantive evidence," but a

requirement "that the statement be made under oath, subject to penalty for perjury"

was later added "to assure reliability." Smith, 97 Wn.2d at 859-60. However,

further proposals to restrict the rule by requiring greater procedural formalities

(that the statements be given during grand jury proceedings and subject to cross-

examination at the time they were given) were rejected. !d. at 860. This history

8 State v. Otton, No. 91669-1

shows that statements admitted under the rule must meet a certain level of

reliability and must have been given with some level of procedural formality, but

that the phrase "other proceeding" was intentionally left "open-ended." Id. at 861.

Smith also considered "the original purpose of the sworn statement," and

noted that the statement given in that case "was taken as standard procedure in one

of the four legally permissible methods for determining the existence of probable

cause." Id. at 862 (citing State v. Jefferson, 79 Wn.2d 345, 347, 485 P.2d 77

(1971)). The court noted that "'[o]ther proceeding' under the rule would clearly

cover" three of the four methods-grand jury proceedings, inquest proceedings,

and filing a criminal complaint before a magistrate. I d. at 863. It would therefore

be an anomaly to categorically exclude the fourth method-"police investigations

into alleged criminal activity, and the taking of statements from witnesses and the

presentment of them to the prosecuting attorney." Id. at 862.

Otton, however, argues that based on applicable principles of statutory

interpretation, this court must hold that an "other proceeding" "mean[s] something

similar to the preceding specific terms 'trial' or 'hearing."' Suppl. Br. ofPet'r at 6.

This, according to Otton, would include "judicial proceedings, often adversarial,

where the declarant is officially placed under oath and subject to questioning" but

not proceedings like those at issue here, where voluntary, sworn witness statements

are given outside "a courtroom or governmental office." Id. at 6-7. Even if we

9 State v. Otton, No. 91669-1

were to assume that this could be a reasonable interpretation in the first instance, it

is not compelled by the plain language ofER 801(d)(1)(i).

By focusing on the terms "trial" and "hearing," Otton takes into account

only some of the context in which the term "other proceeding" is used. However,

we must "give[] effect to the plain language of a court rule, as discerned by

reading the rule in its entirety and harmonizing all of its provisions." State v.

George, 160 Wn.2d 727,735, 158 P.3d 1169 (2007) (emphasis added). This

means we must consider the fact that the plain language ofER 801(d)(1)(i) also

includes statements made at depositions, which are not necessarily judicial

proceedings and may take place outside of a courtroom or governmental office.

Otton's proposed interpretation also reads into the phrase "other proceeding" terms

that are not there. ER 801(d)(1)(i) does not refer to other judicial proceedings or

other adversarial proceedings or other formal proceedings. It refers only to an

"other proceeding," a phrase that "does not, in itself, reveal its own dimension."

United States v. Castro-Ayon, 537 F.2d 1055, 1057 (9th Cir. 1976).

Perhaps most problematically, even if we were to agree that the victim's

statement here was not given at an "other proceeding," Otton does not propose a

workable analytical framework for future cases. See Key Design Inc. v. Moser,

138 Wn.2d 875, 883, 983 P.2d 653 (1999) (adhering to precedent in part because

"Key Design proposes no alternative rule which would provide the clarity and

10 State v. Otton, No. 91669-1

certainty it says the [previous] rule lacks"). He certainly proposes a bright-line

rule that witness statements given to investigating police officers are never

admissible under ER 801 (d)(1 )(i), but the suggestions that an "other proceeding"

must be adversarial and occur in a governmental building seem untenable. It is not

clear how the physical location where a statement is given would necessarily

advance the plain language or underlying purposes of the rule, and a grand jury

proceeding is clearly an "other proceeding," even though it is "investigatory,"

rather than adversarial, in nature. Castro-Ayon, 537 F.2d at 1058.

We thus conclude that Smith's interpretation ofER 801(d)(1)(i) was

reasonable and that Otton's reading ofER 801(d)(1)(i) is not compelled by the

rule's plain language.

b. Decisions from other jurisdictions

Where our prior interpretation is inconsistent with the decisions of "the vast

majority of our sister states," there may be good reason to reconsider our own

approach. Davis v. Baugh Indus. Contractors} Inc., 159 Wn.2d 413, 417, 150 P.3d

545 (2007). However, a decision is not necessarily incorrect merely because it

lacks universal acceptance. See Key Design, 138 Wn.2d at 883 (argument "about

the rule being extreme, unusually strict, and not generally accepted or favored"

held insufficient). In this case, the decisions of other jurisdictions do not show that

Smith's interpretation ofER 801(d)(l)(i) is clearly incorrect.

11 State v. Otton, No. 91669-1

We begin with the one jurisdiction that clearly and completely disagrees

with Smith-Florida. Florida courts have specifically rejected Smith's case-by-

case approach and instead use a "'bright line' test" to interpret Florida's version of

ER 801(d)(l)(i). Delgado-Santos v. State, 471 So. 2d 74, 79 (Fla. Dist. Ct. App.

1985). Under that test, an '"other proceeding"' does not ever include a "police

interrogation." State v. Delgado-Santos, 497 So. 2d 1199, 1199 (Fla. 1986).

However, while the Florida evidentiary rule is textually similar to ER 801 (d)( 1)(i),

the Florida courts faced different considerations than the Smith court did. In light

of these different considerations, we cannot say that the Florida courts'

disagreement with Smith clearly shows that Smith is incorrect.

Notably, in the seminal case establishing Florida's bright-line test, the court

was plainly troubled by the circumstances under which the statement at issue in

that case was made: the witness who gave the statement was 16 years old at the

time, he was accused of participating in the homicide then under investigation, and

he did not give his statement until he had been in custody ("although supposedly

not 'under arrest"') for over six hours and subjected to "a long process of 'pre-

statement interrogation."' Delgado-Santos, 471 So. 2d at 75. The Florida court

freely acknowledged that the "admixture of Ortiz's youth and the improprieties

involved in confining him without arrest and without transporting him to a youth

12 State v. Otton, No. 91669-1

facility" would have been sufficient, in and of themselves, to exclude the proffered

statement as substantively unreliable. Id. at 78.

Nevertheless, the Florida court rejected a case-by-case approach, and it did

so explicitly as a matter of legislative deference:

While the legislature and Congress may have been ultimately concerned with the "reliability" of a particular statement, they sought to vindicate that concern only by establishing given and objective criteria as to the circumstances, including the kind of forum, under which it was given. And it is for the legislature, not the courts, to determine not only the policy to be promoted, but the means by which that end is to be achieved.

Id. at 79. In Washington, however, evidentiary rules are adopted by this court

pursuant to its inherent powers under the state constitution. State v. Gresham, 173

Wn.2d 405, 428, 269 P.3d 207 (2012). "[W]hen interpreting court rules we are not

concerned about usurping the role of the legislature because we alone are uniquely

positioned to declare the correct interpretation of any court-adopted rule." Jafar v.

Webb, 177 Wn.2d 520, 527, 303 P.3d 1042 (2013).

Moreover, ER 801 is subject to amendment according to prescribed

procedures, and ER 801(d)(l)(i) has never been amended to reject Smith. See GR

9 (procedures for rule making by this court). When considering challenges to

previous statutory interpretations, "[t]his court presumes that the legislature is

aware of judicial interpretations of its enactments and takes its failure to amend a

statute following a judicial decision interpreting that statute to indicate legislative

13 State v. Otton, No. 91669-1

acquiescence in that decision." City ofFederal Way v. Koenig, 167 Wn.2d 341,

348, 217 P.3d 1172 (2009). We may comfortably presume that this court is aware

of its own interpretations of evidentiary rules, and here, over 30 years have elapsed

since Smith was decided and ER 801(d)(l)(i) has not been amended to reject it. 2

Otton also suggests that federal courts interpreting the federal equivalent of

ER 801 (d)( 1)(i) have rejected Smith's interpretation. In United States v. Dietrich,

854 F.2d 1056, 1061 (7th Cir. 1988), the Seventh Circuit held that "[t]he term

'other proceeding' is not unlimited. A typical police station interrogation, for

example, is not an 'other proceeding' within the meaning of the [federal]

Rule[, FED. R. Evm. 801(d)(1)(A)]." Instead, Dietrich posited that "'[t]he [federal]

Rule seems to contemplate situations in which an official verbatim record is

routinely kept, whether stenographically or by electronic means, under legal

authority."' ld. (quoting United States v. Livingston, 213 U.S. App. D.C. 18,661

F.2d 239, 240 (1981)). That might be a reasonable way to limit the phrase "other

proceeding," but it is not clear why it is more reasonable than Smith's

interpretation, let alone so clearly correct that we must adopt it and reject Smith.

The text of ER 801 (d)(l )(i) makes absolutely no reference to official verbatim

records, and does not clearly intend to limit an "other proceeding" on the basis of

2 This is not to imply that the court would be unwilling to revisit the interpretation of the rule and modify it for clarity through the rule making process.

14 State v. Otton, No. 91669-1

specific procedural indicia of reliability beyond those required by the rule's plain

language.

Moreover, like the Florida court in Delgado-Santos, the federal court in

Dietrich was plainly concerned about the fact that the statements at issue were of

questionable substantive reliability, in part because they were given by an

individual who was under imminent threat of arrest for allegations related to the

ultimate crime at issue. 854 F.2d at 1061-62; Delgado-Santos, 471 So. 2d at 75.

That concern is fully addressed by Smith and the four-factor test developed by the

Court of Appeals, without imposing the inflexibility created by a bright-line rule.

See, e.g., State v. Nelson, 74 Wn. App. 380, 388, 874 P.2d 170 (1994) ("Any

motive to lie is therefore much less compelling in this case than if [the witness] had

been questioned as a suspect."); see also Tisdale v. State, 498 So. 2d 1280, 1283

(Fla. Dist. Ct. App. 1986) (Glickstein, J., dissenting in part and concurring in part)

("In my view, the 'bright line' test effects a lockstep or mind-set that could

produce the injustice the test seeks to prevent.").

Other federal cases also do not advance Otton's argument. Some cases,

though holding statements made to investigating police were not given at an "other

proceeding," explicitly acknowledge that the purpose of the rule is "to ensure the

reliability and truthfulness of any prior inconsistent statement," and therefore look

to "the totality of the circumstances" under which the statement was given. United

15 State v. Otton, No. 91669-1

States v. Day, 789 F.2d 1217, 1223 (6th Cir. 1986); see also Livingston, 661 F.2d

at 243. This clearly indicates an approval of a case-by-case approach turning on

some indicia of reliability. And the Ninth Circuit has interpreted the federal rule in

a manner entirely consistent with Smith, holding that an interrogation by

immigration officials is an "other proceeding" under the rule and noting that "the

choice of the open-ended term 'other proceedings' was intentional." Castro-Ayon,

537 F.2d at 1058.

If Washington were an extreme outlier in its interpretation of ER

801(d)(1)(i), we might reconsider Smith, even though it was a reasonable decision

at the time it was made and has not been rejected by any intervening rule

amendments. However, Washington is not such an outlier. Otton thus fails to

show that Smith is clearly incorrect.

2. Otton has not shown that Smith is harmful

Even if Otton could show that Smith is clearly incorrect, we will not reject

our precedent unless it is "both incorrect and harmful." 3 Barber, 170 Wn.2d at

864. However, the four-factor test formulated by the Court of Appeals creates a

principled framework for determining whether a prior, inconsistent, out-of-court

statement is sufficiently reliable, and ER 801 (d)( 1)(i) actually requires more

3 To the extent that Otton argues Smith is harmful because it is incorrect, we reject that argument. Incorrectness and harmfulness are separate inquiries. Barber, 170 Wn.2d at 864-65.

16 State v. Otton, No. 91669-1

objective procedural indicia of reliability than many other states' rules. Otton

therefore has not shown that Smith is harmful.

Relying primarily on Crawford, 541 U.S. 36, Otton contends that any

substantive, case-by-case reliability determination is simply too subjective to be

allowed. See Suppl. Br. ofPet'r at 12-14. This argument confuses the

requirements of the confrontation clause at issue in Crawford, U.S. CONST. amend.

VI, with those of the evidentiary rule defining hearsay at issue here, ER

801(d)(1)(i). They are clearly not the same:

While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law.

California v. Green, 399 U.S. 149, 155, 90S. Ct. 1930, 26 L. Ed. 2d 489 (1970).

The confrontation clause is a procedural guarantee that statements will be

tested in "the crucible of cross-examination." 4 Crawford, 541 U.S. at 61; see also

4 We note that the focus ofOtton's argument has shifted somewhat over the course of this appeal. His petition for review to this court appears to contend that Smith is no longer good law following Crawford. Pet. for Review at 9. At oral argument, however, Otton's attorney acknowledged that Smith's interpretation ofER 801(1)(d)(i) is not jeopardized by Crawford as a matter of constitutional law. Wash. Supreme Court oral argument, State v. Otton, No. 91669-1 (Feb. 18, 2016), at 38 min., 3 sec., audio recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org. We agree. ER 801(1)(d)(i), by its plain language, applies only when "[t]he declarant testifies at the trial or hearing and is subject to cross examination concerning the statement," so the confrontation clause is necessarily satisfied for any statement admitted pursuant to ER 80l(l)(d)(i). See Crawford, 541 U.S. at 61; Green, 399 U.S. at 164.

17 State v. Otton, No. 91669-1

Green, 399 U.S. at 158 (discussing the purposes ofthe confrontation clause). An

alleged confrontation clause violation is therefore appropriately reviewed as a

matter of law-either the confrontation clause was violated or it was not, and the

individual perspective and observations of the trial court are not at issue. State v.

Mason, 160 Wn.2d 910, 922, 162 P.3d 396 (2007). Meanwhile, evidentiary rules

should be applied and interpreted in a manner that promotes their substantive

purpose-"that the truth may be ascertained and proceedings justly determined" in

each individual case. ER 102. Evidentiary rulings are therefore appropriately

reviewed for abuse of discretion. See State v. Sisouvanh, 175 Wn.2d 607, 621, 290

P.3d 942 (2012) (noting the considerations that support reviewing decisions for

abuse of discretion).

Moreover, admissibility pursuant to ER 801 (d)( 1)(i) is not conditioned on

each individual trial court's unrestrained assessment of reliability. Washington

courts must work within a specific four- factor framework. Otton does not point to

any published Washington cases that have applied this framework and reached

conflicting conclusions, and we can find none. Washington courts have proved

themselves well up to the task of evaluating evidence sought to be admitted

pursuant to ER 801(d)(1)(i) in a consistent, evenhanded manner.

To the extent that Otton implies that it is inherently harmful to allow prior

inconsistent statements to be admitted as substantive evidence without requiring

18 State v. Otton, No. 91669-1

specific procedural formalities beyond those found in the plain language of ER

801 (d)( 1)(i), we disagree. Indeed, many states allow the admission of prior

inconsistent statements as substantive evidence, even where the prior statements

were given with few or no procedural formalities. See Douglas E. Beloof & Joel

Shapiro, Let the Truth Be Told: Proposed Hearsay Exceptions to Admit Domestic

Violence Victims' Out of Court Statements as Substantive Evidence, 11 COLUM. J.

GENDER & L. 1, 11 n.29 (2002) (collecting statutes and court rules). Otton does

not show those states have suffered any harm. And the beneficial effects of the

procedural formalities that are required by ER 801(d)(l)(i)'s plain language are

clearly preserved by Smith and its progeny. State v. Lavaris, 106 Wn.2d 340, 343,

721 P.2d 515 (1986) (noting that a statement to police that was not given under

oath and subject to the penalty of perjury is not admissible as substantive evidence

pursuant to ER 801(d)(1)(i)); State v. McComas, 186 Wn. App. 307, 319,345 P.3d

36 (2015) (same); State v. Nieto, 119 Wn. App. 157, 161-62, 79 P.3d 473 (2003)

(same); State v. Sua, 115 Wn. App. 29, 48, 60 P.3d 1234 (2003) (same).

Otton has not made a clear showing that Smith is incorrect or harmful. We

thus adhere to the doctrine of stare decisis and reaffirm Smith's interpretation of an

"other proceeding" for purposes ofER 801(d)(1)(i).

19 State v. Otton, No. 91669-1

CONCLUSION

A party asking this court to reject its precedent faces a challenging task. The

party must show not merely that it would have been reasonable to reach a different

conclusion in the first instance, but that the prior decision is so incorrect and

harmful that it would be unreasonable to adhere to it. Otton has not made such a

showing. We affirm the Court of Appeals.

20 State v. Otton, No. 91669-1

WE CONCUR:

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21 State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

No. 91669-1

GORDON McCLOUD, J. (concurring)-! agree with the majority that this is

a case about stare decisis. The petitioner, Nalda Lee Otton, concedes that the Court

of Appeals' decision is correct under this court's holding in State v. Smith, 97 Wn.2d

856, 863, 651 P.2d 207 (1982), and he asks us to overrule that holding. Thus, this

case requires us to decide whether Smith should be abandoned as incorrect and

harmful. See In re Rights to Water ofStranger Creek, 77 Wn.2d 649, 653, 466 P.2d

508 (1970) ("The true doctrine of stare decisis ... requires a clear showing that an

established rule is incorrect and harmful before it is abandoned.").

I also agree with the majority that the phrase at issue in this case-"other

proceeding" in Evidence Rule (ER) 801(d)(1)(i)-is open ended. Had the drafters

intended to strictly enumerate the "proceedings" covered by the rule, they would

1 State v. Otton (Nakia Lee), No. 91669-1 (Gordon McCloud, J., concurring)

have done so. See Rivard v. State, 168 Wn.2d 775, 783, 231 P.3d 186 (2010) ("we

interpret a statute to give effect to all language, so as to render no portion

meaningless or superfluous"). But I disagree with the majority's conclusion that the

phrase "other proceeding" in ER 801 (d)( 1)(i) is so open ended that it includes police

interviews or permits the kind of fact-specific, case-by-case reliability test that this

court crafted in Smith.

Indeed, among all the jurisdictions with identical rules whose courts have

addressed the issue, Washington is the only one that interprets the phrase in this way.

Other courts have consistently held that the "other proceeding[s]" covered by rules

equivalent to ER 801 (d)( 1)(i) are limited to routinized proceedings, bearing

hallmarks of formality such as oversight by a neutral officer and simultaneous

transcription under authority of law, and thus exclude statements taken as part of a

police officer's investigation. For the reasons given in Part I below, I conclude that

Washington's contrary interpretation is inconsistent with ER 801(d)(1)(i)'s plain

language and is therefore incorrect. I nevertheless concur in the majority's decision

to affirm the Court of Appeals because I agree that Otton has not met his burden to

show that Smith is clearly harmful.

2 State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

I. SMITH WAS INCORRECTLY DECIDED

As the majority correctly notes, ER 801 (d)( 1)(i)'s federal equivalent-the rule

on which ER 80l(d)(l)(i) was based 1-reflected a compromise between drafters

who wanted an "unrestricted version" admitting all prior inconsistent statements and

drafters who wanted a rule limiting admission to statements made "at a 'trial,

hearing, deposition, or before a grand jury.'" Smith, 97 Wn.2d 859-60 (quoting draft

rule). In light of that legislative history, and consistent with the statute's plain

language, the Smith court concluded that the compromise term "other proceeding"

in the rule included, but was not limited to, grand jury proceedings. Id. at 860-61.

This conclusion is sound; it is consistent with the legislative history and the case law

interpreting the federal rule or other state equivalents. See discussion infra Section

LB. To the extent the majority endorses this aspect of Smith, I concur.

1 When Smith was decided, Washington's ER 80l(d)(l)(i) was identical to Fed. R. Evid. (FRE) 80l(d)(l)(A). 97 Wn.2d at 859 (noting that the judicial comment on ER 80l(d)(l) provided that "the rule 'conforms state law to federal practice"'); ER 80l(d)(l) & cmt (1980). All the comments to Washington's ERs were deleted in 2006 when the Washington State Bar Association "concluded that the Comments have outlived their usefulness." Purpose statement to proposed amendment to ER Introductory Paragraph- Comment, 156 Wn.2d Proposed 16 (Official Advance Sheet No. 1, Jan. 17, 2006). But ER 801 (d)(l )(i) remains substantially similar to its federal counterpart. Since then, FRE 80l(d)(l)(A) has been amended to omit the phrase "under oath," but in all other respects the state and federal rules remain the same. 3 State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

But the Smith court went on to address a more specific question: whether the

open-ended phrase "other proceeding" in ER 801 (d)(l )(i) included a situation in

which detectives contacted a witness to request a statement, the witness talked with

detectives and then wrote out a statement at the police station, and the witness

subsequently signed the statement and swore to its accuracy before a notary. 97

Wn.2d at 858. It held that the answer was yes because the statement came with

"[m]inimal guaranties oftruthfulness." Id. at 862.

To reach that conclusion, the Smith court relied on a single Ninth Circuit case,

United States v. Castro-Ayon, 537 F.2d 1055 (9th Cir. 1976), interpreting the federal

equivalent rule, Fed. R. Evid. (FRE) 801(d)(l)(A). But the Smith court

misinterpreted Castro-Ayon and distinguished, without any explanation, cases

holding that sworn statements made to investigating officers are not admissible

under that rule. 97 Wn.2d at 860-61. In the 34 years since Smith was decided, many

more courts have interpreted FRE 801(d)(l)(A) and equivalent state rules. Every

court to do so has rejected Washington's interpretation; consequently, we are now

an extreme outlier. The interpretation adopted by other jurisdictions is clear,

consistent with the rule's plain language and legislative history, and much more

amenable to fair application than Smith's ad hoc approach is. I would therefore hold

that Smith was incorrect.

4 State v. Otton (Nakia Lee), No. 91669-1 (Gordon McCloud, J., concurring)

A. To conclude that a police interview can be an "other proceeding" within the meaning of ER 801 ( d)(l )(i), the Smith court relied on a misreading of Castro-Ayon and distinguished, without explanation, more apposite cases reaching the opposite conclusion In Castro-Ayon, the Ninth Circuit held that a tape-recorded interrogation by

border agents was admissible under FRE 801(d)(1)(A). 537 F.2d at 1058. The Smith

court acknowledged, in a footnote, that some federal courts had reached a very

different conclusion, and would exclude sworn statements made to investigating

officers from FRE 801(d)(l)(A)'s "other proceeding" hearsay exception. 97 Wn.2d

at 861 n.1 (citing United States v. Livingston, 213 U.S. App. D.C. 18, 661 F.2d 239

(1981); United States v. Ragghianti, 560 F.2d 1376 (9th Cir. 1977)). But it dismissed

these decisions without analysis as "not deal[ing] with facts identical to the ones

before us." ld. The Smith court then went on to hold that admissibility under ER

801 (d)( 1)(i) is a fact-specific, case-by-case determination, which hinges on the prior

statement's "reliability" rather than on the proceeding at which that statement was

given: "each case depends on its facts with reliability the key." ld. at 863. It

explained that a statement was admissible under ER 801 (d)( 1)(i) so long as it bore

'"minimal guarantees of truthfulness."' ld. at 861-62 (quoting DAVID W. LOUISELL

& CHRISTOPHER B. MUELLER, FEDERAL EVIDENCE§ 419, at 169-71 (1980)).

In this respect, Smith is actually inconsistent with Castro-Ayon. The Castro-

Ayon court did not endorse the idea that certain statements might be reliable enough

5 State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

to fall within PRE 801 (d)(l )(A)'s "other proceeding" exception regardless of the

proceeding at which they were given. Instead, that court held that the particular

proceeding at issue in that case was sufficiently similar to a grand jury proceeding

to fall within the ambit ofFRE 801(d)(1)(A)'s "other proceeding" exception:

[W]e note that the immigration proceeding before Agent Pearce bears many similarities to a grand-jury proceeding: both are investigatory, ex parte, inquisitive, sworn, basically prosecutorial, held before an officer other than the arresting officer, recorded, and held in circumstances of some legal formality. Indeed, this immigration proceeding provides more legal rights for the witnesses than does a grand jury: the right to remain totally silent, the right to counsel, and the right to have the interrogator inform the witness of these rights.

We do not hold, as the question is not before us, that every sworn statement given during a police-station interrogation would be admissible. While this immigration proceeding bears many similarities to the station-house interrogation, we believe that it qualifies as an "other proceeding" within the meaning of the statute.

537 F.2d at 1058 (footnote omitted). Thus, Castro-Ayon was a holding about a

particular semiformal proceeding, not a particular statement. !d. It does not support

Smith's holding that trial courts should determine "other proceeding" admissibility

under ER 801(d)(1)(i) through an open-ended, case-by-case evaluation of a

particular statement for "[m]inimal guarantees of truthfulness." Smith, 97 Wn.2d at

862.

6 State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

B. Contrary to the majority's assertion, Smith is an extreme outlier; in the 30 years since Smith was decided, every other court to address the question has held that the "other proceeding[ s]" covered by rules equivalent to FRE 801(d)(l)(A) do not include interviews by investigating officers As noted above, Smith adopted the minority position when it was decided 34

years ago. It held that witness statements taken during a police investigation could

fall within ER/FRE 801 's "other proceeding" exception, even though the majority

of federal courts to examine that question had reached the opposite conclusion.

Smith, 97 Wn.2d at 861 n.1. Back then, however, the numbers were close: Castro-

Ayon provided some support for Smith's holding-albeit tenuous and indirect

support-and two other federal cases rejected Smith's interpretation of the rule.

Thus, while Smith adopted a minority position, it could not be said to be contrary to

an overwhelming majority of relevant precedent.

That is no longer true today, when many more cases have addressed the

question. With the exception of Castro-Ayon, federal cases all hold that the "other

proceeding[s]" contemplated in PRE 801(d)(1)(A) are proceedings in which "'an

official verbatim record is routinely kept ... under legal authority,"' and that

7 State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

investigations by law enforcement do not meet this standard. 2 And relevant cases

from other states reach the same conclusion. 3

Indeed, outside of Washington, no case has relied on Castro-Ayon to admit,

under FRE 801(d)(l)(A) or an equivalent state rule, a prior inconsistent statement

given to law enforcement during an investigation. A Westlaw search yields 25

controlling decisions 4 that cite Castro-Ayon for the principle that an investigation by

2 Livingston, 661 F.2d at 242-43; United States v. Bonnett, 877 F.2d 1450, 1462 (1Oth Cir. 1989); United States v. Dietrich, 854 F .2d 1056, 1061-62 (7th Cir. 1988); United States v. Day, 789 F.2d 1217, 1222-23 (6th Cir. 1986); see also Santos v. Murdock, 243 F.3d 681, 684 (2d Cir. 2001) (per curiam) (endorsing interpretation of ER 801(d)(1) adopted by the District of Columbia Circuit in Livingston, holding that meeting between attorney and witness, in which witness prepared an affidavit drafted by attorney, was not an "other proceeding" within meaning of rule); 29 AM. JUR. 2D Evidence § 681, at 741 (2008) ("It has been held that a proceeding contemplated by the Rule is a formal action before a judicial tribunal, as well as an action before a quasi-judicial officer or board, invoked to enforce or protect a right. This requirement contemplates situations in which an official verbatim record is routinely kept, whether stenographically or by electronic means, and under legal authority so as to insure its reliability." (footnote omitted)); John. F. Gillespie, Annotation, What Is "Other Proceeding" under Rule 801 (d)(J)(A) of Federal Rules of Evidence, l!.xcepting from 1-fearsay Rule Prior Inconsistent Statement Given "at a Trial, }fearing, or Other Proceeding," 37 A.L.R. Fed. 855, 856-58 (1978).

3E.g., State v. Johnson, 220 Ncb. 392, 394, 398-99, 370 N.W.2d 136 (1985), abrogated on other grounds by State v. Morris, 251 Neb. 23, 33-34, 554 N.W.2d 627 (1996); United States v. Powell, 17 M.J. 975, 976 (A.C.M.R. 1984); United States v. Whalen, 15 M.J. 872, 878 (A.C.M.R. 1983); United States v. Luke, 13 M.J. 958, 960 (A.F.C.M.R. 1982); Delgado-Santos v. State, 471 So. 2d 74, 78 (Fla. Dist. Ct. App. 1985).

4I have omitted six unpublished opinions and one decision, Robinson v. State, 455 So. 2d 481 (Fla. Dist. Ct. App. 1984 ), whose agreement with Castro-A yon was later overruled by State v. Delgado-Santos, 497 So. 2d 1199 (Fla. 1986). 8 State v. Otton (Nakia Lee), No. 91669-1 (Gordon McCloud, J., concurring)

law enforcement may be an "other proceeding" for purposes ofFRE 801(d)(l)(A).

Of these 25, only 16 actually address that question. 5 Three of these are unhelpful to

5 Nine of the remaining cases admit or exclude prior statements under FRE 801(d)(1)(A) or an equivalent rule without deciding whether investigations can ever constitute "other proceeding[s]." Simmonds v. People, 59 V.I. 480, 489-503 (2013) (trial court erred by admitting police interview statement under local rather than federal evidentiary rule but error was harmless (citing Castro-Ayon for discussion of FRE 801(d)(l)(A)'s legislative history)); State v. Maestas, 92 N.M. 135, 144-45, 584 P.2d 182 (1978) (citing Castro-A yon for the principle that "inconsistent statements spoken by the victim under oath and 'on the stand' were admissible as substantive evidence"); United States v. Tafolla-Cardenas, 897 F.2d 976, 980 (9th Cir. 1990) (citing Castro-Ayon for the principle that prior inconsistent statement is admissible only if given "under oath subject to the penalty of perjury at a trial, hearing or other proceeding," and holding that unsworn statement given to arresting officer was not admissible as substantive evidence); Pope v. Savings Bank o[Puget Sound, 850 F.2d 1345, 1356 (9th Cir. 1988) (citing Castro-Ayon for the principle that "other proceeding" in FRE 80l(d)(l)(A) is defined broadly, but approving admission of prior inconsistent statement given in a deposition, consistent with the rule's plain language); United States v. Mosley, 555 F.2d 191, 193 (8th Cir. 1977) (citing Castro-Ayon for principle that grand jury proceedings are "other proceeding[s]" within the scope of FRE 801 (d)(l )(A); holding that even if trial court erred by admitting prior inconsistent statement given to investigating prosecutor, error was harmless because the court also properly admitted statement given in grand jury proceeding, which was substantially similar); State v. Sua, 115 Wn. App. 29, 46-49, 60 P.3d 1234 (2003) (citing Castro-Ayon when summarizing Smith's holding; finding witness statement at issue inadmissible even under Smith because it was not given under oath or subject to penalty of perjury); State v. Johnson, 40 Wn. App. 371,378,699 P.2d 221 (1985) (citing Castro-Ayon for the principle that "not every sworn statement given during a police interrogation would be admissible" and holding witness' prior statements inadmissible because they were either oral or unsigned); Webb v. State, 426 So. 2d 1033, 1034-35 & n.7 (Fla. Dist. Ct. App. 1983) (citing Castro-A yon for the principle that grand jury testimony is admissible under state equivalent to FRE 801(d)(l)(A)); Gilardi v. Schroeder, 672 F. Supp. 1043, 1044 & n.l (N.D. Ill. 1986) (affidavit given in proceeding before the federal Equal Employment Opportunity Commission was admissible under FRE 801 (d)( 1)(A), citing Castro-A yon).

9 State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

this analysis because they are Washington cases (Smith and its progeny). 6 But all of

the remaining 13 cases either reject Castro-Ayon's holding entirely or limit that

holding to its facts:

• State v. Collins, 186 W.Va. 1, 7-8 & n.8, 409 S.E.2d 181 (1990) (noting that Castro-Ayon is an outlier that has been criticized in scholarship on PRE 801(d)(1)(A)).

• State v. Smith, 573 So. 2d 306,314-16 (Fla. 1990) (distinguishing proceeding in Castro-Ayon (admissible as an "other proceeding" under PRE 801(d)(l)(A)) from prosecutor's transcribed investigative interrogation (inadmissible because it did not even remotely resemble a grand jury proceeding)).

• State v. Johnson, 220 Neb. 392, 394, 398-99, 370 N.W.2d 136 (1985), (victim's statement during interview with attorney was not an "other proceeding" under state equivalent of PRE 801(d)(1)(A); to the extent that Castro-Ayon supported that conclusion, it was "unique-and likely to remain so"), abrogated on other grounds by State v. Morris, 251 Neb. 23, 33-34, 554 N.W.2d 627 (1996).

• Delgado-Santos v. State, 471 So. 2d 74, 78 (Fla. Dist. Ct. App. 1985) ("the overwhelming weight of authority on the issue is that no variation of police investigatory activity constitutes an [PRE] 801(d)(1)(A) ... proceeding" (co 11 ecting cases)).

6 Smith, 97 Wn.2d at 863; State v. McComas, 186 Wn. App. 307,314-17,345 P.3d 36 (2015) (sworn statement given to investigating police officer was made in an "other proceeding" under ER 801 (d)(l )(i) because Court of Appeals is bound by Smith); State v. Nelson, 74 Wn. App. 380, 391, 874 P.2d 170 (1994) (police interrogation is an "other proceeding" under Smith). 10 State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

• Tisdale v. State, 498 So. 2d 1280, 1282 (Fla. Dist. Ct. App. 1986) (embracing Delgado-Santos' interpretation of rule equivalent to FRE 80l(d)(l)(A) and explicitly rejecting Smith's contrary interpretation).

• United States v. Bonnett, 877 F.2d 1450, 1462 (lOth Cir. 1989) (rejecting argument that witness' statement to Federal Bureau of Investigation agents was admissible under FRE 801(d)(l)(A) because Castro-Ayon was "not persuasive and ... clearly distinguishable").

• United States v. Dietrich, 854 F.2d 1056, 1061-62 (7th Cir. 1988) (reading Castro-Ayon as limited to "proceeding[s] ... [that] contain[] many ofthe same procedural protections as a grand jury proceeding" and distinguishing the proceeding at issue in Castro-Ayon from a sworn statement made to investigating police officers in an interview that was neither transcribed nor conducted in front of a neutral third party).

• United States v. Day, 789 F.2d 1217, 1222-23 (6th Cir. 1986) (declining to follow Castro-Ayon "to the extent the facts are not distinguishable").

• Bell v. City of Milwaukee, 746 F.2d 1205, 1274 n.83 (7th Cir. 1984), (noting in dicta that district court probably erred by admitting witness' sworn statement to investigator under FRE 801(d)(l)(A); noting that Castro-Ayon might be contrary), overruled on other grounds by Russ v. Watts, 414 F.3d 783 (7th Cir. 2005).

• United States v. Powell, 17 M.J. 975, 976 (A.C.M.R. 1984) (rejecting Castro- Ayon to the extent that it would allow admission of "a statement made in a policeman's office during a non-advocatory, inquisitorial police investigation merely because an oath was administered").

• United States v. Whalen, 15 M.J. 872, 878 (A.C.M.R. 1983) (stating that prior inconsistent statement made to investigating officer was not given in an "other proceeding" for purposes of hearsay exception; noting that Castro-Ayon is contrary).

11 State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

• United States v. Luke, 13 M.J. 958, 960 (A.P.C.M.R. 1982) (rejecting Castro- Ayon to the extent that that case is not limited to its facts, i.e., to proceedings fundamentally similar to grand jury hearings).

• Livingston, 661 P.2d at 243 (holding that Castro-Ayon proceeding was distinguishable, for purposes of PRE 80l(d)(l)(A) admissibility, from interview by postal inspector that was conducted at home of government witness who gave sworn statement but was afforded no rights, and that was neither transcribed nor conducted in front of an independent officer).

Given this overwhelming and consistent authority, I disagree with the majority's

conclusion that "Washington is not such an outlier" in its interpretation of the phrase

"other proceeding" in ER 801 (d)(l )(i). Majority at 16.

C. Contrary to the majority's assertion, Otton proposes a workable framework for analyzing ER 801 (d)(l )(i) admissibility; it is the framework adopted by the other jurisdictions and compelled by the rule's plain language

I also disagree with the majority's assertion that "Otton does not propose a

workable analytical framework for future cases." Majority at 10. Otton asks us to

adopt the interpretation of"other proceeding" that is used by every single other court

that has considered the issue presented in Smith. See Suppl. Br. of Pet'r at 11

(quoting Dietrich, 854 P.2d at 1061). And, as the majority expressly acknowledges,

that interpretation holds that PRE 801 (d)(l )(A) and state equivalent rules

"'"contemplate situations in which an official verbatim record is routinely kept,

whether stenographically or by electronic means, under legal authority."'" Majority

12 State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

at 14 (emphasis added) (quoting Dietrich, 854 F .2d at 1061 (quoting Livingston, 661

F.2d at 240)). In short, the rules contemplate routinized proceedings bearing

hallmarks of formality such as oversight by an independent (i.e., neutral) officer and

simultaneous transcription. E.g., Dietrich, 854 F .2d at 1061; Livingston, 661 F .2d

at 243.

The majority acknowledges that such an interpretation is "reasonable" but

asserts that "it is not clear why it is more reasonable than Smith's interpretation."

Majority at 14. Again, I disagree. The interpretation of"other proceeding" adopted

by the other jurisdictions is compelled by the rule of ejusdem generis, which holds

that "'specific terms modify or restrict the application of general terms where both

are used in sequence"' in a statute. State v. Stockton, 97 Wn.2d 528, 532, 647 P.2d

21 (1982) (quoting Dean v. McFarland, 81 Wn.2d 215,221,500 P.2d 1244 (1972)).

In ER 801(d)(1)(i), as in its federal equivalent, the term "other proceeding" appears

after a list of more specific terms: " ... given under oath subject to the penalty of

perjury at a trial, hearing, or other proceeding, or in a deposition." Applying the

interpretive canon of ejusdem generis, the phrase "other proceeding" must be read

to encompass only those "proceeding[s ]" that are fundamentally similar to a trial or

hearing. !d. This is precisely why every other court addressing the question has

held that police interviews are not "other proceeding[s ]" within the meaning of the

13 State v. Otton (Nakia Lee), No. 91669-1 (Gordon McCloud, J., concurring)

rule. See Livingston, 661 F .2d at 243 (statement given to investigating officers

inadmissible under FRE 801 (d)( 1)(A) because "the circumstances fall far short of

those in a grand jury proceeding, the paradigmatic 'other proceeding' under the

Rule").

In contrast to these other courts' interpretation, the four- factor reliability test

that Washington courts have derived from Smith bears absolutely no relationship to

ER 801(d)(1)(i)'s plain language whatsoever. 7 Indeed, the first Smith factor-

whether the witness gave the statement voluntarily-is inconsistent with ER

801 (d)( 1)(i)'s plain language. Since trial testimony is not necessarily given

voluntarily, the voluntary nature of a statement is clearly irrelevant under ER

801(d)(1)(i). And the fourth factor-whether the witness was subject to cross-

examination when giving the subsequent inconsistent statement-is unhelpful

because it is always satisfied. Moreover, Smith's ad hoc approach, in which "each

case depends on its facts with reliability the key," 97 Wn.2d at 863, is inconsistent

7 As the majority notes, subsequent state Court of Appeals decisions have derived from Smith four factors for determining admissibility under ER 801(d)(l)(i): "'(1) whether the witness voluntarily made the statement, (2) whether there were minimal guaranties of truthfulness, (3) whether the statement was taken as standard procedure in one of the four legally permissible methods for determining the existence of probable cause, and ( 4) whether the witness was subject to cross examination when giving the subsequent inconsistent statement."' Majority at 6 (quoting State v. Thach, 126 Wn. App. 297, 308, 106 P.3d 782 (2005)); State v. Nelson, 74 Wn. App. 380, 383, 387, 874 P.2d 170 (1994). 14 State v. Otton (NakiaLee), No. 91669-1 (Gordon McCloud, J., concurring)

with the federal rule's legislative history, which reveals a compromise decision to

restrict the rule's coverage to certain types of proceedings (as opposed to certain

types of statements). See Tisdale, 498 So. 2d at 1282 ("the congressional dichotomy

between House and Senate and the ultimate compromise giving rise to federal rule

80 1(d)(1 )(A)[] seem to dictate a 'bright line' construction rather than a case-by-case

analysis of the circumstances surrounding the taking of the statement to determine

reliability and thus admissibility").

Because Smith is inconsistent withER 801(d)(1)(i)'s plain language and the

overwhelming majority of precedent interpreting equivalent rules, I would hold that

it was incorrectly decided.

II. OTTON, HOWEVER, HAS NOT MET HIS BURDEN TO SHOW THAT SMITH IS CLEARLY HARMFUL

Although I conclude that Smith was incorrectly decided, I concur in the

majority's decision because I agree that Otton has not made the requisite showing of

harm sufficient to overcome the rule of stare decisis.

Our cases have identified various kinds of harm that can satisfy this standard.

We have found precedent "harmful" because it was incorrect and inequitable. State

v. Berlin, 133 Wn.2d 541, 548, 947 P.2d 700 (1997) (prior precedent harmful

because it overruled well-reasoned precedent without showing that precedent was

15 State v. Otton (Nakia Lee), No. 91669-1 (Gordon McCloud, J., concurring)

incorrect and harmful, and because it precluded lesser included offense instructions

in too many cases). We have found precedent "harmful" because it created serious

policy problems. State v. Barber, 170 Wn.2d 854, 865, 248 P.3d 494 (2011)

(collecting cases). And precedent is certainly harmful when it infringes a

constitutional protection. E.g., State v. W.R., 181 Wn.2d 757, 769, 336 P.3d 1134

(2014) (prior precedent violated due process protections); Barber, 170 Wn.2d at 871

(prior precedent offended separation of powers principles). But whatever underlying

harm we have recognized, we have always required a clear showing of harm and we

have placed this burden on the party seeking to overturn precedent. State v. Kier,

164 Wn.2d 798, 804-05, 194 P.3d 212 (2008) (citing State v. Devin, 158 Wn.2d 157,

168, 142 P.3d 599 (2006) (citing Stranger Creek, 77 Wn.2d at 653)).

I agree with the majority that Otton has not met that burden here. To support

his argument that Smith is harmful, Otton simply asserts that ad hoc "reliability"

determinations are inherently subjective and therefore unfair. Suppl. Br. of Pet'r at

12-14. But as the majority points out, these determinations pose no constitutional

problems in the context ofER 801(d)(l)(i), majority at 17-18, and Otton offers no

evidence that Smith has yielded uneven results in Washington courts.

16 State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

Smith's case-by-case reliability test conflicts with the plain language of ER

80l(d)(l)(i) and the overwhelming majority of relevant precedent from other

jurisdictions. I therefore conclude that Smith was incorrectly decided. I concur in

the decision to adhere to Smith and affirm the Court of Appeals, however, because I

agree that the petitioner has not met his burden to show that Smith is clearly harmful.

17 State v. Otton (Nal<:ia Lee), No. 91669-1 (Gordon McCloud, J., concurring)