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Criminal Jury Instructions

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2.4-4  Impeachment -- Whelan Rule

Revised to December 1, 2007

In evidence as exhibit [  ] is a prior statement of <identify witness>.  To the extent, if at all, you find such statement inconsistent with the witness's trial testimony, you may give such inconsistency the weight to which you feel it is entitled in determining the witness's credibility here in court.  You may also use such statement for the truth of its content and find facts from it.


Include only if the court has also instructed the jury on the use of inconsistent statements for impeachment purposes (Impeachment -- Inconsistent Statements, Instruction 2.4-3).  If the only inconsistent statements in the case have been admitted under Whelan, it may not be necessary to instruct on the substantive use of the out-of-court statement because there will be no need to distinguish which statements may be used substantively and which for impeachment only.

See generally State v. McDougal, 241 Conn. 502, 507-12 (1997); State v. Newsome, 238 Conn. 588, 592-622 (1996).

The prescribed circumstances for the admissibility of prior inconsistent written statements for substantive purposes are that the declarant: 1) signs the statement; 2) has personal knowledge of the facts stated; and 3) testifies at trial and is subject to cross-examination. State v. Wooten, 227 Conn. 677, 700 (1993), citing State v. Whelan, 200 Conn. 743, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); see also State v. Woodson, 227 Conn. 1, 20 (1993).  A statement that satisfies the requirements for admissibility under Whelan is "presumptively admissible" and "may be excluded as substantive evidence only if the trial court is persuaded, in light of the circumstances under which the statement was made, that the statement is so untrustworthy that its admission into evidence would subvert the fairness of the fact-finding process."  State v. Mukhtaar, 253 Conn. 280, 306-307 (2000).

A prior tape-recorded statement is also admissible for substantive purposes; State v. Whelan, supra, 200 Conn. 754, n.9; however, "the requirement that such statements be signed is unnecessary because the recording of the witness' voice imparts the same measure of reliability as a signature."  State v. Woodson, supra, 227 Conn. 21; State v. Portee, 55 Conn. App. 544, 556-60 (1999), cert. denied, 252 Conn. 920 (2000); State v. Perry, 48 Conn. App. 193, 199-200, cert. denied, 244 Conn. 931 (1998).

"The 'personal knowledge' prong of the Whelan rule does not require that the declarant have witnessed the commission of the crime that is the subject of the prior inconsistent written or recorded statement."  State v. Grant, 221 Conn. 93, 99 (1992); State v. Woodson, supra, 227 Conn. 22.


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