In United States v. Shuemake, --- F.4th ---, No. 22-30210 (9th Cir. 2024), the Court affirmed Joshua Shuemake’s conviction for obstruction of justice in a case in which the district court admitted his friend Luke Ulavale’s grand jury testimony implicating Shuemake after Ulavale tried to backtrack at trial claiming memory loss.
Under the prior inconsistent statement rule of the Federal Rules of Evidence, a district court can admit an earlier sworn statement if a witness on the stand contradicts that statement. FED. R. EVID. 801(d)(1)(A). But can a court admit a prior statement if a witness claims at trial that he does not remember saying it? We hold that a feigned lack of recollection may fall within Rule 801’s prior inconsistent statement provision. We thus reject Joshua Shuemake’s argument that the district court erred in admitting his friend’s grand jury testimony implicating Shuemake after he tried to backtrack at trial by claiming memory loss. Shuemake’s conviction for obstruction of justice is affirmed.To be clear, we do not hold that a court can admit earlier sworn testimony as a prior inconsistent statement merely because a witness asserts that he cannot recall that prior statement. After all, a witness genuinely may not remember his earlier testimony; in that case, a lawyer can rely on other evidentiary rules such as refreshing the witness’ recollection (Rule 612) or using the recorded recollection exception to the hearsay rule (Rule 803(5)). Under the prior inconsistent statement rule, the dispositive inquiry is whether both the trial testimony and the prior testimony could be equally truthful when asserted. In making this assessment, trial courts can consider various factors—such as (i) inexplicable or questionable explanations for the lack of recollection, (ii) vague and evasive responses suggesting a refusal to answer truthfully, and (iii) potentially conflicting testimony—as signs that a witness is feigning memory loss. Courts must engage in this fact-intensive inquiry to smoke out a witness’ attempt to walk away from prior sworn testimony by asserting a lack of memory.
