dissenting:
Defendant appeals her conviction for involuntary manslaughter on the ground that she was denied a fair trial in the district court.
On March 5,1983, a passenger car driven by defendant Doreen Smith collided with a motorcycle driven by Mr. John Radloff, who died as a result of injuries sustained in the accident. In defendant’s first trial the jury was unable to reach a decision and the court declared a mistrial. In her second trial the jury found defendant guilty.
The government claims that defendant was intoxicated and was negligently driving on the motorcyclist’s side of the road at the time of the accident. Defendant claims that she was not intoxicated and had steered into the on-coming lane in order to avoid collision with the motorcycle, which appeared to be veering sharply into her lane just prior to impact. On appeal, defendant challenges several of the court’s evidentiary rulings during the second trial. Because I believe that the cumulative effect of the court’s erroneous rulings was to deny defendant a fair trial, I must dissent.
In the first trial the government called officer John Hayes, a traffic accident reconstruction specialist for the New Mexico State Police. Mr. Hayes testified that, based upon his examination of the accident scene and upon another officer’s measurements of the marks and debris on the road, he could only conclude that the motorcycle “would have to have been probably within its lane for probably 50 to 60 feet prior to impact.” Record, supp. vol. 8, at 549. He further testified that at the rate of 55 miles per hour, the speed limit on that road, the motorcycle would have traveled the distance of 50 to 60 feet in approximately six-tenths of one second. Record, supp. vol. 8, at 549. At the first trial defendant used this testimony to argue that if the motorcyclist was traveling at 55 miles per hour, it is possible that seven-tenths of one second before the accident he could have been in the defendant’s lane.
Similarly, Mr. Hayes testified at the first trial that, given the marks on the road, it is possible that as close as 131 feet from the point of impact defendant’s vehicle could have been in its proper lane. Record, supp. vol. 8, at 552. He further testified that at the rate of 50 miles per hour, 131 feet would translate into 1.8 seconds. Defendant used this testimony at the first trial to argue that defendant’s vehicle could have been in its proper lane 1.8 seconds prior to the collision.
In the second trial defendant called Mr. Hayes as a witness. He again testified that at a minimum the motorcycle was in its proper lane for 50 to 60 feet prior to impact. The court refused to allow Mr. Hayes to testify as to the distance the motorcycle would have traveled in that 50-to 60-foot distance, however, either at 55 miles per hour or at any lesser speed. Record, vol. 3, at 479. Mr. Hayes was also again asked at what minimum distance pri- or to the accident defendant’s vehicle could *900have been in its proper lane, but testified that he could not make that judgment. Defense counsel attempted to impeach Mr. Hayes by showing that he had made such an estimate, based on identical physical evidence, at the first trial. The court refused to allow impeachment, however. Record, vol. 3, at 678-80.
I agree with the majority that the court erred in refusing to allow defense counsel to question Mr. Hayes about his prior inconsistent statements. As the majority notes, the same physical evidence available to Mr. Hayes at the first trial was available to him at the second trial, and his two statements were plainly inconsistent. Thus, defense counsel should have been allowed to question Mr. Hayes about his prior inconsistent statement in order to impeach him. See Fed.R.Evid. 613; United States v. Sisto, 534 F.2d 616, 622-23 (5th Cir.1976). Furthermore, as the majority points out, “because the prior inconsistent statement was originally given under oath and the witness was subject to cross-examination concerning the statement, the prior inconsistent statement itself was admissible as substantive evidence under Fed.R. Evid. 801(d)(1)(A).” Maj.Op. at 897 (citing United States v. Plum, 558 F.2d 568, 575 (10th Cir.1977)).
I cannot agree with the majority, however, that this error was harmless. It is true, as the majority notes, that Mr. Hayes’ “conclusion that the car must have been in the wrong lane for 131 feet before impact gave no indication, one way or the other, about where the car might have been prior to 131 feet before impact; the car could have been in either lane.” Maj.Op. at 897. But this misconceives the legitimate objective defendant sought to achieve with this evidence. The defendant merely sought to use the evidence to show that, as a theoretical possibility, the accident could have happened as she claimed it did. Thus, the testimony was important to the presentation of her defense and its exclusion was not harmless.
I might, nevertheless, be somewhat hesitant to overturn the district court’s judgment if this were the only error committed in the trial. My review of the transcript convinces me, however, that the cumulative effect of this and other errors by the district court had the effect of denying the defendant a fair trial. Two other errors with which I am particularly concerned are the court’s refusal to preclude the admission of several photographs, which were inflammatory and had no relevance to any of the issues in the case, and the court’s refusal to sustain defendant’s objection to testimony by the defendant’s father, which was similarly irrelevant.
The following admission was read to the jury prior to the taking of any testimony in the case:
The defendant, Doreen Smith, admits as follows:
John Radloff, the motorcyclist, died at the scene of the accident which is the subject of this case as a result of injuries sustained in that accident; the results of a blood test for alcohol content were negative.
Record, vol. 2, at 153. Based on this admission, the defendant sought to exclude photographs of Mr. Radloff lying on the roadway at the scene of the accident. These photographs showed an injured Mr. Radloff lying on the roadway, bleeding profusely from the groin and also bleeding from the mouth. Record, vol. 4, Government’s Exhibits 2 and 3. Further, defendant sought to exclude Government’s Exhibit 22, a photograph of the automobile that showed bits of blood and flesh and also purported to have yellow marks that the government witness said he believed were pieces of the victim’s yellow raincoat. The defendant sought to exclude these items on the basis that the admission covered the proximate cause of death, and therefore any further discussion or showing of the nature of the injuries served only to inflame the jury and was not probative as to any of the issues in the case. Record, vol. 2, at 263-68.
The point of impact on the defendant’s car was certainly relevant to defendant’s evasive driving defense. Indeed, defend*901ant did not object to the admission of numerous pictures showing the condition of the damaged automobile after the accident. Record, vol. 2, at 257; Government’s Exhibits 17 to 21. Exhibit 22, however, differed from these pictures in that it depicted a perspective too close to the damaged automobile to discern the relative point of impact and, regardless, was certainly cumulative to the other, more instructive photographs of the car. Exhibit 22 was excluded by the court at the first trial on the grounds that it did not go to the defendant’s evasive driving action defense, and in the court’s words:
I do believe with those markings of flesh on there that that is a little bit out of hand. I think that would tend to — these two photographs right here show the same thing. All he testified was that that was a closer up view of this one right here.
But I do believe on the basis of this, that flesh ... Iam not going to allow 22 in at this time.
Record, supp. vol. 6, at 132. At the second trial, however, the court decided to allow the same exhibit into evidence, provided the prosecutor instruct his witness not to talk about the pieces of flesh and blood on the hood. The defense counsel objected, stating:
We would ask the Court to note that it does show the flesh, and when it is shown to the jury — they say a picture is worth a thousand words. I think if the officer doesn’t testify to that, it is going to be obvious to the jury what it is.
Record, vol. 2, at 260.
To this the court replied:
It’s not obvious to me, counsel, that that’s what it is. I don’t know what it is. It could be pigeon droppings as far as I know, so we are going to let it come in for what it’s worth.
Record, vol. 2, at 260. After reviewing the photographs in question, it is my view that photographs 2, 3, and 22 were cumulative, were not probative of the issues before the court, and were inflammatory.
The defense also sought to have the testimony of Mr. James Radloff, father of the victim, excluded. The senior Mr. Radloff was not present in New Mexico at the time of the accident and had had no contact with his son for many days prior. Mr. Radloff testified that he was married 18 years and named his children. He explained that his son, John, had left home on his (John’s) birthday with a female friend to take a job in Mapleton, Utah. Record, vol. 2, at 153-56. He also gave details of how and by whom he was told his son had been “killed,” identified photos of the motorcycle and his son’s driver’s license, and listed the personal items that had been returned to him. Record, vol. 2, at 156-58.
I can conceive of no reason, given defendant’s stipulation as to the victim’s identity, for allowing the testimony of Mr. Radloff. His testimony was not probative of any of the issues in the case. Certainly, it could have been more inflammatory than it was. Still, it may very well have achieved the government’s only apparent purpose— eliciting sympathy toward the victim and his family and engendering antipathy toward the defendant. Again, standing alone, the allowance of this testimony might not merit overturning the trial court’s decision. When this error is combined with the other errors I have explicated, however, I must conclude that defendant has been denied a fair trial.
Finally, there is a further problem with this case. The court’s about-face in the second trial on certain evidentiary rulings it had made in the first trial creates the appearance, whether accurate or not, that the court departed from its role as neutral judge and gave undue advantage to the prosecution. Of course, regardless of the appearance, judges have the duty to correct those errors of which added experience with a case makes them aware. An appearance of unfairness, however, even if unfounded in fact, is relevant to the question of prejudice.
It is indeed tragic that anyone should die as Mr. Radloff did. Further, it is vital that those who drive in such a way as to endan*902ger the lives of innocent persons be brought to justice. Justice includes a full and fair opportunity for a defendant to present his or her defense, however, and I cannot conclude that defendant was afforded such an opportunity in this case. I would hold that the cumulative effect of the district court’s errors was to deny the defendant a fair trial, and remand for a new trial.