Dissenting Opinion
DeBruler, J.The statements, which are unfortunately elevated by the majority to the status of substantive evidence, were made by persons who observed the commission of the alleged offense for which appellant was successfully prosecuted. The statements were given to the police after the alleged crime and prior to trial. Neither was given under oath. The statements fully covered the witnesses’ recollection of the entire episode. Both witnesses testified on behalf of the State at the trial. The clear message of Indiana case law is that such statements are hearsay and must be excluded upon proper objection, unless a foundation is laid which establishes that such statements are admissible under an exception to the hearsay rule. Levi v. State, (1914) 182 Ind. 188, 104 N.E. 765; Wabash R. Co. v. Miller, (1901) 158 Ind. 174, 61 N.E. 1005. These statements do not fall within one of the exceptions to the hearsay rule. Such statements may be used as prior inconsistent statements for the purposes of impeachment, or they may be used to refresh the recollection of the forgetful or recalcitrant witness; and in either such event a cautionary instruction must be given in the final instructions. Rogers, Reed v. State, (1974) 262 Ind. 315, 315 N.E.2d 707. The statements of the witnesses in this case were in fact used for impeachment and to refresh recollection, and the failure of the court to instruct the jury as to the limited purpose of the *65statements was clear error. U.S. v. Lipscomb, 425 F. 2d 266 (6th Cir. 1970) ; Rogers, Reed v. State, supra, (DeBruler, J., dissenting).
The formulation of the “hearsay rule” quoted in Harvey v. State, (1971) 256 Ind. 473, 269 N.E.2d 759, is very useful and deserves to be repeated and continued in service. This definition is a good starting point in determining whether proffered evidence is hearsay, as it identifies the major factors which render such matter unreliable and objectionable. However, it should not be applied strictly and literally as has been done in the majority opinion. Surely “cross-examination” as used in the formulation should be interpreted as meaningful cross-examination, full and classic examination. After all, in a criminal prosecution, the right of confrontation and cross-examination is an assurance that the defendant will not be convicted on the basis of false or exaggerated testimony. Under the principle created by the majority, the cross-examination will come long after the witness gave the statement in some police station as part of the police investigation and by necessity will focus on the recollection of the witness of the circumstances in which the statement was made rather than upon the recollection of the witness of the events described in the statement. Cross-examination fulfills its function when the cross-examiner can probe the witness’ present recollection of the relevant events, and it is severely limited in usefulness if the cross-examiner must zero in on the circumstances surrounding some former statement.
Here I would hold that the former statements of these witnesses were hearsay even though the witnesses were physically present in the courtroom and subject to cross-examination.1
Note. — Reported at 324 N.E.2d 483.
. A helpful discussion of the problems surrounding the use of former statements of witnesses as substantive evidence is contained in 3 Ind. Legal Forum 309 (No, 2, Spring 1970), Beaver & Biggs, Attending Witnesses’ Prior Declarations as Evidence: Theory vs. Reality.