(concurring).
In deciding whether we should change our rule of evidence about prior inconsistent statements not being admissible as substantive evidence, we should not let the fact this happens to be a criminal case where the orthodox rule would have been adverse to the state’s effort to hold in line their witness, described as a “joint participant [who] decides at the last moment to help the defendant and changes his story after the state puts him on the stand”, be a decisive factor. We must remember that if we change the rule, it will not operate only in cases where state witnesses change their story. It will operate across the board, in all types of litigation, civil as well as criminal, and means that every conceivable kind of “helpful” extra-judicial statement will be admissible as proof of the truth of its contents, so long as someone can be produced who will say that the witness-declarant so stated at an earlier time.
The primary rationalization for this drastic change is that the witness-declarant is present in court and subject to cross-examination, and thus, to quote Wigmore,
“There is ample opportunity to test him as to the basis for his former statement. The whole purpose of the hearsay rule has been satisfied.”
Much as I hesitate to have the temerity to question the legal reasoning of the renowned Wigmore, I must say this is an illusion and will not withstand close examination. Its true nature has been shown by the Supreme Court of Michigan in Ruhala v. Roby, 379 Mich. 102, 150 N.W.2d 146 (1967), where the witness said at the scene following an automobile accident that a man, not a woman, was driving the car. At the trial, in the damage suit for the woman’s death, the witness, however, was going to testify the woman was driving and the plaintiff wanted to offer, substantively, the prior inconsistent statement of the witness that the man was driving. The Michigan court adhered to the orthodox rule and refused to admit it substantively. Substantially the same authorities as here were cited — Wigmore, McCormick, and the proposed Uniform Evidence Rules. The court pointed out the fallacy of the claim that the hearsay rule was satisfied by the witness-declarant being available for cross-examination, saying at l.c. 156: “The difficulty with this argument is that it does not recognize the real nature of cross-examination. Cross-examination presupposes a witness who affirms a thing being examined by a lawyer who would have him deny it, or a witness who denies a thing being examined by a lawyer who would have him affirm it. Cross-examination is in its essence an adversary proceeding. The extent to which the cross-examiner is able to shake the witness, or induce him to equivocate is the very measure of the cross-examiner’s success.
“ . . . it is readily apparent that the present discussion only relates to those cases where the witness does not adopt his prior statement as true. If he refuses to adopt his prior statement as true, there can be no adversary cross-examination upon it
*533“It is interesting to note that Uniform Rule 63, subd. 1, silently concedes its own frailty when it makes reference to the witness being available for cross-examination ‘with respect to’ the prior statement and its subject matter, rather than cross-examination ‘upon’ the prior statement. If a prior inconsistent statement is received as substantive evidence though not adopted as true, it is thereby given a special indestructible status far superior to direct sworn testimony from the witness stand .
“The would-be cross-examiner is not only denied the right to be the declarant’s adversary, he is left with no choice but to become the witness’ friend, protector and savior. Though he may be permitted to ask questions in the form of cross-examination, the substance of his effort will be re-direct examination and rehabilitation. The reason is simple. The witness cannot recant! .
“ . . . Stale friendly cross-examination ‘with respect to’ a prior extrajudicial statement is no substitute for timely, adversary cross-examination ‘upon’ a statement . . .
The Michigan court then set forth a hypothetical illustration, too long to copy here, of the difference between timely cross-examination upon the prior statement and stale cross-examination with respect to the statement, demonstrating “the windmill-fighting nature of stale cross-examination with respect to the prior statement”, and concluded with these words as to what can be done where real cross-examination is possible, 150 N.W.2d l.c. 158: ,“When a cross-examiner on timely cross-examination succeeds in getting the witness to change his story, the integrity of the recantation is apparent, and his original, recanted version no longer stands as substantive evidence ....
“Scholarly legal writings are useful and necessary. When they challenge the established rules, the courts have an obligation to re-examine those rules and measure the theoretical criticism against the hard facts of a living system of justice. . . . ”
Trial lawyers know that what a lawyer would like to do on cross-examination is to get the witness to admit that what he said on direct examination harmful to the lawyer’s client was wrong. How would that actually work in the present case if the state were permitted to use Hackett’s prior statement as substantive proof that Gran-berry was present at the crime? The cross-examination that is available will be cross-examination by Granberry’s lawyers of Hackett. The state will not try to cross-examine Hackett to destroy his prior statement that Granberry was there. This is what the state wants. But Granberry’s lawyers cannot cross-examine Hackett in actual fact — all they can do is to get him to repeat what he earlier said in his testimony — that is, that Granberry was not there. They have no way to destroy his prior statement because the only way they can meet it is to have him repeat what he said on direct examination. This is not cross-examination at all, nor is there any way the witness can be subject to genuine cross-examination by the party who wants to discredit the prior statement. The gears in Wigmore’s great legal engine cannot be engaged. It is cross-examination in name only and does not satisfy the purpose of the hearsay rule.
I am in favor of continuing with the orthodox rule and concur in the opinion of DONNELLY, J.