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Neal v. State9/8/1992
The attorney for the State merely objected and did not "request the [prior statement] be shown or disclosed" prior to the cross-examination. Such a request in this case would have curtailed the ability of defense counsel to comply with Section 2613 because he had not secured even a partial transcript of the prior testimony. Even during the course of trial an innovative trial attorney can secure the requisite documentation needed to comply with the statutory requirements. The record in this case reveals the trial attorney did nothing to obtain the needed transcript. This important fact is not addressed by the Court in its decision. While the Court generically brushes aside the need to show diligence in obtaining a transcript of the prior testimony, at the same time it clouds the issue of scope of cross-examination versus the use of extrinsic evidence to prove the prior statement. The practical difficulty of allowing trial counsel to proceed with questions without a copy of the prior statement concerns the ability of the trial judge to properly rule on objections. What standard will the trial judge be able to utilize to determine if the question is proper and if objections to the question should be sustained or overruled? In this case trial counsel was relying on memory without the ability to meet the proof required for introducing extrinsic evidence. This Court should formulate rules which encourages trial counsel to be prepared for trial. This decision does not require or encourage professional trial preparation.
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