Washington Rule of Evidence 801(d)(1)(i) copies verbatim its counterpart federal rule: "A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition."

In the Nieto case, a 16-year-old girl was interviewed at the police station by an officer who was her neighbor and a friend of her family. Afterwards, the officer wrote a statement alleging that Nieto had had intercourse with the girl before she turned 16, and she signed it. When she testified to the contrary at trial, the statement was admitted, and Nieto was convicted of Rape of a Child in the Third Degree. (Because the girl testified at trial, the recent United States Supreme Court decision in Crawford v. Washington would not have prevented the admission of her written statement. Click here for a report on the landmark Crawford decision.)

The Washington Court of Appeals reversed. It held the statement did not qualify for admission as substantive evidence.

The witness statement form the officer used contained boilerplate language to make it a sworn statement, but the court of appeals found the boilerplate ambiguous. Hence, the court concluded, the statement did not meet the evidence rule's requirement that it be "given under oath."

The court then considered whether the girl's police interview and her signing the statement met the rule's "other proceeding" requirement. The Nieto case is the latest of several in Washington to consider when a police investigation is an "other proceeding."

In some jurisdictions, statements to law enforcement investigators hardly ever qualify under this rule. See, for example, Ellis v. State of Florida, 622 So. 2d 991, 997 (Fla. 1993) and United States v. Livingston, 661 F.2d 239 (D.C. Cir. 1981). Washington, though, has chosen to let the definition of "other proceeding" turn on whether the circumstances in which the statement was made "provide minimal guarantees of truthfulness." Quoting an earlier Washington case, the Nieto court said that "reliability is the key."

The court of appeals distinguished the circumstances of this statement from those of other statements to police and prosecutors in earlier Washington cases, where convictions were affirmed. As noted above, the statement was not made under oath, in the court's view. Also, there was no indication anyone called the girl's attention to the boilerplate language about the penalty of perjury or told her that that penalty would apply to her statement. No notary was present when the girl signed the statement. No formal procedures were involved.