IN THE SUPREME COURT OF THE STATE OF WASHINGTON


### STATE OF WASHINGTON, Respondent, 

### v. NAKIA LEE OTTON, Petitioner. ) ) ) ) ) ) ) ) ) )



# ________________________) No. 91669-1
ENBANC
Filed: 

### JUN 09 

### 2016
YU, 

### J.- While ostensibly concerning the interpretation ofan evidentiary rule, this is actually a case about stare decisis. PetitionerNaldaLee Otton seeks reversal ofhis convictions for second degree assault and felony harassment. The victim testified at Otton's trial, and because hertestimony was inconsistent with her prior sworn statementto police aboutthe incident, the trial court admitted the victim's prior statement as substantive evidence. Otton acknowledges that the trial court's decision and the Court ofAppeals opinion affirming that decision were proper in accordance with this court's long-standing precedent. He asks us to reject that precedent. We decline the invitation and affirm the Court ofAppeals.State v. Otton, No. 91669-1 FACTUAL AND PROCEDURAL HISTORY Otton and the victim had a romantic relationship and lived in the same household. The victim was disabled due to ahistory ofmultiple brain surgeries and sometimes had difficulties with memory and speaking. Late one night in December 2012, Otton and the victim had a confrontation. After Otton left the house, the victim called 911. When the police arrived, the victim gave a written statement, signed under penalty ofperjury, alleging that Ottonheld her on the bed and against the wall by her neck so that she could notbreathe and told herhe was going to kill her. The State charged Otton with second degree assault and felony harassment. Attrial, the victim testified that while she would nothave intentionally lied to police, her allegations against Otton were false, and that she had called 911 because she was "angry" and "had a couple ofdrinks." 2AVerbatim Report of Proceedings (VRP) (Aug. 7, 2013) at 132. At the State's request and over Otton's objection, the trial court admitted the victim's written statement as substantive evidencepursuantto ER 801(d)(l)(i), in accordance with 

### State v. Smith, 97 Wn.2d 856,651 P.2d 207 (1982), and

### State v. Binh Thach, 126 Wn. App. 297, 106 P.3d 782 (2005). !d. at 212. Thejury convicted Otton as charged, and the Court of Appeals affirmed in an unpublished opinion. 

### State v. Otton, noted at 187 Wn. App. 

### 1001,reviewgranted, 184 Wn.2d 1017, 360 P.3d 819 (2015).

2State v. Otton, No. 91669-1 ISSUE Shouldthis court rejectSmith's interpretation ofER 801(d)(1 )(i)? ANALYSIS A. Standard ofreview andprinciples ofstare decisis A decision to admit or exclude evidence is generally reviewed for abuse of discretion. State v. Griffin, 173 Wn.2d 467, 473, 268 P.3d 924 (2012). Butin this case, Otton does not challenge the manner in whichthe trial court exercised its discretion; he challenges the waythis courtpreviously interpretedER 801(d)(l)(i). "'Interpretationofan evidentiaryrule is a question oflaw, whichwe review de novo,"' id. (quotingState v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007)), butwe have previously addressed the precise question Otton now raises. We must therefore be mindful ofstare decisis. "Stare decisis is a doctrine developed by courts to accomplishthe requisite element ofstability in court-made law, but is not an absolute impedimentto change." In reRights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970). In orderto effectuate the purposes ofstare decisis, this court will reject its prior holdings only upon "a clear showing that an established rule is incorrect and harmful." ld. There are also "'relativelyrare' occasions when a court should eschewpriorprecedent in deference to intervening authority" where "the legal underpinnings ofourprecedenthave changed or disappeared altogether."

3State v. Otton, No. 91669-1 

### W. G. Clark Constr. Co. v. Pac. Nw. Reg'l Council of Carpenters, 180 Wn.2d 54, 66,322 P.3d 1207 (2014) (internal quotation marks omitted) (quoting Carpenters Local Union No. 26v. US. Fid. & Guar. Co., 215 F.3d 136, 141 (1st Cir. 2000)). When aparty asks this courtto reject its prior decision, it "is an invitation
we do nottake lightly." State v. Barber, 170 Wn.2d 854, 863, 248 P.3d 494 (2011). The question is not whether we would make the same decision ifthe issue presented were a matter offirst impression. Instead, the question is whetherthe prior decision is so problematic that itmustbe rejected, despite the many benefits ofadhering to precedent-"'promot[ing] the evenhanded, predictable, and consistent development oflegal principles, foster[ing] reliance onjudicial decisions, and contribut[ing] to the actual and perceived integrity ofthejudicial process."' Keene v. Edie, 131 Wn.2d 822, 831,935 P.2d 588 (1997) (quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 115 L. Ed. 2d720 (1991)). Withthese principles in mind, we turn to the precedent Otton asks us to reject-Smith, 97 Wn.2d 856. B. The Smith decision and its application inthis case Smith was a case about the proper interpretation ofER 80l(d)(1)(i), an evidentiary rule concerning the definition of"hearsay." "Hearsay" is defined generally as "a statement, otherthan one made by the declarant while testifying at the trial orhearing, offered in evidence to prove the truth ofthe matter asserted."

4State v. Otton, No. 91669-1 ER 801(c). "Hearsay is not admissible except as providedby these [evidentiary] rules, by other courtrules, or by statute." ER 802. However, ER 801(d)(l) provides that an out-of-court statement is nothearsay if [t]he declarant testifies at the trial or hearing and is subjectto cross examination concerning the statement, and the statement is (i) inconsistent with the declarant's testimony, and was givenunder oath subjectto the penalty ofperjury at a trial, hearing, or other proceeding, or in a deposition. Because such a statement is not hearsay, it is admissible at trial as substantive evidence, that is, to prove the truth ofmatter asserted in the statement. 1 As noted, it is undisputed on appeal that the victim in this case testified at Otton's trial, that she was subjectto cross-examination about herpriorwritten statement, that the prior written statement was inconsistent with the victim's trial testimony, and that the prior written statement was given under oath and subject to the penalty ofperjury. The only question is whether her police interview was an "otherproceeding" within the meaning ofER 801(d)(1)(i). When confronted with the same question in 1982, this court declined to issue
a categorical ruling that a police interview is either always or never considered an "otherproceeding." Smith, 97 Wn.2d at 861. Rather, we held that "[t]hepurposes ofthe rule and the facts ofeach case mustbe analyzed. In determining whether

1The statement's admissibility is subject, ofcourse, to other applicable evidentiary and constitutional limitations. 5State v. Otton, No. 91669-1 evidence should be admitted, reliability is the key." 

### Id. Applyingthis approach to the facts presented, 

### Smith held thatthe police interview at issue inthat case was an "otherproceeding" because "the complaining witness-victim voluntarily wrote the statementherself, swore to itunder oath withpenalty ofperjury before a notary, admitted attrial she hadmade the statement and gave an inconsistent statement at trial where she was subjectto cross examination." 

### !d. at 863. The victim's sworn statementwas therefore admissible as substantive evidence. 

### !d. at 857. We have notreexamined

### Smith since it was issued. However, based on 

### Smith, the Court ofAppeals has formulated a four-factor test for determining whether an out-of-court statementby a nonparty witness is admissible pursuantto ER 801(d)(1)(i): (1) whetherthe witness voluntarily made the statement, (2) whether there were minimal guaranties oftruthfulness, (3) whetherthe statement was taken as standardprocedure in one ofthe four legally permissible methods for determining the existence ofprobable cause, and (4) whetherthe witness was subjectto cross examinationwhen givingthe subsequent inconsistent statement. 

### Thach, 126 Wn. App. at 308. Otton does not challenge the trial court's discretionary determinations thatthe police interview at issue here qualified as an "otherproceeding" and thatthe victim's written statement was properly admitted in accordance with this four-factor test. He also does not contendthatthe four6State v. Otton, No. 91669-1 factor test is anything but a faithful application of

### Smith. Rather, he argues that we should reject 

### Smith. C. Otton has not shownthat 

### Smith is incorrect or harmful 

### Smith reasonably heldthat the phrase "otherproceeding" mustbe interpreted in a way that gives effect to its plainly "open-ended" language, 

### Smith, 97 Wn.2d at 861, andthe constraints ofthe four-factor test articulatedby the Court ofAppeals preventthe harmfulness that could theoretically flow from an unrestrained, subjective inquiry into "amorphous notions of'reliability,"' 

### Crawfordv. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We therefore hold that Otton has not shownthat 

### Smith's interpretation ofan "other proceeding" for purposes ofER 801(d)(1)(i) is clearly incorrect or harmful. 1. Otton has not shownthat

### Smith is incorrect Where a party asks this courtto reject its previous decision, the party must show that the previous decision is "incorrect." 

### Stranger Creek, 77 Wn.2d at 653. Otton contends that

### Smith is incorrectbecause it conflicts with (1) the plain language ofER 801(d)(1 )(i) and applicable principles ofrule interpretation and (2) decisions ofotherjurisdictions that have considered similar evidentiary rules. We disagree withboth contentions.

7State v. Otton, No. 91669-1

a. Interpretation ofevidentiary rules "This court interprets courtrules the same way it interprets statutes, using the tools ofstatutory construction." State v. Hawkins, 181 Wn.2d 170, 183,332 P.3d 408 (2014). We therefore begin with the plain language ofthe rule. 

### !d. ER 801(d)(1 )(i)'s plain language allows prior inconsistent statements by nonparty witnesses to be admitted as substantive evidence ifthe statements were "given under oath subjectto the penalty ofperjury at a trial, hearing, or otherproceeding,
or in a deposition." "Otherproceeding" is not defined in the rule, and its meaning is not apparent from the rule's plain language. Smith therefore appropriately looked to the "history and purposes" ofthe federal counterpartto ER 801(d)(1)(i). Smith, 97 Wn.2d at 859; seeDep 't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 12, 43 P.3d 4 (2002) (statutory ambiguity may be resolved by considering relevant legislative history). Smith noted that the first proposedversion ofthe federal rule wouldhave allowed "all prior inconsistent statements to be used as substantive evidence," but a requirement "thatthe statementbe made under oath, subjectto penalty for perjury" was later added "to assure reliability." Smith, 97 Wn.2d at 859-60. However, further proposals to restrict the rule by requiring greater procedural formalities (thatthe statements be given during grandjuryproceedings and subjectto crossexamination at the time they were given) were rejected. 

### !d. at 860. This history

8State v. Otton, No. 91669-1 

### shows that statements admitted under the rule must meet a certain level of reliability and musthave been given with some level ofprocedural formality, but thatthe phrase "otherproceeding" was intentionally left "open-ended." Id. 

### at 861. Smith 

### also considered "the original purpose ofthe sworn statement," and noted that the statement given in that case "was taken as standardprocedure in one ofthe four legally permissible methods for determining the existence ofprobable cause." Id. 

### at 862 (citing State v. Jefferson, 

### 79 Wn.2d 345, 347, 485 P.2d 77 (1971)). The court noted that "'[o]therproceeding' underthe rule would clearly cover" three ofthe four methods-grandjuryproceedings, inquestproceedings, and filing a criminal complaint before a magistrate. Id. 

### at 863. It

### would therefore be an anomaly to categorically exclude the fourth method-"police investigations into alleged criminal activity, and the taking ofstatements from witnesses and the presentment ofthem to the prosecuting attorney." Id. 

### at 862. Otton, however, argues that based on applicable principles ofstatutory interpretation, this court must hold that an "otherproceeding" "mean[s] something similar to the preceding specific terms 'trial' or 'hearing."' Suppl. Br. ofPet'r at 6. This, according to Otton, would include "judicial proceedings, often adversarial, where the declarant is officiallyplaced under oath and subjectto questioning" but not proceedings like those at issue here, where voluntary, sworn witness statements
are given outside "acourtroom or governmental office." Id. 

### at 6-7. Even ifwe

9State v. Otton, No. 91669-1

were to assume that this could be a reasonable interpretation in the first instance, it is not compelled bythe plain language ofER 801(d)(1)(i). By focusing on the terms "trial" and "hearing," Otton takes into account only some ofthe context in whichthe term "otherproceeding" is used. However,
we must "give[] effect to the plain language ofa courtrule, as discerned by reading the rule in its entirety and harmonizing all ofits provisions." State v. George, 160 Wn.2d 727,735, 158 P.3d 1169 (2007) (emphasis added). This
means we must considerthe fact that the plain language ofER 801(d)(1)(i) also includes statements made at depositions, which are notnecessarilyjudicial proceedings and may take place outside ofa courtroom or governmental office. Otton's proposed interpretation also reads into the phrase "otherproceeding" terms that are not there. ER 801(d)(1)(i) does not refer to other judicialproceedings or otheradversarialproceedings or other formal proceedings. Itrefers only to an "otherproceeding," aphrase that "does not, in itself, reveal its own dimension." UnitedStates v. Castro-Ayon, 537 F.2d 1055, 1057 (9th Cir. 1976). Perhaps most problematically, even ifwe were to agree that the victim's statement here was not given at an "otherproceeding," Otton does not propose a workable analytical framework for future cases. See KeyDesignInc. v. Moser, 138 Wn.2d 875, 883, 983 P.2d 653 (1999) (adhering to precedent in partbecause "KeyDesignproposes no alternative rule which wouldprovide the clarity and

10State v. Otton, No. 91669-1 certainty it says the [previous] rule lacks"). He certainly proposes a bright-line rule that witness statements givento investigating police officers are never admissible under ER 801(d)(1)(i), butthe suggestions that an "otherproceeding" must be adversarial and occur in a governmental building seem untenable. Itis not clearhow the physical location where a statement is given would necessarily advance the plain language orunderlying purposes ofthe rule, and a grandjury proceeding is clearly an "otherproceeding," even though 

### itis "investigatory," rather than adversarial, in nature. Castro-Ayon, 537 F.2d at 1058. We thus conclude that Smith's interpretation ofER 801(d)(1)(i) was reasonable and that Otton's reading ofER 801(d)(1)(i) is not compelled by the rule's plain language. b. Decisions from otherjurisdictions Where ourprior interpretation is inconsistent with the decisions of"the vast majority ofour sister states," there may be good reason to reconsider our own approach. Davis v. BaughIndus. Contractors} Inc., 159 Wn.2d 413, 417, 150 P.3d 545 (2007). However, a decision is not necessarily incorrect merely because it lacks universal acceptance. See KeyDesign, 138 Wn.2d at 883 (argument "about the rule being extreme, unusually strict, and not generally accepted or favored" held insufficient). In this case, the decisions ofotherjurisdictions do not show that Smith's interpretation ofER 801(d)(l)(i) is clearly incorrect.

11State v. Otton, No. 91669-1 We begin with the onejurisdictionthat clearly and completely disagrees with

### Smith-Florida. Florida courts have specifically rejected 

### Smith's case-bycase approach and instead use a "'brightline' test" to interpretFlorida's version of ER 801(d)(l)(i). 

### Delgado-Santos v. State, 471 So. 2d 74, 79 (Fla. Dist. Ct. App. 1985). Under that test, an '"otherproceeding"' does not ever include a "police interrogation." 

### State v. Delgado-Santos, 497 So. 2d 1199, 1199 (Fla. 1986). However, while the Florida evidentiary rule is textually similar to ER 801(d)(1 )(i), the Florida courts faced different considerations than the 

### Smith court did. In light ofthese different considerations, we cannot say that the Florida courts' disagreement with 

### Smith clearly shows that

### Smith is incorrect. Notably, in the seminal case establishing Florida's bright-line test, the court
was plainly troubledby the circumstances under which the statement at issue in that case was made: the witness who gave the statement was 16 years old atthe time, he was accused ofparticipating in the homicide then under investigation, and he did not give his statementuntil he had been in custody ("although supposedly not 'under arrest"') for over six hours and subjectedto "along process of'prestatement interrogation."' 

### Delgado-Santos, 471 So. 2d at 75. The Florida court freely acknowledged that the "admixture ofOrtiz's youth and the improprieties involved in confininghim without arrest and without transporting him to a youth

12State v. Otton, No. 91669-1 facility" would have been sufficient, in and ofthemselves, to exclude the proffered statement as substantively unreliable. Id. at 78. Nevertheless, the Florida court rejected a case-by-case approach, and it did
so explicitly as a matter oflegislative deference: While the legislature and Congress may have beenultimately concerned with the "reliability" ofaparticular statement, they sought to vindicate that concern only by establishing given and objective criteria as to the circumstances, including the kind offorum, under which it was given. And it is for the legislature, notthe courts, to determine not only the policyto be promoted, butthe means by which that end is to be achieved. Id. at 79. In Washington, however, evidentiaryrules are adopted bythis court pursuantto its inherentpowers under the state constitution. State v. Gresham, 173 Wn.2d 405, 428, 269 P.3d 207 (2012). "[W]hen interpreting court rules we are not concerned about usurping the role ofthe legislature because we alone are uniquely positionedto declare the correct interpretation ofany court-adopted rule." Jafar v. Webb, 177 Wn.2d 520, 527, 303 P.3d 1042 (2013). Moreover, ER 801 is subject to amendment according to prescribed procedures, and ER 801(d)(l)(i) has never been amended to rejectSmith. See GR 9 (procedures for rule making bythis court). When considering challenges to previous statutory interpretations, "[t]his courtpresumes thatthe legislature is
aware of judicial interpretations ofits enactments and takes its failure to amend a statute following ajudicial decision interpreting that statute to indicate legislative

13State v. Otton, No. 91669-1 acquiescence in that decision." City of Federal Way v. Koenig, 167 Wn.2d 341, 348, 217 P.3d 1172 (2009). We may comfortably presume thatthis court is aware ofits own interpretations ofevidentiary rules, and here, over 30 years have elapsed since Smith was decided and ER 801(d)(l)(i) has not been amended to reject it.2 Otton also suggests that federal courts interpreting the federal equivalent of ER 801(d)(1 )(i) have rejected Smith's interpretation. In UnitedStates v. Dietrich, 854 F.2d 1056, 1061 (7th Cir. 1988), the Seventh Circuitheld that "[t]he term 'otherproceeding' is not unlimited. A typical police station interrogation, for example, is not an 'otherproceeding' within the meaning ofthe [federal] Rule[, FED. R. Evm. 801(d)(1)(A)]." Instead, Dietrich positedthat "'[t]he [federal] Rule seems to contemplate situations in which an official verbatim record is routinely kept, whether stenographically or by electronic means, under legal authority."' ld. (quoting UnitedStates v. Livingston, 213 U.S. App. D.C. 18,661 F.2d 239, 240 (1981)). Thatmightbe a reasonable way to limitthe phrase "other proceeding," but it is not clear why it is more reasonable thanSmith's interpretation, let alone so clearly correctthat we must adopt it and rejectSmith. The text ofER 801(d)(l)(i) makes absolutely no reference to official verbatim records, and does not clearly intend to limit an "otherproceeding" on the basis of

2 This is not to imply thatthe court would be unwilling to revisit the interpretation ofthe rule and modify it for clarity through the rule making process. 14State v. Otton, No. 91669-1 specificprocedural indicia ofreliability beyondthose required by the rule's plain language. Moreover, like the Florida court in Delgado-Santos, the federal court in Dietrich was plainly concerned aboutthe fact thatthe statements at issue were of questionable substantive reliability, in part because they were given by an individual who was under imminentthreat ofarrest for allegations related to the ultimate crime at issue. 854 F.2d at 1061-62; Delgado-Santos, 471 So. 2d at 75. That concern is fully addressed by Smith and the four-factor test developed bythe Court ofAppeals, without imposingthe inflexibility created by a bright-line rule. See, e.g., State v. Nelson, 74 Wn. App. 380, 388, 874 P.2d 170 (1994) ("Any motive to lie is therefore much less compelling in this case than if [the witness] had been questioned as a suspect."); see also Tisdale v. State, 498 So. 2d 1280, 1283 (Fla. Dist. Ct. App. 1986) (Glickstein, J., dissenting inpart and concurring in part) ("In my view, the 'bright line' test effects a lockstep or mind-setthat could produce the injustice the test seeks to prevent."). Other federal cases also do not advance Otton's argument. Some cases, though holding statements made to investigatingpolice were not given at an "other proceeding," explicitly acknowledge that the purpose ofthe rule is "to ensure the reliability and truthfulness ofany prior inconsistent statement," and therefore look to "the totality ofthe circumstances" under whichthe statementwas given. United

15State v. Otton, No. 91669-1 

### States v. Day, 789 F.2d 1217, 1223 (6th Cir. 1986); 

### see also Livingston, 661 F.2d at 243. This clearly indicates an approval ofa case-by-case approach turning on


### some indicia ofreliability. And the Ninth Circuit has interpreted the federal rule in
a manner entirely consistent with 

### Smith, holding that an interrogation by immigration officials is an "otherproceeding" under the rule and noting that "the choice ofthe open-endedterm 'otherproceedings' was intentional." 

### Castro-Ayon, 537 F.2d at 1058. IfWashington were an extreme outlier in its interpretation ofER 801(d)(1)(i), we mightreconsider 

### Smith, even though it was a reasonable decision at the time it was made and has notbeenrejected by any intervening rule amendments. However, Washington is not such an outlier. Ottonthus fails to show that 

### Smith is clearly incorrect. 2. Ottonhas not shownthat

### Smith is harmful Even ifOtton could showthat 

### Smith is clearly incorrect, we will notreject
ourprecedentunless it is "bothincorrect

### andharmful." 3 

### Barber, 170 Wn.2d at 864. However, the four-factor test formulated bythe Court ofAppeals creates a principled framework for determining whether aprior, inconsistent, out-of-court statement is sufficiently reliable, and ER 801(d)(1 )(i) actually requires 

### more

3 To the extentthat Otton argues Smith is harmful because it is incorrect, we reject that argument. Incorrectness and harmfulness are separate inquiries. Barber, 170 Wn.2d at 864-65. 16State v. Otton, No. 91669-1 objective procedural indicia ofreliability than many other states' rules. Otton therefore has not shown thatSmith is harmful. Relying primarily on Crawford, 541 U.S. 36, Otton contends that any substantive, case-by-case reliability determination is simply too subjective to be allowed. See Suppl. Br. ofPet'r at 12-14. This argument confuses the requirements ofthe confrontation clause at issue in Crawford, U.S. CONST. amend. VI, with those ofthe evidentiary rule defining hearsay at issue here, ER 801(d)(1)(i). They are clearly not the same: While it may readily be concededthathearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest thatthe overlap is complete and that the Confrontation Clause is nothing more or less than a codification ofthe rules ofhearsay andtheir exceptions as they existedhistorically at common law. California v. Green, 399 U.S. 149, 155, 90S. Ct. 1930, 26 L. Ed. 2d 489 (1970). The confrontation clause is aprocedural guarantee that statements will be tested in "the crucible ofcross-examination."4 Crawford, 541 U.S. at 61; see also

4 We note that the focus ofOtton's argument has shifted somewhat over the course ofthis appeal. His petition for review to this court appears to contend thatSmith is no longer good law following Crawford. Pet. for Review at 9. At oral argument, however, Otton's attorney acknowledged thatSmith's interpretation ofER 801(1)(d)(i) is notjeopardizedby Crawfordas a matter ofconstitutional law. Wash. Supreme Court oral argument, State v. Otton, No. 91669-1 (Feb. 18, 2016), at 38 min., 3 sec., audio recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org. We agree. ER 801(1)(d)(i), by its plain language, applies only when "[t]he declarant testifies atthe trial orhearing and is subjectto cross examination concerning the statement," so the confrontation clause is necessarily satisfied for any statement admitted pursuantto ER 80l(l)(d)(i). See Crawford, 541 U.S. at 61; Green, 399 U.S. at 164. 17State v. Otton, No. 91669-1 Green, 399 U.S. at 158 (discussing the purposes ofthe confrontation clause). An alleged confrontation clause violation is therefore appropriately reviewed as a matter oflaw-eitherthe confrontation clause was violated or it was not, and the individual perspective and observations ofthe trial court are not at issue. State v. Mason, 160 Wn.2d 910, 922, 162 P.3d 396 (2007). Meanwhile, evidentiary rules should be applied and interpreted in a manner thatpromotes their substantive purpose-"thatthe truth may be ascertained and proceedingsjustly determined" in each individual case. ER 102. Evidentiary rulings are therefore appropriately reviewed for abuse ofdiscretion. See State v. Sisouvanh, 175 Wn.2d 607, 621, 290 P.3d 942 (2012) (noting the considerations that supportreviewing decisions for abuse ofdiscretion). Moreover, admissibility pursuantto ER 801(d)(1 )(i) is not conditioned on eachindividual trial court's unrestrained assessment ofreliability. Washington courts must work within a specific four-factor framework. Otton does notpointto any published Washington cases that have appliedthis framework and reached conflicting conclusions, and we can find none. Washington courts have proved themselves well up to the task ofevaluating evidence sought to be admitted pursuantto ER 801(d)(1)(i) in a consistent, evenhanded manner. To the extentthat Otton implies that it is inherently harmful to allow prior inconsistent statements to be admitted as substantive evidence without requiring

18State v. Otton, No. 91669-1 specific procedural formalities beyondthose found in the plain language ofER 801(d)(1 )(i), we disagree. Indeed, many states allow the admission ofprior inconsistent statements as substantive evidence, even where the prior statements
were given with few or no procedural formalities. See Douglas E. Beloof& Joel Shapiro, Let the Truth Be Told: ProposedHearsayExceptions toAdmitDomestic Violence Victims' Out of CourtStatements as SubstantiveEvidence, 11 COLUM. J. GENDER& L. 1, 11 n.29 (2002) (collecting statutes and court rules). Otton does not showthose states have suffered any harm. Andthe beneficial effects ofthe procedural formalities thatare required by ER 801(d)(l)(i)'splain language are clearly preserved by Smith and its progeny. State v. Lavaris, 106 Wn.2d 340, 343, 721 P.2d 515 (1986) (noting that a statementto police that was notgiven under oath and subjectto the penalty ofperjury is not admissible as substantive evidence pursuantto ER 801(d)(1)(i)); State v. McComas, 186 Wn. App. 307, 319,345 P.3d 36 (2015) (same); State v. Nieto, 119 Wn. App. 157, 161-62, 79 P.3d 473 (2003) (same); State v. Sua, 115 Wn. App. 29, 48, 60 P.3d 1234 (2003) (same). Ottonhas not made a clear showingthat Smith is incorrect orharmful. We thus adhere to the doctrine ofstare decisis and reaffirm Smith's interpretation ofan "otherproceeding" for purposes ofER 801(d)(1)(i).

19State v. Otton, No. 91669-1 CONCLUSION A party asking this courtto reject its precedent faces a challengingtask. The partymust show not merely that it would have been reasonable to reach a different conclusion in the first instance, butthat the prior decision is so incorrect and harmful that it would be unreasonable to adhere to it. Ottonhas not made such a showing. We affirm the Court ofAppeals.

20State v. Otton, No. 91669-1



### WE CONCUR:

# ~~-9·

.........···•"""'.-"""'"' _,.- 

# (_**---.,~~'-"•'-"'-"**

21

# ,5~-~~ 

# rfib,g.State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

No. 91669-1 GORDONMcCLOUD, J. (concurring)-! agree withthe majoritythat this is
a case about stare decisis. The petitioner, NaldaLee Otton, concedes thatthe Court ofAppeals' decision is correctunderthis court'sholdinginState v. Smith, 97 Wn.2d 856, 863, 651 P.2d 207 (1982), and he asks us to overrule that holding. Thus, this
case requires us to decide whether Smith should be abandoned as incorrect and harmful. SeeIn re Rights to Water of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970) ("The true doctrine ofstare decisis
... requires a clear showing that an established rule is incorrect and harmful before it is abandoned."). I also agree with the majority that the phrase at issue in this case-"other proceeding" in Evidence Rule (ER) 801(d)(1)(i)-is open ended. Had the drafters intended to strictly enumerate the "proceedings" covered by the rule, they would 1State v. Otton (Nakia Lee), No. 91669-1 (Gordon McCloud, J., concurring)


### have done so. See Rivardv. State, 

### 168 Wn.2d 775, 783, 231 P.3d 186 (2010) ("we interpret a statute to give effect to all language, so as to render no portion meaningless or superfluous"). But I disagree withthe majority's conclusionthatthe phrase "otherproceeding" inER 801(d)(1 )(i) is so 

### open endedthat it includes police interviews or permits the kind offact-specific, case-by-case reliability test that this court crafted in Smith. 

### Indeed, among all the jurisdictions with identical rules whose courts have addressedthe issue, Washingtonis the only onethatinterpretsthephraseinthis way. Other courts have consistently held that the "otherproceeding[s]" covered by rules equivalent to ER 801(d)(1 )(i) are limited to routinized proceedings, bearing hallmarks of formality such as oversight by a neutral officer and simultaneous transcription under authority oflaw, and thus exclude statements taken as part ofa police officer's investigation. Forthe reasons given in Part I below, I conclude that Washington's contrary interpretation is inconsistent with ER 801(d)(1)(i)'s plain language and is therefore incorrect. Inevertheless concur in the majority's decision to affirm the Court ofAppeals because I agree that Otton has not met his burden to show that Smith 

### is clearly harmful.

2State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)
I. SMITHWAS INCORRECTLYDECIDED Asthemajoritycorrectlynotes, ER801(d)(1 )(i)'sfederal equivalent-therule
on which ER 80l(d)(l)(i) was based1-reflected a compromise between drafters who wantedan "unrestrictedversion" admitting allpriorinconsistent statements and drafters who wanted a rule limiting admission to statements made "at a 'trial, hearing, deposition, orbefore agrandjury.'" Smith, 97 Wn.2d 859-60 (quoting draft rule). In light of that legislative history, and consistent with the statute's plain language, the Smith court concluded that the compromise term "other proceeding" in the rule included, but was not limited to, grandjuryproceedings. 

### Id. at 860-61. This conclusionis sound; itis consistentwiththe legislativehistory andthe case law interpreting the federal rule or other state equivalents. See discussion infra Section LB. To the extent the majority endorses this aspect ofSmith, I concur.

1When Smith was decided, Washington's ER 80l(d)(l)(i) was identical to Fed. R. Evid. (FRE) 80l(d)(l)(A). 97 Wn.2d at 859 (noting that the judicial comment on ER 80l(d)(l) provided that "the rule 'conforms state law to federal practice"'); ER 80l(d)(l) & cmt (1980). All the comments to Washington's ERs were deleted in 2006 when the Washington State Bar Association "concluded that the Comments have outlived their usefulness." Purpose statement to proposed amendment to ER Introductory ParagraphComment, 156Wn.2dProposed 16 (OfficialAdvance SheetNo. 1, Jan. 17, 2006). ButER 801(d)(l)(i) remains substantially similar to its federal counterpart. Since then, FRE 80l(d)(l)(A) has been amended to omit the phrase "under oath," but in all other respects the state and federal rules remainthe same. 3State v. Otton (Naida Lee),

### No. 91669-1 

### (Gordon McCloud, J., 

### concurring)

But the Smith 

### court went on to address a more specific question: whether the open-ended phrase "other proceeding" in ER 801(d)(l)(i) included a situation in which detectives contacted a witness to request a statement, the witness talked with detectives and then wrote out a statement at the police station, and the witness subsequently signed the statement and swore to its accuracy before a notary. 97 Wn.2d at 858. It 

### held that the answer was yes because the statement came with "[m]inimal guaranties oftruthfulness." 

### Id. at 862. To reachthat conclusion, the Smith 

### courtrelied on a singleNinth Circuit case, UnitedStates v. Castro-Ayon, 

### 537 F.2d 1055 (9th Cir. 1976),interpretingthe federal equivalent rule, Fed. R. Evid. (FRE) 801(d)(l)(A). But the Smith 

### court misinterpreted Castro-Ayon 

### and distinguished, without any explanation, cases holding that sworn statements made to investigating officers are not admissible underthatrule. 97 Wn.2d at 860-61. Inthe 34 years sinceSmith 

### was decided, many
more courts have interpreted FRE 801(d)(l)(A) and equivalent state rules. Every court to do so has rejected Washington's interpretation; consequently, we are now
an extreme outlier. The interpretation adopted by other jurisdictions is clear, consistent with the rule's plain language and legislative history, and much more amenable to fair applicationthanSmith's 

### adhoc approach is. Iwouldtherefore hold that Smith 

### was incorrect.
4State v. Otton (Nakia Lee), No. 91669-1 (Gordon McCloud, J., concurring)

A. To concludethatapoliceinterviewcanbe an "otherproceeding" within the meaning ofER 801(d)(l)(i), the Smith courtrelied on a misreading ofCastro-Ayon and distinguished, without explanation, more apposite cases reaching the opposite conclusion In Castro-Ayon, the Ninth Circuit held that a tape-recorded interrogation by borderagentswas admissibleunderFRE 801(d)(1)(A). 537F.2dat 1058. TheSmith court acknowledged, in a footnote, that some federal courts had reached a very different conclusion, and would exclude sworn statements made to investigating officers from FRE 801(d)(l)(A)'s "otherproceeding" hearsay exception. 97 Wn.2d at 861 n.1 (citing UnitedStates v. Livingston, 213 U.S. App. D.C. 18, 661 F.2d 239 (1981); UnitedStates 

### v. Ragghianti, 560F.2d 1376 (9th Cir. 1977)). Butitdismissed these decisions without analysis as "not deal[ing] with facts identical to the ones before us." ld. The Smith court then went on to hold that admissibility under ER 801 (d)(1 )(i) is a fact-specific, case-by-case determination, whichhinges onthe prior statement's "reliability" rather than on the proceeding at which that statement was given: "each case depends on its facts with reliability the key." ld. at 863. It explained that a statement was admissible under ER 801(d)(1 )(i) so long as it bore '"minimal guarantees oftruthfulness."' ld. at 861-62 (quoting DAVID W. LOUISELL & CHRISTOPHERB. MUELLER, FEDERALEVIDENCE§ 419, at 169-71 (1980)). In this respect, Smith is actually inconsistent with Castro-Ayon. The CastroAyon court did not endorse the ideathat certain statements mightbe reliable enough 5State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

to fall within PRE 801(d)(l)(A)'s "other proceeding" exception regardless ofthe proceeding at which they were given. Instead, that court held that the particular proceeding at issue in that case was sufficiently similar to a grandjury proceeding to fall within the ambit ofFRE 801(d)(1)(A)'s "otherproceeding" exception: [W]e note that the immigration proceeding before Agent Pearce bears many similarities to a grand-jury proceeding: both are investigatory, ex parte, inquisitive, sworn, basicallyprosecutorial, held before an officer other than the arresting officer, recorded, and held in circumstances of some legal formality. Indeed, this immigration proceeding provides more legal rights for the witnesses than does a grandjury: the right to remain totally silent, the right to counsel, and the right to have the interrogator inform the witness ofthese rights. We do nothold, as the question is notbefore us, that every sworn statement given during a police-station interrogation would be admissible. Whilethis immigrationproceedingbears many similarities to the station-house interrogation, we believe that it qualifies as an "otherproceeding" within the meaning ofthe statute. 537 F.2d at 1058 (footnote omitted). Thus, 

### Castro-Ayon was a holding about a particular semiformal

### proceeding, not aparticular

### statement. !d. Itdoes not support 

### Smith's holding that trial courts should determine "other proceeding" admissibility under ER 801(d)(1)(i) through an open-ended, case-by-case evaluation of a particular statement for "[m]inimal guarantees oftruthfulness." 

### Smith, 97 Wn.2d at 862.

6State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)



### B. Contrary to the majority's assertion, Smith 

### is an extreme outlier; in the 30 years since Smith 

### was decided, every other court to address the question has held that the "other proceeding[s]" covered by rules equivalent to FRE 801(d)(l)(A) do not include interviews by investigating officers As noted above, Smith 

### adopted the minority position when it was decided 34 years ago. It

### held that witness statements taken during a police investigation could fall within ER/FRE 801 's "other proceeding" exception, even though the majority of federal courts to examine that question had reached the opposite conclusion. Smith, 

### 97 Wn.2d at 861 n.1. Backthen, however, the numbers were close: CastroAyon 

### provided some support for Smith's 

### holding-albeit tenuous and indirect support-and two other federal cases rejected Smith's 

### interpretation of the rule. Thus, while Smith 

### adopted a minority position, it could not be said to be contrary to
an overwhelming majority ofrelevant precedent. That is no longer true today, when many more cases have addressed the question. With the exception ofCastro-Ayon, 

### federal cases all hold that the "other proceeding[s]" contemplated in PRE 801(d)(1)(A) are proceedings in which "'an official verbatim record is routinely kept
... under legal authority,"' and that

7State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)
investigations by law enforcement do not meet this standard.2 And relevant cases from other states reach the same conclusion.3 Indeed, outside ofWashington, no case has relied on Castro-Ayon to admit, under FRE 801(d)(l)(A) or an equivalent state rule, a prior inconsistent statement given to law enforcement during an investigation. A Westlaw search yields 25 controlling decisions4 that cite Castro-A yon fortheprinciplethat an investigationby

2 Livingston, 661 F.2d at 242-43; United States v. Bonnett, 877 F.2d 1450, 1462 (1Oth Cir. 1989); UnitedStates v. Dietrich, 854 F.2d 1056, 1061-62 (7th Cir. 1988); United States v. Day, 789 F.2d 1217, 1222-23 (6th Cir. 1986); see also Santos v. Murdock, 243 F.3d 681, 684 (2d Cir. 2001) (per curiam) (endorsing interpretation of ER 801(d)(1) adopted by the District ofColumbia Circuit in Livingston, holding that meeting between attorney and witness, in which witness prepared an affidavit drafted by attorney, was not an "other proceeding" within meaning ofrule); 29 AM. JUR. 2D Evidence § 681, at 741 (2008) ("It has been held that a proceeding contemplated by the Rule is a formal action before a judicial tribunal, as well as an action before a quasi-judicial officer or board, invoked to enforce or protect a right. This requirement contemplates situations in which an official verbatim record is routinely kept, whether stenographically or by electronic means, and under legal authority so as to insure its reliability." (footnote omitted)); John. F. Gillespie, Annotation, What Is "Other Proceeding" under Rule 801(d)(J)(A) of Federal Rules ofEvidence, l!.xcepting from 1-fearsay Rule Prior Inconsistent Statement Given "at a Trial, }fearing, or Other Proceeding," 37 A.L.R. Fed. 855, 856-58 (1978). 3 E.g., State v. Johnson, 220 Ncb. 392, 394, 398-99, 370 N.W.2d 136 (1985), abrogated on other grounds by State v. Morris, 251 Neb. 23, 33-34, 554 N.W.2d 627 (1996); United States v. Powell, 17 M.J. 975, 976 (A.C.M.R. 1984); United States v. Whalen, 15 M.J. 872, 878 (A.C.M.R. 1983); United States v. Luke, 13 M.J. 958, 960 (A.F.C.M.R. 1982);Delgado-Santos v. State, 471 So. 2d 74, 78 (Fla. Dist. Ct. App. 1985). 4 I have omitted six unpublished opinions and one decision, Robinson v. State, 455 So. 2d 481 (Fla. Dist. Ct. App. 1984), whose agreement with Castro-Ayon was later overruled by State v. Delgado-Santos, 497 So. 2d 1199 (Fla. 1986). 8State v. Otton (Nakia Lee), No. 91669-1 (Gordon McCloud, J., concurring)

law enforcement may be an "other proceeding" for purposes ofFRE 801(d)(l)(A). Ofthese 25, only 16 actually address thatquestion. 5 Three ofthese are unhelpfulto

5 Nine of the remaining cases admit or exclude prior statements under FRE 801(d)(1)(A) or an equivalent rule without deciding whether investigations can ever constitute "other proceeding[s]." Simmonds v. People, 59 V.I. 480, 489-503 (2013) (trial court erred by admitting police interview statement under local rather than federal evidentiary rule but error was harmless (citing Castro-Ayon for discussion of FRE 801(d)(l)(A)'s legislative history)); State v. Maestas, 92 N.M. 135, 144-45, 584 P.2d 182 (1978) (citing Castro-Ayon for the principle that "inconsistent statements spoken by the victim under oath and 'on the stand' were admissible as substantive evidence"); United States v. Tafolla-Cardenas, 897 F.2d 976, 980 (9th Cir. 1990) (citing Castro-Ayon for the principle that prior inconsistent statement is admissible only ifgiven "under oath subject to the penalty ofperjury at a trial, hearing or other proceeding," and holding that unsworn statement given to arresting officer was not admissible as substantive evidence); Pope v. SavingsBanko[PugetSound, 850 F.2d 1345, 1356 (9th Cir. 1988) (citing Castro-Ayon for the principle that "other proceeding" in FRE 80l(d)(l)(A) is defined broadly, but approving admission ofprior inconsistent statement given in a deposition, consistent with the rule's plain language); United States v. Mosley, 555 F.2d 191, 193 (8th Cir. 1977) (citing Castro-Ayon for principle that grand jury proceedings are "other proceeding[s]" within the scope ofFRE 801(d)(l)(A); holding that even iftrial court erred by admitting prior inconsistent statement given to investigating prosecutor, error was harmless because the court also properly admitted statement given in grand jury proceeding, which was substantially similar); State v. Sua, 115 Wn. App. 29, 46-49, 60 P.3d 1234 (2003) (citing Castro-Ayon when summarizing Smith's holding; finding witness statement at issue inadmissible even under Smith because it was not given under oath or subjectto penalty of perjury); State v. Johnson, 40 Wn. App. 371,378,699P.2d221 (1985) (citing Castro-Ayon for the principlethat "notevery sworn statement given during apolice interrogationwould be admissible" andholdingwitness' prior statements inadmissiblebecausethey were either oral orunsigned); Webb v. State, 426 So. 2d 1033, 1034-35 &n.7 (Fla. Dist. Ct. App. 1983) (citing Castro-Ayon for the principle that grandjury testimony is admissible under state equivalent to FRE 801(d)(l)(A)); Gilardi v. Schroeder, 672 F. Supp. 1043, 1044 & n.l (N.D. Ill. 1986) (affidavit given in proceeding before the federal Equal Employment Opportunity Commission was admissible under FRE 801(d)(1 )(A), citing Castro-Ayon). 9State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

this analysis becausethey are Washington cases (Smith and its progeny). 6 But all of the remaining 13 cases either reject Castro-Ayon's holding entirely or limit that holding to its facts:
• State v. Collins, 186 W.Va. 1, 7-8 & n.8, 409 S.E.2d 181 (1990) (noting that Castro-Ayon is an outlier that has been criticized in scholarship on PRE 801(d)(1)(A)).

• State v. Smith, 573 So. 2d 306,314-16 (Fla. 1990) (distinguishingproceeding in Castro-Ayon (admissible as an "other proceeding" under PRE 801(d)(l)(A)) from prosecutor's transcribed investigative interrogation (inadmissible because it did not even remotely resemble a grand jury proceeding)).

• State v. Johnson, 220 Neb. 392, 394, 398-99, 370 N.W.2d 136 (1985), (victim's statement during interview with attorney was not an "other proceeding" under state equivalent of PRE 801(d)(1)(A); to the extent that Castro-A yon supported that conclusion, itwas "unique-andlikelyto remain so"), abrogatedon other grounds byState v. Morris, 251 Neb. 23, 33-34, 554 N.W.2d 627 (1996).

• Delgado-Santos v. State, 471 So. 2d 74, 78 (Fla. Dist. Ct. App. 1985) ("the overwhelming weight ofauthority on the issue is that no variation ofpolice investigatory activity constitutes an [PRE] 801(d)(1)(A)
... proceeding" (co11ecting cases)).

6Smith, 97 Wn.2d at 863; State v. McComas, 186 Wn. App. 307,314-17,345 P.3d 36 (2015) (sworn statement given to investigating police officer was made in an "other proceeding" under ER 801(d)(l)(i) because Court ofAppeals is bound by Smith); State v. Nelson, 74 Wn. App. 380, 391, 874 P.2d 170 (1994) (police interrogation is an "other proceeding" under Smith). 10State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

• Tisdale v. State, 498 So. 2d 1280, 1282 (Fla. Dist. Ct. App. 1986) (embracing Delgado-Santos' interpretation ofrule equivalent to FRE 80l(d)(l)(A) and explicitly rejecting Smith's contrary interpretation).

• United States v. Bonnett, 877 F.2d 1450, 1462 (lOth Cir. 1989) (rejecting argument that witness' statement to Federal Bureau ofInvestigation agents was admissible under FRE 801(d)(l)(A) because Castro-Ayon was "not persuasive and
... clearly distinguishable").

• United States v. Dietrich, 854 F.2d 1056, 1061-62 (7th Cir. 1988) (reading Castro-Ayon as limitedto "proceeding[s]
... [that] contain[] manyofthe same procedural protections as a grand jury proceeding" and distinguishing the proceeding at issue in Castro-Ayon from a sworn statement made to investigating police officers in an interview that was neither transcribed nor conducted in front ofa neutral third party).

• United States v. Day, 789 F.2d 1217, 1222-23 (6th Cir. 1986) (declining to follow Castro-Ayon "to the extentthe facts are not distinguishable").

• Bell v. City of Milwaukee, 746 F.2d 1205, 1274 n.83 (7th Cir. 1984), (noting in dicta that district court probably erred by admitting witness' sworn statement to investigator under FRE 801(d)(l)(A); noting that Castro-Ayon might be contrary), overruled on other grounds by Russ v. Watts, 414 F.3d 783 (7th Cir. 2005).

• UnitedStates v. Powell, 17 M.J. 975, 976 (A.C.M.R. 1984) (rejecting CastroAyon to the extent that it would allow admission of "a statement made in a policeman's office during a non-advocatory, inquisitorial police investigation merely because an oath was administered").

• UnitedStates v. Whalen, 15 M.J. 872, 878 (A.C.M.R. 1983) (statingthatprior inconsistent statementmadeto investigating officerwasnotgivenin an "other proceeding" for purposes ofhearsay exception; noting that Castro-Ayon is contrary).
11State v. Otton (Naida Lee), No. 91669-1 (GordonMcCloud, J., concurring)

• UnitedStates v. Luke, 

### 13 M.J. 958, 960 (A.P.C.M.R. 1982) (rejecting CastroAyon 

### to the extent that that case is not limited to its facts, i.e., to proceedings fundamentally similar to grandjuryhearings).

• Livingston, 

### 661 P.2d at 243 (holding that Castro-Ayon 

### proceeding was distinguishable, for purposes of PRE 80l(d)(l)(A) admissibility, from interview by postal inspector that was conducted at home of government witness who gave sworn statement but was afforded no rights, and that was neither transcribed nor conducted in front ofan independent officer). Given this overwhelming and consistent authority, I disagree with the majority's conclusionthat "Washingtonis not such an outlier" inits interpretation ofthephrase "otherproceeding" inER 801(d)(l)(i). Majority at 16. C. Contrary to the majority's assertion, Otton proposes a workable framework for analyzing ER 801(d)(l)(i) admissibility; it is the framework adopted by the other jurisdictions and compelled by the rule's plain language I also disagree with the majority's assertion that "Otton does not propose a workable analytical framework for future cases." Majority at 10. Otton asks us to adopt the interpretation of"otherproceeding"thatis usedbyeverysingle othercourt that has considered the issue presented in Smith. See 

### Suppl. Br. of Pet'r at 11 

### (quotingDietrich, 

### 854 P.2d at 1061). And, as the majorityexpressly acknowledges, that interpretation holds that PRE 801(d)(l)(A) and state equivalent rules "'"contemplate situations in which an official verbatim record 

### is routinely 

### kept, whether stenographicallyorbyelectronicmeans, underlegalauthority."'" 

### Majority 12State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

at 14 (emphasis added) (quotingDietrich, 854 F.2d at 1061 (quotingLivingston, 661 F.2d at 240)). In short, the rules contemplate routinized proceedings bearing hallmarks offormality such as oversightby an independent (i.e., neutral) officer and simultaneous transcription. E.g., Dietrich, 854 F.2d at 1061; Livingston, 661 F.2d at 243. The majority acknowledges that such an interpretation is "reasonable" but asserts that "it is not clear why it is more reasonable than Smith's interpretation." Majority at 14. Again, I disagree. The interpretation of"otherproceeding" adopted by the otherjurisdictions is compelled by the rule ofejusdem generis, which holds that "'specific terms modify or restrict the application ofgeneral terms where both
are used in sequence"' in a statute. State v. Stockton, 97 Wn.2d 528, 532, 647 P.2d 21 (1982) (quotingDean v. McFarland, 81 Wn.2d 215,221,500P.2d 1244 (1972)). In ER 801(d)(1)(i), as in its federal equivalent, the term "otherproceeding" appears after a list ofmore specific terms: "
... given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition." Applying the interpretive canon ofejusdem generis, the phrase "other proceeding" must be read to encompass only those "proceeding[s]" that are fundamentally similarto a trial or hearing. 

### !d. This is precisely why every other court addressing the question has held that police interviews are not "otherproceeding[s]" within the meaning ofthe 13State v. Otton (Nakia Lee), No. 91669-1 (Gordon McCloud, J., concurring)


### rule. See Livingston, 

### 661 F.2d at 243 (statement given to investigating officers inadmissible under FRE 801(d)( 1 )(A) because "the circumstances fall far short of those in a grand jury proceeding, the paradigmatic 'other proceeding' under the Rule"). In contrast to these other courts' interpretation, the four-factor reliability test that Washington courts have derived from Smith 

### bears absolutely no relationship to ER 801(d)(1)(i)'s plain language whatsoever. 7 

### Indeed, the first Smith 

### factorwhether the witness gave the statement voluntarily-is inconsistent with ER 801(d)(1 )(i)'s plain language. Since trial testimony is not necessarily given voluntarily, the voluntary nature of a statement is clearly irrelevant under ER 801(d)(1)(i). And the fourth factor-whether the witness was subject to crossexamination when giving the subsequent inconsistent statement-is unhelpful because it 

### is always satisfied. Moreover, Smith's 

### ad hoc approach, in which "each
case depends on its facts with reliability the key," 97 Wn.2d at 863, is inconsistent

7 As the majority notes, subsequent state Court ofAppeals decisions have derived from Smith four factors for determining admissibilityunderER 801(d)(l)(i): "'(1) whether the witness voluntarily made the statement, (2) whether there were minimal guaranties of truthfulness, (3) whether the statement was taken as standard procedure in one ofthe four legally permissible methods for determining the existence of probable cause, and (4) whether the witness was subject to cross examination when giving the subsequent inconsistent statement."' Majority at 6 (quoting State v. Thach, 126 Wn. App. 297, 308, 106 P.3d 782 (2005)); State v. Nelson, 74 Wn. App. 380, 383, 387, 874 P.2d 170 (1994). 14State v. Otton (NakiaLee), No. 91669-1 (Gordon McCloud, J., concurring)
with the federal rule's legislative history, which reveals a compromise decision to restrict the rule's coverage to certain types of

### proceedings (as opposed to certain types of

### statements). See Tisdale, 498 So. 2d at 1282 ("the congressional dichotomy between House and Senate and the ultimate compromise giving rise to federal rule 80 1(d)(1)(A)[] seemto dictate a 'brightline' constructionratherthan a case-by-case analysis ofthe circumstances surrounding the taking ofthe statement to determine reliability and thus admissibility"). Because 

### Smith is inconsistent withER 801(d)(1)(i)'s plain language and the overwhelming majority ofprecedent interpreting equivalentrules, I wouldhold that it was incorrectly decided. II. OTTON, HOWEVER, HAS NOT MET HIS BURDEN TO SHOW THAT

### SMITHIS CLEARLY HARMFUL Although I conclude that 

### Smith was incorrectly decided, I concur in the majority's decisionbecause I agreethat Ottonhas notmade the requisite showing of harm sufficientto overcome the rule ofstare decisis. Our cases have identified various kinds ofharm that can satisfy this standard. We have found precedent "harmful" because it was incorrect and inequitable. 

### State
v. Berlin, 133 Wn.2d 541, 548, 947 P.2d 700 (1997) (prior precedent harmful because it overruled well-reasoned precedent without showing that precedent was
15State v. Otton (Nakia Lee), No. 91669-1 (Gordon McCloud, J., concurring)
incorrect and harmful, and because it precluded lesser included offense instructions in too many cases). We have found precedent "harmful" because it created serious policy problems. 

### State v. Barber, 170 Wn.2d 854, 865, 248 P.3d 494 (2011) (collecting cases). And precedent is certainly harmful when it infringes a constitutional protection. 

### E.g., State v. W.R., 181 Wn.2d 757, 769, 336 P.3d 1134 (2014) (priorprecedentviolated due process protections); 

### Barber, 170 Wn.2d at 871 (priorprecedentoffended separationofpowersprinciples). Butwhateverunderlying harm we have recognized, we have always required a 

### clear showing ofharm and we have placed this burden on the party seeking to overturn precedent. 

### State v. Kier, 164 Wn.2d 798, 804-05, 194 P.3d 212 (2008) (citing

### State v. Devin, 158 Wn.2d 157, 168, 142 P.3d 599 (2006) (citing 

### Stranger Creek, 77 Wn.2d at 653)). I agree with the majority that Otton has not met thatburden here. To support his argument that 

### Smith is harmful, Otton simply asserts that ad hoc "reliability" determinations are inherently subjective and therefore unfair. Suppl. Br. ofPet'r at 12-14. But as the majority points out, these determinations pose no constitutional problems in the context ofER 801(d)(l)(i), majority at 17-18, and Otton offers no evidence that

### Smith has yieldeduneven results in Washington courts.

16State v. Otton (Naida Lee), No. 91669-1 (Gordon McCloud, J., concurring)

CONCLUSION 

### Smith's case-by-case reliability test conflicts with the plain language ofER 80l(d)(l)(i) and the overwhelming majority of relevant precedent from other jurisdictions. I therefore conclude that 

### Smith was incorrectly decided. I concur in the decision to adhere to 

### Smith and affirm the Court ofAppeals, however, because I agree thatthe petitionerhas notmethis burdento showthat

### Smith is clearlyharmful.

17State v. Otton (Nal<:ia Lee), No. 91669-1 (Gordon McCloud, J., concurring)

18