Prior Inconsistent Statements

Specific preliminary evidentiary requirements apply before a court can admit a witness' prior inconsistent statement.  Hearsay, of course, is an out-of-court statement that is offered in court to prove the truth of the matter stated.  The "hearsay rule" prohibits the admission of the statement unless an exception to the hearsay rule exists. (Evidence Code section 1200).  Evidence Code section 1235 states that a hearsay statement is admissible if the statement is inconsistent with the witness' testimony at the hearing. 

Prior to Evidence Code section 1294 being enacted, the initial requirement was that the declarant be a witness in the trial proceeding.  In People v. Williams (1976) 16 Cal 3rd 663, an individual was suspected of committing a robbery and was contacted by the police.  He gave a statement that implicated defendant Williams.  The Supreme Court held that the third party's statement was not admissible since the admission of a prior inconsistent statement was limited to a witness who testifies at the trial.  According to People v. Martinez (2003) 113 Cal App 4th 400, Evidence Code section 1294 overruled Williams.  Section 1294 states, in part, that evidence of a witness' statement that was properly admitted at the preliminary hearing is admissible at trial if the witness is unavailable and is admitted pursuant to Evidence Code section 1291.  This includes a videotaped statement introduced at the preliminary hearing or prior proceeding as well as a transcript from the former hearing containing the statement.  In Martinez, a third party implicated defendant Martinez.  At the preliminary hearing, a detective reviewed the third party's statements and addressed specific points that the third party denied making.  At the trial, the third party asserted his Fifth Amendment right against self- incrimination and did not testify.  The Court of Appeal stated that the preliminary hearing transcript was admissible at trial.  However, it held that the trial court created  error in allowing the jury to hear the recording of the third party's statement to the police since neither the recording, nor a transcript of the recording, was admitted into evidence.  The error was deemed harmless given the overwhelming weight of the evidence of guilt against the defendant.
Both the United States and the California Supreme Courts have rejected the argument that the prior inconsistent statement violates the Confrontation Clause (California v.Green (1970) 399 U.S. 149, People v. Green (1971) 3 Cal. 3d 981).  A defendant "could hardly hope to accomplish more than has already been accomplished by the fact that the witness is now telling a different, inconsistent story, and–in this case–one that is favorable to the defendant." (90 S. Ct. at 1935).

There are limitations placed on the prior inconsistent statement so that only relevant, contradictory portions of the prior statement are admissible; Section 1235 "does not permit the wholesale admission into evidence of entire works."  (Benson v. Honda Motor Co., Ltd. (1994) 26 Cal. App. 4th 1337).  In civil law, a witness' statement that occurred in an arbitration hearing cannot be used for impeachment in a civil trial that subsequently occurs (Jimena v. Alesso (1995) 36 Cal. App. 4th 1028).

If a witness states during his testimony that he does not remember the prior statements, is that inconsistent with the prior statement?  It may or may not be.  The trial court must initially consider and determine whether there is substantial evidence that the witness'claimed lapses of memory are false.  (People v. Arias (1996) 13 Cal. 4th 92).  The general rule is that when a witness appears to be intentionally evasive or is untruthful, then the prior statement is admissible since the witness is impliedly denying the facts in the prior statement (People v. O'Quinn (1980) 109 Cal. App. 3rd 219).

If a witness genuinely does not remember making the prior statement, then the in-court testimony is not inconsistent and the prior statement is not admissible.  "Justice will not be promoted by a ritualistic invocation of this rule of evidence.  Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement and the same principle governs the case of the forgetful witness." (Green, supra, 3 Cal. 3d at 988).  The case of People v. Simmons (1981) 123 Cal. App. 3rd 677 illustrates this concept.  In Simmons, the witness made a statement to the police and then later signed it.  It told of the defendant's bragging about having committed the crime.  Prior to the preliminary hearing, the witness suffered a head injury that resulted in amnesia.  He testified that he had no recollection of the defendant's confession or his own statement to the police.  The Court of Appeal stated that since the failure of recollection was truthful, the prior statement was not admissible under Section 1235 since there was no implied inconsistency.  To allow in the statement would in effect deny the defendant his constitutional right to confront and cross examine the witness.  In People v. Levesque (1995) 35 Cal. App. 4th 530, the court excluded the testimony of the victim's mother who testified, outside of the jury's presence, that she did not remember the prior statements because she was under the influence of drugs at the time she made them.

If a prior inconsistent statement is admitted, the trier of fact may use it to both impeach the witness as well as for the truth of the contents in that statement.



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