Chapter 3 - §12. Exception—Prior inconsistent statement

• Jurisdiction: United States

§12. Exception—Prior inconsistent statement

A testifying witness's prior inconsistent statement that was made out of court is admissible as an exception to the hearsay rule. Evid. C. §1235.

§12.1. Overview. When a testifying witness has previously made an out-of-court statement that is inconsistent with her current testimony, the prior inconsistent statement may be introduced on cross-examination or by extrinsic evidence as substantive evidence (i.e., for its truth) or for impeachment. See Evid. C. §§770, 780(h), 1235; People v. Chhoun (2021) 11 Cal.5th 1, ___; People v. Dalton (2019) 7 Cal.5th 166, 235; People v. Johnson (2018) 6 Cal.5th 541, 583. The rationale is that as long as the declarant is presently available to deny or explain the prior inconsistent statement, "the dangers against which the hearsay rule is designed to protect are largely nonexistent." 7 Cal. Law Revision Comm'n Rep. (1965) p. 1229.

Federal Comparison Under the FREs, a witness's prior inconsistent statement that is made under penalty of perjury at a trial, hearing, or other proceeding or in a deposition is not considered hearsay and thus is admissible for its truth as well as for impeachment. FRE 801(d)(1)(A). If the statement was not made under penalty of perjury, it may be considered only for impeachment. See U.S. v. Bao (9th Cir.1999) 189 F.3d 860, 865-66. By contrast, under Evid. C. §1235, the inconsistent statement can be considered as substantive evidence even if it was not made under oath. See 7 Cal. Law Revision Comm'n Rep. (1965) p. 1229. Also, the FREs treat a prior statement of a testifying witness as nonhearsay if the statement identifies a person as someone the declarant perceived earlier. FRE 801(d)(1)(C).

§12.2. Requirements for exception. For a witness's prior inconsistent statement to be admissible as a hearsay exception, the following criteria must be met:

1. Witness testifies. The witness must actually testify at the proceeding. People v. Blacksher (2011) 52 Cal.4th 769, 806.

Note If a witness's testimony is offered at trial but the witness is unavailable, the witness's prior inconsistent statements may still be offered for their truth and for impeachment purposes under Evid. C. §1202 and §1204. See "Right to impeach, ch. 3-B, §1.3.2; "Prior inconsistent statements, ch. 3-B, §16.4.2.

2. Testimony is inconsistent with prior statement.

(1) Generally. The witness's prior out-of-court statement must be "inconsistent" with any part of the witness's testimony at the proceeding. A statement is inconsistent if it tends to contradict or disprove the witness's testimony or any inference to be deduced from it (i.e., inconsistent with express or implied testimony). People v. Spencer (1969) 71 Cal.2d 933, 942; see, e.g., People v. Dalton (2019) 7 Cal.5th 166, 235 (witness's statement at trial that victim made no sound during attack, that she did not know whether victim was alive, and that she did not clean kitchen was impeached by her prior videotaped statement that victim had spoken during attack and that she had cleaned blood off kitchen floor); People v. Johnson (2018) 6 Cal.5th 541, 582-83 (witness's brother's hearsay statement that witness told him D "didn't have to kill [victim]" was admitted as prior inconsistent statement of witness who testified that she did not tell anyone D was involved in shootings); People v. Green (1971) 3 Cal.3d 981, 988-89 (witness's deliberate evasion in trial testimony to question answered in his preliminary-hearing testimony—when marijuana came into his possession—was deemed an implied denial that D supplied witness with marijuana). Thus, inconsistency does not require that the prior statement contradict the witness's testimony in express terms; rather, the test for inconsistency is whether the prior statement has the effect of being inconsistent with the witness's testimony. E.g., People v. Chhoun (2021)...