Chapter 3 - §13. Exception—Prior consistent statement

• Jurisdiction: United States

§13. Exception—Prior consistent statement

A testifying witness's prior consistent statement is admissible as an exception to the hearsay rule.

§13.1. Overview. A prior statement by a witness that is consistent with his testimony at the hearing is admissible as substantive evidence as well as for witness rehabilitation when offered after the witness's truthfulness has been attacked. See Evid. C. §§791, 1236; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1230.

Note Under Evid. C. §§791 and 1236, a prior consistent statement can be offered to rehabilitate a witness only after the witness's credibility is attacked. This rule does not apply, however, to a prior identification. Evid. C. §1238. Under Evid. C. §1238, a witness's prior identification can be admitted to corroborate the witness's testimony without the requirement that the witness's testimony first be impeached. See "Exception—Statement of identification," ch. 3-B, §15.

§13.2. Requirements for exception. For a witness's prior out-of-court 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. E.g., People v. Kopatz (2015) 61 Cal.4th 62, 84 (prosecution could not use prior consistent statements of husband, as related by wife, as substantive proof because husband did not testify at trial); People v. Hitchings (1st Dist.1997) 59 Cal.App.4th 915, 922 (defendant who did not testify at second trial could not use prior consistent statement to rehabilitate his credibility).

2. Witness's testimony is impeached. The witness's in-court testimony must be impeached in one of the following ways:

(1) By prior inconsistent statement. The witness's testimony was impeached by the witness's prior inconsistent statement. Evid. C. §791(a); see, e.g., People v. Ervine (2009) 47 Cal.4th 745, 779-80 (prior statement was not admissible because witness did not establish that evidence introduced by opposing party was inconsistent was his in-court testimony).

(2) By fabrication. The witness's testimony was impeached by an express or implied charge that the testimony was recently fabricated or was influenced by bias or other improper motive. Evid. C. §791(b); see, e.g., People v. Kennedy (2005) 36 Cal.4th 595, 616 (defendant suggested that witness's testimony was influenced by promises not to prosecute), disapproved on other grounds, People v. Williams (2010) 49 Cal.4th 405. Recent fabrication can be inferred when it is shown...