Making the most of previous inconsistent statements

It feels great to catch someone lying on the witness stand. It can change an entire trial. But it rarely happens by accident. The secret is to have perfect timing with the help of diligent preparation, even when you have a witness for no reason.

A couple of years ago, I was prosecuting a domestic violence case involving a female perpetrator and a male victim. The victim’s wife beat him up and then trashed the house, throwing clothes and dishes everywhere. The husband called 911 and reported that his wife beat him and that she was destroying his property. The call, like all 911 calls, was recorded.

However, after his wife was accused of domestic violence, his natural loyalty to her caused him to change his story. So, at his domestic violence trial, the husband stated directly that his wife didn’t actually hit him and that she was generally quiet that night. Little did he know, but he had his 911 call lined up and ready to play for the jury on a giant boom box right under my desk. He also had a transcript of the tape ready to give to the defendant’s attorney, judge and jury.

The hard part was finding a way to play the tape without giving the defendant a chance to explain himself. The night before the trial began, I pondered the situation for several hours, going over and over again exactly how the moment would unfold. I decided to employ a seemingly innocuous technique known as “updated past recall,” found in Evidence Code §771. I mean, after getting him to firmly commit to his testimony that his wife never hit him and didn’t trash the house, I nonchalantly asked him if he remembered the exact content of his 911 call. Of course, the answer was “no.” “. Now I had it.

I asked him if he would jog his memory to listen to the tape and of course he said yes, because he didn’t want the jury to think he had something to hide.

So I gave the 911 call transcripts to the defendant’s attorney and the judge and jury. Then I reached under my table, pulled out the stereo, and hit play. Bingo. There it was in stereo.

The husband clearly told the 911 dispatcher that his wife was beating him with her fists and throwing clothes and dishes everywhere. The jury was stunned. The witness was exposed as a liar. The case ended with the wife’s conviction, and the husband’s earlier dramatic inconsistent statement was the centerpiece of the trial.

Previous inconsistent statements can be devastating. From a technical point of view, they are exceptions to the rumor rule. They are governed by Evidence Code §1235, which states: “Evidence of a statement made by a witness is not inadmissible under the hearsay rule if the statement is inconsistent with their testimony at the hearing and is offered pursuant to Section 770”.

The thrust of Evidence Code §770 is that the witness must have an opportunity to explain the inconsistent statement above, that is, the witness must not already be excused, unless “the interests of justice” require otherwise.

Of particular importance is the fact that prior inconsistent statements are admissible not only to indict the witness, but because of the truth of the statement itself. people vs. Hawthorne (1992) 4cal. 4th 43, 55. That can become a powerful advantage, because you can use the above inconsistent statement as affirmative evidence in your closing argument. For example, using the domestic violence case above as an illustration: “Ladies and gentlemen of the jury, the evidence shows beyond a reasonable doubt that she hit you. You heard it for yourselves. Your husband told the 911 dispatcher unequivocally that she hit him.” .”

Public policy is in favor of admitting contradictory prior statements. Commentary to Evidence Code §770 provides that a party may submit a prior inconsistent statement even after the witness has been excused if the party learns of the statement after the witness has been excused. That statement seems to indicate a desire to admit such evidence because the earlier statement was probably the truth, rather than the later statement, which was probably rehearsed.

Unlike motions for summary judgment, inconsistent statements above are admissible on the basis of their truthfulness and therefore may create actionable questions of fact, even if the witness did not have an opportunity to explain the statement. Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1150. The Fourth District Court of Appeals held that there was no reason to require the witness to have an opportunity to explain the inconsistency in the context of summary judgment. After all, the reason for the requirement is to allow the trier of fact to assess credibility. But in summary judgment, only the judge will see the evidence. The jury would need to assess the witness’s credibility in light of the prior inconsistent statement, and its mere existence would itself nullify summary judgment (assuming the issue was material).

Traditionally, when a witness testified that he or she could not recall an event, the witness’ prior description of the event was inadmissible. See, for example, People v. Sam (1969) 71 Cal.2d 194. The reason given was that present lack of recall at trial was not incompatible with perfect recall on a previous occasion.

But today, the courts have gone the other way. The modern trend has been to allow prior descriptions of an event, even when a witness testifies that he cannot remember the event, because the lack of recollection at trial appears deliberate or evasive. See, for example, People v. O’Quinn, (1980) 109 Cal.App.3d 219, 224. But there are limits. Despite the tendency to expand the exception in favor of admissibility, public policy in favor of alternative dispute resolution, for example, has proven to be paramount. Thus, contradictory statements made in previous arbitrations are inadmissible in subsequent trials of the same case. Ct. Rules, rule 1616, subd. (against).

Lawyers have known for hundreds of years that inconsistent prior statements are dynamite. This is why Francis Wellman’s renowned work The Art of Cross-Examination, first published in 1903, devotes dozens of pages to the subject: “[W]When you have a witness under oath who orally contradicts a statement you have previously made, . . . then you have him caught on the hook.” Id. at p. 132.