Prior Consistent or Inconsistent Statements
Category > Prior Consistent or Inconsistent Statements
Defendant was entitled to introduce his own inconsistent statements without having to testify.The trial court admitted recordings of jail conversations in which defendant and others made statements implicating defendant. The trial court later erred by ruling that unless defendant testified he could not introduce hearsay statements made in other settings that were inconsistent with the statements he made in the jail recordings. Under Evidence Rule section 1202, defendant was entitled to introduce evidence of his inconsistent statements even though he was available to testify at trial. id: 21852
For purposes of section 1235 the prior statement must be inconsistent with the witness’s testimony at the hearing.The defense trial theory was that it was Farmer, not defendant, who assisted the murder. The trial court admitted the testimony of a detective who said Farmer told him he was with his parents on the night of the murder. This contradicted the testimony of a defense witness. The court erred in admitting the detective’s testimony under prior inconsistent statement hearsay exception (Evidence Code section 1235) because that section only applies when the prior statement is inconsistent with the witness’s testimony at the hearing. Neither was the statement admissible under section 1202 which allows a hearsay declarant to be impeached with inconsistent statements since Farmer’s statement was not hearsay but verbal conduct and admitted for the nonhearsay purpose of showing consciousness of guilt.id: 20976
Court erred under section 1294 and violated the confrontation clause by admitting the preliminary hearing testimony of a nontestifying accomplice, as well as his recorded statement to the police.A person suspected of committing a robbery gave a statement implicating defendant. He denied such a statement at the preliminary hearing and was impeached by the detective who took the statement. The witness asserted his Fifth Amendment privilege and was not available for trial. The court admitted the preliminary hearing testimony of the witness as well as his recorded statement to the police. The evidence was not admissible as a prior inconsistent statement under Evidence Code section 1294 since neither the transcript nor a recording of the interview was introduced as evidence at the preliminary hearing. Moreover, the erroneous admission of the evidence also violated defendant's Sixth Amendment right to confrontation because the witness did not testify at trial and was never subject to cross-examination with regard to the entire statement. However, the error was harmless in light of the overwhelming evidence of defendant's guilt.id: 17627
While the witness's incriminating statements to responding police were spontaneous and not "testimonial" under Crawford, the court erred in excluding her contradictory statements made at the preliminary hearing (which were later stricken) because they were admissible as inconsistent statements.Defendant's wife called the 911 operator and said defendant had hit her. She repeated the claim to the officer and paramedic who responded to the call. At the preliminary hearing she told a different story exonerating her husband and testifying that her earlier statement was false. When cautioned about self-incrimination, she refused to complete her testimony, and her prior preliminary hearing testimony was stricken. At trial, the court admitted the inculpatory statements to police as spontaneous statements but excluded the exculpatory preliminary hearing testimony because it had been stricken. Admitting the statements to police did not violate defendant's confrontation clause rights because they qualified as spontaneous statements and were not "testimonial" under Crawford v. Washington (2004) 124 S. Ct. 1354. However, the court erred in excluding the preliminary hearing testimony, which was admissible as an inconsistent statement, and the error was prejudicial because it resulted in the jury hearing only half of the critical evidence.id: 18102
Updated 3/7/2024Testimony on victim’s statements in police interview and text messages was admissible under the prior consistent statement hearsay exception. Defendant argued the trial court erred by permitting detectives to testify about statements the victim made during a police interview and about the content of text messages between the victim and defendant. However, the statements were admissible under the prior consistent statement hearsay exception. Any conceivable Sanchez error was harmless because the content of the text messages was independently proven through the Cellebrite reports. id: 26343
Defendant’s statements to the police were not admissible as prior consistent statements where they were made after the motive to fabricate arose.Defendant argued the trial court erred by excluding certain statements he made to the police after he was arrested. However, the statements were not admissible as prior consistent statements under Evidence Code section 791 because defendant had a motive to fabricate the statements when he made them. Contrary to defendant’s claim, the statements were not admissible given the subsequent murder charges that constituted a separate motive to fabricate where he made the statements before the additional motive arose.id: 24782
The trial court properly admitted the testimony of the identifying declarant’s widow to support her husband’s credibility.At the preliminary hearing, Les Ballow identified defendant. Defense counsel then challenged Ballow’s credibility. Bellow died before trial, but the trial court allowed his wife to testify about consistent statements Les had made to her. The trial court properly admitted the wife’s testimony to support her husband’s credibility under Evidence Code sections 1202 and 791, subd.(b). id: 24074
The witness’s evasive response at trial constituted an implied denial and the court properly admitted a prior statement under the prior inconsistent statement hearsay exception.Defendant argued the trial court erred by admitting a hearsay statement as a prior inconsistent statement because it was not inconsistent with the witness’s trial testimony where he was evasive and nonresponsive. However, a witness’s deliberate evasion of questioning can constitute an implied denial that amounts to inconsistency, rendering the prior statement admissible under Evidence Code section 1235.id: 21748
A witness’s 1984 statement was properly admitted as a past recollection recorded even where there was a time lapse between the recording and the events recorded.A witness’s 1984 statement was properly admitted under Evidence Code section 1237 - as a past recollection recorded. He did not recall the subject of his earlier statements when testifying at trial. Moreover, the lapse in time between the events recorded and the time of the recording did not render the statements inadmissible under section 1237. And defendant repeatedly testified he told the detective the truth to the best of his ability. Contrary to defendant’s claim, it did not matter that the judge ruling on the section 1237 issue was not the judge who originally ruled on the reliability of the witness’s claim that he was truthful with police. id: 21747
Evidence of Mindy’s diary entry and statement to her teacher was consistent with her prelim testimony that defendant assaulted her were admissible as prior consistent statements even though she did not report the assault to defendant’s family when she saw them.Defendant’s relatives testified that on the day Mindy was allegedly kidnaped and assaulted, she appeared uninjured and unafraid as she accompanied defendant. The trial court did not later err admitting evidence of Mindy’s diary entry and a statement to her teacher suggesting she had been kidnaped and injured by defendant. The evidence was properly admitted as a prior consistent statement, and Mindy’s failure to report the assault to defendant’s relatives can be explained by a concern for her safety.id: 23252
The trial court did not err by allowing a witness to be impeached with prior inconsistent statements following his intermittent refusal to answer questions.The witness’s refusal to answer questions was part of a pattern of either repudiating his prior statements as lies or as coerced, or pretending not to remember them. The trial court did not err by deeming his intermittent refusal to answer questions to be inconsistent in effect with prior statements and allowing him to be impeached with those statements.id: 23019
The trial court properly allowed evidence of a witness’s prior consistent statements where defense counsel implied the witness had a motive to lie at trial and the earlier statements were made before the motive to lie arose.Defendant argued the trial court erred by admitting into evidence Estrada’s prior consistent statements, because at the time they were made to police, he was a suspect and had a motive to lie. However, defense counsel impliedly claimed the witness had an improper motive to lie during his testimony at trial. Under Evidence Code section 791, subd.(b), the trial court properly allowed the prosecutor to present evidence of Estrada’s consistent statements made before the improper motives arose - before he was released from jail and before he received conditional immunity.id: 22036
Evidence Code section 1202 allows the prosecution to impeach its own unavailable hearsay declarant with an inconsistent statement.The confrontation clause does not prohibit the prosecution from impeaching the former testimony of its own unavailable witnesses with their inconsistent statements provided those statements are admitted only for impeachment purposes. Under Evidence Code section 1202, the prosecution may not offer for their truth the inconsistent statements of a declarant who does not testify at trial. Here, the witness’s statement about the restraining order was not offered for its truth and was properly admitted to impeach.id: 22434
Where a witness testified she did not recall defendant’s admission, the police officer who interviewed her could provide the statement as a prior inconsistent statement.At defendant’s capital trial (with a rape/murder special circumstance) the trial court admitted the testimony of a previous rape victim and the police officer who had interviewed her where she said defendant knew what he was doing and had done this before. The testimony of the victim was admissible as describing statements of a party. The officer’s testimony (that the victim told him defendant admitted doing this before) was properly admitted as an inconsistent statement where the victim testified she did not remember if defendant admitted to doing it before and the officer’s testimony regarding the witness’s prior statement was sufficiently inconsistent in effect to qualify as a prior inconsistent statement.id: 20491
Evidence Code section 1202 (prior inconsistent statement hearsay exception) does not prohibit a party from impeaching its own witness.The victim told a paramedic at the scene that her attacker was white. Later, at the hospital, she said he had “tan” skin. The trial court did not err in admitting the latter statement as a inconsistent statement under Evidence Code section 1202. Contrary to defendant’s claim, section 1202 does not prohibit a party from impeaching its own witness. The trial court correctly instructed the jurors to consider the latter description as impeachment only and there was nothing in the record to show the jury failed to follow that instruction.id: 20479
It was unnecessary to prove a statement false through its inconsistency declarant's with trial testimony.Appellant argued the court erred in admitting her pretrial statement that someone grabbed at the gun causing it to accidentally fire, because the statement was not inconsistent with her trial testimony. However, it was unnecessary to prove the statement's falsity by its inconsistency with her trial testimony. The falsity of the pretrial statement was demonstrated by the testimony of others and by its inconsistency with other statements made by appellant.id: 13110
Supreme Court holds prior consistent statements inadmissible if made after motive to fabricate arose.Writing for the majority, Justice Kennedy held that an alleged child molest victim's hearsay statements were inadmissible as prior consistent statements under Fed. R. Evid. 801(d)(1)(B) because she made them after she was removed from defendant's physical custody and after her alleged motive to fabricate arose. Justice Scalia concurred that the common law supported the majority's interpretation of the Rule, but would not have relied so heavily upon the Advisory Committee Notes. Justice Bryer, joined by the Chief Justice and Justices O'Connor and Thomas, dissented, finding no hearsay prohibition against post-motive consistent statements. The dissent would have upheld the admission of the statements since the district court found them factually relevant to rebut the charge of fabrication.id: 13115
Statements were properly admitted as inconsistent where the witness's lack of memory at trial amounted to deliberate evasion.The trial court admitted as prior inconsistent statements testimony from the witness's deposition a few years earlier. Defendant argued the statements were not inconsistent for purposes of Evidence Code sections 1235 and 770 since the witness's trial testimony was that she could not recall the earlier events or what she had said about them. However, when a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied. Evidence supported the trial court's finding of deliberate evasion and the statements were properly admitted.id: 17492
Audio tape of defendant's conversation at the jail was not admissible as a prior consistent statement at the second trial where defendant did not testify at that trial.Following his arrest, defendant told his girlfriend during a jail visit that he did not remember what happened. The conversation was monitored by the sheriff's department. At the first trial, defendant testified he did not remember entering the house. The prosecutor read this testimony to the jury at the second trial. Defendant argued the testimony was used to suggest he was lying about his lack of memory. He sought to have the tape of the entire conversation with his girlfriend played to the jury. The court, instead, allowed counsel to read relevant portions of the transcript. Defendant argued this prevented the jury from hearing his voice which was relevant to his credibility. The court's action violated neither Evidence Code sections 791 nor 1236. The tape was not admissible as a prior consistent statement at the second trial because defendant never testified at that trial.id: 16058
A witness must be given a realistic opportunity to explain or deny a prior inconsistent statement.Evidence Code section 770 provides for the admission of a prior inconsistent statement of a witness where the witness was so examined while testifying as to give him an opportunity to explain or deny the statement . . . The realistic opportunity requires reference to more than one of the following; 1) the people involved in the conversation, 2) its time and place, or 3) the specific statements made during the conversation. The foundational question Did you ever tell anyone that unless Mr. Garcia gave you money, you would get him trouble? completely missed the first two categories.id: 13107
Admission of witness' out-of-court statements through the testimony of detective did not deny the right of confrontation.Although the witness did selectively refuse to answer some questions posed by the prosecutor, he did give sufficient testimony which supported a finding that his in-court testimony was inconsistent with his statements to the detective. Permitting the detective to testify as to the out-of-court statements made by the witness did not deprive appellant of his right of confrontation.id: 13108
Court properly admitted coperpetrator's statement to authorities implicating defendant as a prior consistent statement.A police officer testified that a coperpetrator called him and said, "I didn't know he (defendant) was going to shoot the old people." The evidence was properly admitted as a prior consistent statement. Defendant extensively cross-examined the coperpetrator regarding the deal he made with the authorities in exchange for testimony against defendant. Whatever motive the coperpetrator may have had to place blame on others, defendant implied that the possible modification of his sentence yielded a compelling additional incentive to lie, an implication that in turn entitled the prosecutor to rehabilitate the coperpetrator with his prior consistent statement.id: 13109
Multiple hearsay is admissible where each hearsay level constitutes a prior inconsistent statement.Defendant argued the trial court erred in admitting the witness' testimony and tape recorded statements, because the exception of the hearsay rule for prior inconsistent statements (set forth in Evidence Code section 1235) does not allow admission of multiple hearsay. Section 1235 authorized the admission into evidence of a witness' prior inconsistent statement. Section 1201 authorized the admission into evidence of multiple hearsay. Read together, these statutes permit admission of multiple hearsay where each hearsay level constitutes a prior inconsistent statement.id: 13111
Prior consistent statement was properly admitted where law enforcement assisted in disposing of charges brought against the witness after his initial statement to police.Defendant argued the witness' statement was improperly admitted as a prior consistent statement because his improper motive for testifying arose prior to his initial statement. However, while the witness had a motive to minimize his own liability during the initial interview with police, the actual agreement (favorable disposition of multiple criminal charges) did not take place until after the interview. The focus of Evidence Code section 791 is the specific agreement or other inducement suggested by cross-examination as supporting the witness' improper motive.id: 13112
Prior consistent statements were admitted after the cross-examination impliedly attacked the witness' testimony as being motivated by promises of leniency.After the witness testified the prosecutor elicited from him the fact that he was awaiting sentencing on a larceny charge but that no promises were made to induce his testimony. On cross-examination, defense counsel the witness was told by the prosecutor that a letter would be written on his behalf to the Missouri authorities informing them of his cooperation. Because the cross-examination impliedly attacked the witness' testimony as being improperly motivated by promises of leniency, the court properly admitted evidence of his prior consistent statements pursuant to Evidence Code section 791.id: 13113
Statements that were inconsistent in effect were properly admitted as prior inconsistent statements.Witness' testimony at trial that she was still inside the truck when she heard the first shot directly contradicted her earlier statements to the police that she was walking toward the rear of the truck when the first shot rang out. Although she could not remember at trial when the second shot occurred, it was not error to admit the prior statements indicating that she heard two shots in rapid succession. Her trial testimony was inconsistent in effect and the court did not err in admitting the prior statements under the prior inconsistent statement exception to the hearsay rule.id: 13114
Tape recording of witness prior to consistent statement was admissible to rebut a charge of recent fabrication.Defense counsel's questioning of witness raised an implicit charge that the deal provided the witness with an additional motive to testify untruthfully. This entitled the prosecution to show that the witness' testimony was consistent with the recorded statement he gave shortly after his arrest but before the deal was consummated. Admitting the tape recording was not improper.id: 13116
Victim's statements to friends following a beating were properly admitted as prior inconsistent statements where she claimed at trial that she was the aggressor and the earlier statements were lies.Defendant was convicted of second degree murder of fetus and aggravated assault upon the victim who was eight months pregnant. Following the incident the victim told several people defendant repeatedly punched and kicked her. However, prior to trial the victim changed her story and argued that she was the aggressor and the loss of the baby and injuries were the result of her falling on boxes when lunging at defendant. She claimed that because the earlier statements were lies they could not be admitted as prior inconsistent statements. However, the victim's prior statements were clearly inconsistent with her trial testimony. The character of them did not change simply because she admitted making them. The statements were properly admitted as prior inconsistent statements.id: 13117
When a witness' statement may have been influenced by multiple motives to fabricate, a prior consistent statement is admissible if made prior to the existence of any one or more of the alleged motives.A prior consistent statement is admissible if it was made before the existence of any one or more of the biases or motives that, according to the opposing party's express or implied charge, may have influenced the witness' testimony. Therefore, the earlier statement of the witness was admissible notwithstanding that he already had motives to fabricate when he made the statement.id: 13118
Witness' in-court testimony, as well as his refusal to answer questions justified the use of prior statements as inconsistent.Expressly inconsistent with the statement witness gave the detective was his in-court denial that he had snitched to the detective and his denial that he told the detective that he was present when defendant tried to put his penis in victim's butt. Under the circumstances, the trial court properly concluded that witness' in-court testimony, as well as his refusal to answer questions was materially inconsistent with his statement to the detective.id: 13119
Statements obtained in violation of Michigan v. Jackson may be used for impeachment.In <i>Michigan v. Jackson</i>, 475 U.S. 625 (1986), the Supreme Court held that once a criminal defendant invokes his 6th Amendment right to counsel, a subsequent waiver of that right <197> even if voluntary, knowing, and intelligent under traditional standards <197> is presumed invalid if secured pursuant to police-initiated conversation. In a 5-4 opinion written by Chief Justice Rehnquist the Supreme Court held that statements taken in violation of the <i>Jackson</i> prophylactic rule may be used to impeach a defendant's false or inconsistent testimony. Justices Stevens, Brennan, Marshall and Blackmun dissented.id: 11390
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245