hearsay: past statements of witnesses and past testimony

Question 1

cec 770 inconsistent requirements

Answer 1

inconsistent statement exclusions; exceptions

unless interest of justice, inconsistent statement at hearing shall be excluded unless…

a) witness was so examined while testifying as to give him an opportunity to explain or deny the statement or;
b) witness has not been excused from giving further testimony in the action

Question 2

CEC 791 prior consistent requirements

Answer 2

past consistent statements inadmissible to support credibility unless offered after:

a) an inconsistent statement to attack credibility admitted, and the statement was made before the alleged inconsistent one
b) express or implied charge that his testimony at the hearing is recently fabricated or influenced by bias or other improper motive, and the statement was made before the improper motive was alleged to have arisen

Question 3

cec 1235 prior inconsistent

Answer 3

prior inconsistent statement (substantively or to impeach)

must be inconsistent w/ testimony + comply w/ 770

Doesn’t have to me made under oath

If a person legitimately doesn’t remember
then the prior statement is not inconsistent in CA
Trial judge will determine if its bona fide CEC 405
if witness claims no memory of making it, can be proved extrinsically since they have opportunity to explain or deny. CEC 770

Question 4

cec 1236 prior consistent

Answer 4

prior consistent statement: must be consistent w/ testimony at hearing AND comply with 791

a consistent statement could be made AFTER the inconsistent statement if it preceded the motive for fabrication: cec 791(b)

Question 5

cec 1237 past recollection recorded

Answer 5

past recollection recorded: statement itself must have been admissible if made while testifying

witness must have insufficient present recollection to testify fully and accurately; must be in a writing and must be made when fresh in witness’ memory or by authorized person; witness must testify that the statement was true; writing must be authenticated

writing may be read into evidence but writing itself may not be received in evidence unless offered by adverse party

Question 6

cec 1238 prior ID

Answer 6

prior ID

if statement would have been admissible if made by him while testifying and is an ID of a party or another as a person who participated; made at a time when the occurrence fresh in witness memory; the evidence of the statement offered after witness testifies he made the ID and it was true of his opinion at the time

if witness denies prior ID can be offered as prior inconsistent statement