Getting the Most Out of Prior Inconsistent Statements

It feels really good to catch someone lying on the witness stand. It can turn a whole trial around. But it rarely happens by accident. The secret is to have perfect timing aided by diligent preparation, even when you have a witness dead to rights.

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

After his wife was charged with domestic violence, however, his natural allegiance to her made him change his story. So at her domestic violence trial, the husband stated on direct that his wife did not actually hit him and that she was generally peaceful that evening. Little did he know, but I had his 911 call all cued up and ready to play for the jury on a king-sized boom box right under my table. I also had a transcript of the tape ready to hand to the defendant’s attorney and to the judge and jury.

The tricky part was to find a way to play the tape without giving the defendant an opportunity to explain it away. The night before the trial started, I meditated on the situation for several hours, going over and over exactly how the moment would play out. I decided to employ a seemingly innocuous technique known as “past recollection refreshed,” found at Evidence Code §771. That is, after getting him to firmly commit to his testimony that his wife never hit him and that she did not trash the house, I nonchalantly asked him if he recalled the exact content of his 911 call. Of course, the answer was “no.” Now I had him.

I asked him if it would refresh his recollection to hear the tape and he of course said “yes,” because he did not want the jury to think that he had something to hide.

So I handed transcripts of the 911 call to the defendant’s attorney and to the judge and jury. Next, I reached under my table and produced the boom box and pressed “play.” Bingo. There it was in stereo.

The husband plainly told the 911 dispatcher that his wife was beating him with her fists and that she was 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 dramatic prior inconsistent statement was the centerpiece of the trial.

Prior inconsistent statements can be devastating. From a technical standpoint, they are exceptions to the hearsay rule. They are governed by Evidence Code §1235, which provides: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.”

The thrust of Evidence Code §770 is that the witness must have an opportunity to explain the prior inconsistent statement, i.e., 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 impeach the witness, but for the truth of the statement itself. People v. Hawthorne (1992) 4 Cal. 4th 43, 55. That can turn out to be a powerful advantage, because you can use the prior inconsistent statement as affirmative evidence in your closing argument. For example, using the above domestic violence case as an illustration: “Ladies and gentlemen of the jury, the evidence proves beyond a reasonable doubt that she hit him. You heard it for yourselves. Her husband unequivocally told the 911 dispatcher that she hit him.”

Public policy is in favor of admitting prior inconsistent statements. The comments to Evidence Code §770 state that a party may introduce a prior inconsistent statement even after the witness has been excused if the party learns of the statement after the witness was excused. That statement seems to indicate a desire to admit such evidence because the prior statement was probably the truth, instead of the later statement, which was probably rehearsed.

In opposition to summary judgment motions, prior inconsistent statements are admissible for their truth and thus may create triable issues of fact, even though the witness was not given an opportunity to explain the statement. Colarossi v. Coty U.S. Inc. (2002) 97 Cal.App.4th 1142, 1150. The Fourth District Court of Appeal stated that there was no reason for requiring that the witness be given an opportunity to explain the inconsistency in the summary judgment context. After all, the reason for the requirement is to allow the trier of fact to assess credibility. But on summary judgment, only the judge will view the evidence. The jury would need to assess the witness’ credibility in light of the prior-inconsistent statement, and its mere existence in and of itself would therefore defeat 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, e.g., People v. Sam (1969) 71 Cal.2d 194. The reason given was that a present failure to recall at trial was not inconsistent with perfect recollection on a prior occasion.

But modernly, courts have gone the other way. The modern trend has been to allow prior descriptions of an event, even when a witness testifies that they cannot recall the event, because the failure to recall at trial appears deliberate or evasive. See, e.g., People v. O’Quinn, (1980) 109 Cal.App.3d 219, 224. But there are limits. Despite the trend to broaden the exception in favor of admissibility, the public policy in favor of alternative dispute resolution, for example, has proved to be paramount. Thus, inconsistent statements made in prior arbitrations are inadmissible in later trials of the same case. Rules of Ct., rule 1616, subd. (c).

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