prior inconsistent statements fre 801(d) non hearsay by definition rule 801(d)(1) prior statement by...

PRIOR INCONSISTENT PRIOR INCONSISTENT STATEMENTSSTATEMENTS

FRE 801(d) Non Hearsay by definitionFRE 801(d) Non Hearsay by definition

Rule 801(d)(1) Prior Statement by Rule 801(d)(1) Prior Statement by Witness is not hearsay If declarant Witness is not hearsay If declarant testifies and is subject to cross testifies and is subject to cross examination and the statement is:examination and the statement is:

(A) inconsistent with the declarant’s (A) inconsistent with the declarant’s testimony, and was given under oath at testimony, and was given under oath at another proceeding; oranother proceeding; or


FRE 801(d)(1)(A) Prior Statement by FRE 801(d)(1)(A) Prior Statement by Witness is not hearsay If:Witness is not hearsay If:

1. declarant available/subject to 1. declarant available/subject to cross cross

2. statement is2. statement is inconsistent inconsistent w/testimony w/testimony

3. statement given under oath 3. statement given under oath previouslypreviously


FRE 613: FRE 613: (a) In examining a witness concerning a prior (a) In examining a witness concerning a prior statement made by the witness, whether statement made by the witness, whether written or not, the statement need not be written or not, the statement need not be shown nor its contents disclosed to the witness shown nor its contents disclosed to the witness at that time, but on request the same shall be at that time, but on request the same shall be shown or disclosed to opposing counsel.shown or disclosed to opposing counsel.(b) Extrinsic evidence of a prior statement by a (b) Extrinsic evidence of a prior statement by a witness is not admissible unless the witness is witness is not admissible unless the witness is afforded an opportunity to explain or deny the afforded an opportunity to explain or deny the same the opposite party is afforded an same the opposite party is afforded an opportunity to interrogate the witness thereon, opportunity to interrogate the witness thereon, or the interests of justice otherwise require. or the interests of justice otherwise require. This provision does not apply to admissions of This provision does not apply to admissions of party-opponents as defined in Rule 801(d)(2). party-opponents as defined in Rule 801(d)(2).


FRE 613: FRE 613: (a)(a)– – need not disclose statement to witness need not disclose statement to witness when confronting them with it;when confronting them with it;-- but on request must disclose to opposing -- but on request must disclose to opposing counsel.counsel.(b) No extrinsic evidence unless:(b) No extrinsic evidence unless:- witness gets an opportunity to explain or - witness gets an opportunity to explain or deny deny - the opposite party gets an opportunity to - the opposite party gets an opportunity to interrogate interrogate - This provision does not apply to admissions - This provision does not apply to admissions of party- of party- opponents as defined in Rule opponents as defined in Rule 801(d)(2). 801(d)(2).


FRE 613: FRE 613:

This Rule appears to allow in This Rule appears to allow in hearsayhearsay

What about Rule 802 that bars What about Rule 802 that bars hearsay?hearsay?

What is difference between this What is difference between this Rule and Rule 801(d)(1)?Rule and Rule 801(d)(1)?

PRIOR INCONSISTENT PRIOR INCONSISTENT STATEMENTS: Evid. Code STATEMENTS: Evid. Code

§1235: Evidence of a statement §1235: Evidence of a statement made by a witness is not made made by a witness is not made inadmissible by the hearsay inadmissible by the hearsay rule if the statement is rule if the statement is inconsistentinconsistent with his with his testimony testimony at the hearingat the hearing and is offered and is offered in in compliance with section 770compliance with section 770


§1235: §1235:

- inconsistentinconsistent

- prior- prior

- in compliance with §770- in compliance with §770


§770: Generally, extrinsic evid. of §770: Generally, extrinsic evid. of inconsistent statement is excluded, inconsistent statement is excluded, unless:unless:

(a) witness was confronted with (a) witness was confronted with inconsistent statement and given inconsistent statement and given opportunity to explain or deny; oropportunity to explain or deny; or

(b) the witness is subject to recall(b) the witness is subject to recall

NOTE:NOTE: Tactical Decision Here Tactical Decision Here

IMPEACHMENT OF HEARSAY IMPEACHMENT OF HEARSAY DECLARANTDECLARANT

FRE 806FRE 806

Evid. Code sec. 1202Evid. Code sec. 1202

Rule 806:Rule 806: Attacking and Supporting Attacking and Supporting Credibility of DeclarantCredibility of Declarant

When a hearsay statement, or a statement defined in When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in , has been admitted in evidence, the credibility of the declarant may be evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any attacked, and if attacked may be supported, by any evidence which would be admissible for those evidence which would be admissible for those purposes if declarant had testified as a witness. purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement hearsay statement, is not subject to any requirement that the declarant may have been afforded an that the declarant may have been afforded an opportunity to deny or explain. If the party against opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to the declarant as a witness, the party is entitled to examine the declarant on the statement as if under examine the declarant on the statement as if under cross-examination.cross-examination.

FRE 806FRE 806 Merritt/Simmons 6 points:Merritt/Simmons 6 points:

1. Applies to all hearsay statements1. Applies to all hearsay statements Applies to some non-hearsay (801(d)(2)(C,D,E) Applies to some non-hearsay (801(d)(2)(C,D,E)

[admissions by agent, spokesperson or co-[admissions by agent, spokesperson or co-conspirator]conspirator]

N/A to prior inconsistent or consistent statements N/A to prior inconsistent or consistent statements (801(d)(1)(A,B) (801(d)(1)(A,B)

N/A to party statements or adopted statements N/A to party statements or adopted statements (801(d)(2)(A,B)(801(d)(2)(A,B)

N/A to statements offered for a non-hearsay N/A to statements offered for a non-hearsay purpose (operative acts; circumstantial evid.)purpose (operative acts; circumstantial evid.)


2. allows a party to attack a declarant’s 2. allows a party to attack a declarant’s credibility just as if declarant had testifiedcredibility just as if declarant had testified Evid. Of bias prejudice or interestEvid. Of bias prejudice or interest Inconsistent statementsInconsistent statements Lack of personal knowledgeLack of personal knowledge Lack of capacityLack of capacity Reputation or opinion character evid.Reputation or opinion character evid. Criminal convictionsCriminal convictions


3. Once the credibility of the witness is 3. Once the credibility of the witness is attacked, the other party may rehabilitate in attacked, the other party may rehabilitate in any way that is allowed with witnesses:any way that is allowed with witnesses:

Evidence rebutting bias, prejudice, interestEvidence rebutting bias, prejudice, interest

Prior consistent statementsPrior consistent statements

Positive character witnessesPositive character witnesses


4. attacking party may present a prior 4. attacking party may present a prior inconsistent statement to impeach without inconsistent statement to impeach without giving an opportunity to explain or denygiving an opportunity to explain or deny

5. Any party may impeach hearsay declarant, 5. Any party may impeach hearsay declarant, even the proponent of the hearsay evidenceeven the proponent of the hearsay evidence

6. Allows opponent of hearsay to call 6. Allows opponent of hearsay to call declarant and cross examine (normally party declarant and cross examine (normally party calling a witness must engage in direct exam)calling a witness must engage in direct exam)

Evid. Code 1202:Evid. Code 1202:Credibility of Credibility of Hearsay Hearsay DeclarantDeclarant

Evidence of a statement or other conduct by a Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by declarant that is inconsistent with a statement by such declarant received in evidence as hearsay such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he attacking the credibility of the declarant though he is not given and has not had an opportunity to is not given and has not had an opportunity to explain or to deny such inconsistent statement or explain or to deny such inconsistent statement or other conduct. Any other evidence offered to attack other conduct. Any other evidence offered to attack or support the credibility of the declarant is or support the credibility of the declarant is admissible if it would have been admissible had the admissible if it would have been admissible had the declarant been a witness at the hearing. For the declarant been a witness at the hearing. For the purposes of this section, the deponent of a purposes of this section, the deponent of a deposition taken in the action in which it is offered deposition taken in the action in which it is offered shall be deemed to be a hearsay declarant. shall be deemed to be a hearsay declarant.

IMPEACHMENT OF HEARSAY IMPEACHMENT OF HEARSAY DECLARANT (cont)DECLARANT (cont)

Inconsistent statementsInconsistent statements Prior or subsequent (fairness to Prior or subsequent (fairness to

opponent)opponent) Admissible to impeach but not for truthAdmissible to impeach but not for truth

Exception: Evid. Code sec. 1294Exception: Evid. Code sec. 1294 Proponent of hearsay loses opportunity to Proponent of hearsay loses opportunity to

have declarant explain inconsistencyhave declarant explain inconsistency Cf FRE 613(a) & (b); 801(d)(1); Evid. Code Cf FRE 613(a) & (b); 801(d)(1); Evid. Code

sec 1235 sec 1235

Prior convictions Prior convictions

Prior Inconsistent Prior Inconsistent Statements: FREStatements: FRE

FRE 613 -- can use to impeach, but FRE 613 -- can use to impeach, but not for truth unless statement fits not for truth unless statement fits w/i another exception;w/i another exception;

FRE 801 (d)(1) – comes in for truth FRE 801 (d)(1) – comes in for truth b/c non-hearsayb/c non-hearsay

FRE 806 – comes in to impeach FRE 806 – comes in to impeach hearsay declarant; not for the truth hearsay declarant; not for the truth of the statement but for credibility of of the statement but for credibility of declarantdeclarant

Prior Inconsistent Prior Inconsistent Statements:Statements:Evid. CodeEvid. Code

Sec. 1202 – comes in to impeach hearsay Sec. 1202 – comes in to impeach hearsay declarant; not for the truth of the declarant; not for the truth of the statement but for credibility of declarantstatement but for credibility of declarant

Sec. 1235 – comes in for truth if offered in Sec. 1235 – comes in for truth if offered in compliance with sec. 770 (opportunity to compliance with sec. 770 (opportunity to explain or deny or subject to recall)explain or deny or subject to recall)

Sec. 1294 – inconsistent statement at Sec. 1294 – inconsistent statement at prior hearing or trial in same case comes prior hearing or trial in same case comes in for truth if declarant unavailable in for truth if declarant unavailable

HypoHypo

Witness describes on-viewing Witness describes on-viewing murder to police. Witness testifies murder to police. Witness testifies at preliminary hearing that the at preliminary hearing that the police told her what to say when in police told her what to say when in truth she saw nothing. She is truth she saw nothing. She is impeached with her statement to the impeached with her statement to the police. Now we are at trial.police. Now we are at trial.

SCENARIO # 1 SCENARIO # 1

Scenario #1: witness is unavailable, apply Scenario #1: witness is unavailable, apply FREFRE

FRE 613 --does not apply b/c witness is FRE 613 --does not apply b/c witness is unavailable;unavailable;

FRE 801 (d)(1) – does not apply b/c witness is FRE 801 (d)(1) – does not apply b/c witness is unavailableunavailable

FRE 806 – comes in to impeach hearsay declarant; FRE 806 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility not for the truth of the statement but for credibility of declarantof declarant

SCENARIO # 2SCENARIO # 2 Scenario #2: witness is unavailable, apply Evid. Scenario #2: witness is unavailable, apply Evid.

CodeCode

Sec. 1202 – comes in to impeach hearsay declarant; not Sec. 1202 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of for the truth of the statement but for credibility of declarantdeclarant

Sec. 1235 – does not apply b/c witness is unavailableSec. 1235 – does not apply b/c witness is unavailable

Sec. 1294 – inconsistent statement at prior hearing or Sec. 1294 – inconsistent statement at prior hearing or trial in same case comes in for truthtrial in same case comes in for truth

SCENARIO # 3SCENARIO # 3

Scenario #3: witness is available, Scenario #3: witness is available, apply FREapply FRE FRE 613 -- can use to impeach, but not FRE 613 -- can use to impeach, but not

for truth unless statement fits w/i for truth unless statement fits w/i another exception;another exception;

FRE 801 (d)(1) – comes in for truth b/c FRE 801 (d)(1) – comes in for truth b/c non-hearsaynon-hearsay

FRE 806 – comes in to impeach hearsay FRE 806 – comes in to impeach hearsay declarant; not for the truth of the declarant; not for the truth of the statement but for credibility of statement but for credibility of declarantdeclarant

SCENARIO # 4SCENARIO # 4 Scenario #4: witness is available, apply Evid. Scenario #4: witness is available, apply Evid.

CodeCode

Sec. 1202 – comes in to impeach hearsay declarant; not Sec. 1202 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of for the truth of the statement but for credibility of declarantdeclarant

Sec. 1235 – comes in for truth if offered in compliance Sec. 1235 – comes in for truth if offered in compliance with sec. 770 (opportunity to explain or deny or subject with sec. 770 (opportunity to explain or deny or subject to recall)to recall)

Sec. 1294 – does not apply b/c witness is availableSec. 1294 – does not apply b/c witness is available

RECAP:RECAP: inconsistent statements inconsistent statements

If witness testifies at trial or If witness testifies at trial or present hearing:present hearing:

For use in impeachment of witness:For use in impeachment of witness:

FRE 613 – yesFRE 613 – yes

Evid. Code sec. 1235/770 – yes Evid. Code sec. 1235/770 – yes


(cont)(cont) For use to prove the truth of the matter For use to prove the truth of the matter

stated in the inconsistent statement:stated in the inconsistent statement:

FRE – no unless it meets requirements FRE – no unless it meets requirements of Rule 801(d)(1) – i.e. prior testimony of Rule 801(d)(1) – i.e. prior testimony under oath and subject to cross under oath and subject to cross examination examination

Evid. Code sec. 1235/770 – yes Evid. Code sec. 1235/770 – yes


(cont)(cont) If statement is inconsistent with If statement is inconsistent with

admitted hearsay:admitted hearsay: 1. For use in impeachment of 1. For use in impeachment of

witness:witness:

FRE 806 – yesFRE 806 – yes

Evid. Code sec. 1202 – yes Evid. Code sec. 1202 – yes


(cont)(cont) For use to prove the truth of the For use to prove the truth of the

matter stated in the inconsistent matter stated in the inconsistent statement:statement:

FRE 806 – no FRE 806 – no

Evid. Code sec. 1202 – no Evid. Code sec. 1202 – no


(cont)(cont) Can extrinsic proof of statement be Can extrinsic proof of statement be

admitted?admitted? FRE 613 – yes if witness given an FRE 613 – yes if witness given an

opportunity to explain or deny and opportunity to explain or deny and opposing party has opportunity to cross opposing party has opportunity to cross examine witnessexamine witness

Evid. Code sec. 770 – yes if witness Evid. Code sec. 770 – yes if witness given an opportunity to explain or deny given an opportunity to explain or deny and opposing party has opportunity to and opposing party has opportunity to examine witnessexamine witness


(cont)(cont)

Why don’t these rules apply to Why don’t these rules apply to inconsistent statements of a inconsistent statements of a party?party?

PRIOR CONSISTENT PRIOR CONSISTENT STATEMENTSSTATEMENTS

FRE 801(d)(1)(B)FRE 801(d)(1)(B)

Evid. Code sec. 1236 & 791Evid. Code sec. 1236 & 791

PRIOR CONSISTENT PRIOR CONSISTENT STATEMENTS (cont.)STATEMENTS (cont.)

FRE 801(d)(1)(B) Non Hearsay if:FRE 801(d)(1)(B) Non Hearsay if:

1. declarant testifies at trial and is subject to cross 1. declarant testifies at trial and is subject to cross examinationexamination

2. the statement is consistent with declarant’s 2. the statement is consistent with declarant’s testimonytestimony

3. offered to rebut an express or implied charge 3. offered to rebut an express or implied charge against the declarant of:against the declarant of: recent fabrication, orrecent fabrication, or improper influence, orimproper influence, or motivemotive


Note: under FRE, comes in for Note: under FRE, comes in for the truth of the matter stated in the truth of the matter stated in the prior consistent statement, the prior consistent statement, without requirement of having without requirement of having been under oath at prior been under oath at prior proceeding where cross proceeding where cross examination was permitted.examination was permitted.



1. admissible if consistent with 1. admissible if consistent with testimony at the hearing testimony at the hearing

2. if offered in compliance with sec. 2. if offered in compliance with sec. 791791


Evid. Code sec. 791(a):Evid. Code sec. 791(a):

offered after a prior inconsistent statement offered after a prior inconsistent statement was offered to attack witness’ credibilitywas offered to attack witness’ credibility

prior consistent statement was made prior consistent statement was made before alleged prior inconsistent statementbefore alleged prior inconsistent statement

OR …OR …


Evid. Code sec. 791(b):Evid. Code sec. 791(b): offered to rebut an express or implied offered to rebut an express or implied

charge against the witness of:charge against the witness of: recent fabrication, orrecent fabrication, or being influenced by bias, orbeing influenced by bias, or improper motive improper motive

statement was made before the bias, statement was made before the bias, motive for fabrication or improper motive for fabrication or improper

motive is alleged to have arisen.motive is alleged to have arisen.


Differences:Differences:

1. FRE has no provision equivalent to sec. 1. FRE has no provision equivalent to sec. 791(a)791(a)

Evid. Code expressly requires prior Evid. Code expressly requires prior consistent statement to have been made consistent statement to have been made before the motive to fabricate, etc., arosebefore the motive to fabricate, etc., arose FRE silent, but Tome v. U.S. 513 U.S. 150, FRE silent, but Tome v. U.S. 513 U.S. 150,

159-160 (1995) so holds159-160 (1995) so holds


Hypo: Witness tells police he saw two men Hypo: Witness tells police he saw two men commit robbery. One month before trial he commit robbery. One month before trial he tells friend of defendant that he did not see tells friend of defendant that he did not see anyone commit robbery. At trial he testifies anyone commit robbery. At trial he testifies he saw two men commit robbery.he saw two men commit robbery.

What is the result under the FRE?What is the result under the FRE?

What is the result under the Evid. Code?What is the result under the Evid. Code?

STATEMENTS OF IDENTIFICATION

FRE 801(d)(1)(C)

Evid. Code sec. 1238

STATEMENTS OF IDENTIFICATION STATEMENTS OF IDENTIFICATION (cont.)(cont.)

FRE 801(d)(1)(C): FRE 801(d)(1)(C):

Declarant must testify at the trial or Declarant must testify at the trial or hearing so as to be subject to cross hearing so as to be subject to cross examination;examination;

Statement is one of identification of a Statement is one of identification of a person made after perceiving the person made after perceiving the person person


Evid. Code sec. 1238:Evid. Code sec. 1238:

Admissible if would have been admissible if Admissible if would have been admissible if witness made statement while testifying, and:witness made statement while testifying, and:

(a) the statement is an I.D. of a party or another (a) the statement is an I.D. of a party or another as a participant in a crime or other occurrenceas a participant in a crime or other occurrence

(b) made at a time when fresh in witness’ (b) made at a time when fresh in witness’ memorymemory

(c) offered after witness testifies that he made (c) offered after witness testifies that he made I.D. and that it was true at the timeI.D. and that it was true at the time


Evid. Code is more stringent that Evid. Code is more stringent that FRE:FRE:

requires proof that statement was requires proof that statement was made when fresh in memorymade when fresh in memory

cross examination is not enough of a cross examination is not enough of a guarantee of trustworthiness; guarantee of trustworthiness; additionally requires witness to vouch additionally requires witness to vouch for the accuracy of the statementfor the accuracy of the statement

PAST RECOLLECTION PAST RECOLLECTION RECORDEDRECORDED

FRE 803(5)FRE 803(5)


PAST RECOLLECTION PAST RECOLLECTION RECORDED (cont.)RECORDED (cont.)

FRE 803(5)FRE 803(5) Memorandum or record Memorandum or record about a matter the witness once had about a matter the witness once had

knowledge ofknowledge of the witness now has insufficient memory of the witness now has insufficient memory of

to testify fully and accuratelyto testify fully and accurately made or adopted when matter was fresh in made or adopted when matter was fresh in

witness’ memorywitness’ memory reflects the knowledge accuratelyreflects the knowledge accurately may be read into evidence but not itself may be read into evidence but not itself

received unless offered by opponentreceived unless offered by opponent

PAST RECOLLECTION PAST RECOLLECTION RECORDED (cont.)RECORDED (cont.)

Evid. Code sec. 1237:Evid. Code sec. 1237:

1. Evidence of a previous statement by 1. Evidence of a previous statement by witnesswitness

2. statement would have been admissible2. statement would have been admissible

3. the witness now has insufficient memory 3. the witness now has insufficient memory of to testify fully and accuratelyof to testify fully and accurately

4. statement is contained in a writing4. statement is contained in a writing

Evid. Code sec. 1237 (cont.):Evid. Code sec. 1237 (cont.):

5. made when fact recorded occurred or when fresh in memory5. made when fact recorded occurred or when fresh in memory

6. was made by witness or by another for purpose of recording 6. was made by witness or by another for purpose of recording statement at the time it was madestatement at the time it was made

7. offered after witness testifies the statement was true when 7. offered after witness testifies the statement was true when mademade

8. offered after writing is authenticated as an accurate record 8. offered after writing is authenticated as an accurate record of statementof statement

9. writing may be read but not received unless offered by 9. writing may be read but not received unless offered by adverse partyadverse party

prior inconsistent statements fre 801(d) non hearsay by definition rule 801(d)(1) prior statement by...

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