Can statements of an unavailable witness be introduced as prior inconsistent statements of the unavailable witness?

California, United States of America


The following excerpt is from People v. Finocchio, A160469 (Cal. App. 2021):

Evidence Code section 1294 permits the statements of an unavailable witness to be introduced at trial as prior inconsistent statements of the witness if the statements were previously introduced at the preliminary hearing.[5] Evidence Code section 1294 was designed to overcome the admissibility problems associated with out-of-court statements which are inconsistent with an unavailable witness's former testimony by requiring that the recorded statement be introduced at the prior hearing where the witness actually testified. It is well settled that the inherent unreliability typically associated with such out-of-court statements may be deemed nonexistent when the defendant has had an opportunity to question the declarant about the statements. (People v. Martinez (2003) 113 Cal.App.4th 400, 409.)

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