Does the testimony of a witness at a pre-trial hearing contradict her declaration that she had no conversation with her husband about the same case?

California, United States of America


The following excerpt is from In re Bell, 2 Cal.5th 1300, 218 Cal.Rptr.3d 634, 395 P.3d 672 (Cal. 2017):

stated she recalled no conversation with her husband about the case during trial. Her further testimony at the hearing that, partly because of this lack of recall, she believed the conversation did not occur did not create a conflict with her declaration.2 Nor is it a case where the witness on the stand attempts to evade questioning by feigning lack of memory of events the witness previously described. (See People v. Homick (2012) 55 Cal.4th 816, 859860, 150 Cal.Rptr.3d 1, 289 P.3d 791.) While Evidence Code section 1235 does not require an express contradiction between the testimony and the prior statement, it does require inconsistency in effect (People v. Homick , supra , at p. 859, 150 Cal.Rptr.3d 1, 289 P.3d 791 ); the referee correctly found no such inconsistency in this case.

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