Is a witness's statement that they do not remember an event admissible to establish the truth of the matter?

A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770. ⁷ The "fundamental requirement" of section 1235 is that the statement in fact be inconsistent with the witness's trial testimony. (People v. Sam (1969) 71 Cal.2d 194, 210, 77 Cal.Rptr. 804, 454 P.2d 700.) Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness's prior statement describing the event. (People v. Green (1971) 3 Cal.3d 981, 988, 92 Cal.Rptr. 494, 479 P.2d 998.) However, courts do not apply this rule mechanically. "Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement [citation], and the same principle governs the case of the forgetful witness." (Ibid.) When a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied. (Id. at pp. 988-989, 92 Cal.Rptr. 494, 479 P.2d 998.) As long as there is a reasonable basis in the record for concluding that the [3 Cal.4th 1220] witness's "I don't remember""

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