Is evidence of a statement inconsistent with that of the witness admissible by the hearsay rule?

California, United States of America


The following excerpt is from People v. Escalona, G046747 (Cal. App. 2013):

Code section 1235: "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." Under section 770 of the Evidence Code, evidence of an inconsistent statement is admissible only if: "(a) The witness was so examined while testifying as to give him an opportunity to explain or deny the statement; or [] (b) The witness has not been excused from giving further testimony in the action." The court implies the witness's statement is inconsistent with his testimony when the "'witness's claim of lack of memory amounts to deliberate evasion.'" (People v. Ervin (2000) 22 Cal.4th 48, 84, italics omitted.)

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