Is evidence of evidence of a statement made by a witness not inadmissible by the hearsay rule?

California, United States of America


The following excerpt is from People v. Vivero, C086268 (Cal. App. 2020):

9. Under Evidence Code section 1235, "[e]vidence 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 [Evidence Code] Section 770." Evidence Code section 770 provides: "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [] (b) The witness has not been excused from giving further testimony in the action." Defense counsel initially asserted the statements were not inconsistent, before determining otherwise. Neither the parties nor the trial court discussed Evidence Code section 1220, which provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party." "The evidence was of statements, defendant was the declarant, the statements were offered against him, and he was a party to the action." (People v. Carpenter (1999) 21 Cal.4th 1016, 1049.)

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