What is the test for an inconsistent statement by a witness?

California, United States of America


The following excerpt is from People v. Torrence, A142592, A150186, A150345 (Cal. App. 2017):

" '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.' [Citation.] 'The "fundamental requirement" of section 1235 is that the statement in fact be inconsistent with the witness's trial testimony.' [Citation.] ' "Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness'[s] prior statement. . . ." ' " (People v. Cowan (2010) 50 Cal.4th 401, 462, fn. omitted.) " '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. [Citation.] However, . . . [w]hen a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness's "I don't remember" statements are evasive and untruthful, admission of his or her prior statements is proper.' " (People v. Ledesma (2006) 39 Cal.4th 641, 711.) We review the trial court's rulings on the admissibility of inconsistent statements for abuse of discretion. (People v. Homick (2012) 55 Cal.4th 816, 859.)

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