Making the most of previously inconsistent statements

Making the most of previously inconsistent statements

Making the most of previously inconsistent statements

It’s really nice to catch someone lying on the witness stand. It can turn a whole process around. But it rarely happens by accident. The secret is to have perfect timing, aided by diligent preparation, even when you have a dead-on-right witness.

Several years ago I litigated a domestic violence case involving a female abuser and a male victim. The victim’s wife had beaten him and then ransacked the house, throwing clothes and dishes everywhere. The husband called 911 and reported that his wife had hit him and was destroying their property. The call — like all 911 calls — was recorded.

After his wife was accused of domestic abuse, however, his natural loyalty to her caused him to change his story. Thus, at her domestic violence trial, the husband stated directly that his wife did not actually hit him and that she was generally calm that evening. Little did he know, his 911 call was ready and ready to play for the jury on a king-sized boom box right under my desk. I also had a transcript of the transcript ready to give to the defendant’s attorney, the judge, and the jury.

The tricky part was finding a way to play the tape without giving the defendant a chance to explain it. The night before the trial began, I meditated on the situation for several hours, going over and over exactly how the moment would play out. I decided to use a seemingly innocuous technique known as “refreshing memories of the past” found in Evidence Code §771. That is, after getting him to firmly commit to his testimony that his wife never hit him and that she didn’t trash the house, I nonchalantly asked him if he remembered the exact contents of his 911 call. Sure enough, the response was “ no”. Now I had it.

I asked him if it would refresh his memory to hear the tape, and of course he said yes, because he didn’t want the jury to think he had anything to hide.

So I gave transcripts of the 911 call to the defendant’s attorney, the judge and the jury. I then reached under my desk, pulled out the boombox and hit play. Bingo. Here it is in stereo.

The husband clearly told the 911 dispatcher that his wife was beating him with her fists and that she was throwing clothes and dishes everywhere. The jury was stunned. The witness was exposed as a liar. The case ended with the wife’s conviction, and the husband’s dramatic earlier inconsistent statement was at the center of the trial.

Past inconsistent claims can be devastating. Technically, they are exceptions to the hearsay rule. They are governed by Evidence Code §1235, which provides: “Evidence of a statement made by a witness is not rendered inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered pursuant to section 770. “

The purpose of Evidence Code §770 is that the witness must have an opportunity to explain the previous inconsistent statement, ie. the witness must not already be excused unless the “interests of justice” require otherwise.

Of particular importance is the fact that prior inconsistent statements are admissible not only to impeach the witness, but also to impeach the truth of the statement itself. People v. Hawthorne (1992) 4 Cal. 4th 43, 55. This can be a powerful advantage because you can use the prior inconsistent statement as affirmative evidence in your closing arguments. For example, using the domestic violence case above as an illustration: “Ladies and gentlemen of the jury, the evidence proves beyond a reasonable doubt that she hit him. You heard it yourself. Her husband told the 911 dispatcher in no uncertain terms that she hit him.”

Public policy favors the admission of prior inconsistent statements. The Commentary to Evidence Code §770 states that a party may introduce a prior contradictory statement even after the witness has been excused if the party learns of the statement after the witness has been excused. This statement seems to indicate a willingness to admit such evidence because the earlier statement is likely to be the truth, rather than the later statement, which may have been rehearsed.

Unlike motions for summary judgment, prior inconsistent statements are admissible because of their truth and thus may create triable issues of fact even though the witness was not given an opportunity to explain the statement. Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1150. The Fourth Circuit stated that there was no reason to require that the witness be given an opportunity to explain the discrepancy in the summary judgment context. After all, the reason for the requirement is to allow the trier of fact to assess credibility. But in summary judgment, only the judge will see the evidence. The jury would have to assess the credibility of the witness in light of the previous conflicting statement, and its existence alone would defeat summary judgment (assuming the issue was material).

Traditionally, when a witness testifies that he or she cannot recall an event, the witness’s prior description of the event is inadmissible. See, e.g., People v. Sam (1969) 71 Cal.2d 194. Reason given is that current lack of recollection at trial is not inconsistent with perfect recollection on prior occasion.

But nowadays the courts have gone the other way. The current trend is to allow preliminary descriptions of an event even when a witness testifies that he cannot remember the event because the failure to remember at trial appears willful or evasive. See, for example, People v. O’Quinn, (1980) 109 Cal.App.3d 219, 224. But there are limits. Despite the tendency to expand the exception in favor of admissibility, public policy in favor of alternative dispute resolution, for example, has proven paramount. Thus, conflicting statements made in previous arbitrations are inadmissible in later proceedings in the same case. Rules of Ct., rule 1616, subd. (° C).

Lawyers have known for hundreds of years that prior inconsistent claims are dynamite. That is why Francis Wellman’s famous work The Art of Cross-Examination, first published in 1903, devotes dozens of pages to the subject: “[W]when you have a witness under oath who verbally contradicts a statement he has previously made, . . . then you keep him fast on the hook.” Id. at p. 132.

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