1. PRIOR INCONSISTENT STATEMENTS FRE 801(d) Non Hearsay by definition Rule 801(d)(1) Prior Statement by Witness is not hearsay If declarant testifies and is subject to cross examination and the statement is: Rule 801(d)(1) Prior Statement by Witness is not hearsay If declarant testifies and is subject to cross examination and the statement is: (A) inconsistent with the declarant’s testimony, and was given under oath at another proceeding; or

2. PRIOR INCONSISTENT STATEMENTS FRE 801(d)(1)(A) Prior Statement by Witness is not hearsay If: 1. declarant available/subject to cross 2. statement is inconsistent w/testimony 3. statement given under oath previously

3. PRIOR INCONSISTENT STATEMENTS FRE 613: (a) In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. (b) Extrinsic evidence of a prior statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of party-opponents as defined in Rule 801(d)(2).

4. PRIOR INCONSISTENT STATEMENTS FRE 613: (a) – need not disclose statement to witness when confronting them with it; -- but on request must disclose to opposing counsel. (b) No extrinsic evidence unless: - witness gets an opportunity to explain or deny - the opposite party gets an opportunity to interrogate - This provision does not apply to admissions of party- opponents as defined in Rule 801(d)(2).

5. PRIOR INCONSISTENT STATEMENTS FRE 613: This Rule appears to allow in hearsay What about Rule 802 that bars hearsay? What is difference between this Rule and Rule 801(d)(1)?

6. PRIOR INCONSISTENT STATEMENTS: Evid. Code §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

7. PRIOR INCONSISTENT STATEMENTS: Evid. Code §1235: - inconsistent - prior - in compliance with §770

8. PRIOR INCONSISTENT STATEMENTS: Evid. Code §770: Generally, extrinsic evid. of inconsistent statement is excluded, unless: (a) witness was confronted with inconsistent statement and given opportunity to explain or deny; or (b) the witness is subject to recall NOTE: Tactical Decision Here

9. IMPEACHMENT OF HEARSAY DECLARANT FRE 806 FRE 806 Evid. Code sec. 1202 Evid. Code sec. 1202

10. Rule 806: Attacking and Supporting Credibility of Declarant When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.Rule 801(d)(2)(C), (D), or (E)Rule 801(d)(2)(C), (D), or (E)

11. FRE 806 Merritt/Simmons 6 points: Merritt/Simmons 6 points: 1. Applies to all hearsay statements 1. Applies to all hearsay statements Applies to some non-hearsay (801(d)(2)(C,D,E) [admissions by agent, spokesperson or co- conspirator] Applies to some non-hearsay (801(d)(2)(C,D,E) [admissions by agent, spokesperson or co- conspirator] N/A to prior inconsistent or consistent statements (801(d)(1)(A,B) N/A to prior inconsistent or consistent statements (801(d)(1)(A,B) N/A to party statements or adopted statements (801(d)(2)(A,B) N/A to party statements or adopted statements (801(d)(2)(A,B) N/A to statements offered for a non-hearsay purpose (operative acts; circumstantial evid.) N/A to statements offered for a non-hearsay purpose (operative acts; circumstantial evid.)

12. FRE 806 Merritt/Simmons 6 points: Merritt/Simmons 6 points: 2. allows a party to attack a declarant’s credibility just as if declarant had testified 2. allows a party to attack a declarant’s credibility just as if declarant had testified Evid. Of bias prejudice or interest Evid. Of bias prejudice or interest Inconsistent statements Inconsistent statements Lack of personal knowledge Lack of personal knowledge Lack of capacity Lack of capacity Reputation or opinion character evid. Reputation or opinion character evid. Criminal convictions Criminal convictions

13. FRE 806 Merritt/Simmons 6 points: Merritt/Simmons 6 points: 3. Once the credibility of the witness is attacked, the other party may rehabilitate in any way that is allowed with witnesses: 3. Once the credibility of the witness is attacked, the other party may rehabilitate in any way that is allowed with witnesses: Evidence rebutting bias, prejudice, interest Evidence rebutting bias, prejudice, interest Prior consistent statements Prior consistent statements Positive character witnesses Positive character witnesses

14. FRE 806 Merritt/Simmons 6 points: Merritt/Simmons 6 points: 4. attacking party may present a prior inconsistent statement to impeach without giving an opportunity to explain or deny 4. attacking party may present a prior inconsistent statement to impeach without giving an opportunity to explain or deny 5. Any party may impeach hearsay declarant, even the proponent of the hearsay evidence 5. Any party may impeach hearsay declarant, even the proponent of the hearsay evidence 6. Allows opponent of hearsay to call declarant and cross examine (normally party calling a witness must engage in direct exam) 6. Allows opponent of hearsay to call declarant and cross examine (normally party calling a witness must engage in direct exam)

15. Evid. Code 1202: Credibility of Hearsay Declarant Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct. Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing. For the purposes of this section, the deponent of a deposition taken in the action in which it is offered shall be deemed to be a hearsay declarant. Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct. Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing. For the purposes of this section, the deponent of a deposition taken in the action in which it is offered shall be deemed to be a hearsay declarant.

16. IMPEACHMENT OF HEARSAY DECLARANT (cont) Inconsistent statements Inconsistent statements Prior or subsequent (fairness to opponent) Prior or subsequent (fairness to opponent) Admissible to impeach but not for truth Admissible to impeach but not for truth Exception: Evid. Code sec. 1294 Exception: Evid. Code sec. 1294 Proponent of hearsay loses opportunity to have declarant explain inconsistency Proponent of hearsay loses opportunity to have declarant explain inconsistency Cf FRE 613(a) & (b); 801(d)(1); Evid. Code sec 1235 Cf FRE 613(a) & (b); 801(d)(1); Evid. Code sec 1235 Prior convictions Prior convictions

17. Prior Inconsistent Statements: FRE FRE 613 -- can use to impeach, but not for truth unless statement fits w/i another exception; FRE 613 -- can use to impeach, but not for truth unless statement fits w/i another exception; FRE 801 (d)(1) – comes in for truth b/c non- hearsay FRE 801 (d)(1) – comes in for truth b/c non- hearsay FRE 806 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant FRE 806 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant

18. Prior Inconsistent Statements: Evid. Code Sec. 1202 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant Sec. 1202 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant Sec. 1235 – comes in for truth if offered in compliance with sec. 770 (opportunity to explain or deny or subject to recall) Sec. 1235 – comes in for truth if offered in compliance with sec. 770 (opportunity to explain or deny or subject to recall) Sec. 1294 – inconsistent statement at prior hearing or trial in same case comes in for truth if declarant unavailable Sec. 1294 – inconsistent statement at prior hearing or trial in same case comes in for truth if declarant unavailable

19. Hypo Witness describes on-viewing murder to police. Witness testifies at preliminary hearing that the police told her what to say when in truth she saw nothing. She is impeached with her statement to the police. Now we are at trial. Witness describes on-viewing murder to police. Witness testifies at preliminary hearing that the police told her what to say when in truth she saw nothing. She is impeached with her statement to the police. Now we are at trial.

20. SCENARIO # 1 Scenario #1: witness is unavailable, apply FRE Scenario #1: witness is unavailable, apply FRE FRE 613 --does not apply b/c witness is unavailable; FRE 613 --does not apply b/c witness is unavailable; FRE 801 (d)(1) – does not apply b/c witness is unavailable FRE 801 (d)(1) – does not apply b/c witness is unavailable FRE 806 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant FRE 806 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant

21. SCENARIO # 2 Scenario #2: witness is unavailable, apply Evid. Code Scenario #2: witness is unavailable, apply Evid. Code Sec. 1202 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant Sec. 1202 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant Sec. 1235 – does not apply b/c witness is unavailable Sec. 1235 – does not apply b/c witness is unavailable Sec. 1294 – inconsistent statement at prior hearing or trial in same case comes in for truth Sec. 1294 – inconsistent statement at prior hearing or trial in same case comes in for truth

22. SCENARIO # 3 Scenario #3: witness is available, apply FRE Scenario #3: witness is available, apply FRE FRE 613 -- can use to impeach, but not for truth unless statement fits w/i another exception; FRE 613 -- can use to impeach, but not for truth unless statement fits w/i another exception; FRE 801 (d)(1) – comes in for truth b/c non- hearsay FRE 801 (d)(1) – comes in for truth b/c non- hearsay FRE 806 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant FRE 806 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant

23. SCENARIO # 4 Scenario #4: witness is available, apply Evid. Code Scenario #4: witness is available, apply Evid. Code Sec. 1202 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant Sec. 1202 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant Sec. 1235 – comes in for truth if offered in compliance with sec. 770 (opportunity to explain or deny or subject to recall) Sec. 1235 – comes in for truth if offered in compliance with sec. 770 (opportunity to explain or deny or subject to recall) Sec. 1294 – does not apply b/c witness is available Sec. 1294 – does not apply b/c witness is available

24. RECAP: inconsistent statements If witness testifies at trial or present hearing: If witness testifies at trial or present hearing: For use in impeachment of witness: For use in impeachment of witness: FRE 613 – yes FRE 613 – yes Evid. Code sec. 1235/770 – yes Evid. Code sec. 1235/770 – yes

25. RECAP: inconsistent statements (cont) For use to prove the truth of the matter stated in the inconsistent statement: For use to prove the truth of the matter stated in the inconsistent statement: FRE – no unless it meets requirements of Rule 801(d)(1) – i.e. prior testimony under oath and subject to cross examination FRE – no unless it meets requirements of Rule 801(d)(1) – i.e. prior testimony under oath and subject to cross examination Evid. Code sec. 1235/770 – yes Evid. Code sec. 1235/770 – yes

26. RECAP: inconsistent statements (cont) If statement is inconsistent with admitted hearsay: If statement is inconsistent with admitted hearsay: 1. For use in impeachment of witness: 1. For use in impeachment of witness: FRE 806 – yes FRE 806 – yes Evid. Code sec. 1202 – yes Evid. Code sec. 1202 – yes

27. RECAP: inconsistent statements (cont) For use to prove the truth of the matter stated in the inconsistent statement: For use to prove the truth of the matter stated in the inconsistent statement: FRE 806 – no FRE 806 – no Evid. Code sec. 1202 – no Evid. Code sec. 1202 – no

28. RECAP: inconsistent statements (cont) Can extrinsic proof of statement be admitted? Can extrinsic proof of statement be admitted? FRE 613 – yes if witness given an opportunity to explain or deny and opposing party has opportunity to cross examine witness FRE 613 – yes if witness given an opportunity to explain or deny and opposing party has opportunity to cross examine witness Evid. Code sec. 770 – yes if witness given an opportunity to explain or deny and opposing party has opportunity to examine witness Evid. Code sec. 770 – yes if witness given an opportunity to explain or deny and opposing party has opportunity to examine witness

29. RECAP: inconsistent statements (cont) Why don’t these rules apply to inconsistent statements of a party? Why don’t these rules apply to inconsistent statements of a party?

30. PRIOR CONSISTENT STATEMENTS FRE 801(d)(1)(B) FRE 801(d)(1)(B) Evid. Code sec. 1236 & 791 Evid. Code sec. 1236 & 791

31. PRIOR CONSISTENT STATEMENTS (cont.) FRE 801(d)(1)(B) Non Hearsay if: FRE 801(d)(1)(B) Non Hearsay if: 1. declarant testifies at trial and is subject to cross examination 1. declarant testifies at trial and is subject to cross examination 2. the statement is consistent with declarant’s testimony 2. the statement is consistent with declarant’s testimony 3. offered to rebut an express or implied charge against the declarant of: 3. offered to rebut an express or implied charge against the declarant of: recent fabrication, or recent fabrication, or improper influence, or improper influence, or motive motive

32. PRIOR CONSISTENT STATEMENTS (cont.) Note: under FRE, comes in for the truth of the matter stated in the prior consistent statement, without requirement of having been under oath at prior proceeding where cross examination was permitted. Note: under FRE, comes in for the truth of the matter stated in the prior consistent statement, without requirement of having been under oath at prior proceeding where cross examination was permitted.

33. PRIOR CONSISTENT STATEMENTS (cont.) Evid. Code sec. 1236 Evid. Code sec. 1236 1. admissible if consistent with testimony at the hearing 1. admissible if consistent with testimony at the hearing 2. if offered in compliance with sec. 791 2. if offered in compliance with sec. 791

34. PRIOR CONSISTENT STATEMENTS (cont.) Evid. Code sec. 791(a): Evid. Code sec. 791(a): offered after a prior inconsistent statement was offered to attack witness’ credibility offered after a prior inconsistent statement was offered to attack witness’ credibility prior consistent statement was made before alleged prior inconsistent statement prior consistent statement was made before alleged prior inconsistent statement OR …

35. PRIOR CONSISTENT STATEMENTS (cont.) Evid. Code sec. 791(b): Evid. Code sec. 791(b): offered to rebut an express or implied charge against the witness of: offered to rebut an express or implied charge against the witness of: recent fabrication, or recent fabrication, or being influenced by bias, or being influenced by bias, or improper motive improper motive statement was made before the bias, motive for fabrication or improper statement was made before the bias, motive for fabrication or improper motive is alleged to have arisen. motive is alleged to have arisen.

36. PRIOR CONSISTENT STATEMENTS (cont.) Differences: 1. FRE has no provision equivalent to sec. 791(a) 1. FRE has no provision equivalent to sec. 791(a) Evid. Code expressly requires prior consistent statement to have been made before the motive to fabricate, etc., arose Evid. Code expressly requires prior consistent statement to have been made before the motive to fabricate, etc., arose FRE silent, but Tome v. U.S. 513 U.S. 150, 159-160 (1995) so holds FRE silent, but Tome v. U.S. 513 U.S. 150, 159-160 (1995) so holds

37. PRIOR CONSISTENT STATEMENTS (cont.) Hypo: Witness tells police he saw two men commit robbery. One month before trial he tells friend of defendant that he did not see anyone commit robbery. At trial he testifies he saw two men commit robbery. Hypo: Witness tells police he saw two men commit robbery. One month before trial he tells friend of defendant that he did not see anyone commit robbery. At trial he testifies he saw two men commit robbery. What is the result under the FRE? What is the result under the FRE? What is the result under the Evid. Code? What is the result under the Evid. Code?

38. STATEMENTS OF IDENTIFICATION FRE 801(d)(1)(C) Evid. Code sec. 1238

39. STATEMENTS OF IDENTIFICATION (cont.) FRE 801(d)(1)(C): FRE 801(d)(1)(C): Declarant must testify at the trial or hearing so as to be subject to cross examination; Declarant must testify at the trial or hearing so as to be subject to cross examination; Statement is one of identification of a person made after perceiving the person Statement is one of identification of a person made after perceiving the person

40. STATEMENTS OF IDENTIFICATION (cont.) Evid. Code sec. 1238: Evid. Code sec. 1238: Admissible if would have been admissible if witness made statement while testifying, and: Admissible if would have been admissible if witness made statement while testifying, and: (a) the statement is an I.D. of a party or another as a participant in a crime or other occurrence (a) the statement is an I.D. of a party or another as a participant in a crime or other occurrence (b) made at a time when fresh in witness’ memory (b) made at a time when fresh in witness’ memory (c) offered after witness testifies that he made I.D. and that it was true at the time (c) offered after witness testifies that he made I.D. and that it was true at the time

41. STATEMENTS OF IDENTIFICATION (cont.) Evid. Code is more stringent that FRE: Evid. Code is more stringent that FRE: requires proof that statement was made when fresh in memory requires proof that statement was made when fresh in memory cross examination is not enough of a guarantee of trustworthiness; additionally requires witness to vouch for the accuracy of the statement cross examination is not enough of a guarantee of trustworthiness; additionally requires witness to vouch for the accuracy of the statement

42. PAST RECOLLECTION RECORDED FRE 803(5) FRE 803(5) Evid. Code sec. 1237 Evid. Code sec. 1237

43. PAST RECOLLECTION RECORDED (cont.) FRE 803(5) FRE 803(5) Memorandum or record Memorandum or record about a matter the witness once had knowledge of about a matter the witness once had knowledge of the witness now has insufficient memory of to testify fully and accurately the witness now has insufficient memory of to testify fully and accurately made or adopted when matter was fresh in witness’ memory made or adopted when matter was fresh in witness’ memory reflects the knowledge accurately reflects the knowledge accurately may be read into evidence but not itself received unless offered by opponent may be read into evidence but not itself received unless offered by opponent

44. PAST RECOLLECTION RECORDED (cont.) Evid. Code sec. 1237: 1. Evidence of a previous statement by witness 2. statement would have been admissible 3. the witness now has insufficient memory of to testify fully and accurately 4. statement is contained in a writing

45. Evid. Code sec. 1237 (cont.): 5. made when fact recorded occurred or when fresh in memory 6. was made by witness or by another for purpose of recording statement at the time it was made 7. offered after witness testifies the statement was true when made 8. offered after writing is authenticated as an accurate record of statement 9. writing may be read but not received unless offered by adverse party