These exceptions to the Hearsay Evidence Rule can come in handy for investigators.

From the Classroom: The Hearsay Evidence Rule, Prior Statements of Witnesses 
By Ray Hill  
Professor Emeritus, Santa Rosa Junior College  

This is the ninth in a series of bulletins covering the California Evidence Code and criminal investigations. This series covers the Hearsay Evidence Rule as it relates to an officer, deputy or investigator giving testimony in court (140 E.C.). 

Have you ever had a victim or witness tell you something during an investigative interview and then recant in court? How about a victim/witness coming to court months later and not being able to remember completely what he/she had told you  

No worry, the Prior Statements of Witnesses exception to the Hearsay Evidence Rule comes to the rescue!  

Exceptions to the Hearsay Rule 

Once a witness testifies, a person who received or overheard a prior statement can be called to repeat that statement when: 

1) When the prior statement is inconsistent with one’s present testimony. The hearsay statement may be repeated for impeachment purposes and to allow the prior statement to be considered as evidence by the trier of fact (770/1235 E.C.)  

Examples:  

A woman tells an officer she was struck several times by her cohabitant domestic partner. She suffered a broken nose. At trial, she recants her previous statement, testifying instead that she was injured falling down stairs. Due to this inconsistency, the officer could testify to the content of the first statement to be considered as evidence and to discredit the previous testimony. 

Defendant was charged with 13 counts of molesting his three stepchildren. The victims gave detailed and graphic descriptions of the molestations. At trial, all recanted their previous statements. Because of the inconsistencies, their out-of-court statements made to investigators and psychologists were admissible (Peo. v. Carey (1995) 35 Cal. App. 4th 2019). 

Defendant repeatedly kicked and punched a victim who was eight months pregnant. The attack resulted in the death of her fetus. At trial, the victim told the jury that she was the aggressor, had injured herself in an accidental fall and lied to the police and doctors about what had occurred. The ....

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