It feels great to catch someone lying on the witness stand. It can change an entire trial. But it rarely happens by accident. The secret is to have perfect timing with the help of diligent preparation, even when you have a witness for no reason.

A couple of years ago, I was prosecuting a domestic violence case involving a female perpetrator and a male victim. The victim’s wife beat him and then vandalized the house, throwing clothes and dishes everywhere. The husband called 911 and reported that his wife hit him and that she was destroying his property. The call, like all 911 calls, was recorded.

However, after his wife was accused of domestic violence, his natural loyalty to her made him change his story. So, at his domestic violence trial, the husband testified directly that his wife did not actually hit him and that she was generally calm that night. Little did he know, but he had his 911 call up and ready to play for the jury on a giant boom box right under my desk. He also had a transcript of the tape ready to give to the defendant’s attorney, judge, and jury.

The hard part was finding a way to play the tape without giving the defendant a chance to explain himself. The night before the trial began, I pondered the situation for several hours, going over and over again exactly how the moment would play out. I decided to employ a seemingly innocuous technique known as “updated past memory,” found in Evidence Code §771. Namely, after getting him to commit firmly to his testimony that his wife never hit him and that she didn’t vandalize the house, I nonchalantly asked him if he remembered the exact content of his 911 call. Of course, the answer was “no.” “. Now I had it.

I asked him if he would jog his memory to listen to the tape and of course he said yes, because he didn’t want the jury to think he had something to hide.

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

The husband clearly told the 911 dispatcher that his wife was hitting him with her fists and 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 previous inconsistent statement was the centerpiece of the trial.

Previous inconsistent statements can be devastating. From a technical point of view, they are exceptions to the rumor rule. They are governed by Evidence Code §1235, which states: “Evidence of a statement made by a witness is not inadmissible under the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered pursuant to Section 770”.

The central idea of ​​the Evidence Code §770 is that the witness must have the opportunity to explain the previous inconsistent statement, that is, 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 for the prosecution of the witness, but for the truth of the statement itself. people v. Hawthorne (1992) 4 cal. 4th 43, 55. That can become a powerful advantage, because you can use the inconsistent statement above as affirmative evidence in your concluding argument. 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 for yourselves. Your husband told the 911 dispatcher unequivocally that she hit him.” .”

Public policy is in favor of admitting previous contradictory statements. Comments to Evidence Code §770 state that a party may present a prior inconsistent statement even after the witness has been excused if the party learns of the statement after the witness has been excused. That statement seems to indicate a desire to admit such evidence because the earlier statement was probably the truth, rather than the later statement, which was likely rehearsed.

Unlike motions for summary judgment, prior inconsistent statements are admissible for their truth and therefore may create actionable issues of fact, even if 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 District Court of Appeals stated that there was no reason to require the witness to have an opportunity to explain the inconsistency in the context of summary judgment. After all, the reason for the requirement is to allow the fact-finder to assess credibility. But in summary judgment, only the judge will see the evidence. The jury would need to assess the credibility of the witness in light of the inconsistent prior statement, and its mere existence in itself would nullify summary judgment (assuming the problem was material).

Traditionally, when a witness testified that he or she could not recall an event, the witness’s prior description of the event was inadmissible. See, for example, People v. Sam (1969) 71 Cal.2d 194. The reason given was that present lack of recollection at trial was not incompatible with perfect recollection on a previous occasion.

But today, the courts have gone the other way. The modern trend has been to allow prior descriptions of an event, even when a witness states that he cannot remember the event, because the lack of recollection at trial appears deliberate 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 to be paramount. Thus, contradictory statements made in prior arbitrations are inadmissible in subsequent trials of the same case. Rules of Ct., rule 1616, subd. (against).

Lawyers have known for hundreds of years that inconsistent prior statements are dynamite. For this reason, Francis Wellman’s renowned 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 orally contradicts a statement they have previously made, . . . then you have him caught on the hook.” Id. at p. 132.