It feels really good to be someone to take the witness stand. You can turn a whole process around. But it is rarely by chance. The secret is to have perfect timing aided by careful preparation, even if you have a witness Dead to Rights.
A few years ago, that I am pursuing a case of domestic violence, one female and one male offender to the victim. The wife of the victim was beaten and then thrown in the trash the house and clothes and dishes everywhere. Husbandover 911 and reported that his wife beat him and that, by destroying their property. The call - like all the calls recorded 911 - was.
After his wife was accused of domestic violence, but his natural affinity with her made him change his story. So the study, domestic violence, the man to direct his wife explained that actually met, and that is generally peaceful tonight. He could not know, but I got the call 911 on all cued and ready for the gameJury on a king-size box right arm under my desk. I also had a copy of the tape ready to advise the hands of the defendant and the judge and jury.
The hard part was a way to record without the accused the opportunity to play to explain away. The night before the trial, I thought the situation for several hours, going over and over exactly how he played the moment. I decided to employ a technique known seemingly innocuous "pastMemory refreshed, "which is found in Evidence Code § 771 is, after having made a firm commitment to his testimony that his wife never met and do not trash the house, I casually asked if he remembered the exact contents of the 911th Call its course, the answer is "no." "Now I had had it.
I asked him if he heard his memory to the tape and it would naturally be renewed, he said "yes" because he did not want the jury to think that had something to hide.
So I gaveCall 911 were copies of the council for the accused and the judge and jury. After I went under my desk and produced the boom box and pressed "play on." Bingo. There was in stereo.
He clearly told the 911 dispatcher that his wife had hit him with their fists and threw clothes and dishes everywhere. The jury was stunned. The witness was exposed as a liar. The case ended with the condemnation of the woman and man in dramatic contradictiondeclaration was the core of the process.
Prior inconsistent statements can be devastating. From a technical standpoint, are exceptions to the hearsay rule. They are regulated by demonstrating Code § 1235, which reads: "The evidence of a witness and that not raised by the voices of the rule if the statement contradicts his testimony at the hearing and is in agreement with the § 770 offered. "
The thrust of Evidence Code § 770 is that the witness musthave the opportunity to contradict the first assertion, that is, explaining that the witness must not already be excused, unless "the interests of justice" is something else needed.
Of particular importance is the fact that prior inconsistent statements are admissible not only on the testimony of his office to reject, but the truth of the statement itself People v. Hawthorne (1992) 4 Cal. 4. 43, 55 This in turn can become a strong advantage, because you can not contradict the previous statement as a positiveTry your closing argument. For example, using the above case of domestic violence as an example: "Ladies and gentlemen of the jury becomes the evidence beyond a reasonable doubt, he has encountered. They are yours. Her husband made it clear l ' 911 dispatcher who knew him. "
Public policy is in favor of refuge prior inconsistent statements. The comments to testing code § 770, that an opposition party, a notice even after the introductionWitness was justified if the party learns the statement after the testimony was justified. This statement indicates a desire to give such evidence, because there was first statement was probably the truth, instead of the next statement, the well tested.
In contrast to previous proposals summary trial are known inconsistent statements admissible for their truth and, therefore, processes that can create problems, even if the witness has not been given to explain the opportunitiesStatement. Colarossi v. Coty Inc. (2002) 97 Cal.App.4th 1142, 1150 The Fourth District Court of Appeal ruled that there was no reason for the requirement that the witness the option of inconsistency can be explained in the context of the sentence summary . For the reason for the requirement is actually the Trier to allow the court's credibility. But in summary the verdict will only see the judge the evidence. The jury was the credibility of the witness' in terms of judgingfirst-inconsistent, and its mere existence in and of itself would be given summary sentence such defeat (the issue) was the material.
Traditionally, when a witness testified that he or she could not remember an event, the witness' description before the event was inadmissible. See, eg, People v. Sam (1969) 71 194 Cal.2d was given as the reason, which is not a gift to remember the failure process was not consistent with a perfect memory of a previous occasion.
But modernJudges have gone in the opposite direction. The trend has been to provide descriptions of an event, even if a witness testifies that he did not remember the incident, as I remember, failure to appear at trial or intentional evasion. See, eg, People v. O'Quinn, (1980) 109 Cal.App.3d 219, 224 But there are limits. Despite the tendency to extend the exemption in favor of admissibility, public policy in favor of alternative dispute resolution, for example, proved to be extremely important.These contradictory statements are made before the arbitration inadmissible in later experiments with the same case. Rules of Ct., Article 1616, subd. (c).
Lawyers have been known for hundreds of years that pre-contradictory statements are dynamite. Therefore, Francis Wellman famous work, the art of interrogation, was first published in 1903, dozens of pages devoted to the theme: "It [W] You have a witness under oath, which is oral, in conflict with a statement has ever done ...You have therefore firmly to the hook. "Id at p. 132
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