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F 2.13 n1 Preliminary Factual Finding As To Timing Of Prior Consistent Statement.
When the defense claims that a witness’ testimony may have been influenced by multiple biases or motives to fabricate, a prior consistent statement is admissible only if it was made before the existence of any one or more of the alleged biases or motives to fabricate. (People v. Hayes (90) 52 C3d 577, 609 [276 CR 874].) Therefore, when appropriate, the jury should be instructed per EC 403 that it cannot consider the prior consistent statement unless it makes a preliminary factual finding that the statement was made before at least one of the alleged biases or motives to fabricate. (See FORECITE F 2.001a.)
F 2.13 n2 Prior Inconsistent Statement (EC 1235): Only Admissible As To Witnesses Who Testify At Trial.
A witness’s prior inconsistent statement may be admitted at trial, but only if “offered in compliance with EC 770.” (EC 1235.) Under that provision, an inconsistent statement is not admissible unless the witness either testified and was given “an opportunity to explain or to deny the statement” or “has not been excused from giving further testimony in the action.” (EC 770(a) & (b).) EC 1238 similarly requires that the witness testify at trial before a statement of prior identification may be admitted. (People v. Mayfield (72) 23 CA3d 236, 241.)
