Yes, potentially. If a witness testifies at trial and materially changes or withdraws an earlier accusation, the earlier statement may be used for its truth if it is genuinely inconsistent and the requirements of Evidence Code sections 1235 and 770 are met. A recantation does not automatically erase the earlier account, and the earlier account does not automatically prove the charge. (Evidence Code § 1235; Evidence Code § 770)

The witness must actually testify. Section 770 ordinarily requires that the witness have an opportunity while testifying to explain or deny the earlier statement, or remain subject to further testimony, unless the interests of justice otherwise require. This is different from a witness who never appears at trial; that situation requires a separate hearsay and confrontation analysis.

A statement can be inconsistent in effect, not just word-for-word opposite. But “I don’t remember” is not automatically inconsistent: People v. Johnson distinguishes deliberate evasion from genuine uncertainty or ambiguous testimony. The record should show what the witness said before, what the witness said under oath, and whether the difference was real. (People v. Johnson)

Test the actual statement and the chance to cross-examine

Preserve the original 911 or interview audio, body-camera recording, transcript, report, and the witness’s trial testimony. An officer’s summary may contain a paraphrase or additional hearsay, so identify the witness’s actual words and who heard them. Determine when the witness was questioned about the earlier statement and whether the witness remained available for further testimony. Counsel can object to a statement that is not actually inconsistent or whose source and foundation are not established.

When the witness appears and can be meaningfully cross-examined about the earlier statement, that ordinarily addresses the confrontation concern for substantive use. California v. Green involved a testifying witness subject to cross-examination; it does not decide every case involving a missing witness or restricted questioning. (California v. Green)

For more about domestic-violence cases, see the firm’s practice page. For help assessing a recantation and trial evidence, contact the Law Offices of David S. Chesley at (800) 755-5174.