Sometimes. In a California criminal trial, a witness’s earlier written statement may be read to the jury for its truth under Evidence Code section 1237 only if the proponent establishes every part of that exception. The witness must have too little present memory to testify fully and accurately about the matter; the record must meet the statute’s timing and preparation rules; the witness must say the earlier statement was true; and the record must be authenticated as accurate. A note or police report does not qualify just because it exists. (Evidence Code § 1237)
The first question is whether the witness can now testify from memory. If the witness remembers after reviewing a writing, the jury hears the witness’s present testimony. If the witness still cannot remember enough, section 1237 may permit the qualifying earlier statement to be read into evidence, but the required foundation still matters.
What section 1237 requires
| Foundation | What the proponent must establish | What to examine with counsel |
|---|---|---|
| The witness’s present memory is insufficient | The witness cannot now testify fully and accurately about the matter. The question is the witness’s memory of the particular event or detail, not simply whether the witness uses the word “forgotten.” | What does the witness remember now? Which parts are missing, uncertain, or incomplete? |
| The earlier statement would otherwise be admissible | Section 1237 does not make every statement in a writing admissible. The statement must satisfy the other rules that would apply if the witness said it while testifying. Hearsay is generally an out-of-court statement offered for its truth, subject to exceptions provided by law. (Evidence Code § 1200) | Is the offered passage the witness’s own statement? Does it include another person’s claim, an officer’s conclusion, or other material with a separate admissibility problem? |
| The writing was made at the right time and in the right way | It must have been made when the fact occurred or while it was fresh in the witness’s memory. It must have been made by or under the witness’s direction, or by another person to record the witness’s statement when made. The statute sets no fixed number of hours or days. | When was it made? Who wrote or recorded it? Was the person recording the witness’s words at the time, or did someone later summarize the event? |
| The witness attests to truth | The witness must testify that the statement the witness made was true. In People v. Sanchez (2019), the California Supreme Court upheld a foundation where the witness remembered speaking with police and testified that the witness had told them the truth, even though the witness could not recall the details at trial. Whether an actual truth attestation is reliable depends on the testimony and record; a witness’s inability to remember does not itself establish that requirement. (People v. Sanchez (2019)) | Did the witness affirm that the earlier statement was true when made, or only say there was no reason to lie? What exactly did the witness say under oath? |
| The record is authenticated as accurate | The writing must be shown to be an accurate record of the witness’s statement. | Compare the actual note, recording, or transcript with the witness’s words. Were corrections made? What supports the claim that the record captures the statement accurately? |
The source and scope of a report matter. An officer may have recorded a witness’s statement when it was made, but a later summary is not automatically the witness’s recorded recollection. A report can also include the officer’s own observations or what other people said. Section 1237’s foundation for one witness does not automatically establish a basis to use every sentence in the report for its truth.
Refreshing memory is different from reading in a past statement
Evidence Code section 771 allows a writing to be used to refresh a witness’s memory. If the witness then remembers, the evidence is the witness’s present testimony. Section 771 is not itself a hearsay exception that lets the party offer the writing for its truth. (Evidence Code § 771)
Section 771 also gives the adverse party a right to have the writing produced at the hearing, inspect it, cross-examine the witness about it, and introduce pertinent portions. There is a narrow statutory exception if the writing is not in the refreshing party’s possession or control and cannot be obtained by that party. If memory remains insufficient after the writing is used, the party still needs section 1237 or another actual route before the earlier account can be presented for its truth.
Section 1237(b) permits the qualifying writing to be read into evidence. That does not mean the proponent automatically gets to submit the writing itself as an exhibit; the statute allows the writing to be received as an exhibit if the adverse party offers it. The court should consider the portion that has the required foundation and is otherwise admissible, rather than treating an entire police report as one witness’s recorded recollection.
A witness’s memory failure does not answer every confrontation question
In Sanchez, the California Supreme Court explained that a witness who appears, is under oath, and can be cross-examined is available for questioning about the earlier account and the witness’s poor memory. A genuine failure of memory by a witness on the stand therefore does not, by itself, make a properly admitted prior statement unconstitutional. That holding does not resolve every situation where a witness refuses to answer or the court materially restricts cross-examination; those facts require their own analysis. (People v. Sanchez (2019))
Questions to take to defense counsel
- What does the witness actually remember now, and which particular details are missing?
- When was the writing or recording made, and who captured the witness’s words?
- Does the witness say under oath that the earlier statement was true, and is there a separate basis to show the record is accurate?
- Which exact passages does the prosecution want to read, and do any include an officer’s narrative or another person’s statement?
- Is the writing being used to refresh present memory under section 771, or offered for its truth under section 1237? Can the defense inspect it and question the witness about it?
- Will the witness be available for meaningful cross-examination about the statement and the claimed memory loss?
These rules turn on the actual testimony, document, and court rulings. For help reviewing case papers about a California criminal trial, contact the Law Offices of David S. Chesley at (800) 755-5174, or see the firm’s California criminal trial overview.