What is the legal test for admitting an out of court interview where a deceased witness has given evidence that he was not competent to be a witness?

California, United States of America


The following excerpt is from People v. Lee, C074787 (Cal. App. 2017):

The Attorney General argues, "section 701 specifically involves a person's competence to be a witness at trial" and "has no application to out of court statements." As the Attorney General correctly observes, defendant "has cited no case that requires a specific finding of competence as to extrajudicial statements of a witness." We also note that where hearsay is admitted in lieu of a deceased declarant's testimony, the question of whether that hearsay is sufficiently reliable to be admitted is "intertwined with the issues of whether the declarant is competent to be a witness and has the required personal knowledge" under sections 701 and 702. (People v. Tatum (2003) 108 Cal.App.4th 288, 297.) But here, T. testified at trial and was properly found to be competent to do so. The SAFE interview was admitted, not in lieu of his testimony, but to impeach it, and no argument is made that it was inadmissible under section 1235 for this purpose. We conclude defendant has not carried her burden on appeal of persuading us section 701

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provides a separate requirement for admission of a prior inconsistent statement under section 1235.

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