Hearsay

Question 1

Hearsay CEC 1200(a)(b)

Answer 1

An out of court statement, offered by a witness during the hearing, to prove the truth of the matter asserted. Hearsay is inadmissible unless it meets the requirement of a hearsay exception.

Question 2

What is a “statement”? CEC 225

Answer 2

A person’s oral or written assertion.

Question 3

What is an assertion?

Answer 3

Words expressing some fact or opinion. Nonverbal conduct is a “statement” when it is assertive, when a person intends to communicate without words.

Question 3

Unavailability CEC 240

Answer 3

(1) Privilege; (2) disqualified; (3) dead or unable to testify from mental or physical condition, (4) court cannot compel presence; (5) unable to subpoena; or (6) persistent refusal.

Question 3

Contemporaneous statement CEC 1241

Answer 3

Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) is offered to explain, qualify, or make understandable conduct of the declarant; and (b) was made while the declarant was engaged in such conduct. (unavailability of the declarant does not matter here) Limited to the declarant’s own conduct.

Question 3

Spontaneous Statement CEC 1240

Answer 3

Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) was made spontaneously while the declarant was under the stress of excitement caused by such perception.

Question 3

State of Mind CEC 1250

Answer 3

Evidence of a statement about the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at the time or at any other time when it is itself an issue in the action; or (2) The evidence is offered to prove or explain acts or conduct of the declarant.

Question 3

Previously Existing State of Mind CEC 1251

Answer 3

Evidence of a statement about the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible by the hearsay rule if: (a) The declarant is unavailable as a witness; and (b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation.

Question 3

Hillmon

Answer 3

Statement of present intent of declarant to prove future conduct of another person. Some CA state courts have interpreted the case law to allow the use of a declaration of future plans to prove the plans of others. (showing plans of the declarant with someone else)

Question 3

Statement made for medical diagnosis or treatment CEC 1253

Answer 3

(Not at all equivalent to FRE). Statements made by children under 12 in child abuse or neglect cases when made to receive medical care are not made inadmissible by the rule against hearsay.

Question 3

Past Recollection Recorded CEC 1237

Answer 3

Evidence of a statement previously made by a W is not made inadmissible by the rule against hearsay if there is A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) we made or adopted by the W when the mater was fresh in the W’s memory; and (C) accurately reflects the W’s knowledge. Forgetful W must also testify that the written statement was accurate. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Question 3

Business Records Exception CEC 1271

Answer 3

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule if: (a) the writing was made in the regular course of a business; (b) the writing was made at or near the time of the act, condition, or event; (c) the custodian or other qualified W testifies to its identity and the mode of its preparation; and (d) the sources of the information and method and time of preparation were such as to indicate its trustworthiness. CEC defines business to be every kind of business, governmental activity, profession, occupation, calling, for operation of institutions, whether for profit or not.

Question 3

Evidence from the absence of business records CEC 1272

Answer 3

The fact that record is silent is evidence the event did not occur because it would have been recorded in a business record because it was a regular practice of the business record to record such events.

Question 4

Public Records Exception CEC 1280

Answer 4

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the rule against hearsay when offered in any civil or criminal proceeding to prove the act, condition, or event if: (a) The writing was made by and within the scope of duty of a public employee; (b) the writing was made at or near the time of the act, condition, or event; (c) and the sources of information and method and time of preparation were such as to indicate its trustworthiness. (CEC does not acknowledge limits for law enforcement documents; attorney would invoke Confrontation Clause to object to police reports).

Question 4

No Public Record Exist CEC 1284

Answer 4

Evidence of a writing made by the public employee who is the official custodian of the records in a public office, reciting diligent search and failure to find a record, is not made inadmissible by the hearsay rule when offered to prove the absence of a record in that office

Question 4

Ancient Documents CEC 1331

Answer 4

Evidence of a statement is not made inadmissible by the rule against hearsay if the statement is contained in a writing more than 30 years old and the statement has been since generally acted upon as true by persons having an interest in the matter.

Question 4

Learned Treatises

Answer 4

Evidence is not made inadmissible by the rule against hearsay if the information comes from (1) learned treatise of any field; (2) that offers substantive evidence; (3) accepted as a reliable authority; and (4) is accompanied by an expert W and read in to the record.

Question 4

Market reports and similar commercial publications

Answer 4

Requires data compilation (case file) and generally relied upon.

Question 4

Former Testimony Meaning CEC 1290

Answer 4

“Former testimony” means testimony given under oath in: (a) another action or in a former hearing or trial of the same action; (b) ?; (c) a deposition taken in compliance with law in another action; or (d) Arbitration proceeding if the evidence of such former testimony is a verbatim transcript thereof.

Question 4

Former Testimony Offered Against a Party to Former Proceeding CEC 1291

Answer 4

Evidence of former testimony is not made inadmissible by the rule against hearsay if the declarant is unavailable as a W and: (1) the former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.

Question 4

Dying declaration CEC 1242

Answer 4

Evidence of a statement by a dying person respecting the cause and circumstances of their death is not made inadmissible by the rule against hearsay if the statement was made upon his personal knowledge and under a sense of impending death. Declarant must be dead at trial. Exception is available in all criminal and civil cases.

Question 4

Statement Against Interest CEC1230

Answer 4

Evidence of a statement by the (1) unavailable declarant, (2) against the declarant’s interest, (3) that a reasonable person in the declarant’s similar position would have made only if the person believed it to be true because, it was so far contrary to the declarant’s pecuniary or proprietary interest, civil/criminal liability, intended to invalidate a legal claim, or created a risk of social ridicule, hatred, or social disgrace, is not made inadmissible by the rule against hearsay. ONLY applies to statement’s against the declarant’s interest. (does not require corroboration like FRE does for crim cases)

Question 4

Forfeiture CEC 1390

Answer 4

Evidence of a statement is not made inadmissible by the rule against hearsay if the statement is offered against a party that has engaged, or aided and abetted, in the wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. Vests Judge with discretion to exclude the declaration if Judge deems it untrustworthy and unreliable

Question 4

Opposing Party Statement CEC 1220

Answer 4

Evidence of a statement is not made inadmissible by the rule against hearsay when the statement is offered against an opposing party and: was made by a party in an individual or representative capacity. A party cannot use party admission rule to offer their own statements in the party’s favor.

Question 4

Adoptive Admissions CEC 1221

Answer 4

Evidence of a statement is not made inadmissible by the rule against hearsay when the statement is offered against an opposing party and: is one the party manifested that it adopted or believed to be true through words or other conduct.

Question 4

Authorized Admissions CEC 1222

Answer 4

Evidence of a statement is not made inadmissible by the rule against hearsay when the statement is offered against an opposing party and: was made by a person whom the party authorized to make a statement on the subject.

Question 5

Admissions of a Co-Conspirator CEC 1223

Answer 5

Evidence of a statement offered against a party is not made inadmissible by the rule against hearsay if: (a) the statement was made by a co-conspirator; (b) prior to/during the course of conspiracy; and (c) and in furtherance of the conspiracy. CEC applies sufficiency standard of proof.

Question 6

Multiple Hearsay CEC 1201

Answer 6

Multiple hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.

Question 7

Confrontation Clause of the Sixth Amendment

Answer 7

In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. Includes the right to cross-examine prosecution W’s.

Question 8

Crawford v. Washington

Answer 8

Under Crawford, if the declarant testifies as trial and is available for cross-examination about the out-of-court statement, then the Confrontation Clause is satisfied, and poses no barrier to admission of the hearsay. If the declarant does not testify, the question is whether the hearsay is “testimonial”. If the hearsay is testimonial, then the hearsay is inadmissible unless the defendant had a prior opportunity to cross-examine the declarant. If the accused can’t examine at trial, then the prosecutor must establish (a) unavailability & (b) prior opportunity to examine.

Question 9

What is “testimonial”?

Answer 9

Statement that declarant reasonably would expect to be used prosecutorially.

Question 10

Prior Inconsistent Statements CEC 1235

Answer 10

Evidence of a statement made by a witness is not made inadmissible by the rule against hearsay if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770. (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or (b) The witness has not been excused from giving further testimony in the action. Can be used for impeachment and for substance.

Question 11

Prior Consistent Statements CEC 1236

Answer 11

Evidence of a statement previously made by a witness is not made inadmissible by the rule against hearsay if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791. (1) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.

Question 12

Prior Identification 1238

Answer 12

Evidence of a statement previously made by a W is not made inadmissible by the rule against hearsay if the statement would have been made admissible if made by him while testifying: and (a) the statement is an identification of a party or another as a person who participated in a crime or other occurrence; (b) the statement was made at a time when the crime or other occurrence was fresh in the W’s memory; and (c) The evidence of the statement is offered after the W testifies that he made the identification and that it was a true reflection of his opinion at the time.