Hearsay

Question 1

General Rule: Hearsay

Answer 1

Hearsay is an
+ an out of court statement
+ offered to prove truth of the matter asserted (“TOMA”)

Hearsay is generally inadmissible, unless an exception applies.

Question 2

Describe Prop. 8 Application to Hearsay?

Answer 2

Prop 8 does not override the CA Evidence Code hearsay rules.

Question 3

What is a “statement” for purposes of hearsay?

Answer 3

Verbal or written expression.

Assertive conduct may be treated as a “statement” - i.e., the nod of a head or pointing in a direction.

KEY here is “assertive,” so walking away or ignoring a question won’t amount to assertive conduct to substitute for a statement.

Question 4

General Rule: Multiple Hearsay

Answer 4

Hearsay included within hearsay may be admissible only if each “level” of hearsay in the combined statement satisfies a hearsay exception (or exemption under FRE).

Question 5

General Rule: Statements of Independent Legal Significance (NOT hearsay) [tip: there are four types of alternatives]

Answer 5

An out of court statement may be admissible where it is being offered not to prove the truth of a matter asserted (TOMA), but for another purpose.

Other purposes besides TOMA:

1. Independent Legal Significance - A proponent may offer a statement to prove that it was made, not that it was true (e.g., defamation, statement is tort / contracts “I accept” …)
2. Effect on Listener (e.g., dispatcher gave officer the location, to explain conduct/how he arrived at the scene)
3. Knowledge of Facts Stated
4. Circumstantial Evidence of Speakers State of Mind (e.g., then-existing state of mind: the defendant is charged will killing someone in California, but they sent a letter two days earlier telling someone they were going to be in New York - not offered to prove truth that they were in NY, but offered to speak to what their state of mind was prior)

Question 6

When is a witness deemed “unavailable” for hearsay exception purposes?

Answer 6

Privilege

Death or serious physical/mental illness

Attendance cannot be procured (lives/works outside of subpoena power)

Refusal despite court order (CA: only if refusal out of fear)

Testifies they do not remember (CA: considered available if only fail to remember specific subject matter)