Hearsay

Question 1

What is the effect of Prop 8 on Hearsay?

Answer 1

Hearsay law is exempt from coverage of Prop 8. This means that even in a criminal case, the usual rules of evidence apply.

Question 2

Does California have exemptions from hearsay?

Answer 2

NO, California only has exceptions to the hearsay rules.

Question 3

What is an admission of a party opponent?

Answer 3

Statement by party, or someone whose statement is treated as as admission of that party.

Question 4

What is an admission of a party opponent under California law?

Answer 4

Hearsay, but admissible under an exception in California

Question 5

What is a vicarious party admission? What is it treated as?

Answer 5

A statement of authorized spokesperson for the party, it is treated as an admission of that party.

Question 6

What is the rule regarding statements/admissions of employees of a party under federal law?

Answer 6

A statement by an employee of a party is a party admissible of employer if statement concerned matter within scope of employment and made during employment relationship.

Question 7

What is the rule regarding statements/admissions of employees of a party under California law?

Answer 7

Statement by employee of a party is a party admission of employer only here negligent conduct of that employee is basis for employer’s liability in the case under respondeat superior.

In other words, employer is responsible for employee’s words, only if also responsible because of that employee’s conduct.

Question 8

Negligence action against UPS. Plaintiff testifies UPS truck crashed through
her kitchen window and driver said, “I fell asleep while driving.”
Admissible?

Answer 8

FRE: Not hearsay, because this is an exemption, discussing a matter within the scope of employment and made during employment relationship

CEC: Hearsay, but admissible under exception for party admissions. Vicarious party admission b/c statement from truck driver was the negligent party that made the company liable under the tort doctrine of respondeat superior

Question 9

Negligence action against UPS. driver acted properly and accident was caused by faulty

brakes. Driver said, “The company mechanic sometimes forgets to check the
brakes. ” Admissible?

Answer 9

FRE: Not hearsay b/c exemption, if statement w/in the scope of employment then arguably admissible

CEC: Hearsay and not admissible. The negligent party was not the driver, but the mechanic and to be vicariously liable for statements by employee, he must be the reason the company is subject to liability under respondeat superior.

Question 10

Are prior inconsistent statements of witnesses hearsay?

Answer 10

FRE: Not hearsay if offered to impeach. If given under oath, exemption to usual hearsay definition and not hearsay even if offered to prove truth of facts asserted, otherwise hearsay and inadmissible to prove those facts.

CEC: Hearsay if offered to prove truth of facts asserted, but admissible under exception which extends to all inconsistent statements of witness, whether or not under oath.

Question 11

Are prior inconsistent statements of witnesses now testifying at trial admissible if a bribe was given?

Answer 11

If the inconsistent statement was made before the bribe then yes under both FRE and CEC.

This is FRE exemption, CEC exception

Question 12

What is the law regarding declarations against interests?

Answer 12

FRE and CEC: Admissible, if at the time it was made, it was against financial interest of declarant or would have subjected him to criminal liability

CEC: Also within the exception is a statement against social interests because it risks making the declarant an object of hatred, ridicule, or social disgrace in the community.

Question 13

Action for divorce. To prove adultery by husband, Donald Trump, Wife offers
statement of Paris Hilton, a permanent resident of a psychiatric hospital in
Europe, made during an interview for America’s Most Disgusting Celebrities: “I
got drunk and had an affair with Trump.” Admissible?

Answer 13

FRE: Not admissible, not a declaration against financial interests or criminal liability

CEC: Admissible, statement against social interests

Question 14

When is a declarant unavailable?

Answer 14

If the court exempts from testifying due to privilege, declarant is dead or sick, or proponent of statement cannot procure declarant’s attendance by process or other reasonable means.

FRE: Declarant refuses to testify despite court order, declarant’s memory fails on the subject of her statement

CEC: IF declarant suffers a total memory loss or refuses to testify out of fear, regarded as unavailable.

Question 15

What is the former testimony exception?

Answer 15

Testimony given in an earlier proceeding or deposition by a witness now unavailable.

Question 16

When is former testimony admissible, generally?

Answer 16

FRE and CEC: if the party against whom testimony is now offered was a party in the earlier proceeding, had an opportunity to examine the witness, and its motive to conduct that exam was similar to the motive it has now

Question 17

When is former testimony admissible in a civil case, in which the party against whom it is now offered was not a party to the earlier proceeding? (FRE)

Answer 17

FRE: In a civil case, party against whom testimony is now offered was not a party in the earlier proceeding but is in a privity-type relationship with someone who was a party to that earlier proceeding (a predecessor in interest) and who had an opporunity and an interest to conduct that exam similar to the interests of the party against whom testimony is now offered.

Question 18

When is former testimony admissible in a civil case in which the party against whom it is now offered was not a party to the earlier proceeding? (CEC)

Answer 18

In a civil case, the party against whom testimony is now offered was not a party in the earlier proceeding, but a party in that earlier proceeding had an opportunity to examine the witness and an interest to conduct that exam similar to the interests of the party against whom the testimony is now offered. OR

The former testimony is offered against the person who offered it in evidence on her own behalf in the earlier proceeding, or against a successor in interest of such a person!

NO privity relationship required.

Question 19

Does the former testimony exception apply to deposition testimony in California?

Answer 19

Only if given in the same civil action in which the hearsay (depo) is offered at trial, it is admissible for all purposes if the deponent is unavailable at trial or lives more than 150 miles from the courthouse.

Question 20

An
airplane crashes, killing passengers X and Y. Estate of X sues for wrongful death
and Expert testified for Airline in that case. Expert then died. Estate of Y now
sues Airline and Airline offers transcript of Expert’s testimony. Admissible?

Answer 20

FRE- No, two ways you can use former testimony exception, testimony offered today against someone who was a party in the first case or offering testimony today against someone who was not a party but had a predecessor in interest.

CEC: Admissible, under similar interest rule. X and Y had similar interest in the civil action, and because X had opportunity to examine Expert’s testimony this is permissible, no relationship required other than similar interest.

Question 21

First proceeding
was civil nuisance suit brought in small claims court against Airline for noise
pollution. Airline offered Expert’s testimony in that case. Expert is now dead.
Estate of Y now offers that testimony in wrongful death case against Airline.
Admissible, even though issues in this case are different?

Answer 21

FRE: Not admissible, you can admit former testimony against a party who was present only where there was a similar motive to examine the witness, in this case nuisance testimony will not have the same motive as wrongful death testimony

CEC: Admissible b/c evidence offered in the first case was by the party today, and therefore it can be used in a subsequent case against that party.

Question 22

What is the dying declaration exception in California?

Answer 22

The declaration by a person who believes he is about to die and describes the cause/circumstances leading to his death, it is admissible in a civil action and in a homicide prosecution if declarant is DEAD!

Question 23

What is the dying declaration exception in Federal court?

Answer 23

The declaration by a person who believes he is about to die and describes the cause/circumstances leading to his death, it is admissible in a civil action and in a homicide prosecution if declarant is unavailable, and need not be dead.

Question 24

What is the present sense impression exception in California?

Answer 24

A statement explaining conduct of the declarant made while the declarant was engaged in that conduct. Must be conduct and must be presently engaging in it. Declaranant need not be unavailable.

Question 25

What is the federal present sense impression exception?

Answer 25

A statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter. Declarant need not be unavailable.

Question 26

Murder prosecution. Defendant claims self-defense because, he claims, Victim
acted in a threatening manner. Witness testifies she called Victim on night of the
murder. Victim and witness were talking on the phone when Victim said “Joe
[the defendant] just walked in the room and it looks like he wants to show me his
survival knife. I am smiling and waving at him. I’ll call you right back.” Is the
statement admissible to show defendant was in the room with a knife?
Admissible to show Victim was acting in a friendly way?

Answer 26

FRE: Everything is admissible

CEC: The statement regarding the knife is inadmissible b/c not conduct. The statement regarding smiling and waiving is admissible b/c this is declarant describing their conduct.

Question 27

What is the OJ Exception?

Answer 27

A statement describing infliction or threat of physical abuse. Statement made at or near the time of injury or threat, by unavailable declarant, describing or explaining infliction or threat, in writing or recorded or made to police or medical professional, under trust worthy circumstances.

WATCH FOR CONFRONTATION ISSUE

Question 28

What is the confrontation issue with the OJ exception?

Answer 28

Statements given to police can be considered testimonial hearsay, but as long as it is a statement given in regards to an ongoing emergency then no Confrontation Clause issue. If given to police while they are building the case, Confrontation Clause problem.

Question 29

Murder prosecution. The government offers the sound recording of a
telephone call Victim made to 911 in which she calmly stated, “My former
husband [Defendant] kicked me in the head 20 minutes ago.” When the police
arrived Victim was unconscious. She later died of a brain injury. Admissible
under Federal or California hearsay law to show the Defendant kicked Victim?
If admissible under hearsay law, is there a Confrontation Clause objection?

Answer 29

FRE: not admissible, not an excited utterance.

CEC: Admissible b/c OJ exception

Question 30

What is the excited utterance exception?

Answer 30

Statements relating to startling event or condition are admissible when made while declarant was still under stress of excitement caused by event or condition. No need to show declarant unavailable.

Same in FRE and CEC

Question 31

What is the exception for declaration of then existing physical or mental condition?

Answer 31

A statement of declarant’s then existing physical or mental condition or state of mind is admissible to show the condition or state of mind, but a statement describing a memory or belief is not admissible to prove the fact remembered or believed.

Question 32

When is a statement of past physical or mental condition admissible if made for medical diagnosis in California?

Answer 32

If the declarant is a minor describing an act of child abuse or neglect.

Question 33

What if in a personal injury action, a plantiff told a second patient in the emergency room “I was feeling fine before the accident.” If plaintiff is now in a coma, can the patient testify as to what plaintiff said?

Answer 33

FRE: No, not made for medical purposes.

CEC: Admissible, under a CA exception that states: a statement of a past physical or mental condition, including a statement of intention, is admissible to prove that condition if it is an issue in that case, no requirement that the statement be made for medical purposes.

Question 34

What is the California business records exception?

Answer 34

Records of events and conditions kept in course of regularly conducted business activity is admissible if made at or near time of matters described, by person with knowledge of the facts, and it was regular practice of the business to make such record. Court may exclude if untrustworthy

FRE: includes opinions and diagnoses

CEC: Will still admit simple opinions and diagnoses

Question 35

Action for physical & psychological injuries arising out of auto accident. Plaintiff
offers hospital record in which orthopedic surgeon stated “Plaintiff has broken
leg” and in which psychiatrist stated “Plaintiff is suffering from post traumatic
stress syndrome, which is likely to be permanent.” Admissible?

Answer 35

FRE: All admissible

CEC: Only admissible if they are simple opinions or diagnoses, argument is the broken leg is simple but the post traumatic stress disorder is debatable, but needs to be argued for.

Question 36

What is the California public records exception?

Answer 36

Record may by public employee is admissible if making record was within her scope of duties, record was made at or near the time of the matters described, and circumstances indicate trustworthiness. There is no limit on prosecutors like in FRE.

Question 37

What is the Federal public records exception?

Answer 37

No need to show declarant unavailable. Federal: The
record of a public office is admissible if it within one of the following categories: (i)
the record describes the activities or policies of the office; (ii) the record describes
matters observed pursuant to duty imposed by law (but not police reports in criminal
cases); or (iii) the record contains factual findings resulting from an investigation
made pursuant to authority granted by law, unless untrustworthy. In a criminal case,
prosecution cannot use (iii).

Question 38

Criminal prosecution for vehicular homicide. Prosecution offers into evidence
police report stating that police officer investigating the accident saw an empty
vodka bottle in the cup-holder next to driver’s seat in defendant’s car. The bottle,
with defendant’s fingerprints on it, has already been admitted. Admissible?

Answer 38

FRE- No, it is a police report and prosecutors cannot use records resulting from investigation made pursuant to authority granted by law.

CEC: Admissible, no such restriction on prosecutors. Watch out for confrontation clause issue.

Question 39

Can you use a judgement of conviction to prove any fact essential to the judgment?

Answer 39

It only applies to civil cases.

Question 40

Prosecution for being a felon in possession of a firearm. Defendant denies he is a
felon. The prosecutor offers into evidence a certified copy of the judgment of
conviction of defendant for robbery, a felony. Admissible?

Answer 40

FRE: Yes

CEC: Not admissible under the exception for judgments of convictions, but could be admissible under public records doctrine.