5) Hearsay

Question 1

when CA rules of evience apply

Answer 1

in CA state court ONLY
CA fed court: applies FRE
(except re privileges applies state law)

Question 2

hearsay BOP: CA rule

Answer 2

proponent of the evidence must show it is NOT hearsay

Question 3

hearsay BOP: CA vs FRE

Answer 3

CA: proponent must show NOT hearsay

FRE: opposite—objecting party has BOP that it IS hearsay (presumption of admissibility)

Question 4

hearsay exclusions/exemptions :CA

Answer 4

CA has exceptions only (tho covers many of the same categories)

Question 5

hearsay + prop 8

Answer 5

hearsay exempt from prop 8 so just consider the usual rules

Question 6

vicarious party admission: CA rule

Answer 6

situation: statement of an ee – is it admissible against the ER?

CA: only statements BY EEs WHOSE CONDUCT MAKES THE ER VICARIOUSLY LIABLE under respondeat superior are admissible (conduct that the words are concerning)

Question 7

vicarious party admission: CA rule vs FRE

Answer 7

FRE: broader, admissible if it’s about within course/scope of employment and mae during employment rship

CA: has to be a st by EE whose conduct makes ER vicariously liable

Question 8

statement against interest: CA rule

Answer 8

general background: declarant unavailable + against 3Ps interest of declarant

OR against the social interest of declarant, bc it risked making declarant an object of hatred, ridicule, or social disgrace in the community

Question 9

statement against interest: CA rule vs FRE

Answer 9

FRE: must be against one of the 3Ps interests (+ declarant unavail): penal, pecuniary, proprietary

CA: 3Ps OR social interest

Question 10

prior inconsistent st: CA rule

Answer 10

ANY inconsistent st made by wit (who is avail/testifying), rather or not under oath can be admitted for its truth

Question 11

prior inconsistent st: CA rule vs FRE

Answer 11

FRE: prior inconsistent st only admissible for truth if given under oath. (otherwise, admissible for impeachment only)

CA: can be admissible for truth whether given under oath or not

Question 12

prior consistent st: when can it come in: CA rule

Answer 12

1) triggering event: need a prior inconsistent st to attack wit’s credibility, or inference of recent fabrication, bias, or motive AND
2) prior consistent st made PRIOR TO alleged inconsistent st (not nec prior to the motive to lie) or prior to the motive to lie

Question 13

prior consistent st: when can it come in: CA rule vs FRE

Answer 13

CA: broader, bc st just needs to be prior to the alleged icinconsistent st

FRE: narrower – PCS must have been prior to the motive to lie (similar triggering events)

Question 14

prior sts of IDs: CA rule

Answer 14

1) CRIM trials only!

2) additional requirements

Question 15

prior sts of IDs: CA rule: additional requirements

Answer 15

1) st was made at a time when the crime or other occurrence was fresh in wit’s memory +
2) wit must testify that he made the ID and that it was a true reflection of his opinion at the time

Question 16

prior sts of IDs: CA vs FRE

Answer 16

CA: crim only, FRE: crim or civil

CA has additional requirements (that FRE dn)

Question 17

Contemporaneous st: CA rule

Answer 17

st offered:
1) to explain, qualify or make understandable the CONDUCT OF DECLARANT (focused on subjective intent of declarant)
AND
2) made while declarant was engaged in the conduct

usu for vebal acts of legal significance (giving a gift or trust, etc)

Question 18

contemporaneous st: CA vs FRE

Answer 18

CA: must be the declarant describing his own, contemporaneous conduct

FRE: broader – present sense impression – can be talking about something else/ someone else’s conduct

Question 19

spontaneous st: CA

Answer 19

st must:

1) purport to narrate, describe, or explain an event, act, or condition perceived by declarant AND
2) was made spontaneously, while declarant was under stress of excitement

Question 20

spontaneous st: CA vs FRE

Answer 20

FRE: excited utterance – similar

CA maybe more spontaneous

Question 21

st describing infliction or threat of physical abuse: CA only: rule

Answer 21

1) unavailable declarant
2) st re infliction or threat of physical abuse
3) made at or near time of injury/threat
4) in writing, recorded, OR made to police or med professionals
5) under trustworthy circs
(ojo confrontation clause)

Question 22

st for med dx/tx: CA rule

Answer 22

st of past/present mental/physical condition is admissible if made for med dx/tx, but only if:

1) declarant was 12 yo or younger AND
2) describing an act of child abuse or neglect

Question 23

st for med dx/tx: CA vs FRE

Answer 23

CA much narrower (12 yo or younger + child abuse/neglect): FRE: past or present mental or physical condition ok if for dx/tx

Question 24

st of past physical or mental condition: CA ONLY

Answer 24

1) admissible to prove CONDUCT or condition if it’s an issue in the case
(can include st of intention)
2) declarant must be unavailabe
but 3) no requirement that st be for med dx/tx

Question 25

CA burden on proponent of evidence to show it’s admissible – standard

Answer 25

preponderance

Question 26

CA: church records

Answer 26

ok if would be admissible under business records, + st is of a kind customarily recorded in connection w the act, condition, or event recorded

Question 27

public records exception:C A

Answer 27

ok to describe matters observed pursuant to duty imposed by law –> even police officers, even crim cases

Question 28

public records exception CA vs FRE

Answer 28

CA: broader, lets police reports in in crim cases

FRE: E2E, no police reports in crim cases unless introduced by D

Question 29

learned treatises: CA rule

Answer 29

1) only books re sciecne + art or published maps charts
2) NO medical treatises
3) ONLY admissible to show matters of general notoriety/interest

Question 30

learned treatises; CA v FRE

Answer 30

CA much narrower (science, arts, maps only + only general notoriety/interest)
FRE: anything if treatise is accepted authority in field

Question 31

catch all / residual exception CA rule

Answer 31

doesn’t exist! (Unlike FRE)

Question 32

declarant is unavailable –> refusal to testify: CA rule

Answer 32

includes if refuses to testify out of fear

Question 33

declarant is unavailable –> refusal to testify: CA vs FRE

Answer 33

FRE narrower: only if refuses to testify despite court order

CA: broader, includes refusal to testify out of fear

Question 34

declarant is unavailable –> memory: CA rule

Answer 34

need more than just lack of memory. Must show that:

1) loss was caused by physical or mental damage
2) resulting from an alleged crime
3) causing wit to be unable to remember

Question 35

declarant is unavailable –> memory: CA vs FRE

Answer 35

FRE broader – jsut that wit testifies no longer remembers

CA: more in-depth inquiry and the memory loss must be caused by phys/mental damage, from alleged crime, unable to remember

Question 36

dying declaration exception: CA rule

Answer 36

1) declarant believes about to die
2) st describes cause/circs surrounding impending death
3) declarant is dead
4) admissible in any civil or crim case

Question 37

dying declaration exception: CA vs FRE

Answer 37

CA: must be DEAD, FRE just unavail

CA: admissible in any civil or crim case, FRE just civil or homicide