5) Hearsay Flashcards
when CA rules of evience apply
in CA state court ONLY
CA fed court: applies FRE
(except re privileges applies state law)
hearsay BOP: CA rule
proponent of the evidence must show it is NOT hearsay
hearsay BOP: CA vs FRE
CA: proponent must show NOT hearsay
FRE: opposite—objecting party has BOP that it IS hearsay (presumption of admissibility)
hearsay exclusions/exemptions :CA
CA has exceptions only (tho covers many of the same categories)
hearsay + prop 8
hearsay exempt from prop 8 so just consider the usual rules
vicarious party admission: CA rule
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)
vicarious party admission: CA rule vs FRE
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
statement against interest: CA rule
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
statement against interest: CA rule vs FRE
FRE: must be against one of the 3Ps interests (+ declarant unavail): penal, pecuniary, proprietary
CA: 3Ps OR social interest
prior inconsistent st: CA rule
ANY inconsistent st made by wit (who is avail/testifying), rather or not under oath can be admitted for its truth
prior inconsistent st: CA rule vs FRE
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
prior consistent st: when can it come in: CA rule
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
prior consistent st: when can it come in: CA rule vs FRE
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)
prior sts of IDs: CA rule
1) CRIM trials only!
2) additional requirements
prior sts of IDs: CA rule: additional requirements
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
prior sts of IDs: CA vs FRE
CA: crim only, FRE: crim or civil
CA has additional requirements (that FRE dn)
Contemporaneous st: CA rule
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)
contemporaneous st: CA vs FRE
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
spontaneous st: CA
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
spontaneous st: CA vs FRE
FRE: excited utterance – similar
CA maybe more spontaneous
st describing infliction or threat of physical abuse: CA only: rule
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)
st for med dx/tx: CA rule
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
st for med dx/tx: CA vs FRE
CA much narrower (12 yo or younger + child abuse/neglect): FRE: past or present mental or physical condition ok if for dx/tx
st of past physical or mental condition: CA ONLY
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
CA burden on proponent of evidence to show it’s admissible – standard
preponderance
CA: church records
ok if would be admissible under business records, + st is of a kind customarily recorded in connection w the act, condition, or event recorded
public records exception:C A
ok to describe matters observed pursuant to duty imposed by law –> even police officers, even crim cases
public records exception CA vs FRE
CA: broader, lets police reports in in crim cases
FRE: E2E, no police reports in crim cases unless introduced by D
learned treatises: CA rule
1) only books re sciecne + art or published maps charts
2) NO medical treatises
3) ONLY admissible to show matters of general notoriety/interest
learned treatises; CA v FRE
CA much narrower (science, arts, maps only + only general notoriety/interest)
FRE: anything if treatise is accepted authority in field
catch all / residual exception CA rule
doesn’t exist! (Unlike FRE)
declarant is unavailable –> refusal to testify: CA rule
includes if refuses to testify out of fear
declarant is unavailable –> refusal to testify: CA vs FRE
FRE narrower: only if refuses to testify despite court order
CA: broader, includes refusal to testify out of fear
declarant is unavailable –> memory: CA rule
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
declarant is unavailable –> memory: CA vs FRE
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
dying declaration exception: CA rule
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
dying declaration exception: CA vs FRE
CA: must be DEAD, FRE just unavail
CA: admissible in any civil or crim case, FRE just civil or homicide
