CA Hearsay 1 Flashcards
Hearsay Exclusions vs. Hearsay Exceptions
Hearsay law is one of the exceptions to Prop 8. So if it’s inadmissible due to hearsay, then Prop 8 won’t bring it in just because it’s relevant.
Exclusions vs. Exceptions:
CA law only recognizes hearsay exceptions. As a terminology matter, you still consider all forms of hearsay as hearsay in CA but they might come in via an exception.
Statement of Party Opponent (SOPO)
SOPO = statement of party or attributed to them offered by the opposing party.
Fed: this is an exclusion
CA: this is within an exception to the hearsay rule.
Both admissible, but terminology differs.
Vicarious SOPO
This is when a statement is made by an authorized spokesperson or employee/agent of a party. There is a CA distinction for employees/agents.
Fed: agent/employee is admissible as an opposing party’s statement if it’s a statement by the agent/employee about the scope of the employment made during the employment relationship.
CA: Admissible as exception only in civil cases where employee’s negligent conduct is the basis for the employer’s liability (respondeat superior).
Testifying Witness’ Prior Statement of Identification
In CA, admissible as exception if:
1) ID was of person who participated in crime or occurrence
2) witness made ID while memory was fresh
3) witness confirms in court that they made the ID and that it truly reflected their understanding at the time
Testifying Witness’ Prior Inconsistent Statement
Both fed and CA, admissible for impeachment.
But under fed law, it’s hearsay unless given under oath and that makes it nonhearsay.
Under CA law, the prior inconsistent statement is admissible as hearsay exception regardless of whether it was made under oath. Very broad hearsay exception in CA covering prior inconsistent statements
Testifying Witness’ Prior Consistent Statement
Fed and CA both say admissible to rehab a witness and also admissible as substantive evidence of the truth if it logically rebuts an attack on credibility.
Under Fed rules: a witness’ prior consistent statement is nonhearsay
Under CA, categorized as hearsay exception
Unavailability Exceptions - Grounds for Unavailability
Unavailability = death or infirmity, privilege, refusal to testify, absence and inability to procure attendance
CA differences:
- lack of memory on topic doesn’t qualify unless witness suffering total memory loss
- witness can be unavailable due to fear
Unavailability - Statement Against Interest
Under fed rules, a statement by an unavailable declarant is admissible if, at the time the statemnet was made, it was against declarant’s interest (criminal, pecuniary, financial, etc) such that a person wouldn’t make that statement unless it was true. Gotta have corroboration for criminal D supposedly admitting crime.
CA rule is broader:
- no corroboration requirement for criminal cases
- applies to statements against SOCIAL INTEREST/ridicule
Unavailability - Former Testimony
Fed and CA: testimony under oath at trial/hearing/deposition under oath by a now unavailable witness is admissible if the party against whom it’s now being offered had an opportunity and similar motive to develop the declarant’s testimony at the prior proceeding by direct, cross X, or redirect
There’s another way it can be admissible: it’s offered today against a party who was not present in the first case but this only works in a civil action IF there was a party in the first case who counts as a PREDECESSOR IN INTEREST and was present and had an opportunity and similar motive. Predecessor in interest means there has to be a close privity type of relationship between party against whom former testimony is offered today and the party against whom it was offered in the previous proceeding.
CA: recognizes a similar loophole. You can admit former testimony against a party who was not present but it doesn’t have to be a “predecessor in interest” just a “SIMILAR” INTEREST will suffice.
- additional ground for admitting evidence in CA for former testimony: it can be used to admit evidence today against a party who was the party who OFFERED IT in the preceding case
- deposition testimony is admissible for all purposes if the deponent 1) is unavailable to testify or 2) lives more than 150 miles from the courthouse.
Dying Declaration
Fed: in homicide prosecution or civil cases, statement by now-unavailable declarant is admissible if:
1) declarant believed their death was imminent (doesn’t matter if they actually survived) and 2) the statement concerned the cause of their demise or circumstances they believed would lead to their death
CA exception differs:
1) the exception applies in ALL CRIMINAL AND CIVIL CASES, not just homicide + civil
2) the declarant MUST HAVE DIED
Statement Offered Against Party who made Declarant Unavailable (“the Black Widow exception”)
Both Fed and CA: the statement of an unavailable declarant is admissible in any type of case when offered against a party who has engaged or acquiesced in wrongdoing that intentionally caused declarant to be unavailable to testify
CA recognizes this exception and specifically provides the judge with discretion to exclude the statement if it appears untrustworthy
In CA, in crim prosecution for serious felony, CA recognizes a separate exception for statements of a kidnapped or murdered declarant whose unavailability was caused or aided by the defendant for the purpose of preventing D’s arrest or prosecution (rather than just preventing their testimony).
Other unavailability exceptions in CA:
1) statements describing INFLICTION OR THREAT OF PHYSICAL INJURY
2) statements of PAST PHYSICAL or EMOTIONAL CONDITION or STATE OF MIND when at issue in case
