CA Hearsay 2 Flashcards
Present Sense Impressions
Fed rules: a statement that describes or explains an event or condition and is made while or immediately after the declarant perceives the event or condition is admissible as a present sense impression
CA exception is NARROWER: applies only when a statement EXPLAINS THE DECLARANT’s OWN CONDUCT made WHILE DECLARANT WAS ENGAGED IN THAT CONDUCT
Additional CA Exception: Statement Describing Infliction or Threat of Physical Abuse
Statement that describes, narrates, or explains infliction or threat of physical injury admissible if:
- declarant must be unavailable
- statement was:
-> made at or near time of infliction or threat
-> either 1) in writing, 2) recorded, or 3) made to a law enforcement official or medical personnel
-> made under trustworthy circumstances
This could involve testimonial hearsay involving the Confrontation clause
Excited Utterances / Spontaneous Statements
CA calls these “spontaneous statements”. That’s the only distinction.
Statements of Present State of Mind or Condition
CA diff: trial judge has specific discretion to exclude statements made under circumstances indicating a lack of trustworthiness
Statements Made for Medical Diagnosis or Treatment
Fed rules: statement that describes a person’s medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for-and was reasonably pertinent to-medical diagnosis or treatment
CA exception is NARROWER for CHILD ABUSE: applies only where:
1) declarant is a minor at the time of the proceedings and was under age 12 at the time of their statement, AND
2) their statement was made for the purpose of medical diagnosis or treatment and described an act or attempted act of child abuse or neglect
However… CA has additional expanded exception:
In CA, a statement of an UNAVAILABLE declarant’s PAST physical condition, emotional condition, or state of mind is admissible to prove that condition if it is an issue in the case. NOT REQUIRED that the statement be made for medical purposes. Trial judge has specific discretion to exclude statements made under circumstances that indicate a lack of trustworthiness.
Business Records
Fed rules: a writing or record made as a memo of any act, event, condition, opinion, or diagnosis is admissible in evidence as proof of that occurrence if the elements of the exception are met (record made in regular course of business, regular practice to make those records, made at or near the time, etc)
CA business record exception does NOT cover opinions or diagnoses, but courts will still admit them if “simple” diagnoses or “simple opinions”
Required Foundation for Business Records:
1) Fed = business record can be authenticated by a records custodian or other qualified witness confirming that the record meets the elements of the business records exception. This can be accomplished by either 1) live testimony, or 2) written certification.
2) CA = requires the records custodian or other qualified witness to testify as to the identity of the business record and its creation; a written certification is not sufficient.
Public Records Exception
Fed rules: record of a public office is admissible if it’s within any of the following 3 categories:
1) the record describes activities of the office
2) the record describes matters observed pursuant to a duty imposed by law; OR
3) the record contains factual findings resulting from an investigation that was authorized by law. Criminal cases prevent prosecution from offering a record in category 3 (no police reports)
Under CA’s broader exception, any public record is admissible if:
1) within scope of public employee’s duties
2) made at or near time of matters
3) trustworthy
Felony Conviction
Fed: admissible in both civil and criminal cases to prove any fact essential to judgment. But when offered by prosecution for purposes other than impeachment, judgments against persons other than the accused are inadmissible
CA: specific exceptions for convictions applies ONLY IN CIVIL CASES. Prop 8 doesn’t change this hearsay law. But, a certified copy of judgment of conviction is admissible under CA public records exception in both civil and criminal cases.
Residual Exception
Fed: catch-all for particularly trustworthy and necessary hearsay statements.
CA: does not recognize a catch-all exception, but judges can create new hearsay exceptions by decisional law
