Evidence CA: Hearsay Flashcards
HEARSAY EXCLUSIONS VS. HEARSAY EXCEPTIONS
While federal law excludes certain statements from the definition of hearsay and also recognizes exceptions to the rule making hearsay inadmissible, California law only contains hearsay exceptions. In other words, there are no hearsay exclusions in California. However, with respect to the federal hearsay exclusions, you’ll see that California generally categorizes the same statements as hearsay exceptions.
There are no hearsay ____ in California.
There are no hearsay exclusions in California.
Admissions of Party-Opponent (Statements by or Attributable to Opposing Party)
Called what in CA?
Under federal and California law, the definition of these statements is the same. A statement by a party, or by someone whose statement is attributable to the party, is admissible when offered against that party.
Certain statements of other people (such as an authorized spokesperson or co-conspirator) are admissible against the party as a vicarious statement because of the relationship between them.
Under the Federal Rules, an opposing party’s statement is excluded from the definition of hearsay; in other words, it is not hearsay under Federal Rules.
In California, these statements are still called “admissions.” Admissions are considered hearsay in California, but are admissible under a hearsay exception.
Admissions of Party-Opponent: Vicarious Party Admissions—Agents and Employees
Under BOTH, a statement of a person authorized by a party to speak on its behalf is admissible against the party.
Distinction when it comes to the admissibility of other employee/agent statements:
- Federal Rules, a statement by a party’s agent or employee is admissible as an opposing party’s statement if the statement (1) concerned any matter within the scope of the agency or employment, and (2) was made during the existence of the agency or employment relationship.
- In California, there is no equivalent provision under the CEC. However, in civil cases, a statement by a party’s employee is considered an admission by the employer where the negligent conduct of the employee is the basis for the employer’s liability under respondeat superior. In other words, the employer is responsible for the employ- ee’s words only if they are also responsible in tort law because of that employee’s conduct.
Admissions of Party-Opponent: Vicarious Party Admissions—Agents and Employees - FEDERAL
- Federal Rules, a statement by a party’s agent or employee is admissible as an opposing party’s statement if the statement (1) concerned any matter within the scope of the agency or employment, and (2) was made during the existence of the agency or employment relationship.
Admissions of Party-Opponent: Vicarious Party Admissions—Agents and Employees - CALIFORNIA
Admissable as exception ONLY in CIVIL cases where emplkoyee’s negligent conduct is bases for employer’s liability under tort doctrine of respondeot superior (has to be parallel btwn tort liability). LIABILITY OF EMPLOYER IS BASED ON LIABILITY OF EMPLOYEE - so statement is attributed.
Other California Vicarious Admissions - California recognizes the following additional hearsay exceptions:
• In a wrongful death action, statements by the deceased are admissible against the plaintiff.
• In a parent’s action for their minor child’s injury, statements by the child are admissible against the parent.
• In a civil case where a party’s right or title to property is at issue and depends on whether a supposed predecessor in interest holds or previously held the right or title, statements made by the predecessor in interest during the time they were supposedly the holder of the right or title are admissible against the party.
• In an action against a decedent’s estate (usually a wills case), a statement made by the decedent is admissible against the estate, provided the statement (1) concerned a matter within the decedent’s personal knowledge, (2) was made after the decedent had recently perceived the matter, and (3) was made while the decedent’s recollection was clear.
Prior Statements of Testifying Witnesses
FED: under the Federal Rules, a witness’s prior inconsistent statements made under oath, prior statements of identification, and certain prior consistent statements are admissible as hearsay exclusions (that is, they are not hearsay).
CA: California recognizes similar hearsay exceptions:
Testifying Witness’s Prior Statement of Identification
FED: Under the Federal Rules, a statement of identification of a person as someone the witness perceived earlier is not hearsay (exclusion).
CA: statements of ID are categorized as an exception to the hearsay rule. The California exception imposes the following additional requirements:
• The identification must have been of a person who participated in a crime or other occurrence;
• The witness must have made the identification while their memory was fresh; and
• The witness must confirm in court that they made the identification and that it truly reflected their opinion at the time
Testifying Witness’s Prior Inconsistent Statement
*Remember, if offered only to impeach then no hearsay problem. BUT if offered for truth of the fact asserted in the statement, there is a hearsay problem…
FED: Under the Federal Rules, a witness’s prior inconsistent statement is excluded from the definition of hearsay if it was made under oath at a prior proceeding. Otherwise, a witness’s prior inconsistent statement is hearsay and inadmissible to prove the fact asserted (unless the statement falls within some other exclusion or hearsay exception).
CA: ADMISSABLE as EXCEPTION REGARDLESS of whether made under OATH. [California recognizes a hearsay exception for a witness’s prior inconsistent statement. This exception extends to all prior inconsistent statements of witnesses, regardless of whether they were made under oath.]
Testifying Witness’s Prior Consistent Statement
BOTH: Under federal and California law, a prior consistent statement that is admissible to rehabilitate a witness is also admissible as substantive evidence of the truth of its contents.
Under the Federal Rules, a witness’s prior consistent statement is not hearsay.
In California, it is categorized as a hearsay exception.
HEARSAY EXCEPTIONS REQUIRING UNAVAILABILITY
- Statements Against Interest.
- Former Testimony
- Dying Declarations
- Statement Offered Against Party Procuring Declarant’s Unavailability
- Other California Exceptions Requiring Unavailability: • Statements describing the infliction or threat of physical injury, • Statements of past physical or emotional condition or state of mind, when at issue in the case.
Grounds for Unavailability
BOTH: Federal and California law recognize most of the same grounds for unavailability: (1) death or physical or mental infirmity; (2) privilege; (3) refusal to testify despite a court order; and (4) absence and inability of the proponent to procure attendance by process or other reasonable means.
FED: Federal Rules, a declarant also is unavailable if their memory fails on the subject matter of their statement. California doesn’t recognize this ground, so a witness will be considered unavailable in this situation only if they suffer total memory loss (bc that would be a mental condition that prevents them from testifying).
CA: California courts have also held that fear of testifying can be considered a mental infirmity that prevents the declarant from testifying.
Grounds for Unavailability - Lack of memory on topic
Federal Rules, a declarant also is unavailable if their memory fails on the subject matter of their statement.
California doesn’t recognize this ground, so a witness will be considered unavailable in this situation only if they suffer total memory loss (like amnesia) (bc that would be a mental condition that prevents them from testifying).
Grounds for Unavailability - Fear of tesstifying
California courts have also held that fear of testifying can be considered a mental infirmity that prevents the declarant from testifying. NOT fed.
Statements Against Interest - FEDERAL
Federal Rules, a statement by an unavailable declarant [DECLARANT, not necessarily DEFENDANT] is admissible if, at the time it was made, it was against the declarant’s pecuniary (money), proprietary (property), or penal (criminal) interest. In a criminal case, if the statement would have subjected the declarant to criminal liability (for example, where the unavailable declarant’s statement was a confession to the crime), the proponent must offer corroborating circumstances showing that the declarant’s statement is trustworthy.
pecuniary, proprietary, or penal interest.
pecuniary (money), proprietary (property), or penal (criminal) interest.
In a criminal case, if the statement would have subjected the declarant to criminal liability (for example, where the unavailable declarant’s statement was a confession to the crime)…
The proponent must offer corroborating circumstances showing that the declarant’s statement is trustworthy. ONLY in FED, NOT in CA.
Statements Against Interest - CALIFORNIA
The California exception is broader in 2 respects:
• It does not include the corroboration requirement for statements subjecting the declarant to criminal liability.
• It also applies to statements against the declarant’s social interest that would risk making the declarant an object of “hatred, ridicule, or social disgrace in the community.”
Statements Against Interest - CALIFORNIA RUle statement
A statement by an unavailable declarant is admissible if, at the time it was made, it was against the declarant’s pecuniary (money), proprietary (property), penal (criminal), or SOCIAL interest.
Ca - Social interest
declarant’s social interest that would risk making the declarant an object of “hatred, ridicule, or social disgrace in the community.”
Former Testimony
Federal Exception and California Difference: Under federal and California law, testimony given under oath at a trial, hearing, or deposition by a now-unavailable declarant is admis- sible if the party against whom the testimony is now being offered had an opportunity and similar motive to develop the declarant’s testimony at the prior proceeding by direct, cross-, or redirect examination.
BUT, Different Standards for Identity of Parties: The “opportunity and similar motive” requirement means that generally, the party against whom the testimony is now being offered must have been a party in the former action. Where this party was not a party in the former action, such statements may still be admitted under the former testimony exception in civil cases, but federal and California law differ on what is required.
Former Testimony - FEDERAL
Under federal law, testimony given under oath at a trial, hearing, or deposition by a now-unavailable declarant is admis- sible if the party against whom the testimony is now being offered had an opportunity and similar motive to develop the declarant’s testimony at the prior proceeding by direct, cross-, or redirect examination.
The “opportunity and similar motive” requirement means that generally, the party against whom the testimony is now being offered must have been a party in the former action. Where this party was not a party in the former action, such statements may still be admitted under the former testimony exception in civil cases.
Under the Federal Rules, in civil cases, if the party against whom the testimony is being offered was not a party in the former action, the statement is still admissible if that party’s predecessor in interest was a party in the former action.
In CA, if fromer testimony is being offered against a party who was not present in the first case, in CIVIL CASE
Okay if they are a predecessor in interest
