Hearsay

Question 1

Hearsay Exclusions

Answer 1

None in CA, only exceptions

Question 2

Admission by Opposing Party Generally

Answer 2

Calling “Party Admissions” in CA

Question 3

Vicarious Statement by Opposing Party

Answer 3

No provision in CEC but, in civil cases, statement by employee admissible if employee’s conduct is basis for employer’s liability

Question 4

CA Types of Admissions

Answer 4

1. Statement by Deceased in Wrongful Death Action admissible against P
2. Parent action for child’s injury: child’s statement admissible against parent
3. Civil Case Dispute over Title: statements made by predecessor in interest when supposedly in title are admissible against party
4. Action Against Decedent’s Estate: Statement by decedent admissible against estate if decedent had personal knowledge and make the statement after recent perception and recollection was clear

Question 5

Prior Statement of Identification Additional Requirements

Answer 5

1. Identification of person who participated in crime or occurrence
2. Identification while memory was fresh
3. W must confirm in court that they made identification and it reflected theri opinion at the time

Question 6

Unavailability of D

Answer 6

-Inability to remember subject matter makes person unavailable only if based on total memory loss
-Fear of testifying can make a declarant unavailable

Question 7

Statement Against Interest Distinctions

Answer 7

Broader than Fed Rule because:
1. Also includes statements against social interest that would make declarant object of hatred, ridicule, or disgrace in community; and
2. No Corroboration requirement (unlike Fed Rule which requires corroborating evidence of statement’s trustworthiness)

Question 8

Former Testimony Distinctions

Answer 8

No requirement that party’s predecessor in interest was party in earlier civil proceeding so long as similar interest

-Can include statements against party who offered it on their own behalf in prior proceeding

-Deposition testimony allowed if deponent (i) unavailable or (ii) lives more than 150 miles from courthouse

Question 9

Dying Declaration Distinctions

Answer 9

-Admissible in all cases
-Declarant must have died as a result of what happened

Question 10

Statement against Party Procuring Unavialability Distinction

Answer 10

Judge has discretion to exclude statement if untrustworthy

Question 11

Present Sense Impression Distinction

Answer 11

CEC narrower because it applies only where statement explains the declarent’s own conduct and was made while engaging in that conduct

Question 12

Excited Utterance Distinction

Answer 12

Same as FRE except called “spontaneous statements”

Question 13

Present State of Mind or Condition

Answer 13

Unlike FRE, Judge has discretoin to exclude statements made under circumstances that indicate lack of trustworthiness

Question 14

Statements made for Purpoes of Medical Diagnosis or Treatment

Answer 14

MUCH NARROWER
Only applicable where declarant was a minor and under age 12 at time of statement AND made for purpose of diagnosis, treatment, or to describe an act of child abuse or neglect

Question 15

Business Record Exceptoin Distinction

Answer 15

No reference to opinions or diagnoses –> but court will admit simple opinions and diagnoses

-Written certification not sufficient

-Records custodian or other qualified witness can authenticate

Question 16

Public Records Exception

Answer 16

BROADER:
Record of an act, condition, or event made by a public employee admissible if:
1. making the record within scope of duties
2. record made at or near time of the matters described
3. sources of information and time of preparation indicate trustworthiness

Question 17

Felony Convictions

Answer 17

-Applicable only to Civil Cases
-HOWEVER: certified copy of judgment admissible in all cases under public records exception

Question 18

Ancient Documents

Answer 18

FED: Documents prepared before 1998
CA: Doc must be more than 30 years old

Question 19

Learned Treatise

Answer 19

NARROWER: Only applicable to facts of general notoriety and interest found in published maps, charts, and books of history, science, or art

Question 20

Catch-all Exception

Answer 20

None in CA but judge can create new hearsay exceptions by decisional law

Question 21

Other CA Hearsay Exceptions

Answer 21

Unavailability Required:
1. Statements of kidnapped or murdered declarant in criminal case
2. Past Condition or State of Mind when at issue in the case
3. *Statement describing infliction of threat of of physical injury *made at or near time of infliction orthreat made in writing or to law enforcement or medical personel
Unavailablity Immaterial:
1. Civil Judgment either (i) against oneself when suing another for indemnification or to enforce a warranty / breach of warranty claim OR (ii) third party’s liability or obligation at issue —> judgment against that party admissible
2. Statement by Child Abuse Victim in Criminal Case if:
(i) child minor under 12 at time of statement
(ii) sufficient indicia of relaiability
(iii) child either testifies or is unavailable (in which case must be corrporated)