Hearsay Flashcards
Hearsay Exclusions
None in CA, only exceptions
Admission by Opposing Party Generally
Calling “Party Admissions” in CA
Vicarious Statement by Opposing Party
No provision in CEC but, in civil cases, statement by employee admissible if employee’s conduct is basis for employer’s liability
CA Types of Admissions
- Statement by Deceased in Wrongful Death Action admissible against P
- Parent action for child’s injury: child’s statement admissible against parent
- Civil Case Dispute over Title: statements made by predecessor in interest when supposedly in title are admissible against party
- 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
Prior Statement of Identification Additional Requirements
- Identification of person who participated in crime or occurrence
- Identification while memory was fresh
- W must confirm in court that they made identification and it reflected theri opinion at the time
Unavailability of D
-Inability to remember subject matter makes person unavailable only if based on total memory loss
-Fear of testifying can make a declarant unavailable
Statement Against Interest Distinctions
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)
Former Testimony Distinctions
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
Dying Declaration Distinctions
-Admissible in all cases
-Declarant must have died as a result of what happened
Statement against Party Procuring Unavialability Distinction
Judge has discretion to exclude statement if untrustworthy
Present Sense Impression Distinction
CEC narrower because it applies only where statement explains the declarent’s own conduct and was made while engaging in that conduct
Excited Utterance Distinction
Same as FRE except called “spontaneous statements”
Present State of Mind or Condition
Unlike FRE, Judge has discretoin to exclude statements made under circumstances that indicate lack of trustworthiness
Statements made for Purpoes of Medical Diagnosis or Treatment
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
Business Record Exceptoin Distinction
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
Public Records Exception
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
Felony Convictions
-Applicable only to Civil Cases
-HOWEVER: certified copy of judgment admissible in all cases under public records exception
Ancient Documents
FED: Documents prepared before 1998
CA: Doc must be more than 30 years old
Learned Treatise
NARROWER: Only applicable to facts of general notoriety and interest found in published maps, charts, and books of history, science, or art
Catch-all Exception
None in CA but judge can create new hearsay exceptions by decisional law
Other CA Hearsay Exceptions
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)
