Hearsay

Question 1

Hearsay

Answer 1

Out-of-court statement offered to prove truth of matter asserted. Inadmissible absent an exception.

CEC same as Federal Rule. Hearsay law is exempt from Proposition 8.

Question 2

HEARSAY EXCLUSIONS VS. HEARSAY EXCEPTIONS

Answer 2

FRE:
The Federal Rules contain hearsay exclusions (that is, certain statements are specifically removed from the definition of hearsay).
The Federal Rules also recognize exceptions to the hearsay rule (that is, certain statements are considered hearsay but are admissible anyway).
* STATEMENTS BY OPPOSING PARTY
* PRIOR STATEMENTS OF W ON STAND TESTIFYING
- Prior inconsistent stmts (under oath, prior legal proceeding)
- prior consistent stmts
- Prior stmts of ID

CEC:
California law recognizes hearsay exceptions only; there are no hearsay exclusions. Statements that fall within a hearsay exclusion under the Federal Rules are usually admissible as a hearsay exception in California.

Question 3

STATEMENTS THAT FALL WITHIN FEDERAL HEARSAY EXCLUSIONS—

STATEMENTS BY OPPOSING PARTY

Fed:

CA:

Answer 3

FRE:
Statement made by party or attributable to party and offered by opponent;
need not be against speaker’s interest.
Not hearsay.
Special types of opposing party statements include…
* adoptive statements (such as admissions by silence) and
* vicarious statements (where a statement by a non-party is attributable to the party because of the relationship between them, including statements by the party’s partner, co-conspirator, or authorized spokesperson).

Vicarious opposing party statement—principal-agent: Statement by agent concerning any matter within scope of agency made while employment relationship exists is admissible against principal. Not hearsay.

CEC: Categorized as excpetion to hearsay, called PARTY ADMISSIONS.

CEC has no related provision for Vicarious opposing party statement—principal-agent.
However, in respondeat superior civil cases, a statement of an employee is admissible against the employer if the employee’s negligent conduct is the basis for the employer’s liability.

California recognizes additional hearsay exceptions making certain statements admissible against a party:
* In wrongful death actions, statements by deceased are admissible against plaintiff.
* In parent’s action for minor child’s injury, child’s statements are admissible against parent.
* In civil cases where party’s right or title to property depends on whether a supposed predecessor in interest holds or held the right or title, statements made by predecessor in interest when they were supposedly the holder are admissible against party.
* In an action against decedent’s estate, decedent’s statement is admissible against estate, provided decedent had personal knowledge and made the statement after recently perceiving the matter and while recollection was clear.

Question 4

Statmeents not hearsay bc not offered for truth

Answer 4

Offered to prove something other than the truth of the matter they assert
* ILS (legally operative facts)
* Stmts to show effect on listener
* Stmts to show speaker’s knowledge
* Stmts offered as circumstantial evidence of declarant’s STATE of MIND (like insanity)

Question 5

STATEMENTS THAT FALL WITHIN FEDERAL HEARSAY EXCLUSIONS—

PRIOR STATEMENTS BY W ON THE STAND TESTIFYING
(AKA Stmts by TESTIFYING WITNESSES)

Answer 5

1. .Testifying witness’s prior inconsistent statement:
   * FRE: Not hearsay (and thus admissible as substantive evidence) if made under oath at a prior proceeding or deposition.
   * CA: Under CEC, categorized as a hearsay exception and admissible as substantive evidence even if not made under oath at a prior proceeding or deposition.
2. . Testifying witness’s prior consistent statement:
   * FRE: Not hearsay if:
   * Offered to rebut attack on witness’s credibility based on improper motive and if made before motive to lie arose; or
   * Offered to rehabilitate witness impeached on some other ground (for example, sensory deficiency or inconsistency).
   * CA: Under CEC, categorized as a hearsay exception. Admissible under this exception only when offered to rebut an attack on witness’s credibility based on improper motive or prior inconsistent statement and if made before motive to lie arose or prior inconsistent statement was made.
3. Testifying witness’s prior statement of identification:
   * FRE: Not hearsay.
   * CA: Under CEC, categorized as hearsay exception and has additional requirements:
   * Witness must have identified a person who participated in a crime or other occurrence;
   * Witness must have made the identification while their memory was fresh; and
   * Witness must confirm in court that they made the prior identification and that it truly reflected their opinion at the time.

Question 6

HEARSAY EXCEPTIONS
REQUIRING
UNAVAILABILITY

And grounds for unavailability

Answer 6

Exceptions:
- Statements against interest
- Former Testimony
- Dying Declaration
- History
- Wrongful caused declarant’s unavailaibility

Grounds for unavailability: Federal grounds for unavailability are:
* death or infirmity;
* privilege;
* refusal to testify despite a court order;
* lack of memory regarding the subject matter; and
* absence (if the declarant is beyond reach of a subpoena and the proponent is unable to secure their attendance by reasonable means).

CA grounds: CA does not necessarily consider a declarant unavailable merely because they can’t remember the subject matter; a declarant will be considered unavailable in that situation only if they suffer total memory loss (because that would be a mental infirmity that prevents them from testifying).
California courts have also held that fear of testifying can be considered a mental infirmity that prevents the declarant from testifying.

Question 7

HEARSAY EXCEPTIONS REQUIRING UNAVAILABILITY

Statements against interest:

Answer 7

FRE:
* Statement by unavailable declarant is admissible if, at time it was made, it was against financial interest of declarant (pecuniary) or would have subjected declarant to criminal liability (penal).
* In criminal cases, if the statement would subject declarant to criminal liability, the offering party must offer corroborating circumstances showing trustworthiness of declarant’s statement.

CEC same as Federal Rule, except that its exception:
* Also includes statements against social interest that would risk making declarant an object of “hatred, ridicule, or social disgrace in the community”; and
* Does not include any corroboration requirement.

Question 8

HEARSAY EXCEPTIONS REQUIRING UNAVAILABILITY

Former testimony:

Answer 8

FRE:
Testimony given under oath in earlier proceeding or deposition by now-unavailable witness is admissible subject to the following requirements:
* Similarity of parties: party against whom testimony is offered (or, in civil cases, party’s predecessor in interest) was party in earlier proceeding.
* Similarity of issues: trial must be of same action or another action of same subject matter.
* Party against whom testimony is offered must have had opportunity to examine witness, and motive to conduct that exam was similar to current motive.
* Alternatively, in CIVIL case, the party against whom testimony is offered was not a party in earlier proceeding but is in privity type relationship with one who was a party to that earlier proceeding (“predecessor in interest”) and the predecessor in interest had opportunity and interest to conduct that cross-examination similar to the interests of party against whom testimony is now offered.

CA:
CEC same as Federal Rule, except no requirement that party’s predecessor in interest was party in earlier civil proceeding. It is sufficient that party in prior action had interest similar to that of party against whom former testimony is now offered.
Additional ground for admissibility: California also admits former testimony if declarant is unavailable and testimony is being offered against party (or successor in interest of party) who offered it on their own behalf at the prior proceeding. The “similar motive” requirement doesn’t apply in this situation.

Related California law— deposition testimony in same civil case: The CA Rules of Civil Procedure (rather than the CEC) apply when the former testimony is deposition testimony from same civil case.
The deposition testimony is admissible for all purposes if deponent (1) is unavailable to testify at trial or (2) lives more than 150 miles from the courthouse.

Question 9

HEARSAY EXCEPTIONS REQUIRING UNAVAILABILITY

Dying declarations:

Answer 9

FRE:
In civil cases and homicide cases, statement is admissible if declarant believed death was imminent and statement concerned cause or circumstances of what they believed to be their impending death.
* Declarant need not be dead but must be unavailable.

CA:
CEC same as Federal Rule, except:
* Exception applies in all criminal and civil cases; and
* Declarant must have died as a result of what happened.

Question 10

HEARSAY EXCEPTIONS REQUIRING UNAVAILABILITY

Statements offered against party procuring declarant’s unavailability:

Answer 10

FRE:
Statement of unavailable declarant is admissible against party who engaged or acquiesced in wrongdoing that was intended to cause declarant to be unavailable to testify.

CA:
CEC similar to Federal Rule, except judge has discretion to exclude the statement if it is untrustworthy.

Question 11

HEARSAY EXCEPTIONS REQUIRING UNAVAILABILITY (CA)

Statements of kidnapped or murdered declarant in criminal case:

Answer 11

FRE: No federal counterpart.

CA:
Under CEC, in serious felony prosecutions, statements of kidnapped or murdered declarant are admissible if declarant’s unavailability was caused or aided by defendant for the purpose of preventing defendant’s arrest or prosecution. Various requirements must be met (for example, the statement must have been memorialized by law enforcement and must be corroborated).

Question 12

HEARSAY EXCEPTIONS REQUIRING UNAVAILABILITY (CA)

Past condition or state of mind when at issue in the case:

Answer 12

FRE: No federal counterpart.

CA:
Under CEC, statement of declarant’s past physical or mental condition, including statement of intention, is admissible to prove that condition if it is an issue in the case.
Statement need not be made for medical purposes.
Judge has specific discretion to exclude statements made under circumstances that indicate a lack of trustworthiness.

Question 13

HEARSAY EXCEPTIONS REQUIRING UNAVAILABILITY (CA)

Statements describing infliction or threat of physical injury:

Answer 13

FED: No federal counterpart.

CA:
Under CEC, statement made by unavailable declarant that describes, narrates, or explains infliction or threat of physical injury on declarant is admissible if statement:
* Was made at or near the time of the infliction or threat;
* Was made under circumstances that indicate trustworthiness; and
* Was either in writing, recorded, or made to a law enforcement official or medical personnel.

Question 14

HEARSAY EXCEPTIONS
THAT DO NOT REQUIRE
UNAVAILABILITY

Answer 14

FRE:
* PSOM
* PSI
* Excited utternace
* Physical condition (for medical diagnosis or treatment)
* Past recollection recorded
* Business Records
* Public records/reports
* Judgmenets and Prior Convictions
* Ancient Documents
* Docs affecting property interests
* Learned treatises
* Family records
* Market reports

Question 15

Present sense impressions:

Answer 15

FRE:
Statement describing or explaining an event or condition made while declarant was perceiving event or condition or immediately thereafter.

CA:
CEC exception is narrower than Federal Rule; it applies only where the statement explains the declarant’s own conduct and was made while the declarant was engaged in that conduct.

Question 16

Excited utterances:

Answer 16

Statement relating to startling event and made while under stress of excitement of startling event.
CEC same as Federal Rule but called “spontaneous statements.”

Question 17

Present state of mind or condition:

Answer 17

FRE:
Statement of declarant’s then-existing physical or mental condition or state of mind is admissible to show the condition or state of mind at the time of the stmt. Includes statemeent of intent at time stmt was made. Can use as Circum’ inference that intent was likely carried out.
Statement describing memory or belief is not admissible to prove the fact remembered or believed.
Statement need not be made to get medical diagnosis or treatment.

CA:
CEC same as Federal Rule except it gives judge specific discretion to exclude statements made under circumstances that indicate a lack of trustworthiness.

Question 18

Statements made for purposes of medical diagnosis or treatment:

Answer 18

Statement that describes person’s medical history, past or present symptoms, or their inception or general cause is admissible if it was made for—and was reasonably pertinent to—medical diagnosis or treatment.
* Related stmts (admissions) about event are usually inadmissable bc not pertinent to assisting in diagnosis/treatment.

CA:
CEC exception applies only where:
* Declarant is a minor at trial and was under age 12 at the time of their statement; and
* The statement was made for the purpose of medical diagnosis or treatment and described an act or attempted act of child abuse or neglect.

This exception is much narrower than the federal version.
However, where declarant is unavailable, consider the related California exception for “past condition or state of mind when at issue in the case”.

Question 19

Business records:

Answer 19

FRE:
Records of events, conditions, opinions, or diagnoses made in regular course of business, consisting of matters within personal knowledge of someone with business duty to transmit.
Lack of such writing may be used to show nonoccurrence of event.
Record can be authenticated by
(1) live testimony or
(2) written certification from records custodian or other qualified witness.

CA:
CEC exception does not refer to opinions or diagnoses, though courts will admit simple opinions and diagnoses. Regarding authentication, the records custodian or other qualified witness must testify as to the identity of the record and its creation; a written certification is not sufficient.

Question 20

Recorded recollections:

Answer 20

FRE:
Record made or adopted by testifying witness who cannot now remember the facts, made while facts were fresh in their mind, is admissible.

CA:
CEC same as Federal Rule.

Question 21

Public records:

Answer 21

FRE:
Record of public office is admissible if it (any of these):
* Describes activities of the office;
* Describes matters observed pursuant to duty imposed by law (but not including police observations when offered in a criminal case); **or **
* Contains factual findings resulting from an investigation made pursuant to authority granted by law (but not when such evidence is offered by prosecution in a criminal case).

CA:
CEC exception is broader and does not restrict the record to the three categories listed in the federal exception.
Under CEC, a record of an act, condition, or event made by a public employee is admissible if:
* Making the record was within the scope of their duties;
* Record was made at or near the time of the matters described; and
* The sources of information and time of preparation indicate trustworthiness.

Question 22

Records of vital statistics:

Answer 22

Admissible if record was made to public officer pursuant to requirements of law. CEC same as Federal Rule.

Question 23

Felony convictions:

Answer 23

FRE:
A felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment.

CA:
CEC’s specific exception for convictions applies only in civil cases. (However, a certified copy of a judgment of conviction is admissible under the California public records exception in both civil and criminal cases.

Question 24

Civil judgments:

Answer 24

FRE:
Generally inadmissible, with certain statutory exceptions. Under the Federal Rules, a prior civil judgment is admissible as proof of matters of personal, family, or general history, or boundaries of land.

CA:
* A party may use a final judgment against themselves when they sue another for indemnification, or to enforce a warranty, or to recover for breach of warranty.
* Where a third party’s liability or obligation is at issue in a civil case, a final judgment against that third party is admissible. (For example, if defendant had assumed a third party’s liabilities, a judgment against that third party would be admissible against defendant.

Question 25

Ancient documents:

Answer 25

FRE: Documents must have been prepared before 1998.

CA: Under CEC, documents must be more than 30 years old.

Question 26

Learned treatises:

Answer 26

FRE: Statements from authoritative works are admissible if relied on by expert during direct examination or called to expert’s attention on cross-examination.

CA:
CEC exception is much narrower than Federal Rule.
Applies only to facts of general notoriety and interest found in published maps or charts, or books of history, science, or art.

Question 27

Family records:
Market Reports:

Answer 27

Statements of fact found in family Bibles, jewelry engravings, tombstones, etc., are admissible. CEC same as Federal Rule.

Market reports: Market reports and public compilations generally relied on by public or persons of a particular occupation are admissible. CEC same as Federal Rule.

Question 28

CA only Hearsay exception

Statements by child abuse victim in criminal case:

Answer 28

No federal counterpart.

Under CEC, in criminal cases, statements by a child describing acts of child abuse or neglect are admissible if:
* Child is a minor at time of trial and was under 12 years old at time of statement;
* Court finds that there are sufficient indicia of reliability; and * Child either
(1) testifies at trial or
(2) is unavailable.

If child is unavailable, statement must be corroborated by other evidence.
This is separate from California’s “medical diagnosis or treatment” exception for child victims and applies even where the child is not seeking medical treatment.

Question 29

CATCH-ALL EXCEPTION

Answer 29

FRE:
A hearsay statement not covered by specific exception can be admissible if:
* It is supported by sufficient guarantees of trustworthiness;
* It is more probative on the fact than any other evidence that the proponent can reasonably obtain; and
* Notice is given to the adversary as to the nature of the statement

CEC does not include a catch-all exception, but judges can create new hearsay exceptions by decisional law.