Hearsay

Question 1

Federal Rules of Evidence re hearsay

Answer 1

801 - 807. Defined in 801.

Question 2

Res Gestui

Answer 2

“Things Done” in Latin. Exceptions include dying declarations, excited utterances, and present sense impressions.

Question 3

801 of the FRE

Answer 3

Hearsay is an out of court statement offered for the truth of the matter asserted

Question 4

Cal Evidence Code section 1200(b)

Answer 4

Prohibition of hearsay evidence, except as provided by law.

Question 5

Cal Evidence Code section 1200(a)

Answer 5

Evidence of a statement that was made other than by a witness while testifying AND that is offered to prove the truth of the matter asserted = Hearsay.

Question 6

Hearsay in California

Answer 6

Evidence Code Division 10, chapter 1 general provisions (sections 1200 - 1205), chapter 2 exceptions (1220 - 1390).

Question 7

1252 of Evidence Code

Answer 7

Evidence of a statement of past or present mental state is inadmissible if the statement was made under circumstances that indicate it’s lack of trustworthiness.

People v Edwards (1991) 54 Cal3d 787 refused to allow an accused killer who did not testify to introduce his notebook prepared after homocide or taped statement to police.

Question 8

Business Records Exception in California

Answer 8

Evid C 1271

Question 9

806 of the FRE

Answer 9

If one piece of hearsay is admitted against a person, then other hearsay by that person may be admitted

Question 10

Residual Exception under FRE

Answer 10

Rule 807. If hearsay does not fit into an exception in FRE 803 or 804, but it’s very reliable and the court needs it, it may be admitted with notice to the adverse party and their reasonable opportunity to oppose it.

Question 11

Spontaneous Statements in Cal Evidence Code

Answer 11

Section 1240

Question 12

Previously recorded recollections under Cal Evidence Code

Answer 12

Section 1237

Question 13

Statements against Interest in Cal Evidence Code

Answer 13

Section 1230

Question 14

804 of FRE

Answer 14

Exceptions but only if declarant is unavailable: admissions against interest, prior testimony under oath, and statements against a party who wrongfully caused a Witnesses unavailability.

Question 15

Two sections of Evidence Code re prior inconsistent statements

Answer 15

1235 - to show inconsistency withW’s statement on the stand.

1236 - if a prior inconsistent statement is presented at trial to rebut claims that testimony is fabricated or biased.

Question 16

Declarant

Answer 16

A human, not an animal or machine

Question 17

Statement

Answer 17

Means assertive. Not a question or command. Nonverbal conduct that is assertive may also be a statement such as pointing in a police lineup.

Question 18

Common examples of statements that are not for truth of matter asserted.

Answer 18

Establish W’s identity
Show effect on listener
Establish speakers state of mind
Show independent legal significance

Question 19

John Henry Wigmore’s explanation for the exceptions in On Evidence (1904)

Answer 19

Reliability and Need

Question 20

Advisory Committee Notes on Rule 802 re good qualities of witness testimony

Answer 20

Narrative
Perception
Memory
(Sincerity)

Question 21

Law prefers witness testimony that is

Answer 21

Live before the trier of fact

Under oath

Subject to Cross-examination

Question 22

801(d) of FRE

Answer 22

It’s NOT hearsay if it’s

witness on the stand or

Party admission

Question 23

Crawford v Washington

Answer 23

541 US 36 (2004) Scalia decision

admission of “testimonial hearsay” against a criminal defendant violates the Sixth Amendment right to confront witnesses, unless declarant is unavailable to testify & defendant had a prior opportunity to testify.

Question 24

Where is hearsay defined?

Answer 24

FRE 801(c)
and
Cal Evid Code 1200(a)

Question 25

“Statement” in California hearsay law

Answer 25

Either
(A) an oral or written expression,
Or
(B) nonverbal conduct intended by the actor (or reasonably subject to interpretation) as a substitute for oral or written expression.

Question 26

Hearsay statements by implication

Answer 26

A statement is hearsay if offered to prove the truth of a matter stated BY IMPLICATION. This is true only when it is reasonable to conclude either (a) the declarant actually intended the implied statement, or (b) a reasonable person on hearing the express statement would believe declarant intended to make the implied statement.

Question 27

Multiple Hearsay rule

Answer 27

In cases of multiple levels of hearsay, each level must be analyzed separately to determine if it’s hearsay or falls within an exception, per Evid C s 1201.

Question 28

Is a proposal to perform an act hearsay?

Answer 28

No, because it is neither inherently true nor false.

Question 29

Non hearsay must still be relevant. Cites for Cal Evid Code

Answer 29

Sections 210, 350, 351

Question 30

Examples of Independent Legal Significance

Answer 30

Misrepresentations, fraudulent intent, defamation, contract formation, property transactions, authorization or consent, promissory note, discrimination, supervisors’ harassing behavior