Hearsay Flashcards
Hearsay.
California: Hearsay law is exempt from coverage of Truth in Evidence Amendment to California Constitution (Prop. 8). This means that, even in a criminal case, the usual rules of evidence apply.
Exceptions/Exemptions to the Hearsay Rule
While federal law has both exemptions to the hearsay definition and exceptions to the rule making hearsay inadmissible, California law has only exceptions.
- ) Admission of party opponent (Opposing Party Statement in FRE). What is the definition of admission in Federal and California?
- ) Vicarious party admissions. The rule of vicaroius party admission in Federal and California?
- ) Negligence action against UPS. Plaintiff testifies UPS truck crashed through her kitchen window and driver said, “I fell asleep while driving.” Admissible?
- ) Same case except driver acted properly and accident was caused by faulty brakes. Driver said, “The company mechanic sometimes forgets to check the brakes.” Admissible?
- ) Federal and California: Admission = statement by party, or someone whose statement is attributable to a party, offered by a party opponent. Federal: exemption to usual hearsay definition and, thus, not hearsay under Federal Rules. California: hearsay but admissible under exception in California.
- ) Federal and California : Statement of party’s authorized spokesperson is admission of party.
Federal: Statement by party’s employee is party admission (opposing party statement) of employer if it concerned matter within scope of employment and made during employment relationship.
California: Statement by party’s employee is party admission of employer only where negligent conduct of employee is basis for employer’s liability under respondeat superior (i.e., employer is responsible for employee’s words only if also responsible in tort law because of that employee’s conduct).
- ) Federal- Yes it is admissible.California- Not admissible. Speaker was not the employee whose negligence caused the employer to be liable. It was the mechanic’s negligence that caused it.
- ) Federal: Yes it is admissble as non-hearsay because it is a vicarious statement by an opposing party. Concerns a matter within the scope of his employment. Was still employed by the boss at the time of the statement. California- admissible. Analysis: the employees negligent act that makes UPS liable under respondeat superior and so UPS is also responsible for the driver’s words
_1.) Prior inconsistent statement of witness. (Rule) _
2.) Prior consistent statement of witness now testifying at trial (Rule
1.) Federal and California: PIS not hearsay ifoffered just to impeach. Federal: If given under oath, exemption to usual hearsay definition and not hearsay even if offered to prove truth of facts asserted, otherwise hearsay and inadmissible to prove those facts.
California: Hearsay if offered to prove truth of facts asserted but admissible under exception, which extends to all inconsistent statements of witness, whether or not under oath. (See p. 49 for hypos).
2.) Admissible under both Federal and California law if made before bribe or inconsistent statement. (See p. 19) Not hearsay under FRE exemption to hearsay definition; hearsay but within exception under CEC.
Declaration against interest exception. (Rule)
1.) Action for divorce. To prove adultery by husband, Donald Trump, Wife offers statement of Paris Hilton, a permanent resident of a psychiatric hospital in Europe, made during an interview for America’s Most Disgusting Celebrities: “I got drunk and had an affair with Trump.” Admissible?
Federal and California: A statement by unavailable declarant is admissible if, at time it was made, it was against financial interest of declarant or would have subjected declarant to criminal liability.
Federal only: In a criminal case, evidence offered to exculpate defendant (e.g., a confession of an unavailable declarant) defendant must offer “corroborating circumstances” showing that the declarant’s statement is trustworthy.
California only: Also within the exception is a statement against social interest because it risks making declarant an object of “hatred, ridicule, or social disgrace in the community.”
1.) Federal- No. It is not a crime. California- admissible because it is a statement against social interest.
When is a declarant deemed unavailable?
Federal and California: Declarant is unavailable if court exempts declarant from testifying due to privilege, declarant is dead or sick, or proponent of statement cannot procure declarant’s attendance by process or other reasonable means.
Following are two additional bases for unavailability applicable only under Federal law: declarant refuses to testify despite court order, declarant’s memory fails on the subject of her statement. If declarant suffers total memory loss or refuses to testify out of fear, California regards declarant as unavailable.
Former testimony exception.
Testimony given in earlier proceeding or deposition by a witness now unavailable is admissible in current proceeding if:
- ) Federal predecessor in interest v. California similar interest standards. An airplane crashes, killing passengers X and Y. Estate of X sues for wrongful death and Expert testified for Airline in that case. Expert then died. Estate of Y now sues Airline and Airline offers transcript of Expert’s testimony. Admissible?
- ) FT offered against party who offered it in previous proceeding. First proceeding was civil nuisance suit brought in small claims court against Airline for noise pollution. Airline offered Expert’s testimony in that case. Expert is now dead. Estate of Y now offers that testimony in wrongful death case against Airline. Admissible, even though issues in this case are different?
Federal and California: party against whom testimony is now offered was a party in the earlier proceeding, had opportunity to examine the witness, and its motive to conduct that exam was similar to motive it has now, or
Federal only: in a civil case, party against whom testimony is now offered was not a party in the earlier proceeding but is in a privity-type relationship with someone who was a party to that earlier proceeding (a “predecessor in interest”) and who had an opportunity and an interest to conduct that exam similar to the interests of the party against whom testimony is now offered, or
California only: in a civil case, party against whom testimony is now offered was not a party in the earlier proceeding but a party in that earlier proceeding had an opportunity to examine the witness and an interest to conduct that exam similar to the interests of the party against whom the testimony is now offered, or
California only: the former testimony is offered against the person who offered it in evidence in her own behalf in the earlier proceeding, or against a successor in interest of such person.
Related California law: deposition testimony given in the same civil action in which the hearsay is offered at trial is admissible for all purposes if the deponent is unavailable at trial or lives more than 150 miles from the courthouse. Otherwise, the former testimony exception does not apply to deposition testimony given in the same case in which the hearsay is offered at trial.
- ) Federal- Not admissible. California-Is admissible under the similar interest rule. Interest of X were similar to Y.
- ) Federal- No. Not admissible because neither of the two ways that Feds allow former testimony to work do not apply here. California- it is admissible because the evidence is being offered against someone who offered it in te first case.
- ) Dying declaration exception
- ) Present sense impression exception
- ) Murder prosecution. Defendant claims self-defense because, he claims, Victim acted in a threatening manner. Witness testifies she called Victim on night of the murder. Victim and witness were talking on the phone when Victim said “Joe” [the defendant] just walked in the room I am smiling and waving at him. Now it looks like wants to show me his survival knife. I’ll call you right back.” Is the statement admissible to show defendant was in the room with a knife? Admissible to show Victim was acting in a friendly way?
- ) Related California Exception: Statement describing infliction or threat of physical abuse (the “OJ Exception”). Watch out for Confrontation issue!
- ) Murder prosecution. The government offers the sound recording of a telephone call Victim made to 911 in which she calmly stated, “My former husband [Defendant] kicked me in the head 20 minutes ago.” When the police arrived Victim was unconscious. She later died of a brain injury. Admissible under Federal or California hearsay law to show the Defendant kicked Victim? If admissible under hearsay law, is there a Confrontation Clause objection?
1.) Federal: Declaration by person who believes he is about to die and describes cause/circumstances leading to his death is admissible in a civil action and in a homicide prosecution if declarant unavailable. Declarant need not die.
California: Exception applies in all civil and criminal cases and declarant must be dead.
2.) No need to show declarant unavailable.
Federal: A statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter.
California: exception is narrower: A statement explaining conduct of the declarant made while the declarant was engaged in that conduct.
- ) Federal: All is Admissible. California: statement about the defendant or about the knife is inadmissible. Statement about smiling or waving is admissible. Statement where declarant is stating their own action.
- ) Statement made at or near time of injury or threat, by unavailable declarant, describing or explaining infliction or threat, in writing or recorded or made to police or medical professional, under trustworthy circumstances.
- ) Federal Law- Not admissible. no hearsay exceptions apply. California- admissible under the OJ exception because it was a statement made near the time of injury by an unavailable witness describing her injury under trustworthy circumstances.
No this is not testimonial/ confrontation clause issue becaue the police are dealing with an emergency situation.
1.) Excited utterance exception.
2.) Exception for declaration of then existing physical or mental condition.
- ) Federal and California: Statements relating to startling event or condition are admissible when made while declarant was still under stress of excitement caused by event or condition. No need to show declarant unavailable.
- ) Federal and California: A statement of declarant’s then existing physical or mental condition or state of mind is admissible to show the condition or state of mind. But a statement describing a memory or belief is not admissible to prove the fact remembered or believed.
Exception for statement of past or present mental or physical condition made for diagnosis or treatment
- ) Personal injury action. Plaintiff, an adult, offers to testify that when he was taken to emergency room he told the doctor, “My back is killing me.” Admissible?
- ) Related California exception: A statement of declarant’s past physical or mental condition, including a statement of intention, is admissible to prove that condition if it is an issue in the case—no requirement that statement be made for medical purposes. Declarant must be unavailable.
- ) Same case. Plaintiff told a second patient in the emergency room, “I was feeling fine before the accident.” If plaintiff is now in a coma, can the other patient testify as to what plaintiff said?
No need to show declarant unavailable.
Federal: A statement describing past or present mental or physical condition of the declarant or of another person is admissible if made for and pertinent to medical diagnosis or treatment.
California exception is narrower: A statement of past or present mental or physical condition is admissible if made for medical diagnosis or treatment, but only if the declarant is a minor describing an act of child abuse or neglect.
- ) Federal- Yes. California- Nah. Not a kid
- ) Federal- NAH; California- admissible. Statement concerns speaker’s past physical contion and declarant is unavailable.
Business records exception
1.) Action for physical & psychological injuries arising out of auto accident. Plaintiff offers hospital record in which orthopedic surgeon stated “Plaintiff has broken leg” and in which psychiatrist stated “Plaintiff is suffering from post traumatic stress syndrome, which is likely to be permanent.” Admissible?
No need to show declarant unavailable.
Federal: Record of events, conditions, opinions or diagnoses kept in course of regularly conducted business activity is admissible if made at or near time of matters described, by person with knowledge of the facts, and it was regular practice of business to make such record. Court may exclude if untrustworthy.
California exception does not refer to opinions or diagnoses, but courts still will admit simple opinions and diagnoses: A record of events or conditions kept in course of regularly conducted businessactivity is admissible if made at or near time of matters described, by a person with knowledge of the facts in that record, and record is trustworthy.
1.) Federal- is all admissible. Federal Rules include business records that include opinions like this one. California- COurt would say the diagnosis that is simple is likely admissible but the PSTD diagnosis is likely inadmissible because it is complicated.
Public records exception.
1.) Criminal prosecution for vehicular homicide. Prosecution offers into evidence police report stating that police officer investigating the accident saw an empty vodka bottle in the cup-holder next to driver’s seat in defendant’s car. The bottle, with defendant’s fingerprints on it, has already been admitted. Admissible?
No need to show declarant unavailable.
Federal: The record of a public office is admissible if it within one of the following categories:
(i) the record describes the activities or policies of the office;
(ii) the record describes matters observed pursuant to duty imposed by law (but not police reports in criminal cases); or
(iii) the record contains factual findings resulting from an investigation made pursuant to authority granted by law, unless untrustworthy.
In a criminal case, prosecution cannot use (iii).
California does not place same restrictions on prosecution: Record made by a public employee is admissible if making record was within scope of her duties, record was made at or near the time of the matters described, and circumstances indicate trustworthiness.
1.) Fed- Not admissible because you can’t admit police reports in a criminal case. California- could be admitted because there is no such restriction. Could have a confrontation clause issue because this seems to be testimonial evidence
Exception for judgment of conviction.
No need to show declarant unavailable.
Federal: A felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment, but when offered by prosecution for purposes other than impeachment, judgments against persons other than the accused are inadmissible.
California: The specific exception for convictions applies only in civil cases. Prop 8 does not change this hearsay law. But, a certified copy of a judgment of conviction is admissible under the California public records exception in both civil and criminal cases.
1.) Prosecution for being a felon in possession of a firearm. Defendant denies he is a felon. The prosecutor offers into evidence a certified copy of the judgment of conviction of defendant for robbery, a felony. Admissible?
No need to show declarant unavailable.
Federal: A felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment, but when offered by prosecution for purposes other than impeachment, judgments against persons other than the accused are inadmissible.
California: The specific exception for convictions applies only in civil cases. Prop 8 does not change this hearsay law. But, a certified copy of a judgment of conviction is admissible under the California public records exception in both civil and criminal cases.
1.) Fedeal- Yes admissible. California- This exception does not apply in criminal cases. Would be admissible under the public records exception.
