Hearsay

Question 1

Hearsay. California:

Answer 1

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.

Question 2

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.

Answer 2

1. Admission of party opponent (Opposing Party Statement in FRE).
2. Prior inconsistent statement of witness.
3. Prior consistent statement of witness now testifying at trial
4. Declaration against interest exception.
5. Former testimony exception.
6. Dying declaration exception.
7. Present sense impression exception.
8. Excited utterance exception
9. Exception for declaration of then existing physical or mental condition.
10. Exception for statement of past or present mental or physical condition made for diagnosis or treatment.
11. Business records exception
12. Public records exception
13. Exception for judgment of conviction

Question 3

Admission of party opponent (Opposing Party Statement in FRE). Federal and California:

Answer 3

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.

Question 4

Vicarious party admissions. Federal and California:

Answer 4

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).

Question 5

Negligence action against UPS. Plaintiff testifies UPS truck crashed through
her kitchen window and driver said, “I fell asleep while driving.”
Admissible?

Answer 5

Federal: Admissible - opposing party statement concerning matter within scope of employment during the employment relationship
CA: Admissible - as a vicarious party admission exception to hearsay rule because the employees negligence is what makes the employer liable under respondeat superior and thus are also responsible for his out of court statements

Question 6

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?

Answer 6

Federal: Admissible
CA: Inadmissible

Question 7

Prior inconsistent statement of witness. Federal and California:

Answer 7

PIS not hearsay if offered 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.

Question 8

Prior consistent statement of witness now testifying at trial.

Answer 8

Admissible under both Federal and California law if made before bribe or inconsistent statement. Not hearsay under FRE exemption to hearsay definition; hearsay but within exception under CEC.

Question 9

Declaration against interest exception. Federal and California:

Answer 9

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.”

Question 10

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?

Answer 10

Federal: Admissible - not a declaration against interest
CA: Inadmissible - statement against social interest

Question 11

Federal and California:

Unavailability

Answer 11

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.

Question 12

Former testimony exception. Testimony given in earlier proceeding or deposition by
a witness now unavailable is admissible in current proceeding if:

Answer 12

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.

Question 13

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…

Answer 13

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.

Question 14

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?

Answer 14

Federal: Inadmissible - no privity
CA: Admissible - similar interest

Question 15

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?

Answer 15

Federal: Inadmissible
CA: Admissible

Question 16

Dying declaration exception.

Answer 16

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.

Question 17

Present sense impression exception

Answer 17

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.

Question 18

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?

Answer 18

Federal: Admissible for all
CA: Only the stuff describing the declarent’s conduct is admissible, but not the stuff about joe and his knife

Question 19

Related California Exception: Statement describing infliction or threat of physical abuse (the “OJ Exception”). Watch out for Confrontation issue!

Answer 19

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.

Question 20

Murder prosecution. The government offers the sound recording of a telephone call Victim made to the police 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?

Answer 20

Federal: Inadmissible
CA: Admissible

Question 21

Excited utterance exception. Federal and California:

Answer 21

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.

Question 22

Exception for declaration of then existing physical or mental condition. Federal and
California:

Answer 22

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.

Question 23

Exception for statement of past or present mental or physical condition made for diagnosis or treatment.

Answer 23

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.

Question 24

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?

Answer 24

Federal: Admissible
CA: Inadmissible

Question 25

Related California exception: A statement of declarant’s past physical or mental condition, including a statement of intention, is….

Answer 25

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.

Question 26

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?

Answer 26

Federal: Inadmissible
CA: Admissible

Question 27

Business records exception.

Answer 27

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 business activity 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.

Question 28

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?

Answer 28

Federal: All Admissible
CA: Broken leg is admissible because its a simple diagnosis or opinion, but the PTSD would be inadmissible

Question 29

Public records exception.

Answer 29

No need to show declarant unavailable. Federal: The
record of a public office is admissible if it is within one of the following categories:

1. the record describes the activities or policies of the office;
2. the record describes matters observed pursuant to duty imposed by law (but not police reports in criminal cases); or
3. 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.

Question 30

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?

Answer 30

Federal: Inadmissible
CA: Admissible, but violates confrontation clause

Question 31

Exception for judgment of conviction.

Answer 31

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.

Question 32

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?

Answer 32

Federal: Admissible
CA: Judgment of conviction would be admissible under public records