Hearsay Flashcards
Hearsay and prop 8
- note: hearsay exempt from Prop 8, and thus must fall under a hearsay exception to be admitted;
- §352 balancing still required
Not-for-truth purposes
- FREv rules apply
Hearsay exceptions list in CA
• CA does not have exemptions, only exceptions
prior statements of a testifying witness, party opponent statements,
Unavailable declarants: prior testimony of unavalable witness, declarations against interest, dying declaration, statement describing infliction or threat of physical abuse, statement of mental or physical state in issue
Reliable testimony exceptions
present sense impressions, excited utterances, present state of mind, medical treatment or diagnosis, past recollection recorded, records of regularly conducted activity, absence of business records public records, absence of public records, ancient documents exception, learned treatise exception, judgment of conviction
Prior Statements of a Testifying Witness
- prior inconsistent statements
i. FREv: not hearsay and admissible for truth if made in under oath subject to cross
ii. CA: prior inconsistents statements of a witness are always admissible
a. hearsay, but admissible for truth regardless of if given under oath
b. there is a broad admissibility exception in CA for prior inconsistent statements of a witness now testifying at trial
iii. admissible to impeach in both (see impeachment) - prior consistent statements
i. CA: same analysis, but called hearsay and admissible under an exception in CA
Party Opponent Statements
- FREv: not hearsay
- CA: is hearsay but is admissible
- vicarious admission: the statements of certain other parties
i. FREv: includes employee statements made within scope of employment while employee
ii. but in CA: only in respondeat superior cases
a. employee’s words admissible against employee only when that employee’s negligence is the basis for employer’s liability under respondeat superior
iii. both allow authorized spokespersons speaking within scope of delegated authority
Unavailable declarant exceptions – what makes someone unavailable
i. FREv: invokes privilege, refuses to testify, cannot remember event in question, dead, or absent and cannot be compelled to appear
ii. CA:
a. refusal to testify is not unavailability, requires refusal to testify out of fear
b. failure of memory is not unavailability, requires total memory loss
Unavailable declarant exception– prior testimony of unavailable witness
i. FREv:
a. testimony made under oath and subject to comparable cross-examination
b. same subject matter as former action
c. in criminal cases– the parties must be the same
d. declarant was cross-examined by predecessor in interest (requires privity) with a similar motive and opportunity to develop the testimony (Federal only)
ii. CA:
a. made under oath
b. same subject matter
c. and either:
i) identity of parties or declarant is a successor in interest, or
ii) in civil cases, a similar motive and opportunity to develop the testimony
iii. summary:
a. in addition to made under oath:
b. FREv:
i) civil: same SM + oath + similar motive and opportunity
ii) criminal: same SM + oath + similar motive and opportunity + identity
c. CA:
i) civil: same SM + oath + (1) similar motive and opportunity, predecessor, identity
ii) criminal: same SM + oath + (1) predecessor or identity
iv. additional CA law: in the civil case in which the hearsay is offered, deposition testimony is admissible for all purposes if the deponent is unavailable or lives > 150 miles from the courthouse
a. otherwise, the prior testimony exception does not apply to that deposition testimony
Unavailable declarant exception: declaration against interest
i. FREv:
a. must be against penal, proprietary or financial interests
b. ∆ must reasonably believe it was against their interest
c. single remark
d. corroborating circumstances indicating reliability required for criminal cases
ii. CA:
a. can also be against social interests (because they make declarant an object of hatred, ridicule, or social disgrace in the community)
b. no corroborating evidence indicating reliability required for criminal cases
Unavailable witness: dying declaration
i. CA: the declarant has to actually die
Unavailable witness: statement describing infliction or threat of physical abuse
i. CA ONLY: no FREv counterpart, but similar to present sense impression
ii. requirements
a. description or explanation of infliction or threat
b. made at or near time of injury or threat, by unavailable declarant
c. in writing, recorded, or made to police or medical professional, under trustworthy circumstances
iii. may be testimonial (if made to police for litigation, and not just to deal with emergency), so watch for Confrontation clause
Unavailable witness: statement of mental or phsyical state in issue
i. CA ONLY: no FREv counterpart
a. similar to state of mind, but requires the state to be in issue
ii. CA only: statement of unavailable declarant’s past physical or mental condition, including statement of intent, admissible to prove that condition if it is in issue
a. no requirement that statement be made for medical purposes
Reliable testimony exceptions: present sense impressons
i. FREv: contemporaneous description or explanation of event or condition
ii. CA is narrower: narrower: contemporaneous explanation of declarant’s conduct
a. can only describe the declarant’s conduct, not anyone else
b. could use statement describing threat or infliction of physical abuse, but watch out for Confrontation issue
Reliable testimony exceptions: Excited utterances
i. same as FREv
Reliable testimony exceptions:: present state of mind
i. same as FREv
Reliable testimony exceptions: medical treatment or diagnosis
i. FREv: statements pertinent to treatment or diagnosis are generally admissible
ii. CA is narrower: statements of past or present physical condition for treatment or diagnosis, but only if declarant is a minor describing an act of child abuse or neglect
iii. CA only: could use unavailable declarant’s’ statement of present mental or physical state in issue (no requirement that statement be made for medical purpose)
