Hearsay Flashcards
What is the effect of Prop 8 on Hearsay?
Hearsay law is exempt from coverage of Prop 8. This means that even in a criminal case, the usual rules of evidence apply.
Does California have exemptions from hearsay?
NO, California only has exceptions to the hearsay rules.
What is an admission of a party opponent?
Statement by party, or someone whose statement is treated as as admission of that party.
What is an admission of a party opponent under California law?
Hearsay, but admissible under an exception in California
What is a vicarious party admission? What is it treated as?
A statement of authorized spokesperson for the party, it is treated as an admission of that party.
What is the rule regarding statements/admissions of employees of a party under federal law?
A statement by an employee of a party is a party admissible of employer if statement concerned matter within scope of employment and made during employment relationship.
What is the rule regarding statements/admissions of employees of a party under California law?
Statement by employee of a party is a party admission of employer only here negligent conduct of that employee is basis for employer’s liability in the case under respondeat superior.
In other words, employer is responsible for employee’s words, only if also responsible because of that employee’s conduct.
Negligence action against UPS. Plaintiff testifies UPS truck crashed through
her kitchen window and driver said, “I fell asleep while driving.”
Admissible?
FRE: Not hearsay, because this is an exemption, discussing a matter within the scope of employment and made during employment relationship
CEC: Hearsay, but admissible under exception for party admissions. Vicarious party admission b/c statement from truck driver was the negligent party that made the company liable under the tort doctrine of respondeat superior
Negligence action against UPS. driver acted properly and accident was caused by faulty
brakes. Driver said, “The company mechanic sometimes forgets to check the
brakes. ” Admissible?
FRE: Not hearsay b/c exemption, if statement w/in the scope of employment then arguably admissible
CEC: Hearsay and not admissible. The negligent party was not the driver, but the mechanic and to be vicariously liable for statements by employee, he must be the reason the company is subject to liability under respondeat superior.
Are prior inconsistent statements of witnesses hearsay?
FRE: Not hearsay if offered to impeach. 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.
CEC: 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.
Are prior inconsistent statements of witnesses now testifying at trial admissible if a bribe was given?
If the inconsistent statement was made before the bribe then yes under both FRE and CEC.
This is FRE exemption, CEC exception
What is the law regarding declarations against interests?
FRE and CEC: Admissible, if at the time it was made, it was against financial interest of declarant or would have subjected him to criminal liability
CEC: Also within the exception is a statement against social interests because it risks making the declarant an object of hatred, ridicule, or social disgrace in the community.
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?
FRE: Not admissible, not a declaration against financial interests or criminal liability
CEC: Admissible, statement against social interests
When is a declarant unavailable?
If the court exempts 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.
FRE: Declarant refuses to testify despite court order, declarant’s memory fails on the subject of her statement
CEC: IF declarant suffers a total memory loss or refuses to testify out of fear, regarded as unavailable.
What is the former testimony exception?
Testimony given in an earlier proceeding or deposition by a witness now unavailable.
When is former testimony admissible, generally?
FRE and CEC: if the party against whom testimony is now offered was a party in the earlier proceeding, had an opportunity to examine the witness, and its motive to conduct that exam was similar to the motive it has now
When is former testimony admissible in a civil case, in which the party against whom it is now offered was not a party to the earlier proceeding? (FRE)
FRE: 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 opporunity and an interest to conduct that exam similar to the interests of the party against whom testimony is now offered.
When is former testimony admissible in a civil case in which the party against whom it is now offered was not a party to the earlier proceeding? (CEC)
In a civil case, the 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
The former testimony is offered against the person who offered it in evidence on her own behalf in the earlier proceeding, or against a successor in interest of such a person!
NO privity relationship required.
Does the former testimony exception apply to deposition testimony in California?
Only if given in the same civil action in which the hearsay (depo) is offered at trial, it is admissible for all purposes if the deponent is unavailable at trial or lives more than 150 miles from the courthouse.
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?
FRE- No, two ways you can use former testimony exception, testimony offered today against someone who was a party in the first case or offering testimony today against someone who was not a party but had a predecessor in interest.
CEC: Admissible, under similar interest rule. X and Y had similar interest in the civil action, and because X had opportunity to examine Expert’s testimony this is permissible, no relationship required other than similar interest.
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?
FRE: Not admissible, you can admit former testimony against a party who was present only where there was a similar motive to examine the witness, in this case nuisance testimony will not have the same motive as wrongful death testimony
CEC: Admissible b/c evidence offered in the first case was by the party today, and therefore it can be used in a subsequent case against that party.
What is the dying declaration exception in California?
The declaration by a person who believes he is about to die and describes the cause/circumstances leading to his death, it is admissible in a civil action and in a homicide prosecution if declarant is DEAD!
What is the dying declaration exception in Federal court?
The declaration by a person who believes he is about to die and describes the cause/circumstances leading to his death, it is admissible in a civil action and in a homicide prosecution if declarant is unavailable, and need not be dead.
What is the present sense impression exception in California?
A statement explaining conduct of the declarant made while the declarant was engaged in that conduct. Must be conduct and must be presently engaging in it. Declaranant need not be unavailable.
