Hearsay CA Flashcards
Exclusions v. Exemptions (Federal v. CA)
No Hearsay Exclusions in CA (they are all exceptions)
Note: The same rules might apply, but will just be called exceptions rather than exclusions)
Admissions of Party-Opponent
Federal: Exclusion, CA: Exception
A statement by a party, or by someone whose statement is attributable to the party, is admissible when offered against that party.
See also, vicarious admissions.
Vicarious Admissions
Statements of an authorized spokesperson or co-conspirator are admissible against the party as a vicarious statement.
Federal: the statement must concerned any matter within the scope of the agency or employment, and must have been made during the existence of the agency or employment relationship.
CA: Vicarious admission are admissible if the employer is responsible for the employee’s words via respondeat superior or in tort.
Prior Statements of Testifying Witnesses
COMPARISON: FEDERAL EXEMPTIONS v. CA EXCEPTIONS
1) Prior Inconsistent Statements
- FEDERAL: If made under oath, not hearsay
- CA: All prior inconsistent statements of witnesses, regardless of whether they were made under oath, are admissible as an exception to the hearsay rule.
2) Prior Statements of Identification
- FEDERAL: A statement of identification of a person as someone the witness perceived earlier is not hearsay.
- CA: A statement of identification of a person as someone the witness perceived earlier is not hearsay. However, in CA, the identification must have been of a person who participated in a crime or other occurrence, the witness must have made the identification while their memory was fresh, and the witness must confirm in court that they made the identification and that it truly reflected their opinion at the time.
3) Prior consistent statements
BOTH: A prior consistent statement that is admissible to rehabilitate a witness is also admissible as substantive evidence of the truth of its content
Grounds for Unavailability
SAME GROUNDS IN FEDERAL AND CA:
(1) Death or physical or mental infirmity
(2) privilege
(3) refusal to testify despite a court order, and
(4) absence and inability of the proponent to procure attendance by process or other reasonable means.
Memory Failure
FEDERAL: Declarant is unavailable if their memory fails on the subject matter of their statement.
CA: Declarant only considered unavailable if they suffer total memory loss.
Fear of Testifying
CA: Fear of testifying can be considered a mental infirmity that prevents the declarant from testifying.
Hearsay Exceptions where Unavailability is Required
FORMER TESTIMONY
Statement made under oath at same or at other proceeding at which the party against whom it is offered had motive and opportunity to develop testimony.
STATEMENT AGAINST INTEREST
Statement against declarant’s pecuniary, proprietary, or penal interest when made.
DYING DECLARATION
Statement made while declarant believed death was imminent, concerning the cause or circumstances of the impending death.
STATEMENT OF PERSONAL OR FAMILY HISTORY
Statement of personal or family history (e.g., birth, death, marriage) made by family member or one intimately associated with the family.
STATEMENT OFFERED AGAINST PARTY PROCURING DECLARANT’S UNAVAILABILITY
Statement of unavailable declarant offered against party who intentionally procured declarant’s unavailability.
CA ONLY:
* Statements describing the infliction or threat of physical injury
* Statements of past physical or emotional condition or state of mind, when at issue in the case
Statements Against Interest
Hearsay exception where the declarant must be unavailable
BOTH: A statement by an unavailable declarant is admissible if, at the time it was made, it was against the declarant’s pecuniary (money), proprietary (property), or penal (criminal) interest.
FEDERAL: If the statement would have subjected the declarant to criminal liability (e.g., the statement was a confession to the crime), the proponent must offer corroborating circumstances showing that the declarant’s statement is trustworthy.
CA:
* It does not include the corroboration requirement for statements subjecting the declarant to criminal liability.
* Applies to statements against the declarant’s social interest that would risk subjecting the declarant to “hatred, ridicule, or social disgrace in the community.”
Former Testimony
Hearsay exception where the declarant must be unavailable
BOTH: Statement made under oath at same or at other proceeding at which the party against whom it is offered had motive and opportunity to develop testimony (i.e., they were a party in the former action).
When this party was NOT a party in the former action, former testimony may still be admitted in civil cases if:
FEDERAL: That party’s predecessor in interest was a party in the former action.
CA: The party in the prior action had a similar interest
CA Additions:
- Former testimony admitted if it is offered against a person (or their successor in interest) who offered it in evidence on their own behalf at the prior proceeding
- Former deposition testimony is admissible for all purposes if the deponent: (1) is unavailable to testify at trial, or (2) lives more than 150 miles from the courthouse.
Dying Declarations
Hearsay exception where the declarant must be unavailable
FEDERAL: In a homicide prosecution or in any civil case, a statement made by a now-unavailable declarant is admissible if: (1) the declarant believed their death was imminent (they need not have died); and (2) the statement concerned the cause or circumstances of what the declarant believed to be their impending death.
CA:
* The exception applies in all criminal and civil cases.
* The declarant must have died as a result of what happened.
Statement Offered Against Party Procuring Declarant’s Unavailability
Obviously declarant must be unavailable
A statement of an unavailable declarant is admissible in any type of case when offered against a party who has engaged or acquiesced in wrongdoing that intentionally caused the declarant to be unavailable to testify.
CA: The judge has discretion to exclude the statement if it appears untrustworthy.
Hearsay Exceptions NOT requiring unavailability
Excited Utterance: Statement made while under stress of excitement of startling event.
Present Sense Impression: Statement made concurrently with perception of event described.
Present State of Mind: Statement of then-existing state of mind, emotion, or sensation.
Present Bodily Condition: Spontaneous declaration of physical symptoms.
Statement for Medical Diagnosis or Treatment: Statement of past or present physical condition, or the cause of the condition, made for the purpose of diagnosis or treatment
Recorded Recollection: Record by witness who cannot now remember the facts, made while the facts were fresh in her mind.
Business Records: Record made in the regular course of business, consisting of matters within the personal knowledge of one with a business duty to transmit. Lack of such record may be used to show nonoccurrence of event.
Public Records and Reports: Records and reports of public agencies regarding their activities, and records of births, deaths, marriages, etc. Absence of public record is admissible to show nonexistence of matter.
Judgments: A copy of a judgment of a prior felony conviction is admissible to prove any fact essential to the judgment. Federal criminal case: it may be used for this purpose only against the accused.
Ancient Documents: Statements in authenticated documents prepared before January 1, 1998.
Documents Affecting Property Interests (e.g., deed, will)
Learned Treatises: Statements from authoritative works admitted if called to attention of expert witness and established as reliable authority.
Reputation: Reputation evidence concerning a person’s character, a person’s personal or family history, land boundaries, or a community’s general history
Family Records: Statements of fact found in family Bibles, jewelry engravings, tombstones, etc.
Market Reports: Market reports and public compilations generally relied on by the public or persons of a particular occupation.
Residual Catch-All Exception (Federal yes, CA no)
ADDITIONAL CA EXCEPTION: Statements by Child Abuse Victim in Criminal Case
- Criminal cases only
- The court must find sufficient indicia of reliability
- Either the child must testify at trial, or if the child is unavailable, there must be evidence to corroborate the child’s statement (BUT WATCH FOR CONFRONTATION CLAUSE ISSUE)
Present Sense Impressions
Hearsay exception where the declarant’s unavailability is immaterial
Federal Rules: A statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition, is admissible as a present sense impression.
CA: Applies only when a statement explains the declarant’s own conduct, and is made while the declarant was engaged in that conduct.
Statement Describing Infliction or Threat of Physical Abuse
CA ONLY: Hearsay exception where declarant is unavailable
A statement made by an unavailable declarant that describes the infliction or threat of physical injury on the declarant is admissible if the statement (1) was made at or near the time of the infliction or threat, was either in writing, recorded, or made to a law enforcement official or medical personnel, and (3) was made under circumstances that indicate trustworthiness
Excited Utterances
A statement relating to a startling event, made while the declarant was under the stress of the excitement from the event, is admissible.
CA calls them spontaneous statements
Statements of Present State of Mind or Condition
A statement of the declarant’s then-existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition is admissible.
NOTE: A statement of memory or belief is not admissible to prove the fact remembered or believed.
CA: Trial judge has specific discretion to exclude statements that are made under circumstances that indicate a lack of trustworthiness.
