hearsay - CA

Question 1

Hearsay and Prop 8

Answer 1

herasay is exempt from Prop 8 so regular analysis

Question 2

CA hearsay - exemptions or exceptions?

Answer 2

ONLY EXCEPTIONS

Question 3

opposing party statement

Answer 3

admission - statement by party or someone whose statemnte is attributable to a party, offered y a party-opponent

F - exemption

CA - exception

Question 4

vicarious party statement

Answer 4

staemtn of party’s authorized spokeperson is an admission of party

F -statement by employee can be attributed to the mployer if it concerned matter within scope of employment and made during employemnt

CA - employee is ap rty admission of employer ONLY where NEGLIGENT CONDUCT of employee is basis for employer’s liability under RESPONDEAT SUPERIOR

E.G. if driver accident but caused by brakes and driver said “company mechanics sometimes forget to check brakes”
F- admissible as statement of employee in matter of employemnt
CA - not admissible becasue it’s not the driver’s negligence but meechanics

Question 5

prior inconsistent statement

Answer 5

F & CA - not hearsy if JUST offeredto impeach

F - if given under oath, not hearsay for all things

CA - hearsay if offered to prove the truth of the facts but admissible as an exception under hearsay

Question 6

declaration against interest

Answer 6

F & CA -

1. a statement
2. made by unavailable Declarant
3. admissible if at the time statmetn was mad eit was against FIN interest of delcarant or crim liability

F only - crim liability - must also show corroborating evidence

CA only - ADDITIONAL GROUND FOR STATEMETN AGAINST SOCIAL INTEREST

Question 7

unavailability

Answer 7

F & C -

1. court exempts decalarant from testifying due to privilege
2. Decelarant is dead or sick
3. proponent of statement cannor procure declarant’s attendance by reaonsbale means

F only - declarant refuses to testify or declarant’s memory fails

CA only - Declarant suffers total memory loss or declarant refuses to testify out of feare=

Question 8

former testimony exception

Answer 8

F&C - party against whom testimony is now offere was a party in the earlier proceeding, had an OPPORTUNITY to examin the W and its motive to conduct exam was similar motive

F only - civil only - party against whom testimony is now offered was not a party in the earlier proceeding but is in aprivyt type relationshp with someone who hwas a party in the earlier proceeding (predecessor in tinterest) and who had an opportunit and interest to conduct exam similar to interst of the party against whom tesitmony is now offered

CA only - civ - no privity / predecessory in interest - party against whom testimony is now offered was not a praty in teh earlier proceeding but a party in that earlier proceeding had an opportunity to examine the W and had intest to conduct that exam similar to interest of party

CA only - former testimony is offered against the person who offerd it in evidence in her own behalf in earlier proceedings

related CA - depo tesitomny admissible for all purposes if deponent is unavaible at atrial or more than 150 miles away

Question 9

predecessor in interest vs. similar interest standard

Answer 9

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?

FE - NO! no privity or precedessor in interest

CA - yes! because no need for precedessor in interest only similar interests

Question 10

Former testimony offered against party who offered it in previous proceeding

Answer 10

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?

FE - not admissible becasue although the party could cross they need a similar interest

CA - subject matter irrelevant. if the testiomny was admitted in the first case then it’s admitted in the second case

Question 11

Dying declration expcetion

Answer 11

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.

Fed - just unavailability vs. CA must be DEAD

FED - civ and homicide vs. CA all cases

Question 12

present snese impression

Answer 12

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.

so CA present sense impression must be about conduct of the declarant while negaged in conduct

Question 13

CA ONLY - statement descriving infliction or threat of physical abuse

Answer 13

Watch out for Confrontation issue! 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 14

statement of pas tor present mental or physical condition made for medical diagnosis or treatment

Answer 14

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.

basically medical diangosis or treatment exception only applies to child abuse or neglect in CA

Question 15

CA only exception for when a physical or mental condition is at issue

Answer 15

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.

basically if you say something about physical or mental condition to a 3P and you’re unavailable, it can come in.

Question 16

Business records exception

Answer 16

same in CA excpet courts will not let in opinions or diagnosies unless they rae simple

Question 17

Public Records exception

Answer 17

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 (3).

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.

POINT - YOU CAN ADMIT POLICE REPORTS BUT THE NHAVE TO EXAMINE CONFRONTATION CLAUSE

Question 18

exceptions for judgmnet of previous conviction

Answer 18

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.