Hearsay & Its Exceptions

Question 1

Are questions hearsay?

Answer 1

No. This is because questions are frequently devoid of factual assertions and instead are uttered in order to acquire information.

Question 2

Are demands such as “give me your money!” and “get out of the car!” hearsay?

Answer 2

No. These statements can have a significant impact or effect even if the person uttering them is lying or exaggerating. Accordingly, the reliability concerns underlying the hearsay rule are not presented by admission of these
statements, and they are not hearsay.

Question 3

Are lies hearsay?

Answer 3

No. Provable lies are being offered not for the truth of the matter, but to show a consciousness of guilt, and possibly a further conspiracy to avoid arrest and detection. Neither the hearsay rule nor the Bruton line of cases should prevent admission of these statements in evidence.

Question 4

What are the three most commonly used hearsay exceptions?

Answer 4

Statements by party opponents, statements of identification, and prior inconsistent statements.

Question 5

What Evidence Code section governs statements by a party opponent?

Answer 5

Evidence Code section 1220.

Question 6

When the police say, “anything you say can and will be used against you in court,” they are also stating the rule behind which Evidence Code section?

Answer 6

Evidence Code section 1220, which creates a hearsay exception for statements by a party opponent.

Question 7

Can a codefendant admit a statement of another codefendant under the hearsay exception for statements of a party opponent?

Answer 7

No. Defendants are co-parties in criminal cases and therefore may not invoke section 1220 to admit the hearsay statements of other defendants.

Question 8

What is the most important thing to remember about prior testimony?

Answer 8

Recorded hearsay statements of witnesses must be played and/or admitted at preliminary hearing in order to preserve the recording’s admissibility at trial. If the declarant’s prior recorded statements were not played, you are stuck. You cannot later supplement the declarant’s prior testimony with hearsay statements.

Question 9

What are the two companion hearsay exceptions to section 1220, statements by a party opponent, in criminal case?

Answer 9

Adoptive admissions under section 1221 and co-conspirator hearsay under section 1223.

Question 10

What is an important thing to remember about adoptive admissions under section 1221 and co-conspirator hearsay under section 1223?

Answer 10

You must establish their factual foundations to both the judge and jury. (Evid. Code, § 403.)

Question 11

What are the elements of an adoptive admission under Evidence Code section 1221?

Answer 11

1. The statement was made to the defendant or made in his presence;
2. The defendant heard and understood the statement;
3. The defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true; and
4. The defendant could have denied it but did not.
   (CALCRIM 357.)

Question 12

What are the elements of the hearsay exception for statements of a coconspirator?

Answer 12

1. Some evidence other than the statement itself establishes that a conspiracy to commit a crime existed when the statement was made;
2. The declarant was a member of and participating in the conspiracy when he/she made the statement;
3. The declarant made the statement in order to further the goal of the conspiracy; AND
4. The statement was made before or during the time that the defendant was participating in
   the conspiracy.
   (CALCRIM 418.)

Question 13

For hearsay purposes, can statements made before a person joined the conspiracy be admitted against them?

Answer 13

Yes, you take the conspiracy as you find it for hearsay purposes. By contrast, for liability purposes, one cannot be found guilty as a member of a conspiracy for crimes committed by the conspiracy before he joined it.

Question 14

If a hearsay statement is admissible against one co-defendant under Evidence Code section 1220, 1221, or 1223, is it admissible against all of them?

Answer 14

Generally, no. For Evidence Code sections 1220, 1221, and 1223, the qualifying hearsay statements are only admissible against either the party who said them, the party who adopted them, or the party that was a co-conspirator, not all co-defendants generally.

Question 15

What code section contains the hearsay exception for declarations against interest?

Answer 15

Evidence Code section 1230.

Question 16

Can a declaration against interest be admitted against a co-defendant who is not the declarant and was not present when the declaration was made?

Answer 16

Yes. Declarations against interest are by definition so incriminating to the declarant, and therefore so reliable, that they can be introduced against others named in the incriminating statement even if those persons were not present when the statement was made.

Question 17

Can you use section 1230 to admit a declaration against interest if the declarant is available to call as a witness?

Answer 17

No. The declarant must be unavailable in order to use section 1230.

Question 18

Imagine a case against two co-defendants. One makes a statement against interest. Can we use section 1230 to introduce that statement against the other co-defendant?

Answer 18

Yes. Normally a witness must be unavailable to introduce their statement against interest. Here, the co-defendant could, in theory, be called as a witness. But if the declarant is a co-defendant, unavailability is established by statute, as a defendant has a right not to be called as a witness in a criminal case. (Evid. Code, § 930.)

Question 19

Are declarants who are in custody unavailable as a witness?

Answer 19

No. In-custody witnesses are available. Even if the declarant is in custody, even if he would clearly be privileged to refuse to answer questions if called as a witness, you must summon him to the witness stand, absent a stipulation of unavailability.

Question 20

What if you need to locate a witness in order to establish that they are unavailable?

Answer 20

If the declarant cannot be located, you must establish that you sough to secure his attendance through due diligence.

Question 21

Is proof that a declarant is residing in another state or county enough to show unavailability?

Answer 21

No.

Question 22

Can the declaration against interest hearsay exception be used to admit testimonial statements, such as statements to police officers or at a deposition?

Answer 22

No. If a declarant is legally unavailable, only his non-testimonial declarations against interest may be admitted in a criminal case against a defendant who did not make the statement.

Question 23

Do self-serving statements and blame shifting statements qualify as declarations against interest?

Answer 23

No.

Question 24

What does Penal Code section 1111 provide?

Answer 24

It says that a person cannot be convicted on the testimony of an accomplice unless it is corroborated by some other evidence connecting the defendant to the crime.

Question 25

What evidence code sections cover prior hearsay statements of witnesses?

Answer 25

Evidence Code sections 1235 through 1238. For these sections to apply, the declarant must testify at the trial or hearing.

Question 26

Must a declarant testify at the trial or hearing for the prior hearsay statements of witnesses exceptions to apply? (See Evid. Code §§ 1235-1238.)

Answer 26

Yes.

Question 27

What Evidence Code section allows the introduction of a witness’s prior inconsistent statements?

Answer 27

Evidence Code section 1235.

Question 28

What section of the Evidence Code should be read in conjunction with Evidence Code section 1235 on inconsistent statements?

Answer 28

Evidence Code section 770.

Question 29

What does Evidence Code section 770 require?

Answer 29

It gives two requirements to impeach a witness with their inconsistent statement:
1. an opportunity to explain or deny the statement while testifying; or
2. the witness has not been excused.

Question 30

What Evidence Code section allows the introduction of a witness’s prior consistent statements?

Answer 30

Evidence Code section 1236.

Question 31

What section of the Evidence Code should be read in conjunction with Evidence Code section 1236 on consistent statements?

Answer 31

Evidence Code section 791.

Question 32

What does Evidence Code section 791 require?

Answer 32

Evidence of a prior consistent statement may be introduced after:
1. introduction of a prior inconsistent statement; or
2. an express or implied charge has been made that the witness’s testimony was recently fabricated or is influenced by bias or other improper motive, and the statement was made before either bias, motive for fabrication or other improper motive is alleged to have arisen.

Question 33

Assume an accomplice to a robbery accepts a lesser sentence in exchange for testifying against another accomplice. Often a defense lawyer will seek to attack the accomplice-witness’s credibility by showing that he has a motive to testify favorably for the prosecution, that being the pending plea deal. How can Evidence Codes section 1236 be used in this situation?

Answer 33

If the accomplice-witness had made a consistent statement well before the plea deal was ever contemplated, that consistent statement should be admitted both to rehabilitate credibility and for the truth of the matter asserted.

Question 34

What Evidence Code section governs “past recollection recorded”?

Answer 34

Evidence Code section 1237.

Question 35

What does Evidence Code section 1237, discussing past recollection recorded, provide?

Answer 35

Prior written statements are admissible when the statement:
1. Was made at a time when the facts were fresh in the witness’s memory;
2. Was written by the witness or at his direction;
3. Is offered after the witness testifies that the statement was a true statement; and
4. Is offered after the writing was authenticated.

Question 36

Can a writing, admissible under Evidence Code section 1237 as a past recollection recorded, be admitted into evidence?

Answer 36

Only by an adverse party.
(Evid. Code, § 1237 subd. (b).)

Question 37

Imagine that a witness is testifying. They made a key statement to police that they cannot now recall. Efforts to refresh their memory fail. What should you do?

Answer 37

Use the past recollection recorded exception to the hearsay rule. (Evid. Code, s 1237.) Have the police officer who documented the statement authenticate the report and read it into evidence verbatim. The report itself will not be admitted as an exhibit.

Question 38

What Evidence Code section governs prior statements of identification?

Answer 38

Evidence Code section 1238 allows for the admission of prior hearsay statements of identification made by testifying witnesses.

Question 39

What hearsay exception is contained in Evidence Code section 1238?

Answer 39

Section 1238 allows for the admission of prior hearsay statements of identification made by testifying witnesses.

Question 40

What foundation must you lay with a witness to allow the admission of a prior hearsay statement of identification?

Answer 40

The witness must testify that he truthfully made the identification and that he made the identification when the crime or other occurrence was fresh in his mind. (Evid. Code, § 1238.)

Question 41

What is the correct terminology for what the Federal Rules of Evidence call “excited utterances”?

Answer 41

“Spontaneous statements.” (See Evid. Code, § 1240.)

Question 42

What Evidence Code section contains the hearsay exception for dying declarations?

Answer 42

Evidence Code section 1242.

A dying declaration is similar to a spontaneous statement in that the declarant describes the cause and circumstances of his/her death, at a time when death appears imminent. By definition a dying declaration must come from an unavailable, e.g. dead, declarant.

Question 43

What Evidence Code section contains the hearsay exception for statements of defendants then existing physical or mental state?

Answer 43

Evidence Code section 1250. The state of mind exception allows for the admission of hearsay statements describing the declarant’s then existing mental, emotional, or physical condition, and includes statements of the declarant’s intent or plan, but not statements of memory or belief.

Question 44

Are statements like, “I feel sick,” “I’m angry at Johnny,” or “I’m scared of Andre” admissible hearsay?

Answer 44

Yes. They are hearsay statements describing the defendant’s then existing mental, emotional, or physical condition, or statements of the declarants intent or plan, but not statements of memory or belief. (Evid. Code, § 1250.)

Question 45

Are statements like “I believe Jimmy killed Karen,” or “Jimmy was the last person I saw with Karen before she disappeared,” admissible through the “state of mind” exception to the hearsay rule?

Answer 45

No. These are statements of memory or belief that do not qualify as admissible state of mind hearsay. (See Evid. Code, § 1250.)

Question 46

Is a the statement, “I plan to go to Las Vegas” admissible as a statement of physical or mental state? (Evid. Code, § 1250.)

Answer 46

Yes. Evidence Code section 1250 creates a hearsay exception for statements of a declarant’s mental or physical state. This exception includes statements of the declarant’s intent or plan.

Question 47

Are there any restrictions on admissibility of statements of mental or physical state?

Answer 47

Yes. (See Evid. Code, § 1252.)

This section provides that a statement is inadmissible if it “was made under circumstances such as to indicate its lack of trustworthiness.”

Question 48

How does Evidence Code section 1252, the trustworthiness requirement for state of mind hearsay, work in practice?

Answer 48

In practice, section 1252 prevents defense lawyers from successfully admitting the self-serving hearsay statements of their clients.

Question 49

What is a restriction on admissibility of statements of mental or physical state?

Answer 49

Evidence of hearsay statements describing the defendant’s then existing mental, emotional, or physical condition, or statements of the declarants intent or plan are “inadmissible […] if the statement was made under circumstances such as to indicate its lack of trustworthiness.” (See Evid. Code, § 1252.)

Question 50

What Evidence Code section contains the hearsay exception for business records?

Answer 50

Evidence Code section 1271.

Question 51

What elements must be shown to admit a business record?

Answer 51

1. The writing must be made in the regular course of business;
2. It must be made at or near the time of the act, condition, or event;
3. The custodian or other qualified witness must testify about how it was prepared; and
4. The sources of information and method and time of preparation were such as to indicate its trustworthiness.
   (See Evid. Code, § 1271.)

Question 52

What is the main distinction between admission of a business record and admission of a public record?

Answer 52

The public records exception dispenses with the need for a custodian’s testimony that the records in questions are generated by a public agency under a duty to generate and keep the records.

Question 53

What Evidence Code section contains the hearsay exception for public records?

Answer 53

Evidence Code section 1280.

Question 54

What elements must be shown to admit a public record?

Answer 54

1. The writing must be made by and within the scope of duty of a public employee;
2. The writing was made at or near the time of the act, condition, or event;
3. The sources of information and method and time of preparation were such as to indicate its trustworthiness.
   (See Evid. Code, § 1280.)

Question 55

What Evidence Code section contains the hearsay exception for prior testimony?

Answer 55

Evidence Code section 1291.

Question 56

What type of hearsay is allowed under Evidence Code section 1291, the prior testimony hearsay exception?

Answer 56

If an unavailable declarant previously testified at trial or preliminary hearing, was subject to cross-examination, and the defense had a similar motive to cross-examine then as now, the prior testimony is admissible.
(See Evid. Code, § 1291.)