4 types of Non-hearsay?
- 1. Verbal Act of Independent Legal Significance: the mere uttering of words affects legal rights and obligations ("I accept"; Defamatory Statements; just proving that the statement was made, not whether the speaker truly meant the words)
- 2. Effect on Listener: does not matter whether the statement was true or not, all that matters is the effect the statement had on the listener.
- 3. Verbal Object: Statement offered to show speakers knowledge of facts stated not whether or not the facts are true (gang leader with a phone number of a defendant on a piece of paper in his pocket shows defendant was gang member bc leader knows him)
- 4. Circumstantial evidence of state of mind: (? says I am Dracula not hearsay because we know he is not the Count it is offered to prove his state of mind)
- Admissible b/c not hearsay (dont write the rule for basic hearsay)
- 1. Admission by Party Opponent
- 2. Prior inconsistent statements given under oath
- 3. Prior consistent statement offered to rebut a charge of recent fabrication or improper influence
- 4. Prior identification of a person made after perceiving the person
- hearsay but admissible (write the basic rule for hearsay)
- Exceptions requiring unavailability: ?
- 1. Former Testimony Exception (Decl. must be unavailable)
- 2. Declaration against interest (Decl must be unavailable)
- 3. Dying Declaration (Decl must be unavailable)
- State of Mind Exceptions: ?
- 4. Excited Utterance
- 5. Present Sense Impression
- 6. Declaration of Then-Existing physical or mental condition
- 7. Statement of Past or Present Mental or Physical Condition
- Misc. Exceptions: ?
- 8. Business Records
- 9. Public Records
- 10. Judgment of Previous Conviction
Admission by Party Opponent
- statement made by a party (or by someone whose statement is attributable to a party) offered by a party-opponent. Doesnt have to be a harmful statement (we dont worry about the content of the statement unless it is a declaration against interest)
- FRE: exemption, not hearsay
- CA: hearsay, but admissible as an exception
- NOT subject to personal knowledge or (legal) opinion rule
Vicarious Party Admission
- FRE: statement by --
- 1. an authorized spokesperson (Authorization can be express or implied) or employee of party
- 2. concerning matter within scope of employment and
- 3. made during employment relationship
- CA: employer is responsible for employee's words only if it is also responsible in case because of that employee's conduct (that employee was the one who was negligent)
a nonparty makes a statement and party indicates belief in its truth
not hearsay if made during course and in furtherance of conspiracy
Prior inconsistent statements given under oath
Prior consistent statement offered to rebut a charge of recent fabrication or improper influence
Prior identification of a person made after perceiving the person
- FRE: exemption
- Foundation requirement: witness must testify at trial and be subject to cross-examination
Former Testimony Exception
- Decl must be unavailable
- Testimony given in an earlier proceeding or deposition by a unavailable person is admissible if:
- 1. Fed & Cal: The party against whom the testimony is now offered had (during earlier proceeding) an opportunity to examine the witness, and similar motive to conduct exam as in present case; OR
- 2. Fed: In CIVIL case, party against whom testimony now offered wasnt present in earlier proceeding, but is a successor in interest (has close privty-type relationship) to party in earlier proceeding who had opportunity and similar motive to examine witness in earlier proceeding. Cal: no predecessor in interest requirement, just requires similar interest (in civil cases)
- 3. Cal Only: the former testimony is offered against the person who offered it in evidence on her own behalf in the earlier proceeding, or against the successor in interest of such a person.
- 4. Cal only: deposition testimony given in the same civil action in which the hearsay is offered at trial is admissible for all purposes if the deponent is unavailable or lives more than 150 miles from the courthouse. Otherwise, former testimony exception does not apply to deposition testimony given in the same case in which the hearsay is offered at trial.
Declarant unavailable if?
- 1. Court exempts the declarant from testifying due to privilege
- 2. Declarant is dead or sick
- 3. The proponent of the statement cannot procure declarant through reasonable means
- 4. FRE: also includes situations where the declarant refuses to testify or the declarant cannot remember
- 5. Cal: also includes total memory loss or refuses to testify out of fear
Declaration against interest
- Decl must be unavailable]
- Statement made by unavailable declarant is admissible if, at the time it was made, it was against:
- 1. financial interest of declarant or
- 2. criminal liability (would subject D to criminal liability)
- Fed: if statement offered to exculpate the excused, there must be corroborating evidence to admit the statement.
Statement against social interest
- Cal Only: stmt risks making the declarant an object of hatred, ridicule or social disgrace in the community
- e.g., admitting to an affair with a married person
- Decl. must be unavailable:
- Declaration made by a person who believes he is about to die which describes circumstances leading to his death is admissible in any civil action and, in a criminal case, only for a homicide prosecution (Attempted murder not a homicide). Declarant does not have to die, but must be unavailable.
- Fed: declarant does not have to die, but statement must describe circumstances leading to death and made by a person who thinks hes about to die.
- Cal distinction: applies in ALL civil and criminal cases and the declarant must be dead
- unavailability doesn't matter
- statements relating to startling event or condition are admissible when made while declarant was still under stress of excitement caused by the event or condition
Present Sense Impression
- statement describing or explaining an event or condition made while declarant was perceiving the event or condition, or immediately after.
- If this is past tense, any amount of time, not a present sense impression.
- Cal: narrower, only statements explaining the declarants own conduct, not what the declarant sees, are admissible
OJ Exception [CA Only!]
- statements describing infliction or threat of physical abuse admissible if:
- 1. Made at or near the time of injury or threat
- 2. by unavailable Declarant
- 3. Describing or explaining the injury or threat
- 4. In writing or recorded, or made to police or medical professionals under trustworthy circumstances
- Note: watch out for Confrontation Clause problem when a statement is given to the police in a non-emergency situation (thus testimonial), the declarant must be available to be cross-examined.
Declaration of Then-Existing physical or mental condition
- admissible to show the condition or state of mind.
- But statement describing a memory or belief is not admissible to prove the fact remembered or believed. Intent is a mental condition, and it is permissible to infer action in accordance with that intention. present tense
- Also admissible to prove future conduct
- But statement of memory not admissible to prove the fact remembered
Statement of Past or Present Mental or Physical Condition (made for medical diagnosis or treatment)
- Fed: hearsay statement concerning the past or present mental or physical conditions, or its cause, of that person or any other person, is admissible if made for medical diagnosis or treatment, but only the part of the statement that is related to the medical diagnosis or treatment. (Does not require the statement to be made to a doctor!)
- Cal: narrower, stmt of past or present condition is allowed only if declarant is a minor describing an act of child abuse or neglect
Statement of past condition, including statement of intention
- admissible to prove that condition if it is an issue in the case no requirement that the statement be made for medical purposes but the declarant must be unavailable.
- Ex: in personal injury action, p tells another patient in the ER, I was feeling fine before the accident. If p is now in a coma, admissible? NO under FRE (doesnt apply to any exceptions). IS admissible in Cal b/c of exception (stmt of past physical condition, which is now at issue, and speaker is unavaiable).
Business Records Exception:
- Decl availibility irrelevant
- Hearsay is admissible if it . . .
- 1. A record of events, conditions, opinions or diagnosis;
- 2. Kept in course of regularly conducted business activity;
- 3. Made at or near time of event described;
- 4. By a person with knowledge; and
- 5. It was regular practice of business to make such a record.
- 6. But the court may exclude if untrustworthy.
- Statements in the record must be made by employees in the course and scope of employment. Statements made by anyone else that is on the business record cannot be admitted under this exception.
- Cal: only records of events, conditions; simple opinions/diagnosis are ok, complex opinion/diagnosis not ok
Public Records Exception
- Decl. avail irrelevant
- Hearsay record of a public office admissible if it:
- 1. Describes the activities and policies of the office;
- 2. Describes matters observed pursuant to duty imposed by law, but not police reports in criminal cases (made by public employee); or
- 3. Contains factual finding resulting from investigation made pursuant to authority granted by law, unless untrustworthy.
- FRE: Criminal case, prosecution cannot use #2 or #3
- CA: does not place restrictions on prosecution (Look for CC issues for police reports including a stmt given to police)
Judgment of previous conviction
- hearsay statement describing felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment.
- (misdemeanors inadmissible)
- But if offered by prosecution for purposes other than impeachment, judgments against persons other than accused are inadmissible.
- CA: may only use this exception for civil cases, not crim. But Prop. 8 allows impeachment using criminal convictions for moral turpitude.
- Cal: but if certified copy of judgment of conviction is admissible under California public records exception, then would be admissible.