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A primer on hearsay evidence
By Daniel Buckley

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One of the most common evidentiary issues that arises in both civil and criminal litigation is whether an out-of-court statement should be excluded due to the hearsay rule. Both bench officers and attorneys should be familiar with the basic principles regarding this aspect of law.

The objective of this article and accompanying self-study test is for readers to be able to determine the admissibility of statements under the hearsay rule. Readers will learn about the definition of hearsay and the most common statutory exceptions to the hearsay rule, including the requirement that a declarant be unavailable for admission of statements under some of the exceptions. (Note: In a criminal case, even if a statement is admissible under an exception to the hearsay rule, it may still be inadmissible due to the confrontation clause of the Sixth Amendment under Crawford v. Washington, 541 U.S. 36 (2004). The confrontation clause is outside the scope of this article.)

Hearsay Basics

Hearsay is defined as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." EC 1200(a). If a statement is hearsay and it does not fall within an exception, it is inadmissible under this section. EC 1200(b).

A "statement" need not be verbal. Assertive conduct may be a "statement" if intended by a declarant as a substitute for oral or written verbal expression. EC 225.

A statement offered to prove something other than the truth of the matter is not hearsay. For example, a statement is not hearsay if offered to prove the state of mind of the person who heard the statement (People v. Hill, 3 Cal. 4th 959 (1992), overruled on another ground by Price v. Superior Court, 25 Cal. 4th 1046 (2001)) or if admitted to prove the purpose for which a location was being used (People v. Dalton, 172 Cal. App. 2d 15 (1959)). Of course, even if the statement is not hearsay, it will only be admitted if it is relevant to some issue in the case. EC 350.

If a statement is hearsay, even if it does not fall within a statutory exception, special rules applicable to the proceeding at issue may nonetheless render it admissible. For example, some hearsay is admissible at a preliminary hearing (PC 872(b)), at child dependency hearings (In re Carmen O., 28 Cal. App. 4th 908 (1994)), at small claims proceedings (Houghtaling v. Superior Court, 17 Cal. App. 4th 1128 (1993)), and at probation violation hearings (People v. Maki, 39 Cal. 3d 707 (1985); People v. Arreola, 7 Cal. 4th 1144 (1994)). Parties may also agree, or stipulate, to admission of an otherwise inadmissible statement.

If the statement is hearsay, the parties do not agree to its admission, and the proceeding is not a dependency hearing or one of the other special tribunals where hearsay is admissible, the statement will be admitted into evidence it falls within an exception to the hearsay rule.

With respect to some of the exceptions, the proponent of the statement must show that the declarant is unavailable. See, e.g., EC 1230 (declaration against interest) and EC 1291 (former testimony offered against a party). A witness is unavailable when absent from the hearing and the proponent has exercised reasonable diligence but has been unable to procure the witness. EC 240(a)(5). Other common situations where a witness will be considered unavailable include where the witness invokes a privilege not to testify (EC 240(a)(1)) or the witness is disqualified from testifying, for example when the witness is not competent due to age or mental disease (EC 240(a)(3)). Other instances of unavailability occur when a witness has actual memory loss (People v. Alcala, 4 Cal .4th 742 (1992)), or refuses to testify (People v. Francis, 200 Cal. App. 3d 579 (1988)).

Below is a thumbnail sketch of the most common statutory exceptions to the hearsay rule, with notes regarding important matters to keep in mind in applying the exceptions. Situations where unavailability of the declarant is required are so indicated.

EC 1220 - Statement of party opponent

This exception is different than an admission against interest under EC 1230. Under EC 1220, a party must be a declarant and the statement must be offered by the opponent.

EC 1221 - Adoptive admissions

Akin to EC 1220, the statement must be offered against a party, here who manifested belief in or adoption of its truth.

EC 1222 - Authorized admissions

Offered against a party who authorized a declarant to make a statement on the subject. Authorization may be implied. Requires proof of authority independent of declarant's statement. EC 1222(b).

EC 1223 - Statement of co-conspirator

Prima facie evidence of conspiracy apart from the statement is required. EC 1223(c). Limited to statements made while participating in and in furtherance of a conspiracy.

EC 1224 - Statement declarant's liability at issue

Exception applicable only in civil cases. Applies against civil party when liability, obligation or duty is based on the liability, obligation or duty of the declarant.

EC 1228 - Complaining witness - child abuse (unavailability required)

Admitted only to establish corpus delecti as the foundation for a defendant's confession. The statement will not be used for jury consideration, only for foundation in an EC 402 hearing. Declarant must be under 12, statement must be written in a police report or welfare report, there must be no circumstances that render the statement untrustworthy, the statement must describe the child as victim of sexual abuse, and the statement must have been made prior to defendant's confession.

EC 1230 - Statement against interest (unavailability required)

Statement is considered reliable because the declarant would not have said it if it was not true. Statement must be against penal, pecuniary or social interest. Especially in criminal cases, care must be taken to admit only parts of statement against the speaker's interest, not somebody else. See People v. Leach, 15 Cal. 3d 419 (1975). Statements that minimize a declarant's responsibility or shift blame to others are not specifically disserving of a declarant's interests. People v. Duarte, 24 Cal. 4th 603 (2000).

EC 1235 - Prior inconsistent statement

Statement must be inconsistent with witness' trial testimony. Admissible both to impeach and as substantive proof of the matter stated. See EC 1235, Law Revision Commission Comments. Prior to admission of statement, witness must be given chance to deny or explain the statement or the witness must not be excused from giving further testimony. EC 770. Witness' testimony that she "doesn't remember" is generally not considered inconsistent. But see People v. Green, 3 Cal. 3d 981 (1971) ("Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement"); accord People v. Fierro, 1 Cal. 4th 173 (1991).

EC 1236 - Prior consistent statement

Statement must be consistent with trial testimony. Admissible both for rehabilitation and for substantive proof. See EC 1236, Law Revision Commission Comments. Only admissible after admission of a statement inconsistent with testimony at trial and the statement was made before the inconsistent statement, or an express or implied charge has been made that the testimony is fabricated and the statement was made prior to bias or motive for fabrication is alleged to have arisen. EC 791.

EC 1237 - Past recollection recorded

Declarant must have insufficient present memory. Also, the writing recording the statement must have been made when the fact being narrated occurred, by the witness or at direction of the witness, the witness must testify the statement was true when made, and the writing must be authenticated. The writing may be read but the writing itself cannot be admitted (unless by the opponent). EC 1237(b). In contrast, when a witness' present memory is refreshed with a statement, the statement is not hearsay because it is not offered for the truth of the matter. See EC 771; People v. Dennis, 17 Cal. 4th 468 (1998).

EC 1238 - Prior identification

Statement is admissible only after declarant has testified that he or she made the identification and that the identification was a true reflection of his or her opinion at the time. EC 1238(c). The statement must identify a person who participated in a crime or other occurrence and the statement must have been made at a time when the incident was fresh in the witness' memory. EC 1238(a) and (b).

EC 1240 - Spontaneous statement

Statement must narrate, describe or explain an act, condition or event. Declarant must have been under stress of an exciting event so that he had no opportunity for reflection. The statement must be relevant to the event which causes it. See EC 350.

EC 1241 - Contemporaneous statements

Statement must explain, qualify or make understandable conduct of the declarant, and must have been made while the declarant was engaged in the conduct.

EC 1242 - Dying declaration (unavailability required)

The declarant must have sensed impending death. The declarant must have died before trial, the statement must relate to the cause of death, and the statement must have been made upon the declarant's personal knowledge.

EC 1250 - Existing State of mind, emotion, physical sensation

Statement is inadmissible if made under circumstances indicating statement's untrustworthiness. EC 1252. The declarant's state of mind must be in issue. The statement must explain acts or conduct and constitute a declaration of intent, knowledge, emotion or sensation. Statements narrating a victim's fearfulness admissible only if the victim's conduct in conformity with the fear is a disputed fact, and the statement is offered only for that limited purpose. People v. Armendariz, 37 Cal. 3d 573 (1984). A judge should carefully consider whether the probative value of the statement is substantially outweighed by its unduly prejudicial effect. EC 352.

EC 1251 - Statement of previously existing mental or physical state (unavailability required)

Akin to EC 1250, inadmissible if made under circumstances indicating statement's untrustworthiness. EC 1252. The declarant's state of mind must be at issue, and statement must be offered only to prove state of mind and no other reason.

EC 1271 - Business records

Documents must have been prepared or kept in the regular course of business, at or near time of act, condition or event. A qualified witness must testify regarding the identity of the documents and their mode of preparation. EC 1271(c). The sources of information and method and time of preparation must be such as to indicate trustworthiness. EC 1271(d). Affidavit accompanying documents produced by way of subpoena duces tecum will usually establish EC 1271 foundation. See EC 1560 and 1561.

EC 1272 - Absence of entry in business records

Admitted to prove nonexistence of act, condition or event made in regular course business. Like 1271, the sources of the information, method and time of preparation must indicate trustworthiness. EC 1272(b). In criminal cases, the absence of an entry may not be proven by an affidavit. People v. Dickinson, 59 Cal. App. 3d 314 (1976).

EC 1280 - Official records

Record must have been made by and within scope of employment of public employee at or near time of the event being recorded. Trustworthiness is required. EC 1280(c). The source of the document must be a public employee. People v. Baeske, 58 Cal. App. 3d 775 (1976).

EC 1284 - Absence of official record

Must be a writing made by a public employee who is the official custodian of the records reciting diligent search and failure to find the record. The writing must be authenticated EC 1401 and 1453.

EC 1291 - Former testimony (unavailability required)

Statement must be offered against person who was a party in original proceeding and that party (or his successor) originally offered the testimony on his own behalf and he had the right and opportunity to cross examine.

EC 1292 - Former testimony against person not party to former proceeding (unavailability required)

Exception applicable only in civil cases. EC 1292(a)(2). The statement must be offered against person who was not a party in the original action and the party in the original action had the right and opportunity to cross examine the declarant with same interest and motive as the party in the action.

Daniel Buckley is a judge of the Los Angeles County Superior Court.

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