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October Evidence Notes - © 1999 John Thompson

Evidence - Santa Clara University, Prof. Uelman


October 5, 1999


October 05, 1999 (Notes for October 5, 1999 © Harold Chow)



Jefferson Bench Book, published by Cal. CEB. à reference book for Cal. Ev. Code





1. Prior Inconsistent Statement



2. Prior Consistent Statement



3. Identification



4. Past Recollection Recorded




Prior statements of a witness:


Inconsistent statements:

Hypo: D’s star witness on stand – gf with alibi for D.  Prosecution offers contradicting statement made by the witness.  Allowable because trying to impeach the witness, not for a hearsay purpose.


Under Fed: statement not hearsay if declarant subject to cross-examination and statement contradicts and given under oath at prior proceeding. à can prove the truth asserted

Under Cal: statement complies with 770 and contradicts witness’ testimony.


What if prior statement NOT made under oath?  Cannot be used to prove the truth of what’s asserted in Fed., but can be used in Cal.


Rule 613(b) ßà § 770: have to allow witness explain or deny the previous statement and opposite party the opportunity to interrogate the witness.


Primary difference is that in fed, previous statement can’t be allowed to show truth of what’s asserted unless under oath.


Note that some prior statements can be identification.

à Under federal rules, identification does NOT have to be under oath.


What if witness says “I don’t remember”?

CA courts have held that if the loss of memory is bona fide (good faith), then cannot impeach the witness with prior inconsistent statements.  If evasive loss of memory, if can show the witness is seeking to avoid testifying, then previous statement can be used to impeach.


Consistent statements:

Out of court statement used to bolster in court testimony and credibility of witness because the outside statement confirms the testimony.  But, under hearsay exceptions, they are only admissible to rehabilitate a witness whose credibility has been challenged.

Offered after implied or express charge of improper influence or motive – e.g. witness might be striking a deal with prosecutor,

801(d)(1)(B) and § 791 consistent more or less, but CA rule is slightly broader: if impeached by prior inconsistent statement OR implied or direct charge of bias or fabrication.  Fed just allows if witness subjected to an express or implied charge of recent fabrication, improper influence, or motive.


While hearsay exceptions, limit admissibility even if only given to bolster credibility of witness, not just hearsay purposes.


Does § 791 leave out relevant evidence?  Yes – not excepted by prop 8*, so such evidence is admissible subject to § 352.

* even though 1236 is a hearsay rule, we’re looking at 791. No cases have argued this yet.


Under CA, 791(b), statement must have occurred before motive for bias. Fed does not require that statement be made prior to alleged motive for bias.


Identification: (of a person)

a.k.a. the big loophole:

prior statement of identification can be used to prove the truth of what’s asserted even though that statement wasn’t made under oath. à too restrictive otherwise.

In CA, still doesn’t have to be under oath.

Only requirement for a prior identification under 801(d)(1)(C): made after perceiving the person.

Under 1238: statement would’ve been admissible if given while witness was testifying, but made at a time when the crime was fresh in witness’ memory and witness in court testifies that the statement was true and authenticates it.


Prosecutor can immediately bolster witness by bringing in lots of evidence of prior identification.


If uncooperative witness, can use prior identification as inconsistent statements.


Chavez: Angel reluctantly admits to police that “Bird” fired the shots.

1235 allows Angel’s prior inconsistent testimony.

Note that in federal court, it could not come in as such, but it’s also a statement of identification, thus allowing it in.  But in CA, Angel’s not conceding that he made the identification, so it couldn’t come in as identification evidence, only as inconsistent testimony.  Isn’t this fun?

Prior inconsistent statement was in writing (not under oath), authenticated by the officer.  Witness was cross-examined about the statement, had a chance to explain or deny, and he denied.

Same analysis for federal court, except coming in as identification, not as prior inconsistent statement.


At preliminary hearing, another statement made under oath, which now conflicts with his in-court testimony.  Allowable under both Fed and Cal for prior inconsistent statement.  Not coming in as identification in CA if denying that he made the statement.


If he says “I didn’t make that statement”, how can you cross-examine him regarding the statements?


Past recollection recorded:

Dealing with a witness with a bona fide loss of memory.

What if witness doesn’t remember, and say a recorded list doesn’t refresh memory of witness on stand?

803(5) and 1237: with assurance of reliability, document read to jury, not given to jury to look at.  Don’t want the jury to give any greater effect to it than oral testimony of witness.



October 7, 1999


More Hearsay Exceptions

§ 803 and corresponding CA rules




1. present sense impression



2. excited utterance



3. existing condition / mental state (Hillman)


1250, 1260

4. medical diagnosis


1251, 1253


§ 803 is all rules that apply to a Person that made the out of court statement may be available to be called as a witness; declarant is unavailable

-         allowed to subpoena declarant as though you are cross examining even though you called the declarant as your own witness


Allowing the hearsay is the second best option.  Must first show that the declarant is unavailable before these hearsay exceptions can be applied.


Hearsay exceptions

I.. present sense impression – describe what you are perceiving; contemporaneous with the perception; because of this we don’t have the problem that the declarant had time to think about statement and be deceptive

            A.. CA – must be made while declarant was engaged in such conduct (1241)


II.. excited utterance - a statement relating to a startling event or condition caused by the event or condition; does NOT have to be contemporaneous; key is the stress or excitement

A.. if there is a time lapse between event and statement you want to argue that it is an excited utterance (no requirement of contemporaneous)

B.. if the person was calm when they made statement, want to argue it was a

present sense impression

C..  CA – spontaneous statement while the declarant was under the stress and excitement caused by such perception



In CA can’t bootstrap – can’t use hearsay itself to prove existence of condition that makes hearsay admissible; must use outside evidence


III..  existing condition / mental state (Hillmon case) CA 1260 requires unavailability of a witness, while 803 does not; 803 can be used whether declarant is available or not

-         Problem where statement not only proves declarant’s intent, but it also proves someone else’s intent.

-         Example: “I am going out tonight with Frank” – is this admissible to prove that Frank took her out that night?  Is admissible.  Frank was convicted.

-         D says to friend “I am going to meet A and get some marijuana.”  A is now on trial for delivering marijuana to declarant.  Is this statement admissible to show that A was the one who delivered marijuana?  The statement was admissible and the admission was upheld.

-         Chris is coming over to buy cocaine.  Statement was admitted.

-         Hard to know whose intent is being proved

-         Have a will exception, but limited to unavailable declarant (§ 1260)


IV.. medical diagnosis hearsay exception -  historical type statements; admissible if  purpose of medical diagnosis; theory is that people don’t have a motive to lie when consulting with a doctor – they want to get best treatment possible


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October 14, 1999


Hearsay: business records exceptions


Federal business exceptions - one prerequisite is that the records are routinely kept


This exception is used very frequently


Elements for laying foundation for business record

1.. record kept and maintained in ordinary course of business

2.. made in the ordinary course of business on or about the time that it reflects


403 questions or 405 questions?

-         probably a 405 questions, the judge would resolve the questions


Will usually want someone to explain records.  Need to put this in subpoena if you want custodian of the records to actually appear and explain the records.  Say that the mere mailing in of the records is not sufficient.  This is why you do a subpoena duces tecum. 


The opinion expressed in the report is admissible under the federal rules.

-         under CA it is different:  CA has taken more strict approach.  Opinions should be limited to readily observable acts or conditions; CA has some ambiguity because the rules do not make it absolutely clear


sometimes people do not have a duty to say something in a business record; therefore we no longer have assurance that the information is not biased; there was no business duty to report, so we do not know what other motivations influenced this person in putting the information in the records


Business duty to report - context of police reports


In CA no problem having police records coming in under business or police records (official).  Look at Oates case.


Proving the absence of a record - proving that something did not happen

-         is this hearsay?  Is it an out of court assertion to prove the truth of what is asserted?

-         It seems like this is not really a hearsay statement - probably there just to make sure that this is there just in case the lawyers and judges do not understand the hearsay rule.  Even though this is not hearsay they put this exception in to remove any doubt that this evidence is admissible. 

-         NOT hearsay, but want to bring this in anyway.  § 1272


Comparison between business record exception and past recollection recorded;  there seems to be an overview.

- can get the record itself into evidence using 803(5) as well


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October 19, 1999


Unavailability exceptions                  FEDERAL                            CALIFORNIA

Former Testimony



Dying Declarations



Declaration Against Interest



Family History


1310, 1311

Prior Mental State



Statement Re: Will




Proving Unavailability             FEDERAL                            CALIFORNIA          




Refusal despite order



Lack of memory



Death / Infirmity



Unable to procure witness





These exceptions lower the barrier because in these situations we think that the hearsay might be more reliable.


One preliminary fact that must be proven is that the declarant is not available as a witness  (this is a § 405 question that the judge will determine)


How do you prove that you made a reasonable effort to find a witness (for the unable to procure unavailability provision)

-         show that you have exhausted every possibility for finding the witness; have investigator be a witness and testify to all the ways he tried to find a witness


240(a)(2) - disqualified from testifying to the matter

What does this mean?

-         can be disqualified for: lack of capacity, too young, disabled, can’t communicate, etc…

-         don’t understand what oath means to testify truthfully



Don’t seem to have a federal rule that matches CA disqualification of a witness.  Which one could possibly include it?

-         no cases on this


meeting the threshold of unavailability opens the door to the unavailability exceptions (see chart above)


with respect to every hearsay exception do you have to say that every out of court declarant had personal knowledge?

-         because we don’t want people making statements about stuff they have no idea what they are talking about


is a suicide note a dying declaration?

-         probably not.  When someone is writing a suicide note, they are not dying at that time


Statement against interest - at time statement was made, it was so far contrary to declarant’s interest, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true

-         statement made by a party in a lawsuit can be offered as an admission against interest;

-         declarant must have known that this statement would be harmful to him





October 26, 1999




CA case law - if a statement subjects a third person to greater criminal liability than the declarant, then the statement is really advancing the declarant’s own interest

-         even though §1230 does not say this specifically, this is how it has been interpreted


30 Cal.3d 408 - case Uelman was involved with; was remanded and then the charges were dismissed


Prior testimony -  big difference between criminal and civil cases

1.. witness must be no longer available to testify for any of these exceptions to apply

2.. prior testimony is available when the person cannot be called as a witness


1291, 1292 - distinguish between testimony offered against a party who himself had offered the prior testimony, or against a party who had the opportunity on a prior occasion to cross examine the witness (litigation between the same parties §1291); §1292 extends the exception to someone who was not necessarily a party to the prior action, but had the same interest as the parties in the prior case, in a CIVIL action


testimony at grand jury might not be admissible in a subsequent trial because in a grand jury setting there was not the opportunity to cross examine the witness


under 1291 - evidence can come in as long as witness offered the evidence in his own behalf; under federal rule, the opposing party must have had an opportunity to cross examine him


under federal rule (804b1) - where testimony given the federal rule does not make a distinction between testimony given in another trial, previous trial of a same case, or a deposition given in the same case

1290 - defines former testimony


in criminal cases there are no depositions - will have testimony at former trial, grand jury


how do we prove witness is unavailable - private investigator could testify that he could not locate the witness; show death certificate; doctor that says witness can not testify

§ 805 question


Objections during presentation of prior testimony

-         objections that were not made at prior proceeding cannot usually be made at the subsequent hearing

-         § 1291 b1 & 2 - no new objections as to the form of the question (is a relevancy objection and objection as to the form of the question? NO); leading, narrative question; objections to the form usually result in just  reformulation of the question; since the question can no longer be reformulated, it can not be made now since the only thing to do would be to exclude the evidence

-         objections made at the original proceeding can be made at the subsequent proceeding (and even get a different ruling than they got the first time)

-         can still say “objection, irrelevant” and “objection, hearsay”


Federal rules - don’t say anything about what to do with objections not made at prior proceeding

-         look to the FR of Civ. Pro. To find the rules similar to the rules found in CA


1202 is very broad for attacking credibility of hearsay declarant; OJ trial blood sample video tape of renunciation of how much blood was taken

-         video tape probably hurt the prosecution




October 28, 1999


Federal rules have a catch all that will allow other types of hearsay to be allowed in if there is good reason.  So even if you can’t find a hearsay exception to fit into, you can still argue for it.


In criminal cases, you have a constitutional right to confront and cross-examine the witnesses.  Right of confrontation.


Idaho v. Wright (1990)

-         court was confronted with a hearsay exception relating to statements made by children about being the victims of child abuse

-         the exception being applied was not a legislative creation; was a judicial creation using the residual exception in the Federal Rules

-         FACTS: tried to get statement by a 2 year old daughter to a pediatrician admitted; child was not presented as a witness because she was rendered unavailable to communicate with the jury; since she is unavailable we will allow the statement she made to the physician instead

-         The court admitted the evidence because the corroborating evidence (physical examination, older sister told same story) pointed to what the girl was saying was true

-         Relevant questions: 1. is the witness available? (dealing with a situation of necessity) 2. purpose of right of confrontation is to enhance the reliability of the fact finding process; when we allow in an out of court statement we have to look at whether it is reliable even though made out of courtroom. 

-         Examination of child took place month later than when the alleged events took place


White v Illinois (1992)

-         examination of child and child’s descriptions of what happened occurred immediately after the event; the child described how she had been molested to the babysitter right after incident happened

-         prosecution tried to say this was a spontaneous declaration and therefore a hearsay exception; also hearsay exception for medical examination

-         we won’t override the traditional confines of hearsay exceptions said the court; rejecting idea that unavailability is a pre-requisite under the constitutional requirement of right of confrontation

-         RULE: unavailability is not always required as long as we are on terrain of firmly rooted hearsay exceptions; when we start recognizing new hearsay exceptions that did not exist at common law we will look at 1) whether they are necessary, 2) whether they are reliable (circumstances under which statement was given)


In Re Cindy L.

-         child abuse case similar to the above two cases

-         child made statements to a teacher’s aid; child found incompetent to testify

-         major difference between this and above cases, is that this is NOT a criminal case; is a civil case to determine custody for parents

-         1360 and 1350 could not be used because they only apply to criminal prosecutions

-         so court said, under common law authority of courts, we will recognize a hearsay for child dependency case that parallels the right in criminal cases

-         the parents wanted to know what about their right to cross examine?

-         Does the 6th Amendment guarantee right to confront in a civil case?

-         Court recognizes confrontation requirements as due process requirements; therefore got in all the same protections in criminal cases for civil cases


Lilly v. Virginia (1999)

-         similar to Gordon Hall case; where the hearsay exception is a declaration against interest; the twist here is that a declaration against interest by a codefendant is being offered against the accused here; being used by the state to show that the defendant did it

-         death penalty case involving car jacking and killing of the owner of the car

-         one of the brothers said “I have nothing to do with the killing of the driver, that was my brother that did that.”

-         Proceeds as separate trials; call brother in Lilly trial; then prosecution offers admission to police officer as a declaration against interest;

-         Does this come within the traditional declaration against interest exception?

-         No majority opinion in this case; just a plurality opinion

-         HOLD: an out of court statement inculpating someone else does not come within the declaration against interest exception

-         RAT: therefore the other side lost their right to confront the witness

-         As evidence offered by the prosecution to establish the guilt of the alleged accomplice by the declarant


Confrontation clause is going to be a continuing problem; we are probably going to be seeing continued expansion and exceptions being made





Character evidence

A.. one way to prove character evidence is reputation

1.. what about hearsay?  Do character rules create hearsay exceptions?  NO, but hearsay rules do


Erie problems - follow the law of the state/court you are in

            A.. two exceptions

                        1.. subsequent remedial measures

                                    a.. CA - strict liability, rule does not apply and can offer subsequent remedial measures

                                    b.. Federal - cannot offer evidence of subsequent remedial measures in any case    

                        2.. presumptions

                                    a.. presumptions in CA might differ from presumptions in Federal


Summary - Hearsay

Hearsay - Hearsay is NOT admissible

However, there are exceptions


How to deal with hearsay situation:

3 questions to ask:

            1.. Who is the declarant?

            2.. Why is the statement being offered?

            3.. Where is the declarant now?

                        a.. declarant may not be reporter, person that is telling use what was said

                        b.. the reporter may be reporting hearsay from some other person

                        c.. becomes crucial to determine if we might have a double hearsay



Review of exam question on Page 208 of supplement

-         taken from actual case: People v. Earnest, 53 Cal. App. 3d 734


Who are the declarants?

1.. Albert, the father - out of court statement being offered to impeach him; in that statement Albert is saying , here is what I heard Dean and Victor say

      a.. this is a prior inconsistent statement, does not need to be under oath

      b.. admissible to prove truth of what is asserted

      c.. Under FED it would be a problem because the statement was not made under oath (prior inconsistent statement must have been made under oath)

2.. statements that Albert said he heard Dean say - comes within the admission exception because Dean is in court

3.. How about statements against Victor - these are coconspirator statements; made in furtherance of the conspiracy;

      a.. also could argue that statement against interest

      b.. and it proves that he was going to do it


II.. why is statement offered?

            1.. See tape

III.. where is declarant now?

            1.. is he unavailable? If so this opens door to look at unavailability exceptions

            2.. unavailable because of marital privilege

            3.. state of mind exception and declaration against interest because Victor unavailable

            4.. statements of intent, co-conspirator statements (cousin, __)

            5.. dying declaration exception for victor.

Should always accompany a hearsay objection with a 352 objection


By answering these you will have a much clearer idea if hearsay or not. 



Rationale for test - say hearsay or not, if it comes in under an exception, and identify what that exception is


80% of the time a hearsay exception will be allowed