RULE

FEDERAL
DECLARANT MUST TESTIFY
Fed. Rule 803(5) Declarant is available AND testifies o Though statute/rule says whether declarant available or not Witness-declarant has no present memory Had personal knowledge of facts Made a record o by the witness-declarant o adopted by the witness-declarant

CALIFORNIA

Evid Code 1237

PAST RECOLLECTION RECORDED

Made a record o at witness-declarants direction; or o for purposes of recording witnessdeclarants statement, i.e., police reports both parties have to get up and testify

When fresh in memory Recorded accurately Fed. Rule 801(d)(1)(A) Declarant testifies o not just a true lapse of memory of the event To a statement made before testifying o Federal: under oath in a proceeding must be a hearing: preliminary statement ok, but not statement to police officer. Inconsistent with present testimony o whether recalls the statement or not Give witness-declarant a chance to explain/deny by confronting called Rule in Carolines Case Evid Code 1235

no CA requirement for proceeding?

PRIOR INCONSISTENT STATEMENT

Federal non-hearsay
PURPOSE

Give witness-declarant a chance to explain/deny by confronting o California: or make witness subject to recall dont excuse them California exception California in for ALL purposes only state to do this

Impeachment only o inconsistency shows lack of credibility o not depend on the truth of prior statement o not hearsay Substantive proof of the event o depends on the truth of prior statement o meets traditional hearsay test Evid Code 1236

PRIOR CONSISTENT STATEMENT

Hardly ever get this in! Fed. Rule 801(d)(1)(B) Declarant testifies To a statement made before testifying That is consistent with the testimony Prior statement was made before an alleged motive to fabricate would have arisen

California only: was made before an admitted inconsistent statement was made so if inconsistent statement is admitted into evidence, then can bring out prior consistent statement that preceded inconsistent statement.
EVIDENCE MIDTERM

SUSAN MASARWEH

FALL 2K4 -1-

Federal non-hearsay California exception

Federal Testimony the light was green Prior Consistent Statement B green light (not admit)

California Testimony the light was green Prior Consistent Statement B green light (not admit)

Motive Arises to Fabricate

Inconsistent Statement (intervening event b/t the 2 consistent statements) told PO: it was a red light

Prior Consistent Statement A green light (admit because has value prior to motive)

Prior Consistent Statement A green light (admit)

Event

Event

Fed. Rule 801(d)(1)(C) Declarant available AND testifies o has to lay foundation and then others can testify Statement of identification of a person after seeing the person

Evid Code 1238

Statement of identification of a person who

participated in an event o includes description, artist drawing, but declarant has to have idd it. Made when fresh in declarants memory o this is one of the reasons you have to have declarant testifying, who else could tell this? I remember event True reflection of opinion o what they said I think Whatever said was true reflection accurately state what thinking Exception to the hearsay rule o no limiting instruction offered for the truth of the matter asserted Evid Code 1360 - criminal only Criminal Case Declarant is under the age of 12 Availability? o (Unavailable, but corroborated) o or testifies Statement describing an act of child abuse Time, content and circumstances indicate reliability Advance notice given

PRIOR IDENTIFICATION

Nonhearsay (exclusion)

CHILD ABUSE STATEMENT NO FEDERAL COUNTERPART

SUSAN MASARWEH

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EVIDENCE MIDTERM

DECLARANT MUST BE UNAVAILABLE

Fed. Rule 804(b) Evid Code 1230 Unavailable declarant Sufficient knowledge of the facts Statement against interest societal (CA) o pecuniary/proprietary o if statement would hold o civil/criminal liability someone up to ridicule, No motive to falsify disgrace, hatred Federal : corroboration to show no corroboration required if offered to trustworthiness if offered to exculpate exculpate criminal defendant criminal defendant burden is on offering party Always in somebody elses trial otherwise would use admission by party opponent. Fed. Rule 804(b)(2) Evid. Code 1242 Declarant is unavailable CA personal knowledge of declarant Homicide or civil suit Made by declarant when believed death was imminent Statement concerning the cause or circumstances of death Fed. Rule 804(b)(1) Evid Code 1290-1292 Declarant is unavailable Declarant previously testified under oath o at previous hearing Former testimony offered against the same party not required in CA o civil includes predecessor in interest o Crim both fed/CA has to be the same Defendant! o doesnt have to be the same party that is using the statement Who had an opportunity to cross-examine then o GJ testimony wont work! With a similar interest as would have now Evid Code 1370 OJ simpson product civil only Declarant unavailable Statement made within 5 years of filing of case Statement preserved by: o writing o electronic recording o law enforcement Describes/explains threat or injury Made at/near the time of the threat or injury Circumstances indicate trustworthiness
Evid Code 1360 - criminal only Criminal Case Declarant is under the age of 12 Availability? o Unavailable, but corroborated o (or testifies) Statement describing an act of child abuse Time, content and circumstances indicate reliability EVIDENCE MIDTERM

DECLARATION AGAINST INTEREST

DYING DECLARATION

FORMER TESTIMONY

NOTE: This comes up in retrials after hung jury, etc. There is a necessity element because the declarant is not available, and the testimony is reliable because the declarant was already cross-examined.

PHYSICAL ABUSE STATEMENT NO FEDERAL COUNTERPART

CHILD ABUSE STATEMENT NO FEDERAL COUNTERPART

SUSAN MASARWEH FALL 2K4 -3-

Advance notice given

SUSAN MASARWEH

FALL 2K4 -4-

EVIDENCE MIDTERM

WHETHER DECLARANT IS AVAILABLE OR NOT

ADMISSION BY PARTY OPPONENT Fed. Rule 801(d)(2)(A) Any statement showing adoption or belief o no personal knowledge required Made by a party o in their individual capacity o by their representative Federal Rule: not hearsay by definition Fed. Rule 801(d)(2)(B) Declarant is not a party Party expresses adoption of, or belief in, the statement [requires knowledge of content] o express o implied Federal Rule: not hearsay by definition Fed. Rule 801(d)(2)(D) Statement by a partys agent o fiduciary relationship between agent and principal o power by the agent to bind the principal o power by the principal to control the agent Concerns a matter within the scope of the agency o authorized statement implied Made during the agency relationship Offered against the party Federal Rule: not hearsay by definition

Evid Code 1220 CA Rule: is hearsay, but exception

Offered against the declarant party

ADOPTIVE ADMISSION

Evid Code 1221 CA Rule: is hearsay, but exception

Offered against the party

Evid Code 1222

AGENCY ADMISSION

CA actual authorized statement!

CA Rule: is hearsay, but exception

CO-CONSPIRATORS

Fed. Rule 801(d)(2)(E)

Proof that conspiracy existed Doesnt have to be actually charged, but facts needed to show that it existed.
o Fed use 104 statements themselves as part of evidence that conspiracy exists statement can be considered, but statement alone is NOT enough o

Evid Code 1223

CA no 104 equivalent have to have independent evidence that conspiracy exists Majority(CA) take your conspiracy as you find it! you come late to the party you are part of the party.

Defendant is a member

Defendant is a member

Declarant is a member Statement made during the course of the conspiracy

once the goals of conspiracy are achieved, no more statements can be let in.

Two fed districts do not allow and 9th Circuit DOES NOT ALLOW a prejoining statement made before the defendant joined the conspiracy!

SUSAN MASARWEH

Statement made in furtherance of the conspiracy

FALL 2K4 -5-

CA Rule: is hearsay, but exception

EVIDENCE MIDTERM

Federal Rule: not hearsay by definition

NOTE: be careful about concealment/cover-up statements made in a 2nd conspiracy to cover up the first!! Once the first conspiracy ends it is over. The 2nd statements not admissible vs. the 1st members! Watergate as example.

EXCITED UTTERANCE

Fed. Rule 803(2) Whether declarant is available or not A startling event seen by declarant Statement relates to that event o i.e., narrates, describes or explains Made while under the stress of that event Test: did so little time pass that there is no possibility it is a lie? Preponderance of evidence.

Evid. Code 1240 In CA must prove independent of statement cant look @ quote

PRESENT SENSE IMPRESSION

Fed. Rule 803(1) use if NO STARTLING EVENT Whether declarant is available or not Statement describes or explains an event or condition While declarant is perceiving it, or immediately after (key element)

Note: Used in Majority of states But NOT CA!

Evid Code 1241

Whether declarant is available or not

Statement offered to o explain conduct o qualify conduct o make conduct understandable conduct Note: ONLY applies to declarant conduct, not what declarant was seeing, unless engaged with them.

CONTEMPORANEOUS STATEMENT

No Federal Counterpart

Made by declarant while engaged in the

SUSAN MASARWEH

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EVIDENCE MIDTERM

PRESENT STATE OF MIND OR PHYSICAL CONDITION

PRESENT STATE OF MIND ALTERNATIVE

Fed. Rule 803(3) Whether declarant is available or not When state of mind or physical condition is a material issue Statement of existing (present) state of mind or physical condition not expressing memory or belief then existing state of mind at that time HILLMON DOCTRINE Fed. Rule 803(3) Whether declarant is available or not Statement of declarants own present state of mind If the act of declarant is a material issue state of mind itself need not be an issue To prove or explain the declarants act or conduct ex: present intent to do a future act Fed. Rule 803(4) Whether declarant is available or not o Declarant doesnt have to be the patient. Statement made for purpose of medical: o diagnosis - doesnt have to be a Dr. or to a Dr. o treatment Describing: o present symptoms, pain, sensations o past symptoms, pain, sensations o medical history, cause (if pertinent to diagnosis or treatment) not fault My leg hurts because I was in a car accident where Frank hit me

Evid Code 1250(a)(1)

Unless it is untrustworthy Evid Code 1250(a)(2)

Unless it is untrustworthy

FEDERAL PHYSICAL CONDITION

NO CA COUNTERPART

CA CHILD ABUSE/NEGLECT NO FEDERAL COUNTERPART

Evid Code 1253 Child victim statement o made when under age 12 o still under age 18 @ time of testimony Statement made for purpose of medical: o diagnosis o treatment Describing child abuse or neglect: o present or past symptoms, pain, sensations o medical history, cause (if pertinent to diagnosis or treatment)

Basically the same as federal physical condition, but only applies to child victims, thus only applies in criminal cases.

SUSAN MASARWEH

FALL 2K4 -7-

EVIDENCE MIDTERM

BUSINESS RECORDS

Fed. Rule 803(6) Writing not oral! o describing act, condition or event o plus opinions or diagnosis Made in the regular course of business Not just business any kind of organized activity is business At or near the time of the event described Testimony by custodian/other qualified witness o Identify the writing; explain how prepared Trustworthy source, method & time of preparation o admit unless lacks trustworthiness presumptively admissible unless opponent can show lacks trustworthiness

Evid Code 1271

o opinions or diagnosis: NOT in

CA

Trustworthy source, method & time of preparation o admit if indicates trustworthiness if trying to get it in, have the burden to show it is trustworthy, thus harder in CA to get it in.

PUBLIC RECORDS

Declarant is the one who created the record Dont confuse and admit something that wouldnt be admissible on the stand. If its reliable enough for the business to rely upon, its reliable enough for the court to rely upon. Fed. Rule 803(8) Evid Code 1280 Writing Writing Made by public officer Made by public employee within scope of duty Recording: Recording: o activities of the agency o an act, condition or event o matters observed on duty o At or near time of event recorded except by law enforcement in a criminal case cannot be introduced as public record need officer present o findings of fact from lawful investigation in civil cases or by criminal defendant Trustworthy because of Unless untrustworthy o source of information (personal knowledge) o method of preparation o time of preparation Fed. Rule 807 Trustworthy o Equivalent to other exceptions make comparison to other exceptions may imply looking at corroboration independent evidence not connected to this statement i.e., fingerprints, other witnesses, etc but need to be light on this Addresses a material fact More probative than other evidence that is available by reasonable efforts
FALL 2K4 -8-

RESIDUAL EXCEPTION

NO California counterpart

SUSAN MASARWEH

EVIDENCE MIDTERM

Necessity requirement built in if you have other good evidence then not likely to be able to use. Thus, if declarant available, not likely to use. Admissibility serves the interests of justice Notice given prior to trial

Most common fact pattern for residual exception Grand Jury Testimony (not majority, plurality)

SUSAN MASARWEH

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EVIDENCE MIDTERM