THE LAW OF HEARSAY

DEFINITIONS: A. “Statement” An oral or written assertion or Non verbal conduct, if it is intended as an assertion B. “Declarant” A person who makes a statement

DEFINITIONS: C. “Hearsay” FRE 801(c) and Cal. Evid. Code section 1200 –1. An out of court statement –2. Offered to prove the truth of the matter stated

An out of court statement An out of court statement FOCUS IS ON WHERE THE STATEMENT IS MADE – -- If witness testifies at hearing that he saw the perpetrator and identifies defendant as that person – it is not hearsay -- If witness testifies at the hearing that he saw the perpetrator and that he told the police officer that defendant was that person, it is hearsay and is not admissible unless an exception applies (cf privilege – who made the statement; and character evidence – what the content of the statement is)

Offered to prove the truth of the matter stated: EXAMPLE 1. Mendez : Defendant in blue car collides with plaintiff in white car in intersection – plaintiff testifies that she entered intersection on green light; defendant testifies that she entered intersection on green light. Plaintiff calls witness who was stopped in left turn lane at intersection; witness states that he knows defendant ran red light because just before the accident his wife stated “look at that blue car running the red light”

OFFERED TO PROVE THE TRUTH OF THE MATTER STATED: EXAMPLE 2. Robbery of corner store – robbers are a man and a woman, who are the defendants in the hearing. The store clerk is shot and killed during the robbery. A customer is in the store at the time of the robbery and shooting. When the clerk is shot, the customer exclaims: “Oh my god! She shot him!” A pedestrian approaching the store hears the shot, and the statement by the customer, but does not see the shooting. The pedestrian then sees a man and woman, both armed with handguns, flee the store and drive away at high speed. The pedestrian then sees the customer, who is obviously upset and terrified, run out of the store and down the street. The customer is never identified. The prosecution calls the pedestrian as a witness to the crime.

OFFERED TO PROVE THE TRUTH OF THE MATTER STATED: EXAMPLE 3. Defendant is accused attempted murder following the poisoning of his wife’s lover. Police interview the wife. She states that defendant has always been the jealous type. Further, she states that a week before the poisoning, defendant told her he wanted to kill the lover and directed the wife to buy rat poison at the hardware store. She did so and gave the poison to defendant. After the lover became ill and it was determined that he had been poisoned, defendant told wife that he got into her purse, stole a key to the lover’s home, went there and put the rat poison in a carton of orange juice in the refrigerator in the lover’s kitchen. The prosecution calls the wife as a witness to the attempted murder.

REASONS FOR THE RULE 1. The statements are not made under oath 2. Deprives party opponent of cross examination 3. Deprives factfinder of opportunity to judge demeanor and credibility 4. Protection of the 6th Amendment Right of Confrontation (Hearsay rules and exceptions are common law, statutory and decisional law)

ASSERTIVE v NON-ASSERTIVE CONDUCT FRE 801(a) and Evid. Code Sec. 225 Non verbal conduct, if it is intended as an assertion Is the conduct intended by the declarant to be a substitute for words?

Example 1.: Police officer comes on victim in street after having been stabbed. Victim states “Dave stabbed me.” The officer asks “Who is Dave?” and the victim points to defendant standing nearby. Example 2.: The officer asks “Who is Dave?” A bystander looks at defendant standing nearby.

Is the conduct intended by the declarant to be a substitute for words? Example 3.: During a video taped interview with a young child abuse victim the social worker asks “Can you show me how he touched you?” The victim responds non- verbally by manipulating an anatomically correct doll in a particular way. Example 4.: The social worker asks “Would you like to play with this doll?” The victim takes the doll and is observed playing with the doll in a way that mimics adult sexual behavior.

NON HEARSAY FRE 801(d) Non Hearsay by definition Rule 801(d)(1) Prior Statement by Witness is not hearsay If declarant testifies and is subject to cross examination and the statement is: (A) inconsistent with the declarant’s testimony, and was given under oath at another proceeding; or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication, improper influence or motive; or (C) one of identification of a person made after perceiving the person.

Rule 801(d)(2) Admission by Party Opponent A statement is not hearsay if offered against a party and it is: –(A) the party’s own statement, in either an individual of a representative capacity; or –(B) a statement of which the party has manifested an adoption or belief in its truth; or –(C) a statement by a person authorized by the party to make a statement concerning the subject; or –(D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or –(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

Rule 801(d)(2) Admission by Party Opponent The contents of the statement shall be considered, but are not alone sufficient, to establish the: declarant’s authority under sub. (C); the existence and scope of the agency or employment relationship under sub. (D); the existence of the conspiracy and the participation therein by the declarant and the party against whom the statement is offered under sub. (E).

Cf. Evid. Code Hearsay Exceptions statements of a party adoptive admission authorized admission admission of a co-conspirator inconsistent statement (in compliance with 770) consistent statement (in compliance with 791) prior identification

TRADITIONAL NON HEARSAY Where words or statements are operative acts; or Where words or statements are relevant circumstantial evidence

TRADITIONAL NON HEARSAY Examples 1.Words that form a contract – offer and acceptance 2.Defamation 3.Indicia to prove dominion and control and constructive possession 4.Pay-owe sheets; gambling slips 5.Person calling and asks to buy drugs

TRADITIONAL NON HEARSAY More Examples 6.Proving knowledge of notice – -prior complaints of structural defects -Nuisance -DUI warning 7.To rebut claim of amnesia (P.v. Jackson (1989) 49 Cal.3d 1170,1187 [police officer allowed to testify to defendant’s statement “you are the cops who said I killed that policeman with a shotgun” – investigator testified that there was no previous mention of a shotgun. Statement not offered to prove he killed officer but rather as circumstantial evidence of his memory].

TRADITIONAL NON HEARSAY More Examples 8.False statements to prove consciousness of guilt -- false alibi -- denial of presence -- denial of history of animosity – not offered for truth but to show defendant’s false response when confronted with accusatory situation 9.Consciousness of guilt – refusal to submit to drug test, handwriting exemplar 10.Video tape or audio tape of defendant’s statement to police near time of crime to show defendant’s physical state (i.e. intoxication or mental coherence)

TRADITIONAL NON HEARSAY More Examples 11.Operative acts or verbal acts – words of fraud or deceit/offer to provide sex for money – prostitution or pimping/pandering 12.Doctrine of Fresh Complaint

TRADITIONAL NON HEARSAY More Examples 13.Words of authorization to show consent or vicarious liability 14.Words that establish the existence or pendency of a conspiracy 15.Identity – witness sleeping hears victim answer door and say “Hi Norman”

TRADITIONAL NON HEARSAY More Examples 16.Circumstantial evidence of mental state of declarant– “I am afraid of X” or “I am going to kill X” 17.Circumstantial evidence of mental state of recipient– “I am going to kill you” “I want to be your girlfriend”

TRADITIONAL NON HEARSAY More Examples 18.In a 4th Amendment suppression motion setting – statements that show that the police had probable cause to search, seize or arrest 19.To explain subsequent conduct 20.To provide context – Evid. Code section 356/Rule of completeness