1. Alison Chandler achandler@contracostada.org 925-957-8545
Hearsay Exceptions Continued Unavailability Former testimony Dying Declarations Declarations against Interest
Alison Chandler

2. Unavailability CEC section 240 FRE section 804(a)
“Unavailable as a witness” means the condition that must be met under the Evidence Code whenever the admissibility of hearsay evidence is dependent upon the declarant’s present unavailability to testify.

3. Types of Unavailability
Physical
Mental
Legal Unavailability
Refusal
Stipulation

4. CEC Former Testimony Rules
CEC DEFINES THE TERM “FORMER TESTIMONY” CEC COVERS FORMER TESTIMONY OFFERED AGAINST A PARTY TO FORMER PROCEEDING CEC 1292-COVERS FORMER TESTIMONY OFFERED AGAINST A PERSON NOT A PARTY TO THE FORMER PROCEEDINGS

5. Federal Former Testimony Exception FRE 804(b)(1)
Testimony that:
was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
is now offered against a party who had – or in a civil case , whose predecessor in interest had – an opportunity and similar motive to develop it by direct, cross, or redirect examination.

6. Two Important Points to Understand Former Testimony Exception
First Point
This exception involves two (2) trials/hearings (FRE and CEC)
Trial/Hearing # 1: Former (1st) trial hearing in which the declarant testified as a witness.
Trial/Hearing #2: Current (2d) trial/hearing in which a transcript or videotape of the declarant’s testimony in the former (1st) trial or hearing is now being offered in the current (2d) trial/hearing.

7. Second Important Point
Former Testimony
Second Important Point
The declarant in the former (1st) trial/hearing is now UNAVAILABLE to testify in the current (2d) trial or hearing. (CEC and FRE)

8. What the Former Testimony Exception Accomplishes
The former testimony hearsay exception allows a party to use the testimony of a witness who testified in the 1st trial/hearing as part of the evidence in the 2d trial/ hearing because the witness is now unavailable to testify in the 2d trial/hearing.

9. When does the former testimony hearsay exception usually apply?
After a case is reversed on appeal. The case is then sent back to the trial court for a second trial (retrial).
When the 1st trial ends by a mistrial or when a motion for new trial is granted. In a criminal case, a “hung” jury could result in the D.A. refiling the criminal case and having a 2d trial against the defendant.
In either instance, if a witness who testified in the 1st trial is now unavailable, the former testimony exception could be used in the 2d trial.

10. Two Levels of hearsay
Keep in mind that there are two levels of hearsay involved in the former testimony situation.
First level: Since there will be a transcript or videotape of the unavailable witness’ testimony in the 1st trial, that transcript or videotape is hearsay. It is a writing created by the court reporter. However, the public/official record hearsay exception creates an exception for the admission of the transcript/videotape of the testimony in the 1st trial.
Second level: The unavailable witness’ actual testimony is also hearsay. But the former testimony exception applies to allow the testimony of the unavailable witness to be received into evidence in the 2d trial.

11. Former Testimony-CEC1291 Elements
1. Former testimony by a witness under oath at the former (1st) hearing.
2. Declarant is now unavailable for 2d trial/hearing.
3. Testimony in former hearing is being offered either:
- in the current (2d) civil or criminal hearing against the party who offered it into evidence in the 1st hearing (1291(a)(1)), OR
- offered against a party who did NOT offer it on his own behalf in that former hearing, and there was a right and opportunity to cross examine declarant in the former (1st) hearing with an interest or motive similar to that which he has on the current (2d) hearing. (1291(a)(2))

12. Example of 1291situation
If an incident gives rise to cases involving several plaintiffs and one defendant, Section 1291 permits testimony given in the former (1st) trial/hearing to be used against the same defendant in the current (2d) trial/hearing if the elements of 1291 are met.

13. CEC 1291(a)(1) v. 1291(a)(2)
CEC section 1291 provides a hearsay exception for former testimony offered against a person who was a party to the proceeding in which the former testimony was given.
CEC 1291 (a)(1) provides for the admission of former testimony if it is offered against the party who offered it in the previous hearing.
CEC 1291 (a)(2) provides for the admission of former testimony where the party against whom it is now offered had the right and opportunity in the former proceeding to cross examine the declarant with an interest and motive similar to that which he now has.

14. Former Testimony CEC 1292 Elements
1. The declarant in the former (1st) hearing is unavailable as a witness in the current (2d) hearing.
2. The former testimony of the declarant in the former (1st) hearing is now being offered in the current (2d) CIVIL hearing. (not criminal)
3. The party in the former (1st) hearing was given the right and opportunity to cross examine the declarant in the former (1st) hearing and that party had an interest and motive to cross examine the declarant in the former hearing similar to that of the party in the current (2d) hearing against whom the testimony is now being offered.

15. CEC 1292
CEC section 1292 provides a hearsay exception for former testimony given at the former proceeding by a person who is now unavailable as a witness when such testimony is offered against a person who was not a party to the former proceeding but whose motive for cross examination is similar to that of a person who had the right and opportunity to cross examine the declarant when the former testimony was given.
Example: If one incident gives rise to a series of cases involving one defendant and several plaintiffs, CEC 1292 permits testimony given against a plaintiff in the first action to be used against a different plaintiff in a subsequent action if the elements of 1292 are met.

16. Difference between CEC sections1291 and 1292
CEC 1291 applies to both civil and criminal cases. CEC 1292 only applies to civil cases (But the 1st trial/hearing could have been civil or criminal) CEC 1291 applies to prior testimony offered against the party who offered that testimony in the 1st trial, or a party who had the right and opportunity to cross examine declarant with the same interest and motive in current hearing. CEC 1292 applies to a person who was NOT a party to the former (1st) proceeding.

17. -SIMILARITY OF PARTY’S POSITION IN THE TWO CASES
FACTORS IN DETERMINING SIMILARITY OF INTEREST AND MOTIVE TO CROSS-EXAMINE
-SIMILARITY OF PARTY’S POSITION IN THE TWO CASES
-PURPOSE OF CROSS EXAMINATION
-WHETHER THOROUGH CROSS EXAMINATION OF DECLARANT IN PRIOR PROCEEDING WOULD HAVE BEEN REASONABLY EXPECTED
10/09/2013

18. FRE and CEC Difference-Former Testimony
FRE 804 (b)(1) does not have a similar section to CEC Under the FRE the only way to offer former testimony against someone who was not a party to the former (1st) action is to offer the testimony against the successor in interest of a party in a subsequent (2d) trial/hearing.

19. DECLARATIONS AGAINST INTEREST CALIFORNIA RULE 1230
→DECLARANT IS NOT A PARTY →DECLARANT IS UNAVAILABLE →DECLARANT HAD SUFFICENT PERSONAL KNOWLEDGE OF THE FACTS STATED →STATEMENT WAS SO CONTRARY TO THE DECLARANT’S INTEREST WHEN MADE THAT A REASONABLE PERSON WOULD NOT HAVE MADE IT UNLESS HE OR SHE BELIEVED IT TO BE TRUE
10/09/2013

20. ADMISSIONS BY A PARTY V. DECLARATIONS AGAINST INTEREST
DECLARATIONS AGAINST INTEREST INVOLVE NON-PARTIES
ADMISSIONS BY A PARTY MAY BE SELF SERVING OR NEUTRAL.
ADMISSIONS BY A PARTY DO NOT REQUIRE UNAVAILABLITY.
PERSONAL KNOWLEDGE IS NOT REQUIRED FOR A PARTY ADMISSION. SUFFICENT PERSONAL KNOWLEDGE OF THE SUBJECT MATTER IS A REQUIREMENT FOR DECLARATIONS AGAINST INTEREST
10/09/2013

21. DECLARATION AGAINST INTEREST DIFFERENCES BETWEEN FRE AND CEC
THERE ARE TWO DIFFERENCES BETWEEN THE FRE AND CEC IN THE DECLARATION AGAINST INTEREST HEARSAY EXCEPTION 1. CEC INCLUDES “HATRED, RIDICULE OR SOCIAL DISGRACE” WITHIN THE LIST OF AREAS AGAINST ONE’S INTEREST. FRE DOES NOT INCLUDE THIS AREA AS PART OF 804(b)(3). 2. FRE IMPOSES SPECIAL RESTRICTIONS ON STATEMENTS AGAINST PENAL INTEREST OFFERED BY A CRIMINAL DEFENDANT. SUCH STATEMENTS ARE INADMISSIBLE “UNLESS CORROBORATING CIRCUMSTANCES CLEARLY INDICATE THE TRUSTWORTHINESS OF THE STATEMENT”. THE CEC DOES NOT IMPOSE THIS REQUIREMENT.
10/09/2013

22. DYING DECLARATIONS (CALIFORNIA RULE 1242)
→STATEMENT BY A DYING PERSON →DYING DECLARANT MUST SENSE IMPENDING DEATH →STATEMENT MUST BE BASED ON PERSONAL KNOWLEDGE →STATEMENT MUST RELATE TO CAUSE OR CIRCUMSTANCE OF DECLARANT’S DEATH
10/09/2013

23. Differences between CEC and FRE Dying Declarations
In criminal cases, FRE limits exception in criminal cases to prosecution for homicide. CEC applies exception to both criminal and civil cases.
CEC requires unavailability be due to death of declarant. FRE allows unavailability for other reasons than death (suggests that you don’t actually have to die).

24. Forfeiture by Wrongdoing
California v. Giles

25. Residual Exception FRE 807 Does this do away with FRE 803 and 804?
What are the benefits?