Copyright © 2010

Thomson Reuters

Chapter 8

HEARSAY AND ITS EXCEPTIONS

Table of Sections

Sec.

8.00 Definition.

8.01 Unavailability of the Hearsay Declarant.

8.02 Exemptions and Exceptions.

8.03 Prior Inconsistent Statements.

8.04 Prior Consistent Statements.

8.05 Statements of Identification.

8.06 Admissions by a Party and Related Statements.

8.07 Present Sense Impressions and Contemporaneous Statements.

8.08 Excited Utterances.

8.09 State of Mind Declarations.

8.10 Past Recollection Recorded.

8.11 Business and Official Records.

8.12 Judgments of Conviction.

8.13 Judgments Against Persons Entitled to Indemnity.

8.14 Judgments Determining the Liability of a Third Person.

8.15 Former Testimony.

8.16 Declarant's Unavailability Caused by the Accused.

8.17 Statements by Dead Declarants Regarding Gang Activities.

8.18 Dying Declarations.

8.19 Declarations Against Interest.

8.20 Statements by Minors Describing Acts of Attempted Acts of Child Abuse or Neglect.

8.21 Statements by Crime Victims Relating Threats.

8.22 Declarations by Elders and Dependent Adults.

8.23 Dead Man's Statute.

8.24 Proof of Business Records by Affidavit or Certificate.

8.25 Records of Conviction.

8.26 Findings of Death by Federal Employees.

8.27 Federal Missing Person Records.

8.28 Records of Vital Statistics.

8.29 Statement of Absence of Public Record.

8.30 Church Records Concerning Family History.

8.31 Marriage, Baptismal, and Similar Certificates.

8.32 Entries in Family Records.

8.33 Recitals in Writings Affecting Property.

8.34 Records of Documents Affecting an Interest in Property.

8.35 Recitals in Ancient Writings.

8.36 Commercial Publications.

8.37 Statements in Learned Treatises.

8.38 Reputation Concerning Character.

8.39 Reputation Concerning Family History.

8.40 Reputation Concerning Boundaries.

8.41 Reputation Concerning Community History.

8.42 Reputation Concerning Public Interest in Property.

8.43 Statements Concerning Boundaries.

8.44 Judgments Concerning Personal, Family, or General History, or Boundaries.

8.45 Statements Concerning a Declarant's Own Family History.

8.46 Statements Concerning the Family History of Another.

8.47 Hearsay Offered at Preliminary Hearings.

8.48 Residual Exception to the Hearsay Rule.

8.49 Hearsay and Confrontation.

8.50 Multiple Hearsay.

8.51 Credibility of the Hearsay Declarant.

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§ 8.00 Definition

FEDERAL RULES OF EVIDENCE

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay

(a) Statement. "Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. "Declarant" means the person who made the statement.

(c) Hearsay. "Hearsay" means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

(B) is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(C) identifies a person as someone the declarant perceived earlier.

(2) An Opposing Party's Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party's coconspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Rule 802. The Rule Against Hearsay

Hearsay is not admissible unless any of the following provides otherwise:

• a federal statute;

• these rules; or

• other rules prescribed by the Supreme Court.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 125. Conduct

"Conduct" includes all active and passive behavior, both verbal and nonverbal.

§ 135. Declarant

"Declarant" is a person who makes a statement.

§ 145. The hearing

"The hearing" means the hearing at which a question under this code arises, and not some earlier or later hearing.

§ 225. Statement

"Statement" means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.

§ 1200. The hearsay rule

(a) "Hearsay evidence" is 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.

(b) Except as provided by law, hearsay evidence is inadmissible.

(c) This section shall be known and may be cited as the hearsay rule.

<EN>---

Comparative Note. Federal Rule of Evidence 802 and California Evidence Code § 1200(b) prohibit the use of hearsay, unless otherwise provided. Although the Code and the Rules do not use identical terms, both define hearsay as an out of court statement offered at the hearing to prove as true the propositions asserted by the declarant in the statement (Rule 801(c), § 1200(a)). Both recognize that a statement can include nonverbal conduct if the actor intends the conduct to substitute for an oral or written expression or assertion (Rule 801(a), § 225). The classic example is the crime scene witness who points to the accused when asked by a police officer to identify the perpetrator.

Because only assertive nonverbal conduct is defined as hearsay, the Code and the Rules reject the implied assertion doctrine. Suppose an issue is whether a ship lost at sea was seaworthy. Is evidence that the captain inspected his ship and then placed his family on it hearsay if offered to prove that the ship was seaworthy? Under the Code and the Rules the answer is no, unless the captain intended his acts of inspecting the ship and placing his family on it to substitute for the statement, "The ship is seaworthy."

For the same reason, the Code and the Rules also reject the implied assertion doctrine when a verbal out of court statement is offered, not for the truth of the matter stated, but as circumstantial evidence of the declarant's belief underlying the statement. Accordingly, a letter in which a student describes her recollection of Michelangelo's paintings depicted on the ceiling of the Sistine Chapel to her evidence professor may be offered in a will contest as proof of the professor's capacity to write a will but not as proof of Michelangelo's paintings.

Under the Rules, if the opponent objects to the introduction of the letter on hearsay grounds, the opponent has the burden of persuading the judge that the writer intended the letters to substitute for the statement, "The testator is competent." According to the Advisory Committee, Federal Rule 801 is "so worded a to place the burden upon the party claiming that the intention existed" and favors admissibility in ambiguous and doubtful cases. Under the Code, the party claiming that hearsay falls within an exception has the burden of persuading the judge that it falls within the exception.1 Presumably, the same party would have the burden of persuading the judge that evidence objected to on hearsay grounds is not hearsay. Imposing the burden on the proponent would be consistent with the Code's position that hearsay should be withheld from the jury because it is too unreliable to be evaluated properly or because public policy requires its exclusion.2

Exemptions. Rule 801(d)(1) classifies prior statements of witnesses as not constituting hearsay even if these witnesses' out of court statements are offered to prove the truth of the matters asserted. The statements embraced by subdivision (d)(1) include consistent and inconsistent statements and statements of identification. Subdivision (2) similarly treats party admissions (including adoptive and authorized admissions and coconspirator's declarations) as not constituting hearsay when offered to prove the truth of the matters asserted.

The justification for exempting prior statements of witnesses from the hearsay rule is that the concerns of the rule are satisfied. By definition the declarants, being witnesses, are in court and can be cross examined by the opposing party about their prior statements under oath and in the presence of the fact finder. In the case of personal admissions, the declarant is by definition the party against whom the prior statement is offered. A party can hardly complain about her inability to cross examine herself. A party, moreover, can always take the stand to explain or deny her prior statements.

The Code rejects the Rules' exemption approach to hearsay. It is "declaration" not "declarant" centered.3 The focus is on whether the out of court declaration is being offered for the truth. The Rules, on the other hand, are declarant centered. The question is whether the out of court declarant can be cross-examined about her out of court statements under oath and in the presence of the fact finder.

From an outcome perspective, it is immaterial whether prior statements of witnesses and party admissions are classified as an exception (as under the Code) or as an exemption (as under the Rules) to the hearsay rule. In either case, the net result is that the out of court statement can be received for the truth of the matter stated if certain other conditions are satisfied.

§ 8.01 Unavailability of the Hearsay Declarant

FEDERAL RULES OF EVIDENCE

Rule 804. Exceptions to the Rule Against Hearsay--When the Declarant Is Unavailable as a Witness

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies;

(2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter;

(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

(5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure:

(A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

(B) the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

But this subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability as a witness in order to prevent the declarant from attending or testifying.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 240. Unavailable as a witness

(a) Except as otherwise provided in subdivision (b), "unavailable as a witness" means that the declarant is any of the following:

(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant.

(2) Disqualified from testifying to the matter.

(3) Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.

(4) Absent from the hearing and the court is unable to compel his or her attendance by its process.

(5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process.

(6) Persistent in refusing to testify concerning the subject matter of the declarant's statement despite having been found in contempt for refusal to testify.

(b) A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the declarant from attending or testifying.

(c) Expert testimony which establishes that physical or mental trauma resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As used in this section, the term "expert" means a physician and surgeon, including a psychiatrist, or any person described by subdivision (b), (c), or (e) of Section 1010.

The introduction of evidence to establish the unavailability of a witness under this subdivision shall not be deemed procurement of unavailability, in absence of proof to the contrary.

<EN>---

Comparative Note. Some exceptions to the hearsay rule require the proponent to demonstrate the unavailability of the hearsay declarant as a witness. These include the exceptions for former testimony and statements against interest. Under Federal Rule 804(b)(2), the proponent of a dying declaration must also show the unavailability of the declarant. The Code, on the other hand, does not explicitly impose this condition (§ 1242).

Evidence Code § 240 sets out the grounds for determining the unavailability of witnesses. It defines as unavailable declarants who are (1) exempted or precluded from testifying on the grounds of privilege, (2) disqualified from testifying, (3) dead or unable to testify on account of mental or physical illness, (4) absent from the hearing and beyond the court's process to compel attendance, (5) absent from the hearing despite the proponent's reasonable efforts to compel attendance through the court's process, or (6) persist in refusing to testify concerning the subject matter of the declarant's statement despite having been found in contempt for refusal to testify.

The Federal Rules of Evidence differ from the Code in three important respects. Only two are examined here.1 First, Rule 804(a)(3) acknowledges that a witness who cannot testify because of a failure of recollection is unavailable. The Code does not have an equivalent provision. Second, unlike the Code, the Rules do not have a provision declaring as unavailable declarants who have been disqualified from testifying.

§ 8.02 Exemptions and Exceptions

Comparative Note. The Code contains more exceptions to the hearsay rule than do the Rules. Even when the exceptions overlap, they contain significant differences. The comparison in this chapter follows the order of the Federal Rules. The exemptions are considered first and then the exceptions to the hearsay rule.

In 2004 the United States Supreme Court held in Crawford v. Washington1 that, over a confrontation objection, the prosecution may not offer "testimonial" hearsay against the accused unless (1) the hearsay declarant is produced for cross-examination by the accused or (2) if not produced, unless the accused was given an opportunity prior to the trial to cross examine the hearsay declarant.2 Because the courts are still working out the precise outlines of this holding, including the definition of testimonial hearsay, Crawford and its implications are beyond the scope of this work.

§ 8.03 Prior Inconsistent Statements

FEDERAL RULES OF EVIDENCE

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay

* * *

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; * * *.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 769. Inconsistent statement or conduct

In examining a witness concerning a statement or other conduct by him that is inconsistent with any part of his testimony at the hearing, it is not necessary to disclose to him any information concerning the statement or other conduct.

§ 770. Evidence of inconsistent statement of witness; exclusion; exceptions

Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:

(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or

(b) The witness has not been excused from giving further testimony in the action.

§ 1235. Inconsistent statements

Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.

<EN>---

Comparative Note. Under the Code, statements that are inconsistent with the declarant's testimony may be offered to impeach the declarant as well as for the truth of the matter stated (§§ 770, 1235). Extrinsic evidence of the statement, however, may not be received unless the declarant is given an opportunity to explain or deny the statement before the close of the evidence (§ 770). Rule 801(d)(A)(1) takes a similar approach, but such statements may be used substantively only if "given under penalty of perjury at a trial, hearing, or other proceeding, or in a deposition".

§ 8.04 Prior Consistent Statements

FEDERAL RULES OF EVIDENCE

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay

* * *

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

* * *

(B) is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; * * *.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 791. Prior consistent statement of witness

Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after:

(a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or

(b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.

§ 1236. Prior consistent statements

Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791.

<EN>---

Comparative Note. Both the Rules and the Code authorize the use of statements that are consistent with a witness's testimony to be offered for the truth of the matter stated as well as to support the witness's credibility (Rule 801(d)(1)(B), §§ 791, 1236). The principal difference is not the hearsay aspects of such statements, but the circumstances which authorize their use. The Code allows a party to support the credibility of a witness with statements that are consistent with the witness's testimony if one of two conditions is satisfied. First, if the witness was impeached with a prior inconsistent statement, the witness can be rehabilitated with a consistent statement, if the statement was made before the alleged inconsistent statement (§ 791(a)). Second, where the witness has been expressly or impliedly charged with fabricating his testimony or allowing bias or other improper motive to shape his testimony, the witness can be rehabilitated with a prior consistent statement if the statement was made before the motive to fabricate or other improper motive is alleged to have arisen (§ 791(b)).

The Rules take a more restrictive approach. A prior consistent statement may be received only to rebut an express or implied charge of recent fabrication or improper influence (Rule 801(d)(1)(B)). The Rules do not contain a provision equivalent to § 791(a) which permits the use of a prior consistent statement to rehabilitate a witness if the witness has been impeached by a prior inconsistent statement and the consistent statement was made before the inconsistent one.

Where the witness has been expressly or impliedly charged with fabricating his testimony or allowing bias or other improper motive to shape his testimony, the Code requires the rehabilitating party to show that the witness made the consistent statement before the motive to fabricate or other improper motive is alleged to have arisen (§ 791(b)). The Rules omit this requirement, but the United States Supreme Court has read it into the Federal Rule as a matter of statutory interpretation.1

In California criminal cases, a literal application of Proposition 8—a state constitutional provision—would repeal the restrictions on the use of consistent statements to rehabilitate witnesses and, instead, would commit their admissibility to the judge's discretion. For a discussion of this provision and its impact, see §§ 6.03 and 6.11 in Chapter 6.

§ 8.05 Statements of Identification

FEDERAL RULES OF EVIDENCE

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay

* * *

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

* * *

(C) identifies a person as someone the declarant perceived earlier.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1238. Prior identification

Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and:

(a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence;

(b) The statement was made at a time when the crime or other occurrence was fresh in the witness' memory; and

(c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.

<EN>---

Comparative Note. Both the Rules and the Code allow the hearsay use of a statement previously made by a witness identifying another as a person who participated in a crime or other occurrence (Rule 801(d)(1)(c), § 1238). The Federal Rule imposes no limitations on the use of the statement provided the declarant made the statement after perceiving the person and is subject to cross-examination concerning the statement. The Code, on the other hand, imposes a number of limitations. To be admissible under this hearsay exception, the proponent must show that the statement was made at a time when the crime or other occurrence was fresh in the declarant's memory. In addition, the proponent may not offer the statement unless the declarant first testifies that the statement of identification was true reflection of his or her recollection (§ 1238). Under the Code, subjecting the declarant to cross-examination is not a sufficient guarantee of trustworthiness. In addition, the declarant must vouch for the accuracy of the statement.

§ 8.06 Admissions by a Party and Related Statements

FEDERAL RULES OF EVIDENCE

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay

* * *

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

* * *

(2) An Opposing Party's Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party's coconspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1220. Admission of party

Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.

§ 1221. Adoptive admission

Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.

§ 1222. Authorized admission

Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:

(a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement; and

(b) The evidence is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court's discretion as to the order of proof, subject to the admission of such evidence.

§ 1223. Admission of co-conspirator

Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:

(a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy;

(b) The statement was made prior to or during the time that the party was participating in that conspiracy; and

(c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court's discretion as to the order of proof, subject to the admission of such evidence.

§ 1224. Statement of declarant whose liability or breach of duty is in issue

When the liability, obligation, or duty of a party to a civil action is based in whole or in part upon the liability, obligation, or duty of the declarant, or when the claim or right asserted by a party to a civil action is barred or diminished by a breach of duty by the declarant, evidence of a statement made by the declarant is as admissible against the party as it would be if offered against the declarant in an action involving that liability, obligation, duty, or breach of duty.

§ 1225. Statement of declarant whose right or title is in issue

When a right, title, or interest in any property or claim asserted by a party to a civil action requires a determination that a right, title, or interest exists or existed in the declarant, evidence of a statement made by the declarant during the time the party now claims the declarant was the holder of the right, title, or interest is as admissible against the party as it would be if offered against the declarant in an action involving that right, title, or interest.

§ 1226. Statement of minor child in parent's action for child's injury

Evidence of a statement by a minor child is not made inadmissible by the hearsay rule if offered against the plaintiff in an action brought under Section 376 of the Code of Civil Procedure for injury to such minor child.

§ 1227. Statement of declarant in action for his wrongful death

Evidence of a statement by the deceased is not made inadmissible by the hearsay rule if offered against the plaintiff in an action for wrongful death brought under Section 377 of the Code of Civil Procedure.

<EN>---

Comparative Note. The Code and the Rules allow a party to offer the opposing party's out of court statements for the truth of the matters asserted. These statements fall into four principal categories: (a) admissions made by a party through his or her own statements, (b) admissions made by others but adopted by a party, (c) admissions a party has authorized others to make on his or her behalf, and (d) admissions made by a party's coconspirator.

A Party's Own Statements. The definition of admissions made by a party through his or her own statements is substantively the same under the Rules and the Code (Rule 801(d)(2)(A), § 1220).

Adoptive Admissions. The definition of adoptive admissions is virtually the same under the Rules and the Code (Rule 801(d)(2)(B), § 1221).

Authorized Admissions. Although the definition of authorized admissions is similar under the Code and the Rules, the Code defines these statements as those made by a person authorized by the party to make the statement "for him" concerning the subject matter of the statement (§ 1222). The Federal Rule also embraces statements made by the declarant to the party (Rule 801(d)(2)(C)). Under the Code, statements an agent makes to the party are beyond the definition even if the agent is authorized to make the statement. The limitation in the Code is inadvertent and should be immaterial in most circumstances.

Admissions by Agents and Servants. Whether or not a party has authorized someone to make a statement on the party's behalf presents a preliminary issue that should be resolved, not by the law of evidence, but by the law of agency. California cases, however, have drained the exception of much of its utility by insisting on proof that the party expressly authorized the declarant to make the statement.1 Concerned that federal courts might impose such a narrow construction on authorized admissions, the framers of the Federal Rules added a new hearsay exception for statements made "by a party's agent or employee on a matter within the scope of that relationship and while it existed" (Rule 801(d)(2)(D)). The California Evidence Code does not contain this provision.

The Code, however, contains hearsay exceptions for a number of out of court statements akin to admissions. These statements do not qualify as admissions because the declarant is not a party to the action in which the declarations are offered and the statements do not qualify as statements adopted or authorized by the party against whom offered. But the statements would qualify as party admissions had the declarant had been a party.

Section 1224 provides as follows: "When the liability, obligation, or duty of a party to a civil action is based in whole or in part upon the liability, obligation, or duty of the declarant, or when the claim or right asserted by a party to a civil action is barred or diminished by a breach of the duty by the declarant, evidence of a statement made by the declarant is as admissible against the party as it would be if offered against the declarant in an action involving that liability, obligation, duty, or breach of duty."

Labis v. Stopper2 illustrates how § 1224 can be used. Labis sued a painting contractor for injuries she received when one of the contractor's painters moved a drop cloth while the plaintiff was walking on it. To prove that the painter moved the drop cloth without first looking, she offered a statement in which the painter told an investigating police officer that he was not aware that anyone was on the drop cloth when he moved it. The contractor's liability depended in part on the painter's breach of the duty of care he owed the plaintiff; consequently, since the painter's statement would have been admissible against him as an admission, it was admissible against the contractor under § 1224 for the truth of the matter stated.3

In some instances, § 1224 can confer a benefit on the plaintiff without according the defendant a similar advantage. Suppose that in Labis the plaintiff had died and the action had been brought by her survivor as a wrongful death action. Prior to her death the plaintiff had said that she had walked around a sawhorse designed to keep pedestrians off the drop cloth. The statement would not be admissible against the survivor as an admission by the party opponent, since the decedent is not a party in the wrongful death action. Nor would the statement be admissible under § 1224, since the section contemplates the use of the statement against defendants, not plaintiffs. To help rectify this imbalance, the Code includes a hearsay exception for some statements made by the deceased in wrongful death actions. Under § 1227, statements made by the deceased are as admissible against the survivor as they would have been against the deceased in an action brought by the deceased. Similarly, in actions brought by parents to recover for injuries to their children, the children's statements are as admissible against the parents as they would have been against the children in an action brought by the children (§ 1226). Again, in actions involving property disputes, declarations by a predecessor in interest are as admissible against successors as they would have been in action against the predecessor (§ 1225).

Coconspirator's Declarations. Both the Rules and the Code allow damaging statements made by a party's coconspirators to be offered against the party for the truth of the matter asserted even in the absence of evidence that the party authorized the coconspirator to make the statement on his or her behalf (Rule 801(d)(2)(E), § 1223). Conspirators are presumed to authorize each other to speak for each other if certain conditions are met. These relate principally to the circumstances attending the making of the statements.

The major differences between the California and federal approaches to coconspirators' declarations concern the standard that must be met in proving the preliminary or foundational facts for admission of the declarations and the kind of evidence that can be offered to satisfy the standard. In California, a sufficiency standard applies.4 Viewing the evidence in the light most favorable to the proponent, the judge must be convinced that a reasonable fact finder could find the foundational facts (the existence of the conspiracy and the declarant's and accused's participation).5 In making this showing, however, the proponent is limited to offering admissible evidence.6 This limitation precludes bootstrapping. Over a hearsay objection, the proponent may not offer the coconspirator's hearsay declaration as evidence of the foundational requirements.

The Federal Rules are seemingly more protective of the accused than is the Code. The United States Supreme Court has construed the Rules to require the proponent to prove the foundational facts by a preponderance of the evidence.7 This added protection, however, is undercut by the Rules' position permitting the proponent to offer the coconspirator's hearsay declaration as evidence of the existence of the conspiracy and of the foundational facts. (Rules 104(a) and 1101(d)(1)). In making preliminary fact determinations involving the admissibility of evidence, a federal judge is not bound by the rules of evidence except those regarding privileges. Consequently, a federal judge can consider the coconspirator's declaration in determining whether the prosecution has proved the conspiracy and the declarant's and accused's participation, even though the use of the declaration for these purposes violates the hearsay rule.

A federal judge, however, may not rely on the coconspirator's statement alone to find the preliminary facts. Federal Rule 801 provides that the statement does not by itself establish the existence of the conspiracy or participation it. The judge, in addition, must consider "the circumstances surrounding the statement, such as the identity of the speaker, the context in which the statement was made, or evidence corroborating the contents of the statement in making its determination as to each preliminary question." (Advisory Committee Note).

§ 8.07 Present Sense Impressions and Contemporaneous Statements

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1241. Contemporaneous statement

Evidence of a statement is not made inadmissible by the hearsay rule if the statement:

(a) Is offered to explain, qualify, or make understandable conduct of the declarant; and

(b) Was made while the declarant was engaged in such conduct.

<EN>---

Comparative Note. Section 1241 creates a hearsay exception for statements which are "offered to explain, qualify, or make understandable conduct of the declarant" and which were "made while the declarant was engaged in such conduct." Trustworthiness is derived from the requirement that the declaration be contemporaneous with the conduct that is being explained, qualified, or made understandable.

Some scholars have questioned the need for this exception, noting that the kinds of the statements contemplated by § 1241 are not hearsay. For example, under the laws relating to personal property, merely lending a pen to someone does not strip the lender of ownership of the pen; it creates only a bailment. But giving the pen to another can transfer ownership by creating an inter vivos gift. Whether a bailment or inter vivos gift was created depends on the intention of the owner. Thus, if in the act of handing the pen the owner says, "Use my pen", only a bailment is created. But if the owner says, "I want you to have this pen", then an inter vivos transfer is effected. In either case, the statements are verbal acts. When the substantive law governing the action invests certain utterances with legal significance, then proof of those utterances does not violate the hearsay rule.

The Federal Rules do not contain a hearsay exception for contemporaneous statements. Instead, Rule 803(1) creates an exception for present sense impressions, that is, a statement "describing or explaining an event or condition, made while or immediately after the declarant perceived it." The California Law Revision Commission recommended an exception for present sense impressions, but the Legislature rejected the recommendation and adopted only the exception for contemporaneous statements. In 2008 the Commission recommended to the Legislature that it enact an exception for present sense impressions modeled on the federal rule.

§ 8.08 Excited Utterances

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1240. Spontaneous statement

Evidence of a statement is not made inadmissible by the hearsay rule if the statement:

(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and

(b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.

<EN>---

Comparative Note. Both the Code and the Rules create a hearsay exception for spontaneous utterances made while the declarant was under the stress of an exciting or startling event (Rule 803(2), § 1240). The scope of the exceptions is not identical, however. Under the Code, the exception is limited to those statements that purport "to narrate, describe, or explain an act, condition, or event perceived by the declarant" while under the Rules, the statement only needs to relate to the startling event or condition. The California courts, however, have construed § 1240 broadly and included statements that relate and not merely describe or narrate the startling event.1

Excited utterances differ from present sense impressions under the Federal Rules in two significant respects. First, while excited utterances can be made at any time during the excited state, present sense impressions must be made while the declarant is perceiving the event or shortly thereafter.2 Moreover, excited utterances under the Rules need only relate to the startling event giving rise to the declaration; present sense impressions are limited to statements describing or explaining the event or condition. "[In] the absence of a startling event, [they] may extend no farther."3

§ 8.09 State of Mind Declarations

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.

(4) Statement Made for Medical Diagnosis or Treatment. A statement that:

(A) is made for--and is reasonably pertinent to--medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1250. Statement of declarant's then existing mental or physical state

(a) Subject to Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when:

(1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or

(2) The evidence is offered to prove or explain acts or conduct of the declarant.

(b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.

§ 1251. Statement of declarant's previously existing mental or physical state

Subject to Section 1252, evidence of a statement of the declarant's state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible by the hearsay rule if:

(a) The declarant is unavailable as a witness; and

(b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation.

§ 1252. Restriction on admissibility of statement of mental or physical state

Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness.

§ 1253. Statements for purposes of medical diagnosis or treatment; contents of statement; child abuse or neglect; age limitations

Subject to Section 1252, evidence of a statement is not made inadmissible by the hearsay rule if the statement was made for purposes of medical diagnosis or treatment and describes medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. This section applies only to a statement made by a victim who is a minor at the time of the proceedings, provided the statement was made when the victim was under the age of 12 describing any act, or attempted act, of child abuse or neglect. "Child abuse" and "child neglect," for purposes of this section, have the meanings provided in subdivision (c) of Section 1360. In addition, "child abuse" means any act proscribed by Chapter 5 (commencing with Section 281) of Title 9 of Part 1 of the Penal Code committed against a minor.

§ 1260. Statements concerning declarant's will or revocable trust

(a) Except as provided in subdivision (b), evidence of any of the following statements made by a declarant who is unavailable as a witness is not made inadmissible by the hearsay rule:

(1) That the declarant has or has not made a will or established or amended a revocable trust.

(2) That the declarant has or has not revoked his or her will, revocable trust, or an amendment to a revocable trust.

(3) That identifies the declarant's will, revocable trust, or an amendment to a revocable trust.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances that indicate its lack of trustworthiness.

<EN>---

Comparative Note.

Declarations Regarding a Then Existing Mental State. The Rules and the Code provide a hearsay exception for declarations in which the declarant describes a then existing state of mind (Rule 803(3), § 1250). The insistence on contemporaneity furnishes the exception with trustworthiness. Expressions of existing feelings and discomforts—as opposed to narratives of past feelings and miseries—are likely to be sincere and spontaneous.1 The need for this kind of evidence also justifies the exception, since it is difficult to discern what people think unless they tell us. Nonetheless, reservations about the reliability of these expressions caused the Code framers to include a provision empowering trial judges to exclude them if they find that the declarations "were made under circumstances such as to indicate [their] lack of trustworthiness." (§ 1252). Rule 803(3) does not contain this limitation.

The Code makes clear that declarations of a then existing state of mind can be offered to prove the declarant's state of mind at that time or at any other time when the mental state itself is an issue in the action (§ 1250(a)(1)). Accordingly, the declaration can be offered as circumstantial evidence that the declarant had a similar state of mind prior to or subsequent to the time period embraced in the declaration. The Federal Rule does not contain a similar provision, but the Rules' relevance provisions should permit a similar use of the declarations in federal court.

The Code also contains a provision expressly allowing a declaration of a then existing mental state to be used to prove or explain acts or conduct of the declarant (§ 1250(a)(2)). An example would be the use of a declaration regarding future plans to prove that the declarant implemented those plans. Again, the Federal Rule does not contain an analogous provision, but such use is allowed by the Rules' relevance provisions.

Declarations concerning future plans are controversial because often they include the future plans of individuals other than the hearsay declarant. In People v. Alcalde2 the accused was tried for murdering a woman he had been seeing socially. At issue was the admissibility of a declaration made by the victim on the day of the killing in which she stated that she was "going out with Frank" that evening. "Frank" was the accused's first name. The accused objected that the victim's declaration was inadmissible to prove his future plans to see the victim. The California Supreme Court upheld the use of the declaration, noting that in overruling the objection the trial judge had taken "the precaution to state in the presence of the jury that the evidence was admitted for the limited purpose of showing the decedent's intention."3 The Code, which was enacted after Alcalde, underscores the point by limiting these declarations to proving or explaining the acts or conduct of the declarant (§ 1250(a)(2)).

The California courts, however, have not abided by this limitation. Although the California Supreme Court has declined to rule on whether the Evidence Code limits Alcalde to proving only the declarant's future plans,4 some lower courts have mistakenly construed another Supreme Court case, People v. Morales,5 as allowing the use of a declaration regarding future plans to prove the plans of others in addition to those of the declarant.6

Rule 803(3) does not contain the limitation found in the Code. However, in approving the Federal Rule, the House Committee on the Judiciary expressed agreement with such a limitation. In its report the committee states that its intent is that Federal Rule of Evidence 803(3) "be construed to limit the doctrine of Mutual Life Insurance Co. v. Hillmon * * * so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person."7 Hillmon is the classic case exploring the use of declarations regarding future plans. Despite the House's unambiguous position, some appellate federal courts, including the Ninth Circuit, have approved the use of the declarations to prove the future conduct of others.8

Declarations Regarding a Past State of Mind. As a general rule, the Rules and Code prohibit the use of a statement of memory or belief to prove the fact remembered or believed (Rule 803(3), § 1250(b)). Otherwise, the hearsay rule might be inadvertently repealed since any statement of a past event is a statement of the declarant's then existing state of mind regarding the past event.

The Code, however, creates a hearsay exception for declarations of past state of mind in three circumstances: first, where the previous mental state is itself an issue in the case and the declaration is not offered to prove any fact other than that mental state, and the declarant is unavailable to testify (§ 1251). The Rules do not contain an equivalent provision.

Second, the Code creates an exception where the statement was made for purposes of medical diagnosis or treatment and describes medical history, including past as well as present symptoms, insofar as reasonably pertinent to diagnosis or treatment (§ 1253). The exception, however, applies only to a statement made by a victim when the victim is a minor at the time of proceedings, "provided the statement was made when the victim was under the age of 12 describing any act, or attempted act, of child abuse or neglect." This exception is merely a truncated version of Federal Rule of Evidence 803(4), which is discussed below.

Finally, the Code creates an exception where the statement consists of a declaration in which the declarants state that they have or have not made a will, or have or have not revoked a will (§ 1260). The Rules contain a similar provision (Rule 803(3)). Under the Code, however, the declaration is not admissible if the declarant is available to testify. The Rules do not impose this limitation.

Declarations Concerning Medical Symptoms. Unlike the Code, the Rules contain a broad hearsay exception for statements made for purposes of medical diagnosis or treatment. Rule 803(4) provides an exception for statements made " (A) is made for--and is reasonably pertinent to--medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause." Unlike the California exception, the Federal Rule is not limited to statements made by minors describing acts or attempted acts of child abuse and neglect.

Rule 803(4) is a marked and generous departure from the Common Law. It includes present as well as past symptoms, and it is immaterial whether the physician was consulted for treatment or for the purpose of enabling the doctor to testify. The declarant's motive goes to weight, not admissibility (Advisory Committee Note). Moreover, it is not indispensable for the statement to be made to a doctor. "Statements to hospital attendants, ambulance drivers, or even members of the family" can be included if reasonably pertinent to diagnosis or treatment (Advisory Committee Note).

Under Rule 803(4), statements of causation are also admissible if reasonably pertinent to diagnosis or treatment (Advisory Committee Note). Knowing what caused an injury can assist a doctor in making the proper diagnosis or formulating the appropriate treatment. But statements relating to fault do not generally qualify. "Thus a patient's statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light." (Advisory Committee Note).

§ 8.10 Past Recollection Recorded

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(5) Recorded Recollection. A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness's memory; and

(C) accurately reflects the witness's knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1237. Past recollection recorded

(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:

(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;

(2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made;

(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and

(4) Is offered after the writing is authenticated as an accurate record of the statement.

(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

<EN>---

Comparative Note. Although using different language, the Rules and the Code provide a hearsay exception for recorded recollection if the witness has insufficient recollection to testify fully and accurately (Rule 803(5), § 1237). The Code, however, includes an additional safeguard. Only those recorded statements that would have been admissible if made by the witness while testifying are admissible (§ 1237). Presumably, the same outcome would obtain in federal court since the Federal Rule does not preclude the opponent from using other grounds to object to the admissibility of the recorded statement.

§ 8.11 Business and Official Records

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:

(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.

(8) Public Records. A record or statement of a public office if:

(A) it sets out:

(i) the office's activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.

(10) Absence of a Public Record. Testimony--or a certification under Rule 902--that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:

(A) the record or statement does not exist; or

(B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1270. A business

As used in this article, "a business" includes every kind of business, governmental activity, profession, occupation, calling, or operation of institutions, whether carried on for profit or not.

§ 1271. Admissible writings

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

(a) The writing was made in the regular course of a business;

(b) The writing was made at or near the time of the act, condition, or event;

(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

§ 1272. Absence of entry in business records

Evidence of the absence from the records of a business of a record of an asserted act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the nonoccurrence of the act or event, or the nonexistence of the condition, if:

(a) It was the regular course of that business to make records of all such acts, conditions, or events at or near the time of the act, condition, or event and to preserve them; and

(b) The sources of information and method and time of preparation of the records of that business were such that the absence of a record of an act, condition, or event is a trustworthy indication that the act or event did not occur or the condition did not exist.

§ 1280. Record by public employee

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies:

(a) The writing was made by and within the scope of duty of a public employee.

(b) The writing was made at or near the time of the act, condition, or event.

(c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

<EN>---

Comparative Note.

Business Records. There is substantial overlap between the California and federal hearsay exceptions for entries in business records. Both define a business broadly and require the business entry to be made in the regular course of business at or near the time the event recorded took place (Rule 803(6), §§ 1270–1271). In addition, both dispense with the need to call a witness to identify the record and testify about its mode of preparation under specified circumstances (Rule 803(6), §§ 712, 1560–1566). Also, where the business entry is based on information supplied by someone other than the person making the entry, both the Rules and the Code require that the information be imparted by persons with first hand knowledge and a duty to report their knowledge to the entrant. (Rule 803(6) (Advisory Committee Note, § 1271 Comment)). There are some differences, however, between the California and federal approaches.

First, Rule 803(6) requires the proponent to show that it was the regular practice of the business to create the record, not just that it was created in the course of regularly conducted business activity. Second, although both the Rules and the Code give the judge the power to exclude a record otherwise satisfying the foundational requirements if the judge determines that the sources of information used to create the record or the method and circumstances of preparation indicate lack of trustworthiness, in California it is the proponent who must show that the record is trustworthy (§ 1271(d)). In federal court, it is the opponent who must persuade the judge of the record's untrustworthiness (Rule 803(6)). Admissibility is assumed in the first instance under the Rules.

Third, Rule 803(6) explicitly states that an opinion or diagnosis can qualify as an admissible entry. The Code omits this provision, but the omission is immaterial. In both jurisdictions, the admissibility of opinions in business records depends in the first instance on the application of the opinion rule to lay and expert witnesses.1 As a general rule, whether a particular opinion is admissible depends on whether it would be admissible through the hearsay declarant if the declarant testified at the hearing.

The California courts, however, have taken a more restrictive approach. Opinions in business records should be limited to readily observable acts, events or conditions.2 Thus, an opinion by a qualified declarant that the plaintiff suffered a broken leg should be admitted but not an opinion that he suffers from a psychiatric condition. The greater the thought process required to reach an opinion, the greater the need for cross examining the hearsay declarant.

Absence of Entry in Business Records. Just as entries in business records may be used to prove the occurrence of an act or event, or the existence of a condition, the absence of such entries may be offered to prove their nonoccurrence or nonexistence. Although it is debatable whether the use of business records for this purpose violates the hearsay rule, the framers of the Federal Rules and the Evidence Code opted for creating a hearsay exception for the absence of entries (Rule 803(7), § 1272). As in the case of business records, Rule 803(7) assumes admissibility if the foundational requirements are satisfied, unless the opponent convinces the judge of the record's lack of trustworthiness. Under Code § 1272(b), it is the proponent who, over objection, must establish the record's trustworthiness.

Official Records. Although the Code and the Rules create a hearsay exception for official records, each takes a radically different approach to their admissibility.

California. Under § 1280, a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if the writing was made by and within the scope of duty of a public employee, the writing was made at or near the time of the act, condition, or event recorded, and the sources of information and method and time of preparation were such as to indicate trustworthiness. Because the same showing of trustworthiness is required of California official records as for California business records, the limitations imposed on business records apply to official ones as well. Official records are equally subject to the opinion rule and the rule requiring those who impart information to the preparer to be under a duty to provide such information.

Federal Rules. The federal exception for public records and reports has three distinct parts. Rule 803(8) creates a hearsay exception for a statement of a public office if the statement sets out "(i) the office's activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation". As in the case of business records, Rule 803(8) assumes admissibility if all of the foundational requirements are met, unless the opponent persuades the judge that the sources of information or other circumstances indicate lack of trustworthiness.

The federal approach to official records departs from that of the Code in two significant respects. First, the Rules limit the admissibility of such records when offered against the accused in criminal cases, and, second, the Rules expand the admissibility of reports containing opinions in civil cases and in criminal cases when offered against the government.

Federal Criminal Cases. Rule 803(8) creates a hearsay exception for statements in public records setting out "a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel." In United States v. Oates3 the Second Circuit held that this provision required excluding a government chemist's report offered against the accused. Reasoning that the chemist was a member of the law enforcement team, the court concluded that the report fell within the prohibition of the rule.4

The California exception for official records is devoid of any language limiting the use of the records when offered against the accused. In California, the accused would have to object on Sixth Amendment confrontation grounds.

Some circuits have drawn a distinction between reports prepared by law enforcement personnel who were in an adversarial position to the accused and those prepared by personnel who were indifferent to the accused. In United States v. Orozco,5 for example, the Ninth Circuit upheld the use of border crossing cards by immigration officials to prove that a car registered to the accused had crossed from Mexico into the United States shortly before narcotics were found in the car. While conceding that the immigration officials could be deemed law enforcement personnel, the court nonetheless upheld the use of the cards on the ground that they were trustworthy.6 The cards had been prepared as part of a routine practice and at a time when the government and its agents were not in an adversarial position vis-à-vis the accused.7

Federal Civil cases. Rule 803(8) creates a hearsay exception for records setting out factual findings from a legally authorized investigation when offered in a civil case or against the government in a criminal case. The broad scope of this exception was examined by the United States Supreme Court in Beech Aircraft Corp. v. Rainey,8 a wrongful death action brought by the spouses of two pilots killed in an aircraft accident against the manufacturer of the plane. The plaintiffs' theory was that the accident had been caused by engine failure and not pilot error as maintained by the manufacturer. The question before the Court was the admissibility of a Judge Advocate General's report in which the investigator concluded, among other matters, that the "most probable cause of the accident was the pilots [sic] failure to maintain proper interval."9

In upholding the admissibility of the report, the Court rejected the argument that the "factual findings" contemplated by the rule excluded factually based conclusions or opinions: "[P]ortions of investigatory reports otherwise admissible under Rule (8)(C) are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on a factual investigation and satisfies the Rule's trustworthiness requirement, it should be admissible along with other portions of the report."10

The Advisory Committee Note to Rule 808(C) lists four factors federal judges should consider in determining the reliability of investigative reports: (1) the timeliness of the investigation, (2) the investigator's skill or experience, (3) whether a hearing was held and the level at which conducted, and (4) possible bias when reports are prepared with a view to possible litigation.

§ 8.12 Judgments of Conviction

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:

(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;

(B) the conviction was for a crime punishable by death or by imprisonment for more than a year;

(C) the evidence is admitted to prove any fact essential to the judgment; and

(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.

The pendency of an appeal may be shown but does not affect admissibility.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1300. Judgment of conviction of crime punishable as felony

Evidence of a final judgment adjudging a person guilty of a crime punishable as a felony is not made inadmissible by the hearsay rule when offered in a civil action to prove any fact essential to the judgment whether or not the judgment was based on a plea of nolo contendere.

<EN>---

Comparative Note. In California a final judgment adjudging a person guilty of a crime punishable as a felony is not made inadmissible by the hearsay rule when offered in a civil action to prove any fact essential to the judgment (§ 1300). It is immaterial whether the judgment is based on a guilty verdict, a finding of guilt, a plea of guilty, or a plea of nolo contendere.

A hearsay exception is required because the judgment is a proxy for the evidence which the prosecution offered or would have offered in its case-in-chief to make out a prima facie case. The purpose of the exception is not to prove the fact of conviction—the business or official records exceptions can be used for that purpose—but to prove the misconduct underlying the conviction.

Federal Rule 803(22) differs from the Code in several respects. First, it retains the traditional approach of excluding from the exception felony grade convictions based on a plea of nolo contendere. The purpose of such a plea is to encourage criminal defendants to forego the right of trial without fear that the plea might be offered against them as a party admission in a subsequent civil action for damages. The California Legislature amended the Code in 1982 to remove this exclusion in order to facilitate suits by crime victims.

Second, Rule 803(22) allows the use of judgments of convictions in criminal, not just civil trials. But to avoid constitutional concerns, the Federal Rule does not allow the use of a judgment of conviction of a third person when offered by the prosecution against the accused. The prosecution may not, for example, use a thief's conviction to prove that the accused possessed stolen postage stamps (Advisory Committee Note). California avoids the problem by limiting the use of judgments of convictions to civil cases.

§ 8.13 Judgments Against Persons Entitled to Indemnity

CALIFORNIA EVIDENCE CODE

§ 1301. Judgment against person entitled to indemnity

Evidence of a final judgment is not made inadmissible by the hearsay rule when offered by the judgment debtor to prove any fact which was essential to the judgment in an action in which he seeks to:

(a) Recover partial or total indemnity or exoneration for money paid or liability incurred because of the judgment;

(b) Enforce a warranty to protect the judgment debtor against the liability determined by the judgment; or

(c) Recover damages for breach of warranty substantially the same as the warranty determined by the judgment to have been breached.

<EN>---

Comparative Note. The Code creates a hearsay exception for final judgments offered by a judgment debtor to prove any fact which was essential to the judgment in an action seeking to recover partial or total indemnity or exoneration for money paid or liability incurred on account of the judgment, to enforce a warranty to protect the judgment debtor against liability determined by the judgment, or to recover damages for breach of a warranty substantially the same as the warranty determined by the judgment to have been breached (§ 1301). The Federal Rules do not contain an equivalent exception.

§ 8.14 Judgments Determining the Liability of a Third Person

CALIFORNIA EVIDENCE CODE

§ 1302. Judgment determining liability of third person

When the liability, obligation, or duty of a third person is in issue in a civil action, evidence of a final judgment against that person is not made inadmissible by the hearsay rule when offered to prove such liability, obligation, or duty.

<EN>---

Comparative Note. When the liability, obligation, or duty of a third person is an issue in a civil action, the Code creates a hearsay exception for a final judgment against that person when offered to prove such liability, obligation, or duty (§ 1302). The Federal Rules do not contain an equivalent exception.

§ 8.15 Former Testimony

FEDERAL RULES OF EVIDENCE

Rule 804. Exceptions to the Rule Against Hearsay--When the Declarant Is Unavailable as a Witness

* * *

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) 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.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1290. Former testimony

As used in this article, "former testimony" means testimony given under oath in:

(a) Another action or in a former hearing or trial of the same action;

(b) A proceeding to determine a controversy conducted by or under the supervision of an agency that has the power to determine such a controversy and is an agency of the United States or a public entity in the United States;

(c) A deposition taken in compliance with law in another action; or

(d) An arbitration proceeding if the evidence of such former testimony is a verbatim transcript thereof.

§ 1291. Former testimony offered against party to former proceeding

(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:

(1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or

(2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.

(b) The admissibility of former testimony under this section is subject to the same limitations and objections as though the declarant were testifying at the hearing, except that former testimony offered under this section is not subject to:

(1) Objections to the form of the question which were not made at the time the former testimony was given.

(2) Objections based on competency or privilege which did not exist at the time the former testimony was given.

§ 1292. Former testimony offered against person not a party to former proceeding

(a) Evidence of former testimony is not made inadmissible by the hearsay rule if:

(1) The declarant is unavailable as a witness;

(2) The former testimony is offered in a civil action; and

(3) The issue is such that the party to the action or proceeding in which the former testimony was given had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party against whom the testimony is offered has at the hearing.

(b) The admissibility of former testimony under this section is subject to the same limitations and objections as though the declarant were testifying at the hearing, except that former testimony offered under this section is not subject to objections based on competency or privilege which did not exist at the time the former testimony was given.

§ 1293. Former testimony by minor child complaining witness at preliminary examination

(a) Evidence of former testimony made at a preliminary examination by a minor child who was the complaining witness is not made inadmissible by the hearsay rule if:

(1) The former testimony is offered in a proceeding to declare the minor a dependent child of the court pursuant to Section 300 of the Welfare and Institutions Code.

(2) The issues are such that a defendant in the preliminary examination in which the former testimony was given had the right and opportunity to cross-examine the minor child with an interest and motive similar to that which the parent or guardian against whom the testimony is offered has at the proceeding to declare the minor a dependent child of the court.

(b) The admissibility of former testimony under this section is subject to the same limitations and objections as though the minor child were testifying at the proceeding to declare him or her a dependent child of the court.

(c) The attorney for the parent or guardian against whom the former testimony is offered or, if none, the parent or guardian may make a motion to challenge the admissibility of the former testimony upon a showing that new substantially different issues are present in the proceeding to declare the minor a dependent child than were present in the preliminary examination.

(d) As used in this section, "complaining witness" means the alleged victim of the crime for which a preliminary examination was held.

(e) This section shall apply only to testimony made at a preliminary examination on and after January 1, 1990.

§ 1294. Unavailable witnesses; prior inconsistent statements; preliminary hearing or prior proceeding

(a) The following evidence of prior inconsistent statements of a witness properly admitted in a preliminary hearing or trial of the same criminal matter pursuant to Section 1235 is not made inadmissible by the hearsay rule if the witness is unavailable and former testimony of the witness is admitted pursuant to Section 1291:

(1) A video recorded statement introduced at a preliminary hearing or prior proceeding concerning the same criminal matter.

(2) A transcript, containing the statements, of the preliminary hearing or prior proceeding concerning the same criminal matter.

(b) The party against whom the prior inconsistent statements are offered, at his or her option, may examine or cross-examine any person who testified at the preliminary hearing or prior proceeding as to the prior inconsistent statements of the witness.

<EN>---

Comparative Note. Under the Rules and the Code, a witness's former testimony may be admissible as an exception to the hearsay rule if the proponent first establishes the unavailability of the witness at the hearing at which the testimony is offered (Rule 804(b)(1), § 1291). The Code and the Rules provide a hearsay exception for testimony given by a witness at another hearing of the same or different proceeding, or in a deposition taken in another action if the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination (Rule 804(b)(1), § 1291). In addition, the Code allows the use of former testimony against a party in a civil action who was not a party to the original action if the party to the original action had the right and opportunity to cross-examine the witness with an interest and motive similar to those which the opponent has at the current hearing (§ 1292). The Federal Rule allows the use of the testimony in these circumstances if the opponent's "predecessor in interest" had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination (Rule 804(b)(1)).

As a general rule, the Code and the Rules allow the party opposing the former testimony to object to a question or answer on the same grounds as if the declarant were on the stand testifying (Rule 804(b)(1), §§ 1291(b) and 1292(b)). But where the former testimony is offered against a party to the former proceeding, the Code precludes the opponent from objecting to the form of the question unless the opponent objected on that ground at the former hearing (§ 1291(b)(1)). The justification is that the proponent should not lose the answer on account of the defect in the question, since the opponent had an opportunity to object on that ground at the former hearing (Comment). The Federal Rule is silent on this point. Presumably, under the Rules, there is no need for the opponent to preserve any objection by objecting at the former hearing.

Under the Code, depositions offered in the action in which they are taken do not qualify as former testimony (§ 1290(c)). Only depositions taken in another action qualify. Accordingly, the admissibility of depositions offered in the action in which taken depends not on the former testimony exception to the hearsay rule but on the provisions of the California Civil Procedure Code governing the use of depositions at trial. If the deposition qualifies as former testimony, then its admissibility depends on the Evidence Code, not the Civil Procedure Code. The distinction is important because the waiver provisions of the Civil Procedure Code are broader than those found in the Evidence Code. In the absence of stipulations, the Civil Procedure Code requires parties opposing the deposition at trial to show that they objected to the question or answer on the same grounds whenever the defect might have been cured if promptly presented at the deposition.1

Under Rule 804(b)(1), depositions, whether or not taken in the action offered, qualify as former testimony.

Former Testimony by Minors at Preliminary Hearings. The Code, but not the Rules, creates a hearsay exception for testimony given by a complaining witness at a preliminary hearing if the witness was a minor, the former testimony is offered at a hearing to declare the minor a dependent child under the Welfare and Institutions Code, and the issues are such that the defendant at the preliminary hearing had the right and opportunity to cross examine the minor with a motive and interest similar to those which the parent or guardian against whom the testimony is offered has at the dependency hearing (§ 1293).

At the dependency hearing, the parent or guardian may object to any question or answer as though the child were testifying at the hearing. In addition, the parent or guardian may challenge the admissibility of the former testimony on the ground that issues are substantially new and different from those raised at the preliminary hearing.

The purpose of the exception is to spare the minor the necessity to testify twice to substantially similar matters—once at the preliminary hearing and a second time at the dependency hearing.

Former Testimony and Prior Inconsistent Statements. Sometimes, a witness who has given helpful information to the police recants when called to testify at the preliminary hearing. A witness, for example, who tells the police that the accused was the assailant, may claim at the preliminary hearing that she did not see the assailant. Under those circumstances, the prosecution may call to the stand the officer who took the statement to repeat the witness's statement. In California, the statement can be received to impeach the witness and, more importantly, to prove that the accused was the assailant (§ 1235).

If the witness then fails to appear at the trial, may the prosecution offer the witness's and the officer's preliminary hearing testimony as former testimony? If at the preliminary hearing the witness had identified the defendant as her assailant, then that portion of her testimony would have been admissible against the accused at the trial if the witness were shown to be unavailable to testify. But where, as in the example, the witness recants her out of court identification at the preliminary hearing, then at the trial her out of court statement to the officer will not be admissible for the truth in the absence of a hearsay exception for that statement.2 Since the witness does not appear at the trial, the use of the hearsay exception for prior inconsistent statements is problematical. Under §§ 770 and 1235, a prior inconsistent statement may be offered for the truth only if the witness is afforded an opportunity to explain or deny the statement before the close of the evidence.3 A hearsay declarant who does not appear at the trial is not afforded such an opportunity. To solve this problem, § 1294 of the Evidence Code allows the prosecution at the trial to offer the witness's statement to the officer for the truth of the matter asserted after offering the witness's recantation at the preliminary hearing.

At the trial, the prosecution is limited to proving the witness's former testimony by videotape or a transcript. If at the preliminary hearing the inconsistent statement was offered through a videotape taken by the police, then the prosecution may offer the videotape at the trial. If the statement was offered through the testimony of the officer who took the statement, then the prosecution may offer that portion of the transcript of the preliminary hearing containing the statement.

The accused may object to the introduction of the inconsistent statement on the grounds that the statement to the officer was not properly received at the preliminary hearing as a prior inconsistent statement, or that the videotape or transcript does not qualify as former testimony. If the statement is received at the trial, the accused retains the right to call and cross examine the witnesses who appeared at the preliminary hearing to testify about the prior inconsistent statement.

The Federal Rules of Evidence do not appear to offer a solution to this problem.4

§ 8.16 Declarant's Unavailability Caused by the Accused

FEDERAL RULES OF EVIDENCE

Rule 804. Exceptions to the Rule Against Hearsay--When the Declarant Is Unavailable as a Witness

* * *

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

* * *

(6) Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability. A statement offered against a party that wrongfully caused--or acquiesced in wrongfully causing--the declarant's unavailability as a witness, and did so intending that result.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1350. Unavailable declarant; hearsay rule

(a) In a criminal proceeding charging a serious felony, evidence of a statement made by a declarant is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness, and all of the following are true:

(1) There is clear and convincing evidence that the declarant's unavailability was knowingly caused by, aided by, or solicited by the party against whom the statement is offered for the purpose of preventing the arrest or prosecution of the party and is the result of the death by homicide or the kidnapping of the declarant.

(2) There is no evidence that the unavailability of the declarant was caused by, aided by, solicited by, or procured on behalf of, the party who is offering the statement.

(3) The statement has been memorialized in a tape recording made by a law enforcement official, or in a written statement prepared by a law enforcement official and signed by the declarant and notarized in the presence of the law enforcement official, prior to the death or kidnapping of the declarant.

(4) The statement was made under circumstances which indicate its trustworthiness and was not the result of promise, inducement, threat, or coercion.

(5) The statement is relevant to the issues to be tried.

(6) The statement is corroborated by other evidence which tends to connect the party against whom the statement is offered with the commission of the serious felony with which the party is charged. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

(b) If the prosecution intends to offer a statement pursuant to this section, the prosecution shall serve a written notice upon the defendant at least 10 days prior to the hearing or trial at which the prosecution intends to offer the statement, unless the prosecution shows good cause for the failure to provide that notice. In the event that good cause is shown, the defendant shall be entitled to a reasonable continuance of the hearing or trial.

(c) If the statement is offered during trial, the court's determination shall be made out of the presence of the jury. If the defendant elects to testify at the hearing on a motion brought pursuant to this section, the court shall exclude from the examination every person except the clerk, the court reporter, the bailiff, the prosecutor, the investigating officer, the defendant and his or her counsel, an investigator for the defendant, and the officer having custody of the defendant. Notwithstanding any other provision of law, the defendant's testimony at the hearing shall not be admissible in any other proceeding except the hearing brought on the motion pursuant to this section. If a transcript is made of the defendant's testimony, it shall be sealed and transmitted to the clerk of the court in which the action is pending.

(d) As used in this section, "serious felony" means any of the felonies listed in subdivision (c) of Section 1192.7 of the Penal Code or any violation of Section 11351, 11352, 11378, or 11379 of the Health and Safety Code.

(e) If a statement to be admitted pursuant to this section includes hearsay statements made by anyone other than the declarant who is unavailable pursuant to subdivision (a), those hearsay statements are inadmissible unless they meet the requirements of an exception to the hearsay rule.

§ 1390. Statements against parties involved in causing unavailability of declarant as witness

(a) Evidence of a statement is not made inadmissible by the hearsay rule if the statement is offered against a party that has engaged, or aided and abetted, in the wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

(b)(1) The party seeking to introduce a statement pursuant to subdivision (a) shall establish, by a preponderance of the evidence, that the elements of subdivision (a) have been met at a foundational hearing.

(2) The hearsay evidence that is the subject of the foundational hearing is admissible at the foundational hearing. However, a finding that the elements of subdivision (a) have been met shall not be based solely on the unconfronted hearsay statement of the unavailable declarant, and shall be supported by independent corroborative evidence.

(3) The foundational hearing shall be conducted outside the presence of the jury. However, if the hearing is conducted after a jury trial has begun, the judge presiding at the hearing may consider evidence already presented to the jury in deciding whether the elements of subdivision (a) have been met.

(4) In deciding whether or not to admit the statement, the judge may take into account whether it is trustworthy and reliable.

(c) This section shall apply to any civil, criminal, or juvenile case or proceeding initiated or pending as of January 1, 2011.

(d) This section shall remain in effect only until January 1, 2016, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2016, deletes or extends that date. If this section is repealed, the fact that it is repealed should it occur, shall not be deemed to give rise to any ground for an appeal or a postverdict challenge based on its use in a criminal or juvenile case or proceeding before January 1, 2016.

<EN>---

Comparative Note. Both the Code and the Rules recognize the need for a hearsay exception for damaging statements made by declarants who are prevented by a party from testifying. Rule 804(b)(6) provides an exception for a statement offered against a party "that wrongfully caused--or acquiesced in wrongfully causing--the declarant's unavailability as a witness, and did so intending that result." The statement may be offered against any party in a criminal or civil proceeding, so long as the proponent proves the foundational facts by a preponderance of the evidence (Advisory Committee Note).

California has two provisions. Section 1390 (a), enacted in 2010, is similar to the Federal Rule. It provides that "[e]vidence of a statement is not made inadmissible by the hearsay rule if the statement is offered against a party that has engaged or aided and abetted in the wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." It differs from the Federal Rule in that § 1390 vests the judge with discretion to exclude the declaration if the judge deems it untrustworthy and unreliable.

An older provision, Evidence Code § 1350, places more restrictions on the use of these declarations. They are admissible only in prosecutions charging a serious felony if, among other matters, the proponent proves by clear and convincing evidence that the declarant's unavailability was "knowingly caused by, aided by, or solicited by the party against whom the statement is offered for the purpose of preventing the arrest or prosecution" of that party. In addition, the proponent must prove by clear and convincing evidence that the declarant's unavailability is the result of death by homicide or of kidnaping.

Other limitations include proof by a preponderance of the evidence that the statement was made under circumstances which indicate it is trustworthy and not the result of promise, inducement, threat, or coercion. Corroboration is also required. The proponent must corroborate the statement by evidence tending to connect the party against whom the statement is offered with the commission of the serious felony with which the party is charged. Proof that merely shows the commission of the offense or its circumstances is insufficient. The proponent must also show that the statement was memorialized in a tape recording made by a law enforcement official or in a statement prepared by a law enforcement official and signed and notarized by the declarant in the presence of the law enforcement official.

Procedural safeguards include a requirement that the prosecution serve a written notice upon the accused of its intent to use the statement at least 10 days prior to the hearing or trial at which the statement is to be offered, unless the prosecution shows good cause for the failure to provide the notice. If good cause is shown, the accused is entitled to a reasonable continuance of the hearing or trial.

If the statement is offered during the trial, the judge must determine its admissibility at a hearing out of the presence of the jury. If the accused testifies at the hearing, the judge must exclude all persons, except for the clerk, the court reporter, the bailiff, the prosecutor, the investigating officer, the accused, and defense counsel. The accused's testimony is not admissible in any other proceeding, and if a transcript is made, it must be sealed and transmitted to the clerk of the court in which the action is pending. A final limitation is that hearsay declarations by others included in the statement admitted are inadmissible unless they fall within an exception to the hearsay rule.

Because of its numerous limitations, it is doubtful that a prosecutor today would rely on § 1350 given the ease of applying § 1390. Moreover, unlike § 1350, § 1390 can be applied against any party, including the prosecution, in both civil and criminal cases.5 Also unlike § 1350, under§ 1390 the wrongdoing behind the declarant's unavailability does not have to amount to a criminal act.

§ 8.17 Statements by Dead Declarants Regarding Gang Activities

CALIFORNIA EVIDENCE CODE

§ 1231. Prior statements of deceased declarant; hearsay exception

Evidence of a prior statement made by a declarant is not made inadmissible by the hearsay rule if the declarant is deceased and the proponent of introducing the statement establishes each of the following:

(a) The statement relates to acts or events relevant to a criminal prosecution under provisions of the California Street Terrorism Enforcement and Prevention Act (Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 of the Penal Code).

(b) A verbatim transcript, copy, or record of the statement exists. A record may include a statement preserved by means of an audio or video recording or equivalent technology.

(c) The statement relates to acts or events within the personal knowledge of the declarant.

(d) The statement was made under oath or affirmation in an affidavit; or was made at a deposition, preliminary hearing, grand jury hearing, or other proceeding in compliance with law, and was made under penalty of perjury.

(e) The declarant died from other than natural causes.

(f) The statement was made under circumstances that would indicate its trustworthiness and render the declarant's statement particularly worthy of belief. For purposes of this subdivision, circumstances relevant to the issue of trustworthiness include, but are not limited to, all of the following:

(1) Whether the statement was made in contemplation of a pending or anticipated criminal or civil matter, in which the declarant had an interest, other than as a witness.

(2) Whether the declarant had a bias or motive for fabricating the statement, and the extent of any bias or motive.

(3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section.

(4) Whether the statement was a statement against the declarant's interest.

§ 1231.1. Statements made by deceased declarant; admissibility; notice of statement to adverse party

A statement is admissible pursuant to Section 1231 only if the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statement.

§ 1231.2. Administer and certify oaths

A peace officer may administer and certify oaths for purposes of this article.

§ 1231.3. Testimony of law enforcement officer; hearsay

Any law enforcement officer testifying as to any hearsay statement pursuant to this article shall either have five years of law enforcement experience or have completed a training course certified by the Commission on Peace Officer Standards and Training which includes training in the investigation and reporting of cases and testifying at preliminary hearings and trials.

§ 1231.4. Cause of death; deceased declarant

If evidence of a prior statement is introduced pursuant to this article, the jury may not be told that the declarant died from other than natural causes, but shall merely be told that the declarant is unavailable.

<EN>---

Comparative Note. California has a limited hearsay exception for sworn statements by dead declarants regarding gang related crimes (§ 1231). The purpose of the exception is to discourage gang members from eliminating potential witnesses in prosecutions for gang crimes. California makes it a separate offense for a gang member to promote or assist any felonious criminal activity by members of gangs.1

The statements may be used only in anti-gang prosecutions and are subject to numerous restrictions. Chief among these are that the declarant die from other than natural causes, that the statement relate to acts or events within the personal knowledge of the declarant, that the statement be made under oath or affirmation in an affidavit or at a deposition, preliminary hearing, grand jury hearing, or other hearing under penalty of perjury, and that a verbatim transcript or copy, or record of the statement exists.

In addition, the exception requires the proponent to notify the opponent of the intent to use the statement in advance of the hearing in which the statement will be offered (§ 1231.1). The proponent must also persuade the judge that the statement was made under circumstances that indicate its trustworthiness and render the declarant's statement particularly worthy of belief. Among the circumstances the judge can take into account are whether the statement was made in contemplation of a pending or anticipated criminal or civil matter in which the declarant had an interest other than as a witness, whether the declarant had a bias or motive to fabricate the statement, whether the statement is corroborated by evidence other than the statements that are admissible under the exception, and whether the statement was a declaration against the declarant's interest (§§ 1231.2–1231.4).

The Federal Rules do not contain an equivalent exception.

§ 8.18 Dying Declarations

FEDERAL RULES OF EVIDENCE

Rule 804. Exceptions to the Rule Against Hearsay--When the Declarant Is Unavailable as a Witness

* * *

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

* * *

(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1242. Dying declaration

Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.

<EN>---

Comparative Note. Rule 804(b)(2) and Code § 1242 provide a hearsay exception for deathbed declarations regarding the cause and circumstances of death if the declarant made the statement while under a sense of impending death. Under the Code, the declarations can be offered in a civil or criminal proceeding. Under the Rules, they can also be offered in a civil proceeding, but only in homicide prosecutions in criminal cases.

Under the Code, the proponent does not have to establish the declarant's unavailability to testify under Section 240 as a condition of admissibility. So unless the dying declaration exception requires the declarant to die, dying declarations should be admissible in attempted murder prosecutions and personal injury actions even if the declarant unexpectedly survives and is available to testify. The Rules do require the proponent to establish the declarant's unavailability, but since the grounds of unavailability are not limited to death under Rule 804(a), the declarations should be admissible in a civil case even if the declarant survives.

§ 8.19 Declarations Against Interest

FEDERAL RULES OF EVIDENCE

Rule 804. Exceptions to the Rule Against Hearsay--When the Declarant Is Unavailable as a Witness

* * *

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

* * *

(3) Statement Against Interest. A statement that:

(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1230. Declarations against interest

Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.

<EN>---

Comparative Note. Rule 804(b)(3) and Code § 1230 provide a hearsay exception for declarations against interest if the declarant is unavailable to testify. One difference between the two provisions is that only the Code creates an exception for declarations against social interest. Congress deleted this category from the rule proposed by the U.S. Supreme Court.1 Another difference is that under the Federal Rule a statement tending to expose the declarant to criminal liability is not admissible in a criminal case unless corroborating circumstances clearly indicate the trustworthiness of the statement. It is immaterial whether the declaration if offered by the prosecution or the accused. No such limitation is imposed by the Code.

The Federal Rules also take a different, more stringent, approach to unavailability. In addition to such usual grounds of unavailability as death or illness, in the case of declarations against interest the proponent must also show that he has been unable to procure the declarant's testimony by process or other reasonable means. According to the House, which added this requirement, the "amendment is designed primarily to require that an attempt be made to depose a witness (as well as to seek his attendance) as a precondition to the witness being deemed unavailable."2 No such requirement is imposed by the Code.

One aspect of declarations against interest has been especially troubling to judges and scholars. If a declaration is disserving of the declarant's interests and also of the interests of a party mentioned in the declaration, may the declaration be received against that party? The California Supreme Court resolved this question in People v. Leach.3 It held that as a matter of statutory construction the California provision is limited to those statements disserving only of the declarant's interest.4

The U.S. Supreme Court has likewise limited the Federal Rule only to those statements that are disserving of the declarant's interests.5 Thus, the statement, "I am taking the cocaine to Atlanta for Williamson," though against the declarant's penal interests, may not be offered against Williamson in a drug prosecution. Limiting the exception to those statements disserving of the declarant's interests minimizes the risk of offending the accused's confrontation rights.

§ 8.20 Statements by Minors Describing Acts of Attempted Acts of Child Abuse or Neglect

CALIFORNIA EVIDENCE CODE

§ 1360. Statements describing an act or attempted act of child abuse or neglect; criminal prosecutions; requirements

(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply:

(1) The statement is not otherwise admissible by statute or court rule.

(2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability.

(3) The child either:

(A) Testifies at the proceedings.

(B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child.

(b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement.

(c) For purposes of this section, "child abuse" means an act proscribed by Section 273a, 273d, or 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code, and "child neglect" means any of the acts described in Section 11165.2 of the Penal Code.

<EN>---

Comparative Note. The Code, but not the Rules, provides a hearsay exception for a statement made by minor victim under age 12 describing any act or attempted act of child abuse or neglect upon the child. Section 1360 limits the statements to criminal prosecutions if at the time of the proceeding the victim is still a minor, the statement is not otherwise admissible by statute or court rule, the judge finds at a hearing outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient indicia of reliability, and the proponent informs the adverse party of its intention to offer the statement.

To be admissible under § 1360, the minor must testify at the hearing, unless the minor is shown to be unavailable as witness. If the minor is unavailable, the statement may not be received unless the judge finds that the statement is corroborated by evidence of child abuse or neglect.1

The California provision was enacted in response to increased prosecutions for child abuse and neglect.

§ 8.21 Statements by Crime Victims Relating Threats

CALIFORNIA EVIDENCE CODE

§ 1370. Threat of infliction of injury

(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met:

(1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.

(2) The declarant is unavailable as a witness pursuant to Section 240.

(3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section.

(4) The statement was made under circumstances that would indicate its trustworthiness.

(5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official.

(b) For purposes of paragraph (4) of subdivision (a), circumstances relevant to the issue of trustworthiness include, but are not limited to, the following:

(1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested.

(2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive.

(3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section.

(c) A statement is admissible pursuant to this section only if the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement.

<EN>---

Comparative Note. Declarations describing the infliction of physical injury do not fall within the California exception for state of mind statements if offered to prove the injuries remembered (§ 1250). Neither do declarations relating threats by others to injure the declarant if offered to prove the threat remembered (§ 1250). Following the acquittal of O. J. Simpson of murder, the California Legislature enacted § 1370, a new hearsay exception for these kinds of declarations if the declarant is unavailable to testify.

To be admissible, the declaration must be made at or near the time of the infliction or threat of physical injury. In addition, the declaration must made in writing, be electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official, and under circumstances indicating trustworthiness.

In assessing its trustworthiness, the judge may consider, among other matters, whether the declaration was made in contemplation of pending or anticipated litigation in which the declarant had an interest, whether the declarant had a bias or motive for fabricating the declaration, and whether the declaration is corroborated by evidence other than by the kind of declarations admissible under the exception.

The declaration may not be received unless the proponent informed the adverse party of its intention to offer the declaration sufficiently in advance of the hearing in which it is to be offered, so as to provide the adverse party with a fair opportunity to prepare to oppose the declaration.

The Rules do not contain an equivalent provision.

§ 8.22 Declarations by Elders and Dependent Adults

CALIFORNIA EVIDENCE CODE

§ 1380. Elder and dependent adults; statements by victims of abuse

(a) In a criminal proceeding charging a violation, or attempted violation, of Section 368 of the Penal Code, evidence of a statement made by a declarant is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness, as defined in subdivisions (a) and (b) of Section 240, and all of the following are true:

(1) The party offering the statement has made a showing of particularized guarantees of trustworthiness regarding the statement, the statement was made under circumstances which indicate its trustworthiness, and the statement was not the result of promise, inducement, threat, or coercion. In making its determination, the court may consider only the circumstances that surround the making of the statement and that render the declarant particularly worthy of belief.

(2) There is no evidence that the unavailability of the declarant was caused by, aided by, solicited by, or procured on behalf of, the party who is offering the statement.

(3) The entire statement has been memorialized in a videotape recording made by a law enforcement official, prior to the death or disabling of the declarant.

(4) The statement was made by the victim of the alleged violation.

(5) The statement is supported by corroborative evidence.

(6) The victim of the alleged violation is an individual who meets both of the following requirements:

(A) Was 65 years of age or older or was a dependent adult when the alleged violation or attempted violation occurred.

(B) At the time of any criminal proceeding, including, but not limited to, a preliminary hearing or trial, regarding the alleged violation or attempted violation, is either deceased or suffers from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunction, to the extent that the ability of the person to provide adequately for the person's own care or protection is impaired.

(b) If the prosecution intends to offer a statement pursuant to this section, the prosecution shall serve a written notice upon the defendant at least 10 days prior to the hearing or trial at which the prosecution intends to offer the statement, unless the prosecution shows good cause for the failure to provide that notice. In the event that good cause is shown, the defendant shall be entitled to a reasonable continuance of the hearing or trial.

(c) If the statement is offered during trial, the court's determination as to the availability of the victim as a witness shall be made out of the presence of the jury. If the defendant elects to testify at the hearing on a motion brought pursuant to this section, the court shall exclude from the examination every person except the clerk, the court reporter, the bailiff, the prosecutor, the investigating officer, the defendant and his or her counsel, an investigator for the defendant, and the officer having custody of the defendant. Notwithstanding any other provision of law, the defendant's testimony at the hearing shall not be admissible in any other proceeding except the hearing brought on the motion pursuant to this section. If a transcript is made of the defendant's testimony, it shall be sealed and transmitted to the clerk of the court in which the action is pending.

<EN>---

Comparative Note. California law punishes certain crimes committed against elders and dependent adults.1 Elders are persons who are 65 or older.2 Dependent adults are persons between the ages of 18 and 64 who have physical or mental limitations that restrict their ability to carry out normal activities and includes persons with physical or developmental disabilities or whose physical or mental abilities have declined with age.3

Evidence Code § 1380 facilitates the prosecution of these crimes by providing a hearsay exception for declarations made by elders and dependent adults who are unavailable to testify. In addition to meeting the unavailability requirements of § 240, the proponent must show that at the time of the criminal proceeding the declarant, if not dead, suffers from the infirmities of aging as manifested by advanced age or organic brain damage or other physical, mental, or emotional dysfunctions that impair the declarant's ability to provide adequately for his or her care and protection.

A number of other limitations apply. Pretrial notice by the proponent of the intent to use the declaration is required. The question of the declarant's unavailability must be determined out of the presence of the jury. If the accused elects to testify at the hearing on the admissibility of the declaration, the hearing must be closed to the public, and the defendant's testimony may not used in any other proceeding.

Only statements made by an elder/dependent adult victim are admissible, and then only if the entire statement has been memorialized in a videotape made by a law enforcement official prior to the death or disabling of the victim. The statement must be supported by corroborative evidence. In addition, the proponent must persuade the judge that the circumstances attending the making of the statement render it particularly worthy of belief and that the statement was not the result of promise, inducement, threat, or coercion. Finally, there must be no evidence that the unavailability of the declarant was caused, aided, or solicited by or procured on behalf of the proponent.

The need to facilitate prosecutions against victims who suffer from serious age or developmental disabilities justifies the exception. The numerous limitations are designed to ensure reliability. The Rules do not contain an equivalent provision.

§ 8.23 Dead Man's Statute

CALIFORNIA EVIDENCE CODE

§ 1261. Statement of decedent offered in action against his estate

(a) Evidence of a statement is not made inadmissible by the hearsay rule when offered in an action upon a claim or demand against the estate of the declarant if the statement was made upon the personal knowledge of the declarant at a time when the matter had been recently perceived by him and while his recollection was clear.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.

<EN>---

Comparative Note. California at one time recognized the Dead Man's Statute. This provision prohibited a party who sued on a claim against a decedent's estate from testifying about any matter occurring before the decedent's death. Dissatisfaction with the statute led the California Law Revision Commission to recommend repealing the statute. Evidence Code § 1261 now allows a party to testify to these matters but balances the advantage by creating a hearsay exception for those statements of decedents embracing matter made upon personal knowledge at a time when the matter had been recently perceived and while the decedent's recollection was clear. The judge may still exclude the statement if it was made under circumstances indicating lack of trustworthiness.

The Rules do not contain an equivalent provision.

§ 8.24 Proof of Business Records by Affidavit or Certificate

FEDERAL RULES OF EVIDENCE

Rule 902. Evidence That Is Self-Authenticating

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

* * *

(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record--and must make the record and certification available for inspection--so that the party has a fair opportunity to challenge them.

CALIFORNIA EVIDENCE CODE

§ 712. Blood samples; technique in taking; affidavits in criminal actions; service; objections

Notwithstanding Sections 711 and 1200, at the trial of a criminal action, evidence of the technique used in taking blood samples may be given by a registered nurse, licensed vocational nurse, or licensed clinical laboratory technologist or clinical laboratory bioanalyst, by means of an affidavit. The affidavit shall be admissible, provided the party offering the affidavit as evidence has served all other parties to the action, or their counsel, with a copy of the affidavit no less than 10 days prior to trial. Nothing in this section shall preclude any party or his counsel from objecting to the introduction of the affidavit at any time, and requiring the attendance of the affiant, or compelling attendance by subpoena.

§ 1560. Compliance with subpoena duces tecum for business records

(a) As used in this article:

(1) "Business" includes every kind of business described in Section 1270.

(2) "Record" includes every kind of record maintained by a business.

(b) Except as provided in Section 1564, when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in an action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the subpoena to the clerk of the court or to another person described in subdivision (d) of Section 2026.010 of the Code of Civil Procedure, together with the affidavit described in Section 1561, within one of the following time periods:

(1) In any criminal action, five days after the receipt of the subpoena.

(2) In any civil action, within 15 days after the receipt of the subpoena.

(3) Within the time agreed upon by the party who served the subpoena and the custodian or other qualified witness.

(c) The copy of the records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of witness, and date of subpoena clearly inscribed thereon; the sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and directed as follows:

(1) If the subpoena directs attendance in court, to the clerk of the court.

(2) If the subpoena directs attendance at a deposition, to the officer before whom the deposition is to be taken, at the place designated in the subpoena for the taking of the deposition or at the officer's place of business.

(3) In other cases, to the officer, body, or tribunal conducting the hearing, at a like address.

(d) Unless the parties to the proceeding otherwise agree, or unless the sealed envelope or wrapper is returned to a witness who is to appear personally, the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, upon the direction of the judge, officer, body, or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at the trial, deposition, or hearing. Records which are original documents and which are not introduced in evidence or required as part of the record shall be returned to the person or entity from whom received. Records which are copies may be destroyed.

(e) As an alternative to the procedures described in subdivisions (b), (c), and (d), the subpoenaing party in a civil action may direct the witness to make the records available for inspection or copying by the party's attorney, the attorney's representative, or deposition officer as described in Section 2020.420 of the Code of Civil Procedure, at the witness' business address under reasonable conditions during normal business hours. Normal business hours, as used in this subdivision, means those hours that the business of the witness is normally open for business to the public. When provided with at least five business days' advance notice by the party's attorney, attorney's representative, or deposition officer, the witness shall designate a time period of not less than six continuous hours on a date certain for copying of records subject to the subpoena by the party's attorney, attorney's representative or deposition officer. It shall be the responsibility of the attorney's representative to deliver any copy of the records as directed in the subpoena. Disobedience to the deposition subpoena issued pursuant to this subdivision is punishable as provided in Section 2020.240 of the Code of Civil Procedure.

§ 1561. Affidavit accompanying records

(a) The records shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following:

(1) The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records.

(2) The copy is a true copy of all the records described in the subpoena duces tecum, or pursuant to subdivision (e) of Section 1560 the records were delivered to the attorney, the attorney's representative, or deposition officer for copying at the custodian's or witness' place of business, as the case may be.

(3) The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event.

(4) The identity of the records.

(5) A description of the mode of preparation of the records.

(b) If the business has none of the records described, or only part thereof, the custodian or other qualified witness shall so state in the affidavit, and deliver the affidavit and those records that are available in one of the manners provided in Section 1560.

(c) Where the records described in the subpoena were delivered to the attorney or his or her representative or deposition officer for copying at the custodian's or witness' place of business, in addition to the affidavit required by subdivision (a), the records shall be accompanied by an affidavit by the attorney or his or her representative or deposition officer stating that the copy is a true copy of all the records delivered to the attorney or his or her representative or deposition officer for copying.

§ 1562. Admissibility of affidavit and copy of records

If the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified to the matters stated in the affidavit, and if the requirements of Section 1271 have been met, the copy of the records is admissible in evidence. The affidavit is admissible as evidence of the matters stated therein pursuant to Section 1561 and the matters so stated are presumed true. When more than one person has knowledge of the facts, more than one affidavit may be made. The presumption established by this section is a presumption affecting the burden of producing evidence.

§ 1564. Personal attendance of custodian and production of original records

The personal attendance of the custodian or other qualified witness and the production of the original records is not required unless, at the discretion of the requesting party, the subpoena duces tecum contains a clause which reads:

"The personal attendance of the custodian or other qualified witness and the production of the original records are required by this subpoena. The procedure authorized pursuant to subdivision (b) of Section 1560, and Sections 1561 and 1562, of the Evidence Code will not be deemed sufficient compliance with this subpoena."

§ 1567. Employee income and benefit information; forms completed by employer; support modification or termination proceedings

A completed form described in Section 3664 of the Family Code for income and benefit information provided by the employer may be admissible in a proceeding for modification or termination of an order for child, family, or spousal support if both of the following requirements are met:

(a) The completed form complies with Sections 1561 and 1562.

(b) A copy of the completed form and notice was served on the employee named therein pursuant to Section 3664 of the Family Code.

<EN>---

Comparative Note. Ordinarily, the proponent must call a qualified witness to establish the foundation for the introduction of business records. The witness will identify the record as the record of a particular entity and will then describe the mode of preparation of those kinds of records, including the time frame for their preparation and the sources of information customarily used in their preparation. The Code contains a number of provisions allowing a party to bypass the necessity of calling the witness by offering instead an affidavit containing the foundational information. The most notable provisions, §§ 1560–1562, allow the use of affidavits in the case of business records which have been subpoenaed. In addition, § 712 allows a party to use an affidavit by a qualified technician to prove the technique used in taking a blood sample. Section 1567 allows a party to use an employer's income and benefit form in a proceeding to modify or terminate an order for child, family, or spousal support if certain conditions are met.

Federal Rule 901(11), like Code §§ 1560–1562, allows a party to bypass calling the custodian of a business record by offering instead a certificate containing the foundational information. In California, however, production of the custodian can still be compelled if the party requesting the business records demands the custodian's appearance in the subpoena duces tecum.

§ 8.25 Records of Conviction

CALIFORNIA EVIDENCE CODE

§ 452.5. Criminal conviction records; computer-generated records; admissibility

(a) The official acts and records specified in subdivisions (c) and (d) of Section 452 include any computer-generated official court records, as specified by the Judicial Council which relate to criminal convictions, when the record is certified by a clerk of the superior court pursuant to Section 69844.5 of the Government Code at the time of computer entry.

(b) An official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record.

<EN>---

Comparative Note. The Code provides a hearsay exception for felony convictions used to impeach a witness (§ 788). The Code also creates a hearsay exception for felony convictions offered in a civil action to prove the misconduct underlying the conviction (§ 1300). When a party must prove the fact of a conviction, the party may rely on the exceptions for official or business records (§§ 1271–1280).

Sometimes, however, a party (usually the prosecution) must prove as true other matters recited in a conviction record. Section 452.5(b) provides a hearsay exception for recitals in copies of conviction records offered to prove the commission, attempted commission, or solicitation of an offense, service of a prison term, "or other act, condition, or event recorded by the record" if the original meets the foundational requirements of the hearsay exception for official records and the copy meets the certification requirements for writings in the custody of public entities.

The proliferation of recidivist statutes in California often requires prosecutors to prove facts other than just the fact of conviction.1 The Code provision attempts to ease the proof of such facts.

The Rules have no equivalent provision.

§ 8.26 Findings of Death by Federal Employees

CALIFORNIA EVIDENCE CODE

§ 1282. Finding of presumed death by authorized federal employee

A written finding of presumed death made by an employee of the United States authorized to make such finding pursuant to the Federal Missing Persons Act (56 Stats. 143, 1092, and P.L. 408, Ch. 371, 2d Sess. 78th Cong.; 50 U.S.C. App. 1001–1016), as enacted or as heretofore or hereafter amended, shall be received in any court, office, or other place in this state as evidence of the death of the person therein found to be dead and of the date, circumstances, and place of his disappearance.

<EN>---

Comparative Note. Evidence Code § 1282 provides a hearsay exception for a written finding of death by a federal employee authorized to make such a finding under the Federal Missing Persons Act. The finding may include also the date, circumstances, and place of the decedent's disappearance.

The Federal Rules do not contain an equivalent provision.

§ 8.27 Federal Missing Person Records

CALIFORNIA EVIDENCE CODE

§ 1283. Record by federal employee that person is missing, captured, beleaguered, besieged, detained, or dead

An official written report or record that a person is missing, missing in action, interned in a foreign country, captured by a hostile force, beleaguered by a hostile force, besieged by a hostile force, or detained in a foreign country against his will, or is dead or is alive, made by an employee of the United States authorized by any law of the United States to make such report or record shall be received in any court, office, or other place in this state as evidence that such person is missing, missing in action, interned in a foreign country, captured by a hostile force, beleaguered by a hostile force, besieged by a hostile force, or detained in a foreign country against his will, or is dead or is alive.

<EN>---

Comparative Note. Evidence Code § 1283 creates a hearsay exception for official reports or records prepared by an employee of the United States who is authorized to make such a report or record to prove that a person is missing, missing in action, interned in a foreign country, captured by a hostile force, beleaguered by a hostile force, besieged by a hostile force, or detained in a foreign country against his or her will, or is dead or alive.

The Federal Rules do not contain an equivalent provision.

§ 8.28 Records of Vital Statistics

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported
to a public office in accordance with a legal duty.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1281. Vital statistics records

Evidence of a writing made as a record of a birth, fetal death, death, or marriage is not made inadmissible by the hearsay rule if the maker was required by law to file the writing in a designated public office and the writing was made and filed as required by law.

<EN>---

Comparative Note. Both the Rules and the Code create a hearsay exception for records of birth, fetal death, death, or marriage (Rule 803(9), § 1281). The Rules require only that the record be made to a public office pursuant to the requirements of law. Under the Code, the maker must be required by law to file the record in a designated public office, and the record must be made and filed as required by law. The difference is probably immaterial.

§ 8.29 Statement of Absence of Public Record

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:

(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.

* * *

(10) Absence of a Public Record. Testimony--or a certification under Rule 902--that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:

(A) the record or statement does not exist; or

(B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1284. Statement of absence of public record

Evidence of a writing made by the public employee who is the official custodian of the records in a public office, reciting diligent search and failure to find a record, is not made inadmissible by the hearsay rule when offered to prove the absence of a record in that office.

<EN>---

Comparative Note. Evidence Code § 1284 creates a hearsay exception for a written statement by a public employee who is the official custodian of the records in a public office, reciting diligent search and failure to find a record when offered to prove the absence of a record in that office. Rule 803(10) contain a similar exception but requires the written statement to be in the form of a certificate. Rule 803(10) allows the proponent to offer testimony in lieu of the certificate. Whether testimony can be used under the Code to prove the contents of the employee's writing depends on the application of California's Secondary Evidence.1

Rule 803(7) allows the use of the certificate or testimony to prove the absence of an entry in a public record to prove the nonoccurrence or nonexistence of a matter if such entries were regularly made and preserved by the public office or agency. The Code does not contain an analogous provision.

§ 8.30 Church Records Concerning Family History

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1315. Church records concerning family history

Evidence of a statement concerning a person's birth, marriage, divorce, death, parent and child relationship, race, ancestry, relationship by blood or marriage, or other similar fact of family history which is contained in a writing made as a record of a church, religious denomination, or religious society is not made inadmissible by the hearsay rule if:

(a) The statement is contained in a writing made as a record of an act, condition, or event that would be admissible as evidence of such act, condition, or event under Section 1271; and

(b) The statement is of a kind customarily recorded in connection with the act, condition, or event recorded in the writing.

<EN>---

Comparative Note. Doubts about whether the hearsay exception for business records would cover all the of the information customarily included in church records relating family history accounts for a hearsay exception for church records. Under Code § 1315, a church record meeting the requirements of the business records exception can be offered to prove a person's birth, marriage, divorce, death, parent and child relationship, race, ancestry, relationship by blood or marriage, and other similar facts of family history.

Rule 803(11) contains a similar exception.

§ 8.31 Marriage, Baptismal, and Similar Certificates

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:

(A) made by a person who is authorized by a religious organization or by law to perform the act certified;

(B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and

(C) purporting to have been issued at the time of the act or within a reasonable time after it.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1316. Marriage, baptismal and similar certificates

Evidence of a statement concerning a person's birth, marriage, divorce, death, parent and child relationship, race, ancestry, relationship by blood or marriage, or other similar fact of family history is not made inadmissible by the hearsay rule if the statement is contained in a certificate that the maker thereof performed a marriage or other ceremony or administered a sacrament and:

(a) The maker was a clergyman, civil officer, or other person authorized to perform the acts reported in the certificate by law or by the rules, regulations, or requirements of a church, religious denomination, or religious society; and

(b) The certificate was issued by the maker at the time and place of the ceremony or sacrament or within a reasonable time thereafter.

<EN>---

Comparative Note. Rule 803(12) and Code § 1316 permit the use of marriage, baptismal, and similar certificates to prove the same kinds of kinds of facts that can be proved by church records. The exception is not limited to certificates issued by religious organizations and includes those issued by public officials who are authorized to issue them.

§ 8.32 Entries in Family Records

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1312. Entries in family records and the like

Evidence of entries in family Bibles or other family books or charts, engravings on rings, family portraits, engravings on urns, crypts, or tombstones, and the like, is not made inadmissible by the hearsay rule when offered to prove the birth, marriage, divorce, death, parent and child relationship, race, ancestry, relationship by blood or marriage, or other similar fact of the family history of a member of the family by blood or marriage.

<EN>---

Comparative Note. Rule 803(13) and Code § 1312 allow the use of entries in family Bibles and charts, as well as engravings on rings, family portraits, urns, crypts, tombstones, and the like to prove the same kinds of facts that can be proved by church records. The Code differs from the Federal Rule in that it includes a nonexclusive list of the kinds of family facts that can be proved under the exception.

§ 8.33 Recitals in Writings Affecting Property

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document's purpose--unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1330. Recitals in writings affecting property

Evidence of a statement contained in a deed of conveyance or a will or other writing purporting to affect an interest in real or personal property is not made inadmissible by the hearsay rule if:

(a) The matter stated was relevant to the purpose of the writing;

(b) The matter stated would be relevant to an issue as to an interest in the property; and

(c) The dealings with the property since the statement was made have not been inconsistent with the truth of the statement.

<EN>---

Comparative Note. Rule 803(15) and Code § 1330 create a hearsay exception for recitals in dispositive instruments, such as wills and conveyances. To be admissible under the exception, the statements in the recitals must be germane to the purpose of the instrument and the dealings with the property must have been consistent with the instrument.

§ 8.34 Records of Documents Affecting an Interest in Property

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:

(A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;

(B) the record is kept in a public office; and

(C) a statute authorizes recording documents of that kind in that office.

<EN>---

Comparative Note. Rule 804(14) creates an exception for the record of a document purporting to establish or affect an interest in property when offered as proof of the content of the original document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. The Advisory Committee explains that the exception is needed to overcome the lack of first hand knowledge by the recorder when the record is offered as proof of execution and delivery.

The Code does not contain a similar exception.

§ 8.35 Recitals in Ancient Writings

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(16) Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose authenticity is established.

<EN>---

CALIFORNIA EVIDENCE CODE

§ 1331. Recitals in ancient writings

Evidence of a statement is not made inadmissible by the hearsay rule if the statement is contained in a writing more than 30 years old and the statement has been since generally acted upon as true by persons having an interest in the matter.

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Comparative Note. Rule 803(16) and Code § 1331 provide a hearsay exception for statements in recitals in ancient writings. The California exception is more stringent. The writing must be more than 30 years old, as opposed to no less than 20 years under the Rules, and the proponent must show that the statement has been generally acted upon as true by persons having an interest in the matter.

In California the age of the document alone is an insufficient guarantee of trustworthiness to justify the exception.

§ 8.36 Commercial Publications

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

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(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

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CALIFORNIA EVIDENCE CODE

§ 1340. Publications relied upon as accurate in the course of business

Evidence of a statement, other than an opinion, contained in a tabulation, list, directory, register, or other published compilation is not made inadmissible by the hearsay rule if the compilation is generally used and relied upon as accurate in the course of a business as defined in Section 1270.

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Comparative Note. Rule 803(17) creates a hearsay exception for market quotations, tabulations, lists, directories, and other published compilations used and relied upon by the public or by persons in particular occupations. California provides a more limited exception. Section 1340 excludes opinions and does not expressly include market quotations. The federal requirement of reliance by persons in particular occupations is probably the equivalent of the California requirement of reliance by a business as defined by in the hearsay exception for business records. Reliance by a "business" has been construed by California courts to include reliance by the public.1

Reliance by the public or segments of it and the motivation of the compiler to foster reliance by being accurate justify the exception (Advisory Committee Note).

§ 8.37 Statements in Learned Treatises

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

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(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

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CALIFORNIA EVIDENCE CODE

§ 1341. Publications concerning facts of general notoriety and interests

Historical works, books of science or art, and published maps or charts, made by persons indifferent between the parties, are not made inadmissible by the hearsay rule when offered to prove facts of general notoriety and interest.

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Comparative Note. Statements in books of science, art, and history often coincide with the kinds of statements that should be offered by experts who are subject to cross-examination. Receiving these statements under a hearsay exception can deprive the opponent of the opportunity to test their validity through cross-examination. Accordingly, Evidence Code § 1341's hearsay exception for statements in learned treatises is limited to those statements made by persons who are indifferent between the parties when offered to prove facts of general notoriety and interest.

The general notoriety requirement has been narrowly construed to include only facts that are not subject to dispute.1 Such facts include the definition of words found in dictionaries, life expectancies found in actuarial tables, and the information found in tables of weights and measures, and currency, annuity, and interest tables.2 Facts of general notoriety do not include statements in medical treatises, as "medicine is not considered one of the exact sciences."3 It is, instead, the kind of field in which knowledge changes; consequently, "if [medical] treatises were to be held admissible, the question at issue might be tried, not by testimony, but upon excerpts from works presenting partial views of variant and perhaps contradictory theories."4

The fact that experts can be cross examined about the content of learned treatises does not affect the limitations on the admissibility of statements in such works. Under the Code, expert witnesses, including medical experts, may be cross examined about the content or tenor of any scientific journal or treatise if one of three conditions is satisfied: (1) the expert referred to, considered, or relied upon the publication in arriving at or in forming the expert opinion; (2) the publication has been admitted in evidence; or (3) the publication has been established as a reliable authority by the testimony or admission of the expert or another expert, or by judicial notice (§ 721(b)). But the right to conduct such a cross-examination does not mean that the portion of the publication used is in evidence for the truth of the matter stated. The pertinent statements may not be read to the jury for the truth of the matter stated unless the publication has been admitted or qualifies for admission under a hearsay exception such as the one for learned treatises.

The Federal Rules take a more generous approach to the admissibility of information contained in learned treatises. Under Rule 803(18), statements contained in such treatises (including medical ones) may be admitted for the truth of the matter asserted if (1) such statements are established as reliable authority by expert testimony or judicial notice and (2) the treatise was relied upon by an expert witness on direct examination or was called to the expert's attention on cross-examination. Thus, when a treatise has been established as authoritative, appropriate passages may be offered in evidence, so long as an expert is on the stand and available to explain and assist in applying the treatise (Advisory Committee Note). If admitted, the passages may be read into evidence but may not be received as exhibits. This limitation is designed "to prevent jurors from overvaluing the written word and from roaming at large through the treatise thereby forming conclusions not subjected to expert explanation and assistance."5

In federal court, the cross examiner does not have to show that the expert relied on the treatise. Rule 803(18) thus avoids the possibility that at the outset the expert might block cross-examination by refusing to concede reliance on the treatise (Advisory Committee Note).

§ 8.38 Reputation Concerning Character

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(21) Reputation Concerning Character. A reputation among a person's associates or in the community concerning the person's character.

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CALIFORNIA EVIDENCE CODE

§ 1324. Reputation concerning character

Evidence of a person's general reputation with reference to his character or a trait of his character at a relevant time in the community in which he then resided or in a group with which he then habitually associated is not made inadmissible by the hearsay rule.

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Comparative Note. A reputation witness does not necessarily offer an out of court statement for the truth of the matter stated. Instead, the reputation witness offers a conclusion about whether an individual enjoys a particular reputation based on what the witness has heard others say or not say about the conduct at issue. The classic example is the testimony of a qualified witness who states that another witness's reputation for truth and veracity is good or poor. Although the purpose of the offer is to prove that the other witness has the kind of character the witness is reputed to have, the reputation witness is not asked on direct examination to repeat what he or she overheard others say about the other witness. But because the reputation witness's conclusion is based on what the witness has heard others say, the Code and the Rules resolve doubts about the hearsay status of reputation evidence by creating an exception. Rule 803(21) and § 1324 both permit the conclusion to be based on what associates or community members say or do not say about the pertinent character trait.

The differences between the California and federal provisions are not material. Section 1324, however, emphasizes that reputation among associates should be limited to those with whom a person habitually associates.

§ 8.39 Reputation Concerning Family History

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(19) Reputation Concerning Personal or Family History. A reputation among a person's family by blood, adoption, or marriage--or among a person's associates or in the community--concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.

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CALIFORNIA EVIDENCE CODE

§ 1313. Reputation in family concerning family history

Evidence of reputation among members of a family is not made inadmissible by the hearsay rule if the reputation concerns the birth, marriage, divorce, death, parent and child relationship, race, ancestry, relationship by blood or marriage, or other similar fact of the family history of a member of the family by blood or marriage.

§ 1314. Reputation in community concerning family history

Evidence of reputation in a community concerning the date or fact of birth, marriage, divorce, or death of a person resident in the community at the time of the reputation is not made inadmissible by the hearsay rule.

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Comparative Note. The Rules have one provision creating a hearsay exception for reputation concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history (Rule 803(19)). The reputation can be based on what family members, associates, or community members say about the pertinent personal or family fact.

The Code, on the other hand, has two separate provisions: one relates to reputation among family members (§ 1313) and the other to reputation among community residents (§ 1314). Reputation among community residents is limited to the date of birth or fact of birth, marriage, divorce or death of a person. Reputation among associates is not expressly included under either provision.

§ 8.40 Reputation Concerning Boundaries

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(20) Reputation Concerning Boundaries or General History. A reputation in a community--arising before the controversy--concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.

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CALIFORNIA EVIDENCE CODE

§ 1322. Reputation concerning boundary or custom affecting land

Evidence of reputation in a community is not made inadmissible by the hearsay rule if the reputation concerns boundaries of, or customs affecting, land in the community and the reputation arose before controversy.

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Comparative Note. The Rules and the Code create a hearsay exception for reputation in a community concerning boundaries of or customs affecting land in the community provided the reputation arose before the controversy (Rule 803(20), § 1322). The provisions are substantially identical.

§ 8.41 Reputation Concerning Community History

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

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(20) Reputation Concerning Boundaries or General History. A reputation in a community--arising before the controversy--concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.

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CALIFORNIA EVIDENCE CODE

§ 1320. Reputation concerning community history

Evidence of reputation in a community is not made inadmissible by the hearsay rule if the reputation concerns an event of general history of the community or of the state or nation of which the community is a part and the event was of importance to the community.

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Comparative Note. The Rules and the Code create a hearsay exception for reputation concerning an event of general history important to the community or state or nation in which the event took place (Rule 803(20), § 1320). The provisions are substantially identical.

§ 8.42 Reputation Concerning Public Interest in Property

CALIFORNIA EVIDENCE CODE

§ 1321. Reputation concerning public interest in property

Evidence of reputation in a community is not made inadmissible by the hearsay rule if the reputation concerns the interest of the public in property in the community and the reputation arose before controversy.

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Comparative Note. The Code, but not the Rules, creates a hearsay exception for reputation in a community concerning the interest of the public in property in the community if the reputation arose before the controversy (§ 1321).

§ 8.43 Statements Concerning Boundaries

CALIFORNIA EVIDENCE CODE

§ 1323. Statement concerning boundary

Evidence of a statement concerning the boundary of land is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and had sufficient knowledge of the subject, but evidence of a statement is not admissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.

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Comparative Note. The Code, but not the Rules, creates a hearsay exception for statements concerning the boundary of land if the declarant is unavailable to testify and had sufficient knowledge of the subject. Section 1323 expressly empowers the judge to exclude the statement if it was made under circumstances indicating lack of trustworthiness.

§ 8.44 Judgments Concerning Personal, Family, or General History, or Boundaries

FEDERAL RULES OF EVIDENCE

Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

* * *

(23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:

(A) was essential to the judgment; and

(B) could be proved by evidence of reputation.

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Comparative Note. Rule 803(23) creates a hearsay exception for judgments when offered as proof of matters of personal history, family or general history, or boundaries, essential to the judgment, if those matters would be provable by evidence of reputation. The federal provision is justified by the belief that judgments offered for these purposes are as reliable as reputation evidence offered for the same purposes.

California does not have an equivalent provision.

§ 8.45 Statements Concerning a Declarant's Own Family History

FEDERAL RULES OF EVIDENCE

Rule 804. Exceptions to the Rule Against Hearsay--When the Declarant Is Unavailable as a Witness

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(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

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(4) Statement of Personal or Family History. A statement about:

(A) the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or

(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person's family that the declarant's information is likely to be accurate.

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CALIFORNIA EVIDENCE CODE

§ 1310. Statement concerning declarant's own family history

(a) Subject to subdivision (b), evidence of a statement by a declarant who is unavailable as a witness concerning his own birth, marriage, divorce, a parent and child relationship, relationship by blood or marriage, race, ancestry, or other similar fact of his family history is not made inadmissible by the hearsay rule, even though the declarant had no means of acquiring personal knowledge of the matter declared.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.

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Comparative Note. The Rules and the Code create an exception for statements concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, race, or other similar fact of family history, even though the declarant had no means of acquiring personal knowledge of the matter stated, if the declarant is unavailable to testify (Rule 804(b)(4)(A), § 1310). Section 1310 expressly authorizes the judge to exclude the declaration if made under circumstances indicating lack of trustworthiness. Accordingly, the declarant's motive to tell the truth or lie goes to admissibility, not just weight.

§ 8.46 Statements Concerning the Family History of Another

CALIFORNIA EVIDENCE CODE

§ 1311. Statement concerning family history of another

(a) Subject to subdivision (b), evidence of a statement concerning the birth, marriage, divorce, death, parent and child relationship, race, ancestry, relationship by blood or marriage, or other similar fact of the family history of a person other than the declarant is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:

(1) The declarant was related to the other by blood or marriage; or

(2) The declarant was otherwise so intimately associated with the other's family as to be likely to have had accurate information concerning the matter declared and made the statement (i) upon information received from the other or from a person related by blood or marriage to the other or (ii) upon repute in the other's family.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.

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Comparative Note. The Rules and the Code create a hearsay exception for statements concerning the birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, race, death or other similar fact of family history of another person, if the declarant is unavailable to testify and the declarant was related by blood or marriage or was so intimately associated with the other person's family as to be likely to have accurate information about the matter declared (Rule 804(b)(4)(B), § 1311). Under § 1311, the proponent must also show that the declarant made the statement upon information received from the other person or from a person related by blood or marriage to the other person, or upon repute in the other person's family. A California judge can exclude the statement if made under circumstances indicating lack of trustworthiness.

§ 8.47 Hearsay Offered at Preliminary Hearings

CALIFORNIA EVIDENCE CODE

§ 1203. Cross-examination of hearsay declarant

(a) The declarant of a statement that is admitted as hearsay evidence may be called and examined by any adverse party as if under cross-examination concerning the statement.

(b) This section is not applicable if the declarant is (1) a party, (2) a person identified with a party within the meaning of subdivision (d) of Section 776, or (3) a witness who has testified in the action concerning the subject matter of the statement.

(c) This section is not applicable if the statement is one described in Article 1 (commencing with Section 1220), Article 3 (commencing with Section 1235), or Article 10 (commencing with Section 1300) of Chapter 2 of this division.

(d) A statement that is otherwise admissible as hearsay evidence is not made inadmissible by this section because the declarant who made the statement is unavailable for examination pursuant to this section.

§ 1203.1. Hearsay offered at preliminary examination; application of § 1203

Section 1203 is not applicable if the hearsay statement is offered at a preliminary examination, as provided in Section 872 of the Penal Code.

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Comparative Note. As a result of Proposition 115, California Penal Code § 872 allows hearsay to be received for the truth of the matter stated at California preliminary hearings. This provision allows a magistrate to base a probable cause finding in whole or in part upon the sworn testimony of a law enforcement officer relating out of court statements. Section 1203.1 precludes the accused from calling and cross examining the hearsay declarant as a matter of right under § 1203.

The Federal Rules of Evidence do not apply to federal preliminary examinations (Rule 1101(d)(3)).

§ 8.48 Residual Exception to the Hearsay Rule

FEDERAL RULES OF EVIDENCE

Rule 807. Residual Exception

(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:

(1) the statement has equivalent circumstantial guarantees of trustworthiness;

(2) it is offered as evidence of a material fact;

(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

(4) admitting it will best serve the purposes of these rules and the interests of justice.

(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant's name and address, so that the party has a fair opportunity to meet it.

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Comparative Note. Rule 807 empowers the trial judge to fashion new hearsay exceptions for statements not covered by the Rules "but having equivalent circumstantial guarantees of trustworthiness" if the proponent meets certain conditions. These include the requirements that the statement be probative of a material fact, be more probative of the point for which it is offered than any other available evidence which the proponent can obtain through reasonable efforts, and best serve the interests of justice.

This innovative approach to the hearsay exceptions was prompted by an unwillingness "to assume that all possible desirable exceptions to the hearsay rule have been catalogued and to pass the hearsay rule to oncoming generations as a closed system." (Advisory Committee Note).

The Code does not create a closed system either. Under the Code, exceptions to the hearsay rule may be found either in statutes or in decisional law (§ 1200 Comment). But, unlike the Federal Rules, the Code does not empower trial judges to craft an exception for evidence offered in the case being tried. The Code, however, does not strip judges of their Common Law power to create new exceptions for classes of evidence for which there is a substantial need and which possess such intrinsic reliability as to enable the exceptions to surmount constitutional and other objections that generally apply to hearsay.1

§ 8.49 Hearsay and Confrontation

CALIFORNIA EVIDENCE CODE

§ 1204. Hearsay statement offered against criminal defendant

A statement that is otherwise admissible as hearsay evidence is inadmissible against the defendant in a criminal action if the statement was made, either by the defendant or by another, under such circumstances that it is inadmissible against the defendant under the Constitution of the United States or the State of California.

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Comparative Note. The right of the accused to confront their accusers places some limits on the use of hearsay against criminal defendants. Section 1204 recognizes that hearsay that satisfies the requirements of an exception may nonetheless be excluded if receiving it would violate a defendant's federal and state constitutional rights. The Federal Rules do not contain an equivalent provision, as none is necessary to exclude evidence that is inadmissible on constitutional grounds.

In 2004, the U.S. Supreme Court held in Crawford v. Washington1 that, over a confrontation objection, the prosecution may not offer "testimonial" hearsay against the accused under a hearsay exception unless the accused is afforded an opportunity to cross examine the hearsay declarant or, if the declarant is unavailable to testify, unless the accused was afforded an opportunity to cross examine the declarant prior to the trial.2 Because the courts continue to work out the precise contours of this holding, Crawford and its implications are beyond the scope of this work.

§ 8.50 Multiple Hearsay

FEDERAL RULES OF EVIDENCE

Rule 805. Hearsay Within Hearsay

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.

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CALIFORNIA EVIDENCE CODE

§ 1201. Multiple hearsay

A statement within the scope of an exception to the hearsay rule is not inadmissible on the ground that the evidence of such statement is hearsay evidence if such hearsay evidence consists of one or more statements each of which meets the requirements of an exception to the hearsay rule.

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Comparative Note. Rule 805 and Code § 1201 provide that hearsay within hearsay is admissible if each hearsay declaration meets the requirements of an exception.

§ 8.51 Credibility of the Hearsay Declarant

FEDERAL RULES OF EVIDENCE

Rule 806. Attacking and Supporting the Declarant's Credibility

When a hearsay statement--or a statement described in Rule 801(d)(2)(C), (D), or (E)--has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

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CALIFORNIA EVIDENCE CODE

§ 1202. Credibility of hearsay declarant

Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct. Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing. For the purposes of this section, the deponent of a deposition taken in the action in which it is offered shall be deemed to be a hearsay declarant.

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Comparative Note. When a hearsay declaration is received under an exception, the hearsay declarant in effect has testified even though the declarant may not have appeared as a witness. The jurors, after all, are entitled to consider the hearsay declaration for the truth of the matter asserted. As a rule, then, both Rule 806 and Code § 1202 permit the party opposing the hearsay declaration to impeach the hearsay declarant in the same manner as if the declarant had appeared and testified.

In the case of declarants who do testify, any statements they have made that are inconsistent with their testimony can be offered to impeach them. Moreover, in California their statements can be offered to prove the truth of the matters stated so long as the declarants are given an opportunity to explain or deny their statements under oath and in the presence of the fact finder before the close of the evidence.1 But when the "witness" to be impeached is a hearsay declarant who does not appear as a witness, two problems arise when the impeaching party seeks to discredit the declarant with statements by the declarant that are inconsistent with the hearsay declaration that has been received in evidence.

One is that the inconsistent statement may not be a prior inconsistent statement but a subsequent one: the declarant may have made the inconsistent statement after making the hearsay declaration that was received in evidence. Both the Code and the Rules nonetheless allow the impeaching party to use the statement. Since the declarant did not appear as a witness, the impeaching party did not have an opportunity to cross examine the declarant about the nature or the circumstances surrounding the making of the hearsay declaration. Therefore, the Code and the Rules recognize that fairness requires allowing the impeaching party to use the inconsistent statement even if the declarant made the statement after making the hearsay declaration that has been received in evidence.

The other problem concerns the interests of the party who offered the hearsay declaration in the first place. When, as in the example, the hearsay declarant does not appear as a witness, the proponent of the hearsay declaration is deprived of an opportunity to have the declarant explain or deny the inconsistent statement attributed by the opponent's witnesses to the declarant. Under the rules governing the use of conventional inconsistent statements, the absence of such an opportunity would be fatal to the introduction of the inconsistent statement.2 But that is not the case when the inconsistent statement is offered to impeach a hearsay declarant. Since the proponent has benefitted from the introduction of the absent declarant's hearsay declaration, Rule 806 and § 1202 will allow the opponent to use the inconsistent statement even though the proponent may be deprived of the opportunity to have the declarant explain or deny the inconsistent statement. Under § 1202, however, the proponent is entitled to some consolation: unless the impeaching statement falls within a recognized exception to the hearsay rule, the inconsistent statement may be received only for impeachment and not for the truth of the matter stated. The Federal Rules are silent on this point. But one can expect the same outcome. Unless the inconsistent statement falls within a recognized exception or exemption to the federal hearsay rule, the statement may be received only to impeach the hearsay declarant.

Although the Code and the Rules focus on the use of inconsistent statements to impeach the hearsay declarant, both permit the use of any impeaching evidence that would have been admissible if the declarant had appeared and testified. Both also allow the credibility of the hearsay declarant to be supported by any evidence that would have been admissible for that purpose if the declarant had testified as a witness. Both also permit the party opposing the hearsay declaration to call and examine the declarant as if under cross-examination (Rule 806, § 1203). The Code, however, does not permit the use of leading questions if the hearsay declarant is a party, a person identified with a party, or a witness who has testified in the action concerning the subject matter (§ 1203).