1 California Evidence (4th),
Hearsay
I. IN GENERAL
A. [§1] Reasons for Exclusion.
B. [§2] Evidence Code.
C. [§3] Federal and Uniform Rules.
D. Nature and Scope of Rule.
1. [§4] Statement of Rule.
2. [§5] Must Be Offered To Prove Truth.
3. [§6] Multiple Hearsay.
4. [§7] Assertive Conduct.
5. [§8] Other Exclusionary Rules and Impeachment.
6. [§9] Analysis of Hearsay Problem.
7. Illustrations of Inadmissible Hearsay.
(a) Self-Serving Statements.
(1) [§10] In General.
(2) [§11] Statements in Judicial Proceedings.
(b) [§12] Reports and Similar Writings.
(c) [§13] Court's Interlocutory Order.
(d) [§14] Proceedings at Coroner's Inquest.
(e) [§15] Invoice, Bill, and Receipt.
(f) [§16] Recording of Nonparty's Statements.
(g) [§17] Hearsay Introduced by Cross-Examination or Redirect.
E. Unavailable as a Witness.
1. [§18] In General.
2. Privilege or Disqualification.
(a) [§19] Statutory Rule and Distinction.
(b) [§20] Privilege Against Self-Incrimination.
(c) [§21] Self-Incrimination Privilege Invoked Because of Fear of Perjury Prosecution.
3. [§22] Death, Insanity, or Illness.
4. [§23] Contumacious Witness.
5. [§24] Witness' Fear of Safety.
6. [§25] Witness Killed or Kidnaped.
7. [§26] Elder or Dependent Witness.
8. Absence.
(a) [§27] Statutory Rules.
(b) [§28] Witness Out of Jurisdiction.
(c) [§29] Diligent Search for Witness.
(d) [§30] When Search for Witness Should Begin.
II. STATEMENTS NOT WITHIN THE RULE
A. Words Part of Issue.
1. [§31] General Principle.
2. Illustrations: Civil Cases.
(a) [§32] Formation of Contract or Novation.
(b) [§33] Defamation or Deceit.
(c) [§34] Other Examples.
3. [§35] Illustrations: Criminal Cases.
B. Statements Relevant as Circumstantial Evidence.
1. [§36] In General.
2. Evidence of Mental State of Declarant.
(a) [§37] Inference as to Belief, Intent, or Motive.
(b) [§38] Civil Cases.
(c) [§39] Criminal Cases.
3. Evidence of Mental State of Recipient.
(a) [§40] In General.
(b) [§41] Knowledge.
(c) Belief.
(1) [§42] Civil Cases.
(2) [§43] Criminal Cases.
(d) Good Faith or Reasonableness of Conduct.
(1) [§44] Civil Cases.
(2) [§45] Criminal Cases.
C. Nonassertive Conduct.
1. [§46] Nature of Problem.
2. [§47] Uniform Rules and Evidence Code.
3. [§48] Proof of Bookmaking.
4. [§49] Proof of Selling Illegal Drugs.
D. [§50] Statements Admitted To Provide Context.
III. EXCEPTIONS TO THE RULE
A. Confession of Defendant.
1. In General.
(a) [§51] Nature and Admissibility.
(b) Exclusionary Rules.
(1) [§52] Theories and Grounds.
(2) [§53] Incapacity of Defendant.
(3) [§54] Involuntary Confession.
(4) [§55] Evidence Obtained Through Involuntary Confession.
(5) [§56] Distinction: Voluntary Second Confession.
(c) Limiting Rules.
(1) [§57] Standing To Challenge Admission of Third Party's Statement.
(2) [§58] Voluntary False Confession.
(3) Confession of Codefendant.
(aa) [§59] In General.
(bb) [§60] Editing of Confession.
(cc) [§61] Interlocking Confessions.
(dd) [§62] Improper Substantive Use Against Defendant.
(d) [§63] Confession of Accomplice Offered for Nonhearsay Purpose.
2. Involuntary Confessions.
(a) [§64] Physical Abuse or Threat of Abuse.
(b) Other Threats or Inducements.
(1) [§65] General Principle and Distinction.
(2) [§66] Confessions Inadmissible.
(3) [§67] Confessions Admissible.
(c) [§68] Psychological Coercion.
(d) Fraud.
(1) [§69] Confessions Admissible.
(2) [§70] Confessions Inadmissible.
(e) Prolonged Questioning.
(1) [§71] Questioning Without Coercion.
(2) [§72] Questioning as Coercion.
(f) Illegal Detention.
(1) [§73] In Federal Trials.
(2) [§74] In State Trials.
(g) [§75] Defendant Kept Incommunicado.
(h) Failure To Advise of Miranda Rights.
(1) [§76] In General.
(2) [§77] Interrogation After Right to Silence Invoked.
(3) [§78] Interrogation After Right to Counsel Invoked.
(4) Statements Admissible.
(aa) [§79] Statement Not Result of Interrogation.
(bb) [§80] Second Statement Untainted by Prior Violation.
3. Procedure in Determining Voluntariness.
(a) [§81] Constitutional Requirements.
(b) [§82] Former California Practice.
(c) [§83] Final Determination by Judge.
(d) [§84] Hearing Without Jury Present.
(e) [§85] Evidence and Ruling.
(f) [§86] Standard of Proof.
(g) [§87] Review by California Courts.
(h) [§88] Review by U.S. Supreme Court.
4. [§89] Harmless or Reversible Error.
B. Admission of Party.
1. In General.
(a) [§90] Nature and Theory.
(b) [§91] Affirmative Evidence.
(c) [§92] Classifications and Distinctions.
(d) [§93] Declarant's Interest Immaterial.
(e) [§94] No Requirement of Personal Knowledge.
(f) [§95] Opinion Rule Not Applicable.
(g) [§96] Statement Containing Additional Matters.
2. Admissions in Judicial and Administrative Proceedings.
(a) Pleadings in Civil Cases.
(1) [§97] Same Case.
(2) [§98] Prior Case.
(b) [§99] Guilty Plea in Criminal Case.
(c) Stipulations and Other Attorneys' Admissions.
(1) [§100] Judicial Admissions.
(2) [§101] Evidentiary Admissions.
3. Adoptive Admissions in Civil Cases.
(a) [§102] Nature of Admission.
(b) Adoption by Conduct.
(1) [§103] In General.
(2) [§104] Silence or Evasive Response in Negligence Action.
(3) [§105] Ignoring Written Communication.
4. Other Admissions by Conduct.
(a) Flight, Resistance, or Escape of Accused.
(1) [§106] In General.
(2) [§107] Flight.
(3) [§108] Instruction Where Fleeing Person's Identity Is in Issue.
(4) [§109] Attempted Escape From Custody.
(b) [§110] False Excuse or Alibi.
(c) Attempt To Corrupt Witness or Suppress Evidence.
(1) [§111] In General.
(2) [§112] Threats.
(3) [§113] Attempt by Unauthorized Person.
(d) Employer's Precautionary Rules.
(1) [§114] Operating Rules of Carrier.
(2) [§115] Safety Rules.
(3) [§116] Distinction: Labor Code Regulations.
(e) [§117] Contradictions in Testimony.
(f) [§118] Miscellaneous Examples.
5. Vicarious Admissions.
(a) Persons Authorized.
(1) [§119] Theory and Test of Admissibility.
(2) [§120] Independent Proof of Authority.
(3) [§121] Scope of Authority.
(4) [§122] Statement Admitting Tort Liability.
(5) [§123] Statement Admitting Contract Liability.
(6) [§124] Other Statements.
(7) [§125] Interpreter as Agent.
(8) [§126] Distinctions.
(b) Declarant Whose Liability Is in Issue.
(1) [§127] General Principle.
(2) [§128] Exception for Employer's Tort Liability.
(c) Declarant Whose Right or Title Is in Issue.
(1) [§129] Nature of Rule.
(2) [§130] Time of Statements.
(d) [§131] Declarant in Action for Injury or Death.
(e) Coconspirators.
(1) [§132] General Rule.
(2) [§133] Independent Proof of Conspiracy.
(3) [§134] Statement Made During Conspiracy.
(4) [§135] Statement Made To Further Objective.
6. Excluded Admissions in Criminal Cases.
(a) Involuntary Admissions.
(1) [§136] Inadmissible as Evidence or Impeachment.
(2) [§137] Illustrations.
(b) Ineffective or Withdrawn Plea.
(1) [§138] Penal Code and Case Law.
(2) [§139] Evidence Code and Federal Rules.
(c) Silence or Equivocal Reply to Charge of Crime.
(1) [§140] Former Law.
(2) [§141] Effect of Miranda and Griffin Rules.
(d) [§142] Admissions of Codefendant.
C. Declarations Against Interest.
1. [§143] Modern Expanded Rule.
2. Conditions of Admissibility.
(a) [§144] Against Interest.
(b) [§145] Declarant Unavailable.
(c) [§146] Trustworthiness and Knowledge.
3. Illustrations.
(a) [§147] Declarations Against Pecuniary Interest.
(b) [§148] Declaration Against Proprietary Interest.
(c) Declaration Involving Criminal Liability.
(1) [§149] Modern Rule of Admissibility.
(2) [§150] Preliminary Fact Determination.
(3) [§151] Distinctions.
(d) [§152] Declaration Against Social Interest.
(e) [§153] Other Declarations.
D. [§154] Sworn Statement Regarding Gang-Related Crime.
E. Prior Statements of Witnesses.
1. Prior Inconsistent and Consistent Statements.
(a) [§155] Former Law and Code Changes.
(b) Prior Inconsistent Statements.
(1) [§156] In General.
(2) [§157] Rule in Criminal Cases.
(3) [§158] Absent Witness.
(4) [§159] Forgetful or Amnesiac Witness.
(5) [§160] Uncooperative Witness.
(c) [§161] Prior Consistent Statements.
2. [§162] Past Recollection Recorded.
3. Prior Identification.
(a) [§163] Independent Evidence.
(b) [§164] Conditions of Admissibility.
(c) [§165] Methods of Identification.
(d) [§166] Sufficiency and Weight.
4. Complaint of Victim in Sex Case.
(a) [§167] In General.
(b) [§168] Freshness Requirement Abandoned.
(c) [§169] Inadmissibility of Details.
(d) [§170] Testimony by Alleged Victim.
F. [§171] Statement of Victim of Child Abuse or Neglect.
G. [§172] Child Dependency Hearsay Exception.
H. Spontaneous Statements.
1. Modern Development of Doctrine.
(a) [§173] Theory of Admissibility.
(b) [§174] Evidence Code and Federal Rules.
(c) [§175] Relation to Other Exceptions.
(d) [§176] Effect of Other Rules.
2. [§177] Statement Related to Act, Condition, or Event.
3. Spontaneous Statement During Excitement.
(a) [§178] Statement in Response to Questioning.
(b) [§179] Importance of Time Element.
(c) [§180] Statement Immediately After Event.
(d) Statement Some Time Afterward.
(1) [§181] Statements Held Admissible.
(2) [§182] Statements Held Inadmissible.
I. Contemporaneous Explanatory Statement (Verbal Act).
1. [§183] Theory of Admissibility.
2. [§184] Illustrations: Statements Accompanying Acts.
3. [§185] Subsequent Statements Inadmissible.
J. Dying Declaration.
1. [§186] In General.
2. [§187] Evidence Code and Federal Rules.
3. [§188] Instructions to Jury.
4. Conditions of Admissibility.
(a) [§189] Relation to Cause of Death.
(b) Hope of Life Abandoned.
(1) [§190] Test.
(2) [§191] Foundation.
(3) [§192] Where Victim Chooses To Die.
5. [§193] Other Rules Applicable.
K. Statements of Mental or Physical State.
1. [§194] In General.
2. Physical Condition.
(a) [§195] Declarant's Then Existing Condition.
(b) [§196] Declarant's Previously Existing Condition.
(c) [§197] Diagnosis or Treatment of Child Abuse.
3. Mental State.
(a) General Principles.
(1) [§198] Nonhearsay and Admissible Hearsay.
(2) Declarant's Then Existing State.
(aa) [§199] Present Mental State in Issue.
(bb) [§200] Continuing Mental State.
(cc) [§201] Mental State Not in Issue.
(3) [§202] Declarant's Previously Existing State.
(4) [§203] Statement of Memory or Belief Inadmissible.
(b) Illustrations: Belief, Knowledge, or Emotion.
(1) [§204] Belief.
(2) [§205] Knowledge.
(3) Affection or Dislike.
(aa) [§206] Husband and Wife.
(bb) [§207] Testator.
(cc) [§208] Victim.
(4) Victim's Fear.
(aa) [§209] Admissibility.
(bb) [§210] Former Limitations Abolished.
(cc) [§211] Adequacy of Limiting Instructions.
(c) Illustrations: Intent.
(1) [§212] Declarations of Grantor or Donor.
(2) [§213] Self-Serving Declarations of Defendant.
(3) [§214] Other Declarations.
(d) Intention as Evidence of Future Act.
(1) [§215] General Rule of Admissibility.
(2) [§216] Intention To Commit Suicide.
(3) [§217] Intention To Go to or Leave Place.
(4) [§218] Intention To Go With Person.
(5) [§219] Threats of Accused or Victim.
L. [§220] Statements Concerning Physical Abuse.
M. Testator's Statements Concerning Will.
(1) [§221] In General.
(2) [§222] Declaration on Making or Revocation.
(3) [§223] Declaration on Kind of Will or No Will.
(4) [§224] Distinction: Declaration on Contract.
N. [§225] Decedent's Statement in Action Against Estate.
O. Business Records.
1. In General.
(a) [§226] Common Law.
(b) [§227] Uniform Act, Evidence Code, and Federal Rules.
2. [§228] Business, Profession, or Other Activity.
3. What Is Admissible Business Record.
(a) [§229] Any Kind of Record.
(b) [§230] Computer Records.
(c) [§231] Special Reports.
(d) [§232] Hospital Records.
(e) [§233] Accident Reports Prepared for Litigation.
(f) [§234] Absence of Business Entry.
(g) [§235] Miscellaneous Inadmissible Entries.
4. [§236] Time of Entry.
5. Sources of Information and Method of Preparation.
(a) [§237] In General.
(b) [§238] Hospital Records.
(c) [§239] Police and Other Accident Reports.
(d) [§240] Report of Test.
(e) [§241] Other Records and Reports.
6. Laying Foundation by Authenticating Witness.
(a) [§242] Custodian or Other Qualified Witness.
(b) [§243] Laying the Foundation.
P. Official Records and Writings.
(1) [§244] In General.
(2) Report of Public Employee.
(a) [§245] What Constitutes Official Record.
(b) [§246] Conditions of Admissibility.
(c) [§247] Relation to Presumption of Official Duty.
(d) [§248] Public Employee Record Containing Other Employee's Observations.
(e) [§249] Inadmissible Reports and Statements.
3. Report of Vital Statistics.
(a) [§250] Admissible Public Records.
(b) [§251] Knowledge and Opinion Rule.
(4) [§252] Federal Finding of Presumed Death.
(5) [§253] Federal Report of Missing Person.
(6) [§254] Statement of Absence of Public Record.
Q. Former Testimony.
1. In General.
(a) [§255] Nature and Theory of Exception.
(b) [§256] Former Law.
(c) [§257] Evidence Code and Federal Rules.
2. Former Proceeding.
(a) [§258] Prior Civil Proceeding.
(b) Prior Criminal Proceeding.
1. [§259] Prior Criminal Trial.
2. [§260] Preliminary Examination.
3. [§261] Testimony of Minor Victim.
(c) [§262] Deposition in Civil or Criminal Case.
(d) [§263] Administrative or Arbitration Proceeding.
3. Parties.
(a) Evidence Against Former Party.
(1) [§264] In General.
(2) [§265] Evidence Offered Against Opponent.
(b) [§266] Evidence Against Person Not Former Party.
4. Methods of Proof.
(a) [§267] In General.
(b) [§268] Videotape of Preliminary Examination.
5. [§269] Objections.
R. Judgments.
1. Judgment of Felony Conviction.
(a) [§270] Traditional Rule of Exclusion.
(b) [§271] Evidence Code and Federal Rules.
(c) [§272] Scope of Statutory Rule.
(2) [§273] Judgment Against Person Entitled to Indemnity.
(3) [§274] Judgment Determining Liability of Third Person.
S. Family History.
1. In General.
(a) [§275] Necessity of Hearsay.
(b) [§276] Evidence Code and Federal Rules.
(c) [§277] Facts of Family History.
2. Declarations.
(a) [§278] Declarant's Own Family History.
(b) [§279] Declarant Related to Family.
(c) [§280] Declarant Intimately Associated With Family.
(d) [§281] Circumstances Indicating Untrustworthiness.
3. Admissible Evidence.
(a) [§282] Entries in Family Records.
(b) [§283] Reputation in Family.
(c) [§284] Community Reputation.
(d) [§285] Church Records.
(e) [§286] Marriage, Baptismal, and Similar Certificates.
T. Reputation.
1. [§287] Community History.
2. [§288] Public Interest in Property.
3. [§289] Boundary or Custom Affecting Land.
4. [§290] Character.
U. [§291] Statement Concerning Boundary.
V. [§292] Recitals in Dispositive Instruments.
W. [§293] Recitals in Ancient Writings.
X. [§294] Commercial and Similar Lists.
Y. Treatises, Maps, and Charts.
1. [§295] Noncontroversial Publications.
2. [§296] Medical Texts.
Z. [§297] Affidavits.