1. Witness Declarations

2. PRESENT SENSE IMPRESSION Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was percieving the event or condition, or immediately thereafter. (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was percieving the event or condition, or immediately thereafter.

3. Contemporaneous Statement Evid. Code sec. 1241 Evid. Code sec. 1241 Hearsay exception if: Hearsay exception if: (a) offered to explain, qualify or make understandable conduct of declarant (a) offered to explain, qualify or make understandable conduct of declarant and and (b) was made at the time the declarant was engaged in such conduct (b) was made at the time the declarant was engaged in such conduct

4. FRE 803 (1) and Evid. Code sec. 1241 are not the same Red light hypo – wife says that blue car just ran the red light Red light hypo – wife says that blue car just ran the red light What is result under FRE 803(1)? What is result under FRE 803(1)? What is result under Evid. Code sec. 1241? What is result under Evid. Code sec. 1241?

5. FRE 803 (1) and Evid. Code sec. 1241 are not the same Red light hypo – what if husband testifies that wife was looking intently to her right and he asks her what she is doing; Red light hypo – what if husband testifies that wife was looking intently to her right and he asks her what she is doing; wife says “that blue car just ran the red light, he must be a drunk driver” wife says “that blue car just ran the red light, he must be a drunk driver” What is result under FRE 803(1)? What is result under FRE 803(1)? What is result under Evid. Code sec. 1241? What is result under Evid. Code sec. 1241?

6. Evid. Code sec. 1241 (cont.) 1241 is similar to verbal acts concept and says “this is a robbery, give me your money or I will shoot”. Upon arrest, gun is not loaded. Therefore, not offered for truth of “will shoot”. 1241 is similar to verbal acts concept and says “this is a robbery, give me your money or I will shoot”. Upon arrest, gun is not loaded. Therefore, not offered for truth of “will shoot”. Why does statement come in? Why does statement come in?

7. Evid. Code sec. 1241 (cont.) Words are act of robbery; Words are act of robbery; sec. 1241; sec. 1241; (cf. sec. 1220) (cf. sec. 1220)

8. Evid. Code sec. 1241 (cont.) Ex: D has gun on V and says “I will kill you for doing that”. D then shoots V. At trial for att- murder D claims accidental discharge. Now offered for truth of “will kill”. Ex: D has gun on V and says “I will kill you for doing that”. D then shoots V. At trial for att- murder D claims accidental discharge. Now offered for truth of “will kill”. Does statement come in under §1241? Does statement come in under §1241? Under § 1220? Under § 1220?

9. EXCITED UTTERANCE Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness: The following are not excluded by the hearsay rule, even though 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 caused by the event or condition. (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

10. Spontaneous Statement Evid. Code sec. 1240 Evid. Code sec. 1240 (a) purports to narrate, describe or explain an act, condition or event (a) purports to narrate, describe or explain an act, condition or event perceived by the declarant perceived by the declarant (b) made spontaneously while under the stress of excitement caused by such perception (b) made spontaneously while under the stress of excitement caused by such perception

11. Spontaneous Statement (cont.) Narrate, describe or explain Narrate, describe or explain Act, condition or event Act, condition or event

12. Spontaneous Statement (cont.) Spontaneously Spontaneously While under the stress of excitement of event While under the stress of excitement of event

13. Spontaneous Statement (cont.) Examples: Examples: 911 call describing car accident – “blue car ran red light and hit white car” 911 call describing car accident – “blue car ran red light and hit white car” What other proof do we need? What other proof do we need?

14. Spontaneous Statement (cont.) Examples: Examples: 911 call – “I just came out from work and my car is gone – a guy on the corner said some kids drove it away” 911 call – “I just came out from work and my car is gone – a guy on the corner said some kids drove it away” What are the issues? What are the issues?

15. Spontaneous Statement (cont.) Examples: Examples: 911 call – “my 5 year old daughter just told me that my boyfriend touched her on her privates last week” 911 call – “my 5 year old daughter just told me that my boyfriend touched her on her privates last week” What issues are here? What issues are here?

16. Spontaneous Statement (cont.) Examples: Examples: The day after the crash, Driver calls insurance agent to report accident. Agent asks a series of questions about what happened and who was at fault. The day after the crash, Driver calls insurance agent to report accident. Agent asks a series of questions about what happened and who was at fault. What issues are here? What issues are here?

17. Spontaneous Statement (cont.) Examples: Examples: Woman calls 911 to report robbery that just occurred. 911 operator asks series of questions including description of suspects, which way they went and extent of injuries. Woman calls 911 to report robbery that just occurred. 911 operator asks series of questions including description of suspects, which way they went and extent of injuries. What are the issues? What are the issues?

18. STATE OF MIND What a person thought at a given time may be a material issue: What a person thought at a given time may be a material issue: –e.g. mens rea distinguishes the degrees of punishable homicide –e.g. the testator’s intent in will contest –e.g. defendant’s lack of concern may rise to the level of negligence –e.g. victim’s lack of consent in a kidnapping

19. STATE OF MIND (cont.) What a person thought on a given occasion can be proven in two ways: 1. Direct statement of state of mind e.g. “I am mentally disordered.” 2. Indirectly by statement that reflects state of mind – circumstantial evidence e.g. “I am Elvis.”

20. STATE OF MIND (cont.) Hypo: (Adkins v. Brett) W states to P: Hypo: (Adkins v. Brett) W states to P: 1. Went automobile riding w/ D 1. Went automobile riding w/ D 2. Dined out w/ D 2. Dined out w/ D 3. D bought W flowers 3. D bought W flowers 4. D is able to give W a good time, when P is unable to 4. D is able to give W a good time, when P is unable to 5. W intends to continue to accept D’s attentions; P can do what he wants about it 5. W intends to continue to accept D’s attentions; P can do what he wants about it 6. P is distasteful to W 6. P is distasteful to W What is direct evidence of state of mind and what is circumstantial evidence of state of mind? What is direct evidence of state of mind and what is circumstantial evidence of state of mind?

21. STATE OF MIND (cont.) Does the statement “I intend to continue to entertain his attentions” come in for the truth of that statement? Does the statement “I intend to continue to entertain his attentions” come in for the truth of that statement? Does the statement “You can do what you please about it” come in for the truth of that statement? Does the statement “You can do what you please about it” come in for the truth of that statement? Does the statement “I find you to be distasteful” come in for the truth of that statement? Does the statement “I find you to be distasteful” come in for the truth of that statement?

22. STATE OF MIND (cont.) A person’s future intentions may be proved through the state of mind exception: A person’s future intentions may be proved through the state of mind exception: “From the declared intent to do a particular thing an inference that the thing was done may fairly be drawn” “From the declared intent to do a particular thing an inference that the thing was done may fairly be drawn”

23. STATE OF MIND (cont.) A person’s future intentions may be proved through the state of mind exception: A person’s future intentions may be proved through the state of mind exception: –Ex: Mutual Life Ins. V. Hillmon 145 U.S. 285 (1892) –letters re plan to go to Colo. with Hillmon – relevant on issue of whether it could be declarant’s body and best evidence available on plans to go

24. STATE OF MIND (cont.) A person’s future intentions may be proved through the state of mind exception: A person’s future intentions may be proved through the state of mind exception: –Ex: Peo. V. Alcade (1944) 24 Cal.2d 177 – victim tells friend “I’m going out with Frank tonight”. She turns up murdered and Frank turns out to be defendant’s first name. –Note: defendant objects that declaration is inadmissible to prove his plan – how do you rule?

25. STATE OF MIND (cont.) A person’s future intentions may be proved through the state of mind exception: A person’s future intentions may be proved through the state of mind exception: Ex: Peo. V. Williams (1997) 16 Cal.4 th 153, 205-206: defendant’s statement to cellmate about intent to suppress testimony admissible “D’s declarations of intent are admissible as evidence of the probable doing of the act….Specifically, the statement by the defendant indicating he was ‘going to’ have witnesses shot, would constitute evidence from which the trier of fact could infer that he authorized the shooting that actually occurred. Such evidence is admissible to prove consciousness of guilt.”

26. STATE OF MIND (cont.) A person’s future intentions may be proved through the state of mind exception: A person’s future intentions may be proved through the state of mind exception: –Ex: Peo. V. Majors (1998) 18 Cal.4 th 385, 404- 405 -- 187 vic’s statement to 3d party that he intended to conduct a drug deal on night he was murdered admissible; note defendant not mentioned but other evidence connected him to drug deal

27. STATE OF MIND (cont.) A person’s future intentions may be proved through the state of mind exception: A person’s future intentions may be proved through the state of mind exception: –Ex: Peo. V. Griffin (2004) 33 Cal.4 th 536, 579 – victim tells friend on day she was murdered that defendant had been fondling her and that if he did it again she was going to confront him and tell her mother

28. STATE OF MIND (cont.) Statements describing past state of mind are generally disallowed: Statements describing past state of mind are generally disallowed: –Statements of memory or remembered fact usually inadmissible –Fear that admitting such statements would allow exception to swallow the rule – it is too easy to cast all recollections as “state of mind” of declarant

29. STATE OF MIND (cont.) Statements describing past state of mind are generally disallowed: Statements describing past state of mind are generally disallowed: –cf. “I plan to go to the game tomorrow” and “I went to the game yesterday” Both relevant to whether I attended game Both relevant to whether I attended game The first describes present state of mind – presumed reliable The first describes present state of mind – presumed reliable The second describes a memory – raises Qs re memory and motive to fabricate The second describes a memory – raises Qs re memory and motive to fabricate

30. STATE OF MIND (cont.) Evidence re a victim’s state of mind should not be admitted unless the victim’s mental state is relevant Evidence re a victim’s state of mind should not be admitted unless the victim’s mental state is relevant –Sometimes relevance comes from charges (e.g. robbery, rape, kidnap) –Sometimes relevance comes from the need to respond to the defense (e.g. accident, self defense, consent) –Sometimes the defense may offer it (e.g. victim’s statements showing positive relationship w/D) but see Evid. Code sec. 1252 but see Evid. Code sec. 1252

31. STATE OF MIND (cont.) Peo. V. Guerra (2006) 37 Cal.4 th 1067, 1115-1116 – vic murdered during att. Rape by worker doing remodeling next door. Peo. V. Guerra (2006) 37 Cal.4 th 1067, 1115-1116 – vic murdered during att. Rape by worker doing remodeling next door. Prosecution offered testimony of vic’s friend that she was thought defendant entered her home when she was asleep and she was afraid of him Prosecution offered testimony of vic’s friend that she was thought defendant entered her home when she was asleep and she was afraid of him Admitted over hearsay objection b/c her statements circumstantially showed that her consent to sex was less plausible Admitted over hearsay objection b/c her statements circumstantially showed that her consent to sex was less plausible Her state of mind re consent relevant to the special circumstance alleged, and thus it fell within the state of mind exception Her state of mind re consent relevant to the special circumstance alleged, and thus it fell within the state of mind exception

32. STATE OF MIND (cont.) Peo. V. Guerra (2006) 37 Cal.4 th 1067, 1115- 1116 – vic murdered during att. Rape by worker doing remodeling next door. Peo. V. Guerra (2006) 37 Cal.4 th 1067, 1115- 1116 – vic murdered during att. Rape by worker doing remodeling next door. Defense offered her statement to friend that another worker (Roberto) annoyed her to show defendant was not sole source of her complaints. Defense offered her statement to friend that another worker (Roberto) annoyed her to show defendant was not sole source of her complaints. Trial Court sustained hearsay objection Trial Court sustained hearsay objection

33. STATE OF MIND (cont.) Peo. V. Guerra (2006) 37 Cal.4 th 1067, 1115-1116 – vic murdered during att. rape by worker doing remodeling next door. Defense offered her statement to friend that another worker (Roberto) annoyed her to show defendant was not sole source of her complaints. Peo. V. Guerra (2006) 37 Cal.4 th 1067, 1115-1116 – vic murdered during att. rape by worker doing remodeling next door. Defense offered her statement to friend that another worker (Roberto) annoyed her to show defendant was not sole source of her complaints. Exclusion of statement proper b/c no evid. of 3d pty culpability or evid that vic feared Roberto. Exclusion of statement proper b/c no evid. of 3d pty culpability or evid that vic feared Roberto. Thus, vic’s state of mind as to Roberto not relevant to an element of offense or to show vic acted in conformity with state of mind of annoyance. Thus, vic’s state of mind as to Roberto not relevant to an element of offense or to show vic acted in conformity with state of mind of annoyance.

34. STATE OF MIND (cont.) Hypo: Defendant charged with kidnapping and murder. Prosecution calls friend who says the morning of the kidnapping she spoke with victim who said defendant said he will kill me if I leave him. Hypo: Defendant charged with kidnapping and murder. Prosecution calls friend who says the morning of the kidnapping she spoke with victim who said defendant said he will kill me if I leave him. Is this evidence admissible? Is this evidence admissible?

35. STATE OF MIND (cont.) A victim’s fear of the defendant is an emotional state that, if relevant, may be proved by the victim’s declarations. A victim’s fear of the defendant is an emotional state that, if relevant, may be proved by the victim’s declarations. –Comes up in situations where the defendant and victim know one another –e.g. self defense scenarios, domestic violence, sexual assault, kidnapping

36. THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION Rule 803: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: Rule 803: The following are not excluded by the hearsay rule, even though 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, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. (3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

37. Evid. Code sec. 1252 Restriction on Admissibility of Hearsay under sections 1250, 1251 and 1253 Restriction on Admissibility of Hearsay under sections 1250, 1251 and 1253 Evidence of statement is inadmissible if circumstances show lack of trustworthiness Evidence of statement is inadmissible if circumstances show lack of trustworthiness –e.g. DV murder & Def wants put in statements he says vic made about what a great guy he was or how much vic liked him Note: no similar express provision in FRE Note: no similar express provision in FRE

38. Statement of Declarant’s Then Existing Mental/Physical State Evid. Code sec. 1250: Evid. Code sec. 1250: subject to sec. 1252, statement of declarant’s then existing subject to sec. 1252, statement of declarant’s then existing state of mind state of mind emotion, or emotion, or physical sensation physical sensation evidence must be offered to prove – phys or mental state – evidence must be offered to prove – phys or mental state – at that time at that time or at any other time that is in issue in the case or at any other time that is in issue in the case the evidence is offered to prove or explain acts or conduct of declarant the evidence is offered to prove or explain acts or conduct of declarant evidence of statement of memory or belief is not within exception to prove fact remembered or believed evidence of statement of memory or belief is not within exception to prove fact remembered or believed Note: No requirement of unavailability Note: No requirement of unavailability

39. Statement of Previously Existing Mental/Physical State Evid. Code sec. 1251: Evid. Code sec. 1251: Subject to sec. 1252, statement of declarant’s previously existing Subject to sec. 1252, statement of declarant’s previously existing state of mind state of mind emotion, or emotion, or physical sensation physical sensation (a) unavailability required (a) unavailability required (b) evidence must be offered to prove – prior phys or mental state – When it is itself an issue in the case (b) evidence must be offered to prove – prior phys or mental state – When it is itself an issue in the case -- and not offered to prove any fact other than such state of mind, emotion or physical sensation -- and not offered to prove any fact other than such state of mind, emotion or physical sensation

40. STATE OF MIND (cont.) Hypo: 3 Ds charged with murdering vic.- Defense is self defense Hypo: 3 Ds charged with murdering vic.- Defense is self defense They claim he was a drug dealer whose spot was at their apt. bldg. They claim he threatened them with death if they continued to hang out there, b/c interfering with his drug business. They claim he was a drug dealer whose spot was at their apt. bldg. They claim he threatened them with death if they continued to hang out there, b/c interfering with his drug business. One defendant claims vic was unhappy b/c he thought that this defendant was trying to get vic’s gf to work as a prostitute for him rather than for vic. One defendant claims vic was unhappy b/c he thought that this defendant was trying to get vic’s gf to work as a prostitute for him rather than for vic. Prosecution says vic unhappy w/ defendants b/c they wear red and tag the bldg with Norteno graffiti and thus draw police attention Prosecution says vic unhappy w/ defendants b/c they wear red and tag the bldg with Norteno graffiti and thus draw police attention Witnesses are defendants, vic’s gf and her son. Defendants will be impeached b/c prior inconsistent stat to police (false alibi). Wit’s were thoroughly impeached at Prelim. Hearing Witnesses are defendants, vic’s gf and her son. Defendants will be impeached b/c prior inconsistent stat to police (false alibi). Wit’s were thoroughly impeached at Prelim. Hearing What is admissible under FRE 803(3)/ §1250/ §1251? Apply §1252. What is admissible under FRE 803(3)/ §1250/ §1251? Apply §1252.

41. Statements for purposes of medical diagnosis or treatment Rule 803: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: Rule 803: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing 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. (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing 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.

42. Statement of For Purpose of Medical Diagnosis/Treatment Evid. Code sec. 1253: Evid. Code sec. 1253: Very limited exception Very limited exception Subject to sec. 1252; Subject to sec. 1252; Declarant must be a minor at the time of the proceeding; Declarant must be a minor at the time of the proceeding; Statement was made when victim was under the age of 12; Statement was made when victim was under the age of 12; Statement must describe child abuse Statement must describe child abuse

43. STATE OF MIND (cont.) 1. “Doctor, my back hurts.” What result under Evid. Code sec. 1250? What result under Evid. Code sec. 1250? –Admissible b/c describes then existing physical condition What result under FRE 803(3)? What result under FRE 803(3)? –Admissible b/c describes then existing physical condition What result under FRE 803(4)? What result under FRE 803(4)? –Admissible b/c describes then existing physical condition pertinent to medical treatment/diagnosis

44. STATE OF MIND (cont.) 2. “Doctor, my back hurt last week.” What result under Evid. Code sec. 1250? What result under Evid. Code sec. 1250? –Inadmissible as a narrative of a past condition What result under Evid. Code sec. 1251? What result under Evid. Code sec. 1251? –Inadmissible unless previous condition was itself at issue in case and witness is unavailable What result under FRE 803(3)? What result under FRE 803(3)? –Inadmissible as a narrative of a past condition What result under FRE 803(4)? What result under FRE 803(4)? –Admissible b/c pertinent to medical treatment/diagnosis

45. STATE OF MIND (cont.) 3. “Doctor, my back has been hurting me since a car hit me last month.” What result under Evid. Code sec. 1250? What result under Evid. Code sec. 1250? –Inadmissible b/c remembered fact What result under Evid. Code sec. 1251? What result under Evid. Code sec. 1251? –Some inadmissible b/c proves another fact – some may come in What result under FRE 803(3)? What result under FRE 803(3)? –Inadmissible b/c remembered fact What result under FRE 803(4)? What result under FRE 803(4)? –Admissible b/c pertinent to medical treatment/diagnosis

46. STATE OF MIND (cont.) Recent trial situation in Alameda County: Recent trial situation in Alameda County: –Vic is shot in eye in DV situation & gravely wounded. Treating physician testifying and says vic reported “my husband shot me in the eye.” –Defense objects on hearsay grounds –Prosecutor responds state of mind exception for medical treatment or diagnosis –How do you rule?

47. STATE OF MIND (cont.) Recent trial situation in Alameda County: Recent trial situation in Alameda County: –Apply FRE 803(3) –Apply FRE 803(4) –Apply § 1250 –Apply § 1251 –Apply § 1253 –Apply § 1252 (1250, 1251 & 1253 all subject to 1252)

48. STATE OF MIND (cont.) Recent suppression motion in Alameda County -- Issue: was arrest valid Recent suppression motion in Alameda County -- Issue: was arrest valid –Police pick up Lo-Jack signal and follow it to a house in the Oakland hills – they can see over a picket fence into the front yard area and see Bobcat (mini bulldozer) in plain view –Police radio confirms stolen vehicle is described as a Bobcat –Police talk to resident who says he bought it, but has no documentation of sale

49. STATE OF MIND (cont.) Recent suppression motion in Alameda County: Recent suppression motion in Alameda County: –DA asks officer if he did further investigation –Officer answers that he then called Hertz Rental agent (victim) and got more info –DA asks what Hertz told him –PD objects on hearsay grounds –DA responds “state of mind”

50. STATE OF MIND (cont.) Recent suppression motion in Alameda County: Recent suppression motion in Alameda County: –Does it come in? What is the issue? –What is officer’s role here? He is not a party, he is a witness. –What is relevance of this witness’ state of mind?

51. STATE OF MIND (cont.) Recent suppression motion in Alameda County: Recent suppression motion in Alameda County: –Apply FRE 803(3) – comes in, why? –Apply FRE 803(4) – not under this §, why? –Apply § 1250 – comes in, why? –Apply § 1251 – not under this §, why? –Apply § 1253 – not under this §, why? –Apply § 1252 – does this § exclude it? Why or why not?

52. STATEMENT AGAINST INTEREST Rule 804. Hearsay Exceptions; Declarant Unavailable Rule 804. Hearsay Exceptions; Declarant Unavailable (a) Definition of unavailability. (a) Definition of unavailability. (b) Hearsay exceptions. (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

53. STATEMENT AGAINST INTEREST Rule 804 (b)(3) Statement against interest. Rule 804 (b)(3) Statement against interest. –at the time of its making so far contrary to: Pecuniary interest; Pecuniary interest; proprietary interest; proprietary interest; so far tended to subject to civil liability so far tended to subject to civil liability or to criminal liability or to criminal liability or to render invalid a claim against another or to render invalid a claim against another (that a reasonable person in the declarant's position would not have made the statement unless believing it to be true)

54. STATEMENT AGAINST INTEREST (cont.) Evid. Code sec. 1230 Evid. Code sec. 1230 Unavailable declarant Unavailable declarant Statement so far contrary to interest: Statement so far contrary to interest: –Pecuniary, proprietary, civil or criminal –Render invalid a claim –Subject to hatred, ridicule or social disgrace

55. STATEMENT AGAINST INTEREST “ I beat up that old lady when I snatched her purse” “ I beat up that old lady when I snatched her purse” “I owe Jane $100.00 from the poker game last week” “I owe Jane $100.00 from the poker game last week” “I lied when I raised my hand in Evidence class saying that I read the materials on the state of mind exception” “I lied when I raised my hand in Evidence class saying that I read the materials on the state of mind exception”

56. STATEMENT AGAINST INTEREST (cont.) RULE OF CORROBORATION FRE 804(b)(3)(B): A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. FRE 804(b)(3)(B): A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. P. v. Frierson (1991) 53 Cal.3d 730, 746 declaration against criminal interest by 3d party that exculpates defendant should be reviewed carefully because there is a “ general suspicion with which the law looks upon such declarations. ” P. v. Frierson (1991) 53 Cal.3d 730, 746 declaration against criminal interest by 3d party that exculpates defendant should be reviewed carefully because there is a “ general suspicion with which the law looks upon such declarations. ”

57. STATEMENT AGAINST INTEREST “ I overheard Joe say that he beat up that old lady when I snatched her purse” “ I overheard Joe say that he beat up that old lady when I snatched her purse” “I planned the robbery. I got Joe to help me do it. I needed the money to pay a gambling debt I owed to Sam. It was Joe’s idea to tie the victim up and to pistol whip him. It was my idea to feed the dog chocolate covered raisins to try and make the victim tell where more money was.” “I planned the robbery. I got Joe to help me do it. I needed the money to pay a gambling debt I owed to Sam. It was Joe’s idea to tie the victim up and to pistol whip him. It was my idea to feed the dog chocolate covered raisins to try and make the victim tell where more money was.”

58. DYING DECLARATION Premised on the notion that a dying person no longer has any temporal self- serving purposes to be furthered Premised on the notion that a dying person no longer has any temporal self- serving purposes to be furthered Also on the idea that one facing death will tell the truth Also on the idea that one facing death will tell the truth Principal condition for his exception is that statement be made under sense of immediately impending death Principal condition for his exception is that statement be made under sense of immediately impending death

59. DYING DECLARATION Relevant factors in arguing this exception: Relevant factors in arguing this exception: –The victim’s physical condition –The nature and seriousness of the wounds –The victim’s conduct –The victim’s statements –The victim’s knowledge of the gravity of the condition

60. STATEMENT UNDER BELIEF OF IMPENDING DEATH Rule 804. Hearsay Exceptions; Declarant Unavailable Rule 804. Hearsay Exceptions; Declarant Unavailable (a) Definition of unavailability. (a) Definition of unavailability. (b) Hearsay exceptions. (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

61. DYING DECLARATION Evid. Code sec. 1242 Evid. Code sec. 1242 Made by a dying person Made by a dying person About cause/circumstances of death About cause/circumstances of death Personal knowledge of declarant Personal knowledge of declarant Under sense of immediately impending death Under sense of immediately impending death

62. Difference – dying declaration FRE – requires unavailable witness FRE – requires unavailable witness Evid. Code – requires declarant to be dead Evid. Code – requires declarant to be dead

63. Forfeiture by Wrongdoing Rule 804(b) Hearsay exceptions. Rule 804(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. (6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. Proponent must prove foundational facts by a preponderance of the evidence Proponent must prove foundational facts by a preponderance of the evidence

64. Forfeiture by Wrongdoing (cont.) Evid. Code sec. 1350: Evid. Code sec. 1350: –Must be a serious felony –Unavailable Declarant –Clear/convincing evidence linking party –To prevent prosecution or arrest of party –Death by homicide or kidnapping of declarant –Memorialized in a tape recording or notarized writing –By a law enforcement official –Indicia of trustworthiness must be present –Statement is relevant –Independent corroborative evidence linking defendant to crime –10 days notice or good cause showing –Requires hearing outside presence of jury See People v. Zambrano (2007) 41 Cal.4 th 1082, 1143-1147

65. Forfeiture by Wrongdoing (cont.) Giles v. California 554 U.S. ___; 128 S.Ct. 2678 (2008) Giles v. California 554 U.S. ___; 128 S.Ct. 2678 (2008) –D attacks vic, beating her and threatening to kill her; She calls police and gives statement –3 weeks later – he kills her, claiming self defense –Prosecution offers Cop who took vic’s statement –Defense objects on hearsay/confrontation

66. Forfeiture by Wrongdoing (cont.) Giles v. California 554 U.S. ___; 128 S.Ct. 2678 (2008) Giles v. California 554 U.S. ___; 128 S.Ct. 2678 (2008) –More than the act of killing the declarant is required –The defendant’s intent is a key factor –To avoid the requirement of confrontation, it must be shown that the defendant killed declarant to prevent her from testifying

67. FORMER TESTIMONY Rule 804 (b) Hearsay exceptions. Rule 804 (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

68. FORMER TESTIMONY Rule 804 (b)(1): Civil cases Rule 804 (b)(1): Civil cases –Prior testimony at a hearing or deposition (formal setting under oath) –Prior hearing or deposition need not be same case –Opposing party must have had opportunity to examine –Opposing party’s motive in questioning must have been similar –Allows for predecessor in interest to have been the prior opponent to current opposing party

69. FORMER TESTIMONY Rule 804 (b)(1): Criminal cases Rule 804 (b)(1): Criminal cases –Same rules with one large difference: The party with the opportunity to question on prior occasion must have been the same party as the opposing party in the present case. The party with the opportunity to question on prior occasion must have been the same party as the opposing party in the present case.

70. FORMER TESTIMONY (cont.) Evid. Code § 1291 Unavailability requiredUnavailability required Offered against party who offered it on former occasionOffered against party who offered it on former occasion Offered against party:Offered against party: who was a party at prior hearing; who was a party at prior hearing; had opportunity to cross examine at prior hearing;had opportunity to cross examine at prior hearing; Had similar interests and motives as at prior hearingHad similar interests and motives as at prior hearing Admissibility is subject to the same limitations as if witness was available, except:Admissibility is subject to the same limitations as if witness was available, except: (1) no new objections to form;(1) no new objections to form; (2) no objections to competence or privilege that did not exist at the time the former testimony was given(2) no objections to competence or privilege that did not exist at the time the former testimony was given

71. FORMER TESTIMONY (cont.) Sec. 1292 applies to party who was not a party in the prior hearingSec. 1292 applies to party who was not a party in the prior hearing –Applies where one occurrence gives rise to multiple claims -- E.g. new plaintiff, same defendant and witness is unavailable –Applies only in civil actions –Former party had right and opportunity to cross declarant with similar motive and interest to that of present party

72. FORMER TESTIMONY (cont.) Sec. 1293-narrow application:Sec. 1293-narrow application: applies only in a W&I § 300 proceeding (juvenile dependency)-applies only in a W&I § 300 proceeding (juvenile dependency)- –Allows prior preliminary hearing testimony of the minor child in this subsequent proceeding if defendant at PX had substantially same interest as parent against whom testimony is being offered 1294 contain special rules re to preliminary hearing testimony1294 contain special rules re to preliminary hearing testimony

73. FORMER TESTIMONY (cont.) Evid. Code § 1294 - special rule: –Witness now unavailable –Witness testified at PX in same case –Prior inconsistent statement was properly admitted under §1235 for the truth –Now when using former testimony, same prior inconsistent statement may be admitted for the truth Why is this rule special?

74. BUSINESS RECORDS Evid. Code sec. 1270 – 1272 Evid. Code sec. 1270 – 1272 FRE 803(6) & 803(7) FRE 803(6) & 803(7)

75. BUSINESS RECORDS (cont.) Evid. Code sec. 1270 – Business defined –broad definition it includes everything that could keep a record Evid. Code sec. 1270 – Business defined –broad definition it includes everything that could keep a record

76. BUSINESS RECORDS (cont.) Evid. Code sec. 1271 – Business records exception A writing made as a record of A writing made as a record of An act, condition or event An act, condition or event Offered to prove the act condition or event Offered to prove the act condition or event Is admissible if: Is admissible if: (a) the writing was made in the regular course of a business (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; (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 (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 (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness

77. BUSINESS RECORDS (cont.) Evid. Code sec. 1272 – Absence of Business records Evid. Code sec. 1272 – Absence of Business records Absence of a record of an asserted act, condition or event Absence of a record of an asserted act, condition or event To prove the nonoccurrence of such asserted act, condition or event To prove the nonoccurrence of such asserted act, condition or event Is admissible if: Is admissible 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 at to preserve such records; and (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 at to preserve such records; and (b) The sources of information and the method and time of preparation were such that the absence of the record is a trustworthy indication that the act or event did not occur or that the condition did not exist. (b) The sources of information and the method and time of preparation were such that the absence of the record is a trustworthy indication that the act or event did not occur or that the condition did not exist.

78. BUSINESS RECORDS (cont.) FRE 803(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.Rule 902(11)Rule 902(12)Rule 902(11)Rule 902(12)

79. BUSINESS RECORDS (cont.) FRE 803(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

80. BUSINESS RECORDS (cont.) Cell phone records: Cell phone records: Time of call/duration of call Time of call/duration of call Incoming/outgoing numbers Incoming/outgoing numbers Whether *67 used (to block caller ID) Whether *67 used (to block caller ID) Cell tower and side – range of 1-2 miles Cell tower and side – range of 1-2 miles Custodian testifies that stronger signal takes over closer signal Custodian testifies that stronger signal takes over closer signal Cannot tell exactly where in area of tower and side call is made Cannot tell exactly where in area of tower and side call is made

81. Official Records Evid. Code sec. 1280 – 1284 Evid. Code sec. 1280 – 1284 FRE 803 (8) (9) & (10) FRE 803 (8) (9) & (10)

82. OFFICIAL RECORDS (cont.) Evid. Code sec. 1280 – Official records Evid. Code sec. 1280 – Official records A writing made as a record of A writing made as a record of An act, condition or event An act, condition or event Offered to prove the act condition or event Offered to prove the act condition or event Is admissible if: Is admissible if: (a) the writing was made by and within the scope of duty of a public employee (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; and (b) the writing was made at or near the time of the act, condition or event; and (c) the sources of information and method and time of preparation were such as to indicate its trustworthiness (c) the sources of information and method and time of preparation were such as to indicate its trustworthiness

83. OFFICIAL RECORDS (cont.) Evid. Code sec. 1284 – Statement of absence of Official records Evid. Code sec. 1284 – Statement of absence of Official records Evidence of a writing of a public employee Evidence of a writing of a public employee Who is the official custodian of records in a public office Who is the official custodian of records in a public office Reciting a diligent search and failure to find a record Reciting a diligent search and failure to find a record Is admissible when offered to prove the absence of a record in that office Is admissible when offered to prove the absence of a record in that office

84. OFFICIAL RECORDS (cont.) Evid. Code sec. 1281 – Vital statistics records -- Evid. Code sec. 1281 – Vital statistics records -- A writing made as a record of A writing made as a record of a birth, fetal death, death or marriage a birth, fetal death, death or marriage is admissible if: is admissible if: the maker of the record was required by law the maker of the record was required by law to file the writing in a designated public office, and to file the writing in a designated public office, and the writing was made and filed as required by law the writing was made and filed as required by law

85. OFFICIAL RECORDS (cont.) FRE Rule 803. (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. FRE Rule 803. (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

86. OFFICIAL RECORDS (cont.) FRE Rule 803(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. FRE Rule 803(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

87. OFFICIAL RECORDS (cont.) (10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. (10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.rule 902rule 902

88. Miscellaneous Exceptions FRE 803 and 804 FRE 803 and 804 Evid. Code sec. 1200 - 1390 Evid. Code sec. 1200 - 1390