THE LAW OF HEARSAY

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

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

An out of court statement

FOCUS IS ON WHERE THE STATEMENT IS MADE

-- If witness testifies at hearing that he saw the perpetrator and

identifies defendant as that person it is not hearsay

-- If witness testifies at the hearing that he saw the perpetrator and

that he told the police officer that defendant was that person, it is
hearsay and is not admissible unless an exception applies

(cf privilege who made the statement; and character evidence

what the content of the statement is)

Offered to prove the truth of

the matter stated:

Mendez : Defendant in blue car collides

with plaintiff in white car in intersection plaintiff
testifies that she entered intersection on green light;
defendant testifies that she entered intersection on
green light. Plaintiff calls witness who was stopped
in left turn lane at intersection; witness states that
he knows defendant ran red light because just
before the accident his wife stated look at that blue
car running the red light
EXAMPLE 1.

OFFERED TO PROVE THE TRUTH OF THE MATTER STATED:

EXAMPLE 2. Robbery of corner store robbers are a man and a

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

OFFERED TO PROVE THE TRUTH OF THE MATTER STATED:

EXAMPLE 3. Defendant is accused attempted murder following

the poisoning of his wifes lover. Police interview the wife. She
states that defendant has always been the jealous type.
Further, she states that a week before the poisoning, defendant
told her he wanted to kill the lover and directed the wife to buy
rat poison at the hardware store. She did so and gave the
poison to defendant. After the lover became ill and it was
determined that he had been poisoned, defendant told wife that
he got into her purse, stole a key to the lovers home, went
there and put the rat poison in a carton of orange juice in the
refrigerator in the lovers kitchen. The prosecution calls the
wife as a witness to the attempted murder.

REASONS FOR THE RULE

1. The statements are not made under oath

2. Deprives party opponent of cross examination

3. Deprives factfinder of opportunity to judge

demeanor and credibility

4. Protection of the 6th Amendment Right of

Confrontation (Hearsay rules and exceptions are
common law, statutory and decisional law)

ASSERTIVE v NON-ASSERTIVE
CONDUCT
FRE 801(a) and Evid. Code Sec. 225

Non verbal conduct, if it is intended as an

assertion

Is the conduct intended by the declarant

to be a substitute for words?

Is the conduct intended by the declarant to be

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

Is the conduct intended by the declarant to be

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

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

Rule 801(d)(2) Admission by Party Opponent

A statement is not hearsay if offered against a party and it is:

(A) the partys own statement, in either an individual of a

representative capacity; or

(B) a statement of which the party has manifested an adoption

or belief in its truth; or

(C) a statement by a person authorized by the party to make a

statement concerning the subject; or

(D) a statement by the partys agent or servant concerning a

matter within the scope of the agency or employment, made
during the existence of the relationship; or

(E) a statement by a coconspirator of a party during the course

and in furtherance of the conspiracy.

Rule 801(d)(2) Admission by Party

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

Cf. Evid. Code Hearsay

Exceptions
1.
2.
3.
4.
5.
6.
7.

1220 statements of a party

1221 adoptive admission
1222 authorized admission
1223 admission of a co-conspirator
1235 inconsistent statement (in
compliance with 770)
1236 consistent statement (in
compliance with 791)
1238 prior identification

TRADITIONAL NON HEARSAY

Where words or statements are

operative acts; or
Where words or statements are
relevant circumstantial evidence

TRADITIONAL NON HEARSAY

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

TRADITIONAL NON HEARSAY

More Examples
6. Proving knowledge of notice

-prior complaints of structural defects

-Nuisance
-DUI warning
7. To rebut claim of amnesia (P.v. Jackson (1989) 49
Cal.3d 1170,1187 [police officer allowed to testify to
defendants statement you are the cops who said
I killed that policeman with a shotgun
investigator testified that there was no previous
mention of a shotgun. Statement not offered to
prove he killed officer but rather as circumstantial
evidence of his memory].

TRADITIONAL NON HEARSAY

More Examples
8.

False statements to prove consciousness of guilt

-- false alibi
-- denial of presence
-- denial of history of animosity
not offered for truth but to show defendants false response
when confronted with accusatory situation

9.

Consciousness of guilt refusal to submit to drug test,

handwriting exemplar

10. Video tape or audio tape of defendants statement to police

near time of crime to show defendants physical state (i.e.
intoxication or mental coherence)

TRADITIONAL NON HEARSAY

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

TRADITIONAL NON HEARSAY

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

TRADITIONAL NON HEARSAY

More Examples
16. Circumstantial evidence of mental state of
declarant I am afraid of X or I am going to
kill X

17. Circumstantial evidence of mental state of

recipient I am going to kill you I want to be
your girlfriend

TRADITIONAL NON HEARSAY

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