Hearsay
What qualifies as hearsay?
An out-of-court statement repeated in court for the TOMA
Why is hearsay excluded? Then why do we have exceptions?
Hearsay often unreliable bc the declarant can't be cross-examined and theres a highly likelihood of Insincerity, Misperception, Inaccurate narration, and/or Inaccurate memory
We have exceptions bc over time courts have found some hearsay is sufficiently reliable since one of the four dangers is lowered.
What is the rule for layered hearsay?
Admissible if each layer meets an exception
if one layer fails then the final statement is excluded
How is contradiction different from PIS?
PIS is attacking someone on the witness stand with something said earlier out of court
Contradiction is trying to get witness to change facts here and there while on the stand
When can you not use extrinsic evidence to impeach?
Impeachment by asking about specific instances of untruthfulness under FRE 608(b): If a witness is asked on cross-examination about specific instances of their conduct probative of truthfulness or untruthfulness and denies those instances, the cross-examiner cannot introduce extrinsic evidence to prove that the witness committed those act
What is not considered hearsay? (Non-hearsay uses of out-of-court statements)
1. Effect on listener doctrine
2. Verbal Acts
3. Verbal parts of acts
4. Why the police investigated
5. Evidence of Linkage
6. Impeachment with a PIS
7. Rehabilitation with a PCS
8. Party admissions
What is a present sense impression? Differences btw CEC and FRE?
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
Risk of memory loss lowered
Differences
- CEC much narrower
FRE
Foundation for present sense impression
Foundation for present sense impression
- 1. Declarant must perceive event
- 2. Statement made while declarant perceiving event or immediately thereafter
- 3. Statement describes or explains event
What is a statement against interest?
Defined: A hearsay statement that, when made, was so contrary to the declarant’s pecuniary, proprietary, or penal interest that a reasonable person wouldn’t have said it unless they believed it was true.
Foundation:
Declarant is unavailable.
Declarant had personal knowledge.
Statement was against their own interest when made.
In criminal cases, if the statement exposes someone else, FRE requires corroborating circumstances showing trustworthiness.
Reliable because:
People don’t voluntarily make statements that expose themselves to civil or criminal liability unless they believe them to be true.
Differences:
FRE 804(b)(3): Requires corroboration when offered to exculpate the accused in a criminal case.
CEC 1230:
No corroboration requirement.
Broader—includes statements that expose the declarant to hatred, ridicule, or social disgrace.
How do PIS differ when used to Impeach versus when used to prove TOMA? Under both FRE and CEC
FRE
1. When used for Impeachment:
Purpose: To show the witness is unreliable or untruthful—i.e., to undermine their credibility.
Not offered for TOMA, so not hearsay
Foundation:
Extrinsic evidence: Allowed only if the inconsistent statement is non-collateral (i.e., relevant beyond just credibility).
2. When used for TOMA:
Purpose: The prior statement is introduced to prove the truth of what it asserts.
Not hearsay only if these requirements are met:
Declarant testifies at trial;
Is subject to cross-examination about the prior statement;
The prior statement is inconsistent with current testimony;
The prior statement was made under oath in a formal proceeding (trial, hearing, deposition, grand jury).
If any requirement is not met, the statement is inadmissible hearsay unless it fits another exception
CEC
1. When used for Impeachment (CEC §770, §780):
Purpose: To show the witness’s testimony is inconsistent and therefore not credible.
Not hearsay because it's not offered for the truth—just to attack credibility.
Foundation:
The witness must be given an opportunity to explain or deny the prior statement (same as FRE).
Extrinsic evidence is allowed as long as the prior statement is not on a purely collateral matter
Major difference
- CEC 1235 creates a hearsay exception for all PIS (you can always offer a PIS to impeach and for TOMA
- Whereas FRE only allows an exception for PIS for TOMA if the PIS was made in a court setting under oath
How can you impeach a witness with a character witness
Under FRE 608(a), a party may impeach a witness by offering reputation or opinion testimony from another witness (a character witness) about the target witness’s character for untruthfulness.
This can be done on direct examination.
ONLY Allowed after the character for untruthfulness has been attacked
Cannot rehabilitate credibility until its been attacked
CEC: Rule against bolstering credibility is abolished in criminal cases
What is a dying declaration? (defined, foundation, and why reliable) What's the difference btw CEC and FRE
Defined: a statement made by a declarant , who is unavailable to testify in court (typically because of the declarant's death), who made the statement under a belief of certain or impending death.
FOUNDATION: Persuade judge the person really thought they were going to die or else judge won’t let the evidence come in. (only statements related to
How to prove sense of impending death?
- Seriousness of condition/illness
- Last rights were administered
- Statement by declarant like “I’m not gonna make it.”
- Statement made to declarant: “You’re not gonna make it.
Reliable bc risk of lying on death bed is lowered
Differences:
- CEC: Dead at time of trial. In criminal cases, the FRE is narrower than the CEC because the FRE applies only in homicide cases.
- FRE: Unavailable but don’t have to be dead. In criminal cases, the FRE is narrower than the CEC because the FRE applies only in homicide cases.
What is an excited utterance? Why is it reliable and foundation?
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
Reliable bc insincerity and lies lowered
Foundation
1. Startling event
- Must actually be startling
2. Statement relates to the event
3. Declarant was still upset when the statement was uttered
What are verbal acts? What are verbal parts of acts?
They are not hearsay
Verbal acts
- Words creating a contract are not hearsay
- Words of defamation (words spoken has "legal significance")
- Words that give notice
Verbal parts of acts
- Ambiguous Acts accompanied by words that give it meaning -> words are verbal parts of an act
When can you impeach a witness with specific instances of untruthfulness, and what limitations apply?
Under FRE 608(b) you may impeach a witness on cross-examination by inquiring into specific instances of conduct that are probative of truthfulness or untruthfulness (e.g., lying on a job application, or falsifying records).
Limitations:
The conduct must relate to the witness’s character for truthfulness.
No extrinsic evidence is allowed—you must accept the witness’s answer.
The court has discretion to exclude under FRE 403 (e.g., unfair prejudice or confusion).
Applies to any witness, including the defendant.
CEC: California does not allow impeachment with specific acts of misconduct—only with felony convictions involving moral turpitude
- CA is among a minority of states that doesn’t allow witnesses to be impeached w/ specific instances of the witness’s untruthful conduct in civil litigation.
- However, this doesn’t apply to criminal cases. (i.e., specific instances of a witness’s untruthful conduct is allowed in criminal cases).
When can you use specific instances of a witness's conduct to impeach? What trait are they attacking?
FRE: Permits inquiry into specific acts of dishonesty on cross-examination.
Trait attacked: Truthfulness
Purpose: To attack or support the witness’s character for truthfulness
Limitations:
- Only on cross.
- No extrinsic evidence allowed—must take the answer as-is.
- Judge has discretion to exclude under FRE 403 (unfair prejudice).
General Rule (CEC 787): Specific instances of conduct cannot be used to attack or support a witness’s credibility.
- Exception (CEC 788): Felony convictions (not mere conduct) may be used for impeachment if involving moral turpitude.
Instead, California focuses on:
- Opinion or reputation evidence of honesty (CEC 786)
- Judge may consider past conduct for general credibility (CEC 780), but this does not allow attorneys to elicit specific acts of dishonesty on cross.
What is a Statement for Medical Diagnosis or Treatment?
A statement made for the purpose of medical diagnosis or treatment, describing symptoms, history, or cause (but not fault), relevant to diagnosis.
Foundation:
Must show the statement was made to get medical help, not for litigation.
The person receiving the statement must be someone from whom diagnosis/treatment is expected (doctor, nurse, EMT).
Content must be reasonably pertinent to treatment.
Reliable bc people are motivated to be truthful when seeking care to receive proper treatment.
Differences: CEC only applies statement of fault only in criminal child abuse cases
All four hearsay risks are lowered
When is former testimony admissible? What are the requirements?
FRE:
Former testimony is admissible if:
Declarant is unavailable
The testimony was given under oath at a prior hearing, trial, or deposition;
The testimony is now offered against a party (or in a civil case, their predecessor in interest) who:
An opportunity to examine the witness, and
A similar motive to do so.
In civil cases, may be offered against a predecessor in interest
- Applies in civil and criminal cases
- Allows use against a different party in civil cases if predecessor in interest had similar motive
CEC:
Offered against party to the former proceeding (or successor in Interest)
Admissible if:
Declarant is unavailable;
Testimony was given under oath in a prior legal proceeding;
Testimony offered against:
a party who was in the earlier proceeding, OR
Is a successor in interest to a person who offered the testimony in their own favor
✅ Applies in civil and criminal cases
❗“Successor in interest” only applies when the original party offered the testimony in their favor, and it is now being used against them or their successor
→ Narrower than FRE
Offered against someone who was NOT A PARTY in former proceeding
❌ Only applies in civil cases
❌ No “predecessor in interest” rule
For what exceptions must the declarant be unavailable? What does it mean to be unavailable?
Former testimony
Dying declaration
Statement against interest
Wrongful foreiture
Declarant is “unavailable” if they:
Are exempt due to privilege,
Are disqualified from testifying,
Are dead or unable due to illness/infirmity,
Cannot be located despite reasonable diligence,
Refuse to testify despite legal process,
Have total memory loss (like FRE
How do you impeach a character witness?
Special tool FRE 405(a)
Specific instances of conduct: On cross examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct that the CW is testifying about
CEC also allows this impeachment
When can a conviction not be used to impeach? When do you not need to do a balancing test for conviction?
FRE
Cannot be used to impeach when:
- a conviction is more than 10 years old
- the witness has received a pardon, annulment, or certificate of rehabilitation
- Misdemeanors that do not involve dishonesty (only honest crimes that can be used are felonies)
- It is being used against a criminal defendant and fails the reverse 403 test (Must show probative value outweighs prejudicial effect)
no balancing test
No 403 balancing is required when the conviction:
Involves a crime of dishonesty or false statement (FRE 609(a)(2)) — e.g., fraud, perjury, embezzlement, forgery.
CEC
Cannot be used:
- Misdemeanors: generally inadmissible for impeachment (People v. Wheeler), even if the crime involves dishonesty.
- Felony not involving moral turpitude (Felony must involve moral turpitude (i.e., readiness to do evil, dishonesty, violence) to be admissible for impeachment)
What is the business record exception and public record exception? Same under CEC and FRE?
Business Records:
A record is admissible if:
- Made at or near the time of the event,
- By someone with knowledge,
- As part of a regular business practice,
- Kept in the regular course of business, AND
- Shown to be trustworthy.
Must be introduced by a custodian or qualified witness, or via certification (self-authenticating under FRE 902(11)).
California's version is nearly identical, but it does not allow certification for self-authentication—live testimony or affidavit is required to lay the foundation
Public Records:
Public records are admissible if they:
- Describe the activities of a public office,
- Record observations under a legal duty, or
- Contain factual findings from investigations (civil or against the government in criminal cases).
Exception: Records prepared by law enforcement for use against a criminal defendant are not admissible under this rule.
CEC is Similar to FRE but slightly broader. Admissible if:
- Made by a public employee,
- Within the scope of their duty,
- At or near the time of the act,
- And trustworthy.
No categorical exclusion of police reports against defendants—courts evaluate trustworthiness under §1280
What are the types of Party admissions? What are the requirements for each?
Personal admissions
Definition: A statement made by a party in an individual or representative capacity.
Requirements:
Must be made by the party.
Offered against that party.
Does not need to be against interest when made
Adoptive admissions
Definition: A statement made by another person that the party has adopted as true.
Requirements:
The party heard or read the statement.
The party understood it.
The party had the opportunity and motivation to deny it if false.
The party’s silence or conduct reasonably indicates acceptance or belief in its truth.
Authorized admissions
Definition: A statement made by a person authorized by the party to speak on the subject.
Requirements:
Declarant must be explicitly or implicitly authorized to speak for the party.
Can be proven by testimony or circumstantial evidence.
Statements made by employees
Definition: A statement made by the party’s agent or employee concerning a matter within the scope of that relationship and during the existence of that relationship.
Requirements:
Made during the scope of employment.
Declarant must have been an employee or agent at the time.
Statement must relate to a matter within the scope of employment.
Co-Conspirator Exception
Definition: A statement made by a co-conspirator of a party during and in furtherance of the conspiracy.
Requirements:
A conspiracy existed.
Declarant and party were members of the conspiracy.
Statement was made during the conspiracy.
Statement was in furtherance of the conspiracy.
Important: The judge must find a conspiracy existed by a preponderance of the evidence (can use the statement itself plus other evidence).
What is the state of mind exception? What type of statements are included? Why is it reliable?
Declarants Then-existing mental or physical condition
- Right now; at the present time; "as I speak"; "this is what I'm feeling/thinking RIGHT NOW"
Statements included:
Reliable bc risk of memory loss is low
How do you use a PIS to impeach?
1. Lay the Foundation
Ask the witness about the prior statement:
When, where, to whom it was made
Confirm they remember making it, or give them a chance to explain or deny it
2. Ask About the Statement on Cross
Example:
“Isn’t it true that during your police interview on May 12, you said you didn’t see the defendant’s face?”
If the witness admits the inconsistency → impeachment complete.
If the witness denies or cannot recall → you may introduce extrinsic evidence (if not collateral)
When can a Felony conviction be used to impeach? What about misdemeanor?
FRE:
-Felony Convictions (Crimes Punishable by >1 Year in Prison):
For any witness (not the accused):
Admissible subject to FRE 403 balancing — i.e., excluded only if probative value is substantially outweighed by unfair prejudice.
Admissible only if probative value outweighs prejudicial effect.
- Misdemeanor Convictions:
Only admissible if the crime involved a dishonest act or false statement (e.g., perjury, fraud, embezzlement, forgery).
No balancing test required
If the misdemeanor does not involve dishonesty, it is not admissible for impeachment under FRE 609.
CEC
- Felony Convictions:
Admissible only if the felony involves moral turpitude (i.e., a readiness to do evil, dishonesty, violence).
Applies to all witnesses, including criminal defendants.
Courts apply CEC §352 balancing — exclusion if prejudice substantially outweighs probative value.
- Misdemeanor Convictions:
Generally inadmissible for impeachment
Exception: Moral turpitude misconduct may be explored through cross-examination, but the conviction itself is not admissible (People v. Chatman).
Prosecutors can ask about the conduct underlying the misdemeanor if it shows moral turpitude, but cannot introduce the conviction as evidence