California Criminal Trial Manual

Hearsay

Overview
  • EC 1200: hearsay 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.
  • Elements
    • (1) Out-of-court statement, offered in court
    • (2) To prove the truth of the matter asserted
  • Out-of-court statement
    • Computer-generated printout is not hearsay. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1450.)
    • Printed representation of computer-generated information, video, or photographic images stored by an automated traffic enforcement system does not constitute hearsay. (Veh. Code 21455.5.)
  • Statements offered for a non-hearsay purpose (not for the truth)
Non-Hearsay
Witness Unavailability
  • Certain hearsay exceptions require a finding that the declarant is unavailable as a witness.
  • Witness Unavailable: witness who is absent from a trial is not ‘unavailable’ in a constitutional sense unless the prosecution has made a good faith effort to obtain the witness’s presence at trial. (People v. Lawson (2020) 52 Cal.App.5th 1121.)
  • Under EC 240(a), a declarant is unavailable as a witness if:
    • (1) Exercise of Privilege
    • (2) Disqualified from testifying
    • (3) Dead or unable to testify because of then-existing physical or mental illness
    • (4) Absent from the hearing and the court is unable to compel his/her attendance by its process (PC 240(a)(4).)
    • (5) Absent from the hearing and the proponent of his/her statement has exercised reasonable diligence but has been unable to procure his/her attendance by the court’s process (PC 240(a)(5).)
    • (6) Found in contempt for refusal to testify + persistent refusal to testify
  • Then-existing physical or mental illness (EC 240(a)(3).) The illness or infirmity must be so severe that it is relatively impossible, and not merely inconvenient, for the witness to testify. (People v. Stritzinger (1983) 34 Cal.3d 505, 517-518.)
  • Absent from Hearing and Proponent Exercised Reasonable Diligence (EC 240(a)(5).) Factors we consider in determining whether the prosecutor has shown reasonable diligence include the timeliness of the search, the importance of the witness’s testimony, and whether leads to the witness’s possible location were reasonably explored. (People v. Thomas (2011) 51 Cal.4th 449, 500.)
    • Mother of a child witness staunch refusal to bring their young child to court to testify, even where properly served with subpoena, insufficient to demonstrate unavailability under EC 240(a)(5) where there was some ambiguity as to “the extent to which Mother was resolute in that position.” (People v. Gomez (Nov. 3, 2025) D083403.)
      • However: “To be clear, we are not suggesting that a parent’s staunch refusal to bring their young child to court to recount a criminal offense committed against them can never support an unavailability finding.” (Ibid.)
  • Burden of Proof. Proponent of evidence has burden of showing by a preponderance of competent evidence that the witness is unavailable. (People v. Smith (2003) 30 Cal.4th 581, 609.)
Admission of Party (EC 1220)
  • Statute: “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.” (EC 1220.)
  • Elements
    • (1) D made a statement
    • (2) Statement is offered against the D in an action to which he is a party
  • Offered Against. To be relevant under EC 1220, “the statement must assert facts which would have a tendency in reason either (1) to prove some portion of the proponent’s cause of action, or (2) to rebut some portion of the party declarant’s defense.” (People v. Flinner (2020) 10 Cal.5th 686, 736.)
Adoptive Admission (EC 1221)
  • Statute: 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. (EC 1221.)
  • Elements
    • (1) Declarant made a statement
    • (2) D had knowledge of the contents of declarant’s statement
    • (3) Having had such knowledge, has, by words or other conduct, manifested his adoption or his belief in its truth. (People v. Maki (1985) 39 Cal.3d 707, 712.)
  • Statement Calls For a Response if Untrue. Proponent must establish the statement was made under circumstances that would normally call for a response if the statement were untrue. (People v. Riel (2000) 22 Cal.4th 1153, 1189.)
  • Silence/Equivocation. Exception contemplates “either explicit acceptance of another’s statement or acquiescence in its truth by silence or equivocal or evasive conduct.” (People v. Combs (2004) 34 Cal.4th 821, 843.)
  • Mere Possession of Statement Insufficient. D’s mere possession of letter accusing him of committing a crime did not render letter admissible to show adoptive admission on his part to the effect that he committed he crime, where he did not read the letter in the accuser’s presence and there was no evidence of his reaction to it. (People v. Chism (2014) 58 Cal.4th 1266, 1297.)
Authorized Admission (EC 1222)
  • Statute: 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. (EC 1222.)
Admission of Co-Conspirator (EC 1223)
  • EC 1223. Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:
    • (a) 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) Statement was made prior to or during the time that the party was participating in that conspiracy; and
    • (c) Independent proof of the existence of the conspiracy
  • Conspiracy. A conspiracy is an agreement between two or more persons, with specific intent, to achieve an unlawful objective, coupled with an overt act by one of the conspirators to further the conspiracy. (People v. Gann (2011) 193 Cal.App.4th 994, 1005.)
    • The conspiracy may be shown by circumstantial evidence and the agreement may be inferred from the conduct of the defendants mutually carrying out a common purpose in violation of a penal statute. (People v. Longines (1995) 34 Cal.App.4th 621, 626.)
  • Preliminary Facts. A court need only find that a prima facie showing of the preliminary facts specified in subdivisions (a) and (b) has been made to admit statements under Evidence Code section 1223. (People v. Gann (2011) 193 Cal.App.4th 994, 1005.)
Statement Against Interest (EC 1230)
Inconsistent Statements (EC 1235)
  • Rule. An out-of-court statement by a witness that is inconsistent with his trial testimony is admissible to establish the truth of the mater asserted, so long as the witness has been given an opportunity while testifying to explain or deny the statement or is still subject to recall. (EC 1235; People v. Johnson (2018) 6 Cal.5th 541, 583.)
    • Practice tip: ALWAYS keep witness subject to recall. (See EC 770.)
  • Inconsistency in Effect
  • “Greening” a Witness (Lack of Memory)
    • Normally, testimony of a witness that she does not remember an event is not inconsistent with the witness’s prior statement describing the event. (People v. Green (1971) 3 Cal.3d 981, 988.)
    • When a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is implied. (People v. Johnson (2018) 3 Cal.4th 1183, 1219.)
    • As long as there is a reasonable basis in the record for concluding the witness’s “I don’t remember” statements are evasive and untruthful, admission of her prior statements is proper. (People v. Ledesma (2006) 39 Cal.4th 641, 711.)
    • No requirement trial court make factual findings that W’s testimony was inconsistent before allowing admission of prior statement. (People v. Ledesma (2006) 39 Cal.4th 641.)
    • Mechanics. To establish W’s memory loss is fabricated, factors to consider:
      • (1) Presence of motive or bias in favor of D or against law enforcement
      • (2) Any previous statements demonstrating fear of cooperating with law enforcement or testifying in court
      • (3) Other evidence suggesting dishonesty
        • (a) Moral turpitude priors
        • (b) Other witnesses contradict testifying witnesses
        • (c) Presence of facial inconsistencies in other aspects of testimony
        • (d) Is memory loss selective, and does it only involve particularly incriminating information?
        • (e) Absence of an explanation for the loss of memory
      • (4) Plausibility of claim of loss of memory (i.e. was the event the kind that would normally be characterized as memorable)
      • (5) Time passed between the giving of testimony and the statement sought to be introduced
      • (6) Number of times the prior statement was made in the past
      • (7) Success or failure at attempts to refresh recollection (was the prior statement recorded and played for the witness prior to testifying)
    • Case Law
      • (People v. Perez (2000) 82 Cal.App.4th 760.) W said “I don’t remember” to virtually all questions asked. Held, admissible under EC 1235, and no confrontation violation
      • (People v. Johnson (2018) 3 Cal.4th 1183.) Re: ID in photo lineup. Witness testified “I might have, I don’t remember. I remember saying this is him.”
        • Held, statement expresses momentary uncertainty, somewhat ambiguous, not necessarily inconsistent with her prior statement or evasive. Admission of prior statement under EC 1235 was improper
  • Refusal to Answer Some Qs.
    • Witness’s refusal to answer may be materially inconsistent with prior statements, exposing the witness to impeachment under EC 1235. (In re Deon D. (1989) 208 Cal.App.3d 953, 961.)
    • Case Law
      • (People v. Homick (2012) 55 Cal.4th 816.) W testified repudiating earlier statements incriminating himself, refused to answer some questions, feigned lapses of memory, and repeatedly refused to refresh his recollection by examining relevant document where he made statement he claimed not to recall.
        • Held: W’s refusal to answer questions was part of his pattern of either repudiating his prior statements as lies or as coerced, or pretending not to remember them
        • Held: W’s intermittent refusal to answer questions properly deemed inconsistent in effect with his prior statements (so admissible EC 1235.)
  • Realistic opportunity to explain/deny prior statement. Requires reference to more than one of the following: (People v. Garcia (1990) 224 Cal.App.3d 297, 304.)
    • (1) the people involved in the conversation
    • (2) it’s time & place
    • (3) the specific statements that were made during it.
  • Impeachment & Hearsay. Statements admissible under EC 1235 are admissible to prove their substance as well as to impeach the declarant. (People v. Hawthorne (1992) 4 Cal.4th 43.)
  • Admitting EC 1235 Statement at Trial Where EC 1235 Statement Previously Admitted at PH. When evidence of prior inconsistent statements is admitted against a witness at a preliminary hearing or prior trial of the same criminal matter and the witness is unavailable at a subsequent proceeding, if former testimony of the witness is admitted pursuant to EC 1291, evidence of the prior inconsistent statements is also admissible if it consists of (a) a videotaped statement if it was a introduced at the prior proceeding, or (b) a transcript, containing the statements, of the prior proceeding. (EC 1294(a).)
    • Following must be true for EC 1294 to apply:
      • (1) Evidence of an inconsistent statement of a witness was properly admitted under EC 1235 during a conditional examination, preliminary hearing, or trial of the same criminal matter
      • (2) Proponent is now seeking to admit evidence of that inconsistent statement at trial
      • (3) The witness is unavailable at trial
      • (4) The witness’s former testimony at the preliminary hearing is admitted at trial pursuant to EC 1291
    • Evidence of Recording of Inconsistent Statement. If prior inconsistent statements were properly elicited at preliminary hearing by playing body worn camera footage (of the inconsistent statements), EC 1294 would permit admission of the same footage at trial. (EC 1294(a)(1); see People v. Martinez (2003) 113 Cal.App.4th 400, 410 [“[T]o be admissible at trial under Evidence Code section 1294, the recording of [the inconsistent statement] first should have been introduced into evidence at the preliminary hearing”].)
      • Otherwise, evidence of EC 1235 statement is admissible through “a transcript, containing the statements, of the … preliminary hearing.” (EC 1294(a)(2).)
Prior Consistent Statement (EC 1236)
  • Rule. EC 1236 permits the admission of a prior statement, as hearsay evidence, if it is consistent with the witness’s testimony at “the hearing” and is offered in compliance with EC 791. (People v. Kopatz (2015) 61 Cal.4th 62, 84.)
  • Elements. Prior consistent statement is admissible if EITHER:
    • (1) Statement is offered after evidence of a statement made by the W that was inconsistent with the W’s testimony; OR
    • (2) An express or implied charge has been made that the W’s testimony at the hearing is recently fabricated or influenced by bias or other improper motive. (People v. Randle (1992) 8 Cal.App.4th 1023, 1037.)
      • At the hearing refers to “the hearing at which a question under this code arises, and not some early or later hearing.” (EC 145.)
  • Charge of Recent Fabrication or Improper Motive
    • EC 791 permits the admission of a prior consistent statement when there is a charge that the testimony given is fabricated or biased, not just when a particular statement at trial is challenged. (People v. Brents (2012) 53 Cal.4th 599, 616.)
  • Compliance with EC 791
    • 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. (EC 791.)
Past Recollection Recorded (EC 1237)
  • Elements:
    • (1) Witness (W) is testifying
    • (2) Statement would have been admissible by W if made by him while testifying
    • (3) W has insufficient present recollection to enable him to testify fully and accurately
    • (4) Statement is contained in a writing which:
      • (a) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the W’s memory;
      • (b) Was made (i) by W/under W’s direction or (ii) by some other person for the purpose of recording W’s statement at the time it was made
      • (c) Is offered after W testifies that the statement he made was a true statement of such fact; and
      • (d) Is offered after the writing is authenticated as an accurate record of the statement. (EC 1237.)
  • Read into Record. Writing itself may not be received in evidence unless offered by adverse party
  • Fresh in W’s Memory.
Prior Identification Exception (EC 1238)
  • Elements
    • (1) Witness (W) is testifying
    • (2) Statement would have been admissible by W if made by him while testifying
    • (3) Statement is an identification of a party or another as a person who participated in a crime or other occurrence
    • (4) Statement was made at a time when the crime or other occurrence was fresh in W’s memory; and
    • (5) Evidence of statement is offered after the W testifies he made the identification and it was a true reflection of his opinion at that time. (EC 1238.)
  • Suspect description. Statement of suspect description admissible under EC 1238. (People v. Hatfield (1969) 273 Cal.App.2d 745, 749.)
Spontaneous Statement Exception (EC 1240)
Spontaneous Statement: Sample Foundation

Sample foundation for spontaneous statement made by an unidentified third party, overheard by a police officer.

  • Q: OFFICER HARRIS, WERE YOU ON DUTY ON OCTOBER 17, 2019?
  • A: YES.
  • Q: WERE YOU PATROLLING THE AREA NEAR CENTRAL PARK?
  • A: YES.
  • Q: WAS YOUR ATTENTION DRAWN TO A PARTICULAR INDIVIDUAL? WHY?
  • A: A REPORTING PARTY FLAGGED ME DOWN. HE TOLD ME HE SAW A MAN YELLING, SWEARING, AND ACTING AGGRESSIVE WITH PEOPLE NEAR CENTRAL PARK. HE HEARD THE MAN SAY, “I’LL KILL YOU ALL.”
  • Q: HOW WOULD YOU DESCRIBE THIS REPORTING PARTY’S DEMEANOR? DID HE APPEAR CONCERNED? EXCITED OR AGITATED?
  • A: THE REPORTING PARTY WAS EXTREMELY CONCERNED, HE WAS TALKING RAPIDLY AND APPEARED AFRAID.
  • Q: WAS THE EVENT HE WAS DESCRIBING ONGOING? COULD YOU HEAR A PERSON YELLING/SWEARING/ACT AGGRESSIVE WHILE YOU SPOKE WITH THE REPORTING PARTY?
  • A: YES, HE SAID HE JUST SAW THE MAN ACTING AGGRESSIVELY AND POINTED TOWARD THE MAN ON THE OTHER SIDE OF THE PARK.
Contemporaneous Statement Exception (EC 1241)
  • Elements:
    • (1) statement is offered to explain, qualify, or make understandable conduct of the declarant; and
    • (2)Was made while the declarant was engaged in such conduct (EC 1241.)
Dying Declaration Exception (EC 1242)
  • Statute. 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. (EC 1242.)
  • Elements. Statement was made
    • (1) by a dying person
    • (2) concerns the cause and circumstances of the person’s death
    • (3) was made on the individual’s personal knowledge, and
    • (4) was made under a sense of immediately impending death. (EC 1242.)
  • Rejecting Life Support. A declaration describing the circumstances of the assault made after the victim has voluntarily rejected life support is admissible under EC 1242. (People v. Adams (1990) 216 Cal.App.3d 1431, 1440.)
Then Existing Mental/Physical State Exception (EC 1250)
  • Statute. 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. (EC 1250(a).)
  • Limited Admissibility. EC 1250(a) does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed. (EC 1250(b).)
  • Subject to EC 1252. Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness. (EC 1252.)
Business Records Exception (EC 1271)
  • Elements (EC 1271.)
    • (1) Regular course of business
    • (2) Made at/near time of the act/condition/event
    • (3) Custodian or other qualified witness testifies to the writing’s identity & mode of preparation
      • EC 1560: affidavit in lieu of testimony sufficient if (1) records obtained via SDT, & (2) affidavit in compliance w/ EC 1561
    • (4) Sources of information indicate its trustworthiness
  • Affidavit compliant w/ section 1561 establishes accompanying medical records admissibility under EC 1271.
Official Records Exception (EC 1280)
  • Elements (EC 1280.)
    • (1) Writing by public employee
    • (2) Writing made at or near time of act/condition/event
    • (3) Source of information indicates its trustworthiness
  • Under EC 1530 & EC 452.5(b), a properly certified copy of an official court record is a self-authenticated document that is presumptively reliable, and standing alone may be sufficient to prove a prior felony conviction.
  • BUT NOT FAXED. (People v. Skiles (2011) 51 Cal.4th 1178.)
  • Certified Gun Registration. Under PC 11106, DOJ is statutorily required to maintain records of firearm transactions. Thus, same rationale as admitting Certified RAP sheets under People v. Dunlap (1993) 18 Cal.App.4th 1468 and People v. Martinez (2000) 22 Cal.4th 106.)
  • Certified Vehicle Registration.
    • VC 1800 et. seq: DMV is statutorily required to keep records of vehicle registrations
    • VC 6150: “In any criminal proceeding in which ownership, possession, or use of a motor vehicle is an issue, a copy certified by the department as its record of title on file, or with the official custodian of those documents of another state, shall be admissible as evidence of ownership of the motor vehicle…”
Official Records Exception: Sample Foundation

Sample foundation for a certified CAD log, where the custodian of records lays the requisite foundation.

  • Q: MS. SMITH, HOW ARE YOU CURRENTLY EMPLOYED?
  • A: I’M THE POLICE SERVICES MANAGER FOR THE CITY OF UTOPIA.
  • Q: HOW LONG HAVE YOU BEEN THE POLICE SERVICES MANAGER?
  • A: APPROXIMATELY 20 YEARS.
  • Q: WHAT ARE SOME OF THE DUTIES AND RESPONSIBILITIES OF A MANAGER IN THAT CAPACITY?
  • A: I MANAGE AND SUPERVISE STAFF IN THE 911 COMMUNICATION CENTER AND THE RECORDS DIVISION.
  • Q: AND THE 911 COMMUNICATIONS UNIT, WHAT’S THEIR FUNCTION?
  • A: TO ANSWER 911 CALLS, EMERGENCY CALLS, AND ROUTINE BUSINESS CALLS.
  • Q: CAN YOU WALK US THROUGH WHAT HAPPENS WHEN A 911 CALL IS PLACED?
  • A: SO 911 IS UTILIZED BY THE PUBLIC TO CALL AN EMERGENCY, AND THAT CALL IS ROUTED TO THE DISPATCH CENTER AND THE DISPATCHER ANSWERS THAT CALL. THEY CREATE A CAD INCIDENT, WHICH IS A COMPUTER-AIDED DISPATCH CALL, WHEN THEY RECEIVE THAT EMERGENCY CALL.
  • Q: SO WHEN A 911 CALL IS ANSWERED, IS IT AUTOMATICALLY RECORDED?
  • A: YES.
  • Q: AND YOU MENTIONED “CAD,” OR COMPUTER-AIDED DISPATCH, IS THAT A SORT OF WRITTEN DOCUMENTATION OF THE 911 CALL ITSELF?
  • A: CORRECT. DATE, TIME, LOCATION.
  • Q: HOW MUCH OF THAT INFORMATION CONTAINED ON THIS CAD LOG IS AUTOMOTICALLY GENERATED WHEN THE CALL IS PLACED?
  • A: THE DATE, TIME. DEPENDING ON THE TYPE OF CALL, FOR EXAMPLE, A WIRELESS CALL WOULD GENERATE THE LOCATION.
  • Q: DOES THE PHONE NUMBER ALSO POPULATE ON THAT CAD?
  • A: YES.
  • Q: WOULD A PERSON’S NAME EVER APPEAR ON THERE AS WELL?
  • A: IF THEY HAVE PREVIOUSLY CALLED 911, WE CAPTURE THAT INFORMATION AND RETAIN IT IN A DATABASE, AND IT WOULD AUTO POPULATE IN THE COMPUTER-AIDED DISPATCH INCIDENT.
  • Q: I’M SHOWING YOU WHAT HAS BEEN MARKED AS PEOPLE’S EXHIBIT 7 FOR IDENTIFICATION PURPOSES. IT IS A 14-PAGE DOCUMENT. IT HAS BEEN PREVIOUSLY SHOWN TO DEFENSE. DO YOU RECOGNIZE PEOPLE’S EXHIBIT 7?
  • A: THIS IS A COMPUTER-AIDED DISPATCH INCIDENT THAT IS GENERATED IN THE COURSE OF BUSINESS.
  • Q: IS THAT CAD LOG GENERATED AT OR NEAR THE TIME A 911 CALL IS PLACED?
  • A: YES.
  • Q: IS IT MADE WITHIN THE SCOPE OF DUTY OF A PUBLIC EMPLOYEE?
  • A: YES.
  • Q: ARE THESE DOCUMENTS MAINTAINED IN THE REGULAR COURSE OF BUSINESS?
  • A: YES.
  • Q: ARE THESE DOCUMENTS ROUTINELY RELIED UPON TO BE ACCURATE IN THE REGULAR COURSE OF BUSINESS?
  • A: YES.
  • Q: WHAT IS THE DATE ON THAT ON THE CAD LOG?
  • A: MAY 21ST OF 2019.
  • Q: WHAT IS THE TIMESTAMP FOR WHEN THE 911 CALL WAS RECEIVED?
  • A: IT WAS RECEIVED AT 15:30 HOURS AND 24 SECONDS MILITARY TIME.
  • Q: AND WHAT IS THE CALLER’S PHONE NUMBER ON THAT CAD LOG?
  • A: (123) 456-7890.
  • Q: IS THIS A FAIR AND ACCURATE DEPICTION OF THE CAD LOG GENERATED FOR THE 911 CALL ON MAY 21ST, 2019 at 15:30 HOURS?
  • A: YES.
  • MOVE FOR THE ADMISSION OF PEOPLE’S EXHIBIT 7 INTO EVIDENCE.
Former Testimony Exception (EC 1291)
  • EC § 1291(a)(2). Former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and 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 decl. with an interest and motive similar to that which he has at the hearing. (People v. Herrera (2010) 49 Cal.4th 613, 621.)
  • Witness Unavailable: witness who is absent from a trial is not ‘unavailable’ in a constitutional sense unless the prosecution has made a good faith effort to obtain the witness’s presence at trial. (People v. Lawson (2020) 52 Cal.App.5th 1121.)
    • See Witness Unavailability Section (Above)
  • Witness Invokes 5th Amendment Privilege and Prosecution Refuses to Grant Immunity. Witness is properly deemed unavailable and her former testimony is admissible under such circumstances. (People v. Seijas (2005) 36 Cal.4th 291, 295.)
Statement Re: Declarant’s Own Family History (EC 1310)
  • Statute: 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. (EC 1310(a).)
    • Statement is inadmissible if made under circumstances such as to indicate its lack of trustworthiness. (EC 1310(b).)
Statement Re: Family History of Another (EC 1311)
  • Statute: 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. (EC 1311(a).)
    • Statement is inadmissible if made under circumstances such as to indicate its lack of trustworthiness. (EC 1311(b).)
Published Compilation Exception (EC 1340)
  • Statute: 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 by section 1270. (EC 1340.)
  • 5 elements:
    • The proffered statement must be contained in a ‘compilation’;
    • The compilation must be ‘published’
    • The compilation must be generally used in the course of business
    • It must be generally relied upon as accurate in the course of such business
    • The statement must be one of fact rather than opinion. (People v. Franzen (2012) 210 Cal.App.4th 1193, 1206.)
  • Kelly bluebook is admissible under EC § 1340 to estimate the value of a vehicle. (People v. Jenkins (2021) 70 Cal.App.5th 175.)
  • Presumptive identification of drugs: criminalist’s testimony about a website used for presumptive identification of drugs was admissible under EC 1340. (People v. Mooring (2017) 15 Cal.App.5th 928; People v. Espinoza (2018) 23 Cal.App.5th 317 [same].)
Statement Describing Child Abuse/Neglect (EC 1360)
  • Statute: 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 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. (EC 1360(a).)
  • Notice Required. 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
  • Child Abuse means an act proscribed by PC 273a, 273d, or 288.5, or any of the acts described in PC 11165.1
    • Violation of PC 273a includes circumstances where a child’s mental suffering results from a child being exposed to physical abuse by one parent against another.
  • Child Neglect means any of the acts described in PC 11165.2.
  • Applies to Charged/Uncharged Conduct. EC 1360 applies when the statement describes an act of child abuse, including any act proscribed by PC 273d. It does not require that any specific charges be filed in order for it to apply. (People v. Mitchell (2020) 46 Cal.App.5th 919.)
  • Reliability Factors. In determining whether the statement is reliable, the trial judge should rely on the following nonexclusive factors:
Statement Concerning Infliction of Physical Injury (EC 1370)
  • Statute: 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 EC 240.
    • (3) The statement was made at or near the time of the infliction or threat of physical injury
    • (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. (EC 1370(a).)
  • “At or near” Requirement. Absent special circumstances, a statement about a physical injury made almost two months after its infliction does not satisfy the statutory time limit. (People v. Quitiquit (2007) 155 Cal.App.4th 1, 10.)
  • Trustworthiness Requirement. 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. (PC 1370(b).)
Forfeiture by Wrongdoing (EC 1390)
  • Elements
  • Wrongful conduct
    • Exception applies where there has been an affirmative action on the part of the D that produces the desired result, non-appearance by a prospective witness against him in a criminal case. (People v. Reneaux (2020) 50 Cal.App.5th 852, 870.)
    • The defendant’s affirmative action need not be criminal or even threatening.
  • Independent Corroboration. (People v. Kerley (2018) 23 Cal.App.5th 513, fn. 15.)
    • Exception does not require each statement admitted under that section be independently corroborated.
    • Requires only that the elements of EC 1390 be supported by corroborative evidence.
  • Charged DV Acts can serve as corroboration. (Giles v. California (2008) 554 U.S. 353, 377.)
  • Burden of Proof. “The party seeking to introduce a hearsay statement under section 1390 bears the burden of proving its applicability by a preponderance of the evidence, and this proof may not be solely based on the statement of the unavailable declarant, but must also be supported by independent corroborating evidence. [] When deciding whether or not to admit the statement, the court ‘may take into account whether it is trustworthy and reliable.’” (People v. Hall (2024) 107 Cal.App.5th 222, 240.)
  • Primary Intent. Nothing requires that the intent to procure the witness’s unavailability must have been the D’s sole intent. The exception applies if “at least one” of the D’s reasons for committing the wrongdoing was to make the declarant unavailable as a witness. (People v. Quintanilla (2020) 45 Cal.App.5th 1039, 1049.)