Witness Declarations. PRESENT SENSE IMPRESSION Rule 803. Hearsay Exceptions; Availability of...

Witness DeclarationsWitness Declarations

PRESENT SENSE PRESENT SENSE IMPRESSIONIMPRESSION• Rule 803. Hearsay Exceptions; Rule 803. Hearsay Exceptions;

Availability of Declarant ImmaterialAvailability of Declarant Immaterial

• The following are not excluded by the The following are not excluded by the hearsay rule, even though the declarant is hearsay rule, even though the declarant is available as a witness:available as a witness:

• (1) (1) Present sense impressionPresent sense impression. A statement . A statement describing or explaining an event or condition describing or explaining an event or condition made while the declarant was percieving the made while the declarant was percieving the event or condition, or immediately thereafter.event or condition, or immediately thereafter.

Contemporaneous Contemporaneous StatementStatement

• Evid. Code sec. 1241Evid. Code sec. 1241

• Hearsay exception if:Hearsay exception if:

• (a) offered to explain, qualify or make (a) offered to explain, qualify or make understandable conduct of declarantunderstandable conduct of declarant

• and and

• (b) was made at the time the declarant (b) was made at the time the declarant was engaged in such conductwas engaged in such conduct

FRE 803 (1) and Evid. Code FRE 803 (1) and Evid. Code sec. 1241 are not the samesec. 1241 are not the same

• Red light hypo – wife says that blue Red light hypo – wife says that blue car just ran the red lightcar 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. What is result under Evid. Code sec. 1241?1241?

FRE 803 (1) and Evid. Code FRE 803 (1) and Evid. Code sec. 1241 are not the samesec. 1241 are not the same

• Red light hypo – what if husband Red light hypo – what if husband testifies that wife was looking intently testifies that wife was looking intently to her right and he asks her what she to her right and he asks her what she is doing; is doing;

• wife says “that blue car just ran the wife says “that blue car just ran the red light, he must be a drunk driver”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. What is result under Evid. Code sec.

1241?1241?

Evid. Code sec. 1241 Evid. Code sec. 1241 (cont.)(cont.)

• 1241 is similar to verbal acts concept 1241 is similar to verbal acts concept and says “this is a robbery, give me and says “this is a robbery, give me your money or I will shoot”. Upon your money or I will shoot”. Upon arrest, gun is not loaded. Therefore, arrest, gun is not loaded. Therefore, not offered for truth of “will shoot”. not offered for truth of “will shoot”.

• Why does statement come in?Why does statement come in?

Evid. Code sec. 1241 Evid. Code sec. 1241 (cont.)(cont.)

• Words are act of robbery; Words are act of robbery;

• sec. 1241; sec. 1241;

• (cf. sec. 1220)(cf. sec. 1220)

Evid. Code sec. 1241 Evid. Code sec. 1241 (cont.)(cont.)• Ex: D has gun on V and says “I will kill you Ex: D has gun on V and says “I will kill you

for doing that”. D then shoots V. At trial for for doing that”. D then shoots V. At trial for att-murder D claims accidental discharge. att-murder D claims accidental discharge. Now offered for truth of “will kill”. Now offered for truth of “will kill”.

• Does statement come in under §1241?Does statement come in under §1241?

• Under § 1220?Under § 1220?

EXCITED UTTERANCEEXCITED UTTERANCE

• Rule 803. Hearsay Exceptions; Rule 803. Hearsay Exceptions; Availability of Declarant ImmaterialAvailability of Declarant Immaterial

• The following are not excluded by the The following are not excluded by the hearsay rule, even though the declarant is hearsay rule, even though the declarant is available as a witness:available as a witness:

• (2) (2) Excited utteranceExcited utterance. A statement relating . A statement relating to a startling event or condition made while to a startling event or condition made while the declarant was under the stress of the declarant was under the stress of excitement caused by the event or condition.excitement caused by the event or condition.

Spontaneous StatementSpontaneous Statement


• (a) purports to narrate, describe or (a) purports to narrate, describe or explain an act, condition or eventexplain an act, condition or event

perceived by the declarantperceived by the declarant

(b) made spontaneously while under (b) made spontaneously while under the stress of excitement caused by the stress of excitement caused by such perceptionsuch perception

Spontaneous Statement Spontaneous Statement (cont.)(cont.)

• Narrate, describe or explainNarrate, describe or explain

• Act, condition or eventAct, condition or event


• SpontaneouslySpontaneously

• While under the stress of excitement While under the stress of excitement of eventof event


• Examples:Examples:

• 911 call describing car accident – 911 call describing car accident – “blue car ran red light and hit white “blue car ran red light and hit white car”car”

• What other proof do we need?What other proof do we need?



• 911 call – “I just came out from work 911 call – “I just came out from work and my car is gone – a guy on the and my car is gone – a guy on the corner said some kids drove it away”corner said some kids drove it away”

• What are the issues?What are the issues?



• 911 call – “my 5 year old daughter just 911 call – “my 5 year old daughter just told me that my boyfriend touched her told me that my boyfriend touched her on her privates last week”on her privates last week”

• What issues are here?What issues are here?



• The day after the crash, Driver calls The day after the crash, Driver calls insurance agent to report accident. insurance agent to report accident. Agent asks a series of questions about Agent asks a series of questions about what happened and who was at fault.what happened and who was at fault.

• What issues are here?What issues are here?



• Woman calls 911 to report robbery Woman calls 911 to report robbery that just occurred. 911 operator that just occurred. 911 operator asks series of questions including asks series of questions including description of suspects, which way description of suspects, which way they went and extent of injuries.they went and extent of injuries.

• What are the issues?What are the issues?

STATE OF MINDSTATE OF MIND

• What a person thought at a given time What a person thought at a given time may be a material issue:may be a material issue:– e.g. mens rea distinguishes the degrees e.g. mens rea distinguishes the degrees

of punishable homicideof punishable homicide– e.g. the testator’s intent in will conteste.g. the testator’s intent in will contest– e.g. defendant’s lack of concern may rise e.g. defendant’s lack of concern may rise

to the level of negligenceto the level of negligence– e.g. victim’s lack of consent in a e.g. victim’s lack of consent in a

kidnappingkidnapping

STATE OF MIND (cont.)STATE OF MIND (cont.)What a person thought on a given What a person thought on a given

occasion can be proven in two ways:occasion can be proven in two ways:

1. Direct statement of state of mind1. Direct statement of state of minde.g. “I am mentally disordered.”e.g. “I am mentally disordered.”

2. Indirectly by statement that reflects 2. Indirectly by statement that reflects state of mind – circumstantial evidencestate of mind – circumstantial evidencee.g. “I am Elvis.”e.g. “I am Elvis.”

STATE OF MIND (cont.)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/ D1. Went automobile riding w/ D• 2. Dined out w/ D2. Dined out w/ D• 3. D bought W flowers3. D bought W flowers• 4. D is able to give W a good time, when P is 4. D is able to give W a good time, when P is

unable to unable to • 5. W intends to continue to accept D’s attentions; P 5. W intends to continue to accept D’s attentions; P

can do what he wants about itcan do what he wants about it• 6. P is distasteful to W6. P is distasteful to W

• What is direct evidence of state of mind and what What is direct evidence of state of mind and what is circumstantial evidence of state of mind?is circumstantial evidence of state of mind?

STATE OF MIND (cont.)STATE OF MIND (cont.)

• Does the statement “I intend to continue Does the statement “I intend to continue to entertain his attentions” come in for the to entertain his attentions” come in for the truth of that statement?truth of that statement?

• Does the statement “You can do what you Does the statement “You can do what you please about it” come in for the truth of please about it” come in for the truth of that statement?that statement?

• Does the statement “I find you to be Does the statement “I find you to be distasteful” come in for the truth of that distasteful” come in for the truth of that statement?statement?


• A person’s future intentions may be A person’s future intentions may be proved through the state of mind proved through the state of mind exception: exception:

• ““From the declared intent to do a From the declared intent to do a particular thing an inference that the particular thing an inference that the thing was done may fairly be drawn”thing was done may fairly be drawn”

STATE OF MIND (cont.)STATE OF MIND (cont.)• A person’s future intentions may be A person’s future intentions may be

proved through the state of mind proved through the state of mind exception:exception:

– Ex: Mutual Life Ins. V. Hillmon 145 U.S. Ex: Mutual Life Ins. V. Hillmon 145 U.S. 285 (1892) –letters re plan to go to Colo. 285 (1892) –letters re plan to go to Colo. with Hillmon – relevant on issue of with Hillmon – relevant on issue of whether it could be declarant’s body and whether it could be declarant’s body and best evidence available on plans to gobest evidence available on plans to go


proved through the state of mind proved through the state of mind exception:exception:– Ex: Peo. V. Alcade (1944) 24 Cal.2d 177 Ex: Peo. V. Alcade (1944) 24 Cal.2d 177

– victim tells friend “I’m going out with – victim tells friend “I’m going out with Frank tonight”. She turns up murdered Frank tonight”. She turns up murdered and Frank turns out to be defendant’s and Frank turns out to be defendant’s first name. first name.

– Note: defendant objects that declaration Note: defendant objects that declaration is inadmissible to prove his plan – how is inadmissible to prove his plan – how do you rule?do you rule?

STATE OF MIND (cont.)STATE OF MIND (cont.)• A person’s future intentions may be proved A person’s future intentions may be proved

through the state of mind exception:through the state of mind exception:Ex: Peo. V. Williams (1997) 16 Cal.4Ex: Peo. V. Williams (1997) 16 Cal.4thth 153, 205-206: 153, 205-206:

defendant’s statement to cellmate about intent to defendant’s statement to cellmate about intent to suppress testimony admissiblesuppress testimony admissible

““D’s declarations of intent are admissible as D’s declarations of intent are admissible as evidence of the probable doing of the evidence of the probable doing of the act….Specifically, the statement by the defendant act….Specifically, the statement by the defendant indicating he was ‘going to’ have witnesses shot, indicating he was ‘going to’ have witnesses shot, would constitute evidence from which the trier of would constitute evidence from which the trier of fact could infer that he authorized the shooting fact could infer that he authorized the shooting that actually occurred. Such evidence is that actually occurred. Such evidence is admissible to prove consciousness of guilt.”admissible to prove consciousness of guilt.”



– Ex: Peo. V. Majors (1998) 18 Cal.4Ex: Peo. V. Majors (1998) 18 Cal.4thth 385, 385, 404-405 -- 187 vic’s statement to 3d 404-405 -- 187 vic’s statement to 3d party that he intended to conduct a drug party that he intended to conduct a drug deal on night he was murdered deal on night he was murdered admissible; note defendant not admissible; note defendant not mentioned but other evidence mentioned but other evidence connected him to drug dealconnected him to drug deal



– Ex: Peo. V. Griffin (2004) 33 Cal.4Ex: Peo. V. Griffin (2004) 33 Cal.4thth 536, 536, 579 – victim tells friend on day she was 579 – victim tells friend on day she was murdered that defendant had been murdered that defendant had been fondling her and that if he did it again fondling her and that if he did it again she was going to confront him and tell she was going to confront him and tell her motherher mother

STATE OF MIND (cont.)STATE OF MIND (cont.)• Statements describing past state of Statements describing past state of

mind are generally disallowed:mind are generally disallowed:– Statements of memory or remembered Statements of memory or remembered

fact usually inadmissiblefact usually inadmissible– Fear that admitting such statements Fear that admitting such statements

would allow exception to swallow the would allow exception to swallow the rule – it is too easy to cast all rule – it is too easy to cast all recollections as “state of mind” of recollections as “state of mind” of declarant declarant

STATE OF MIND (cont.)STATE OF MIND (cont.)• Statements describing past state of Statements describing past state of

mind are generally disallowed:mind are generally disallowed:– cf. “I plan to go to the game tomorrow” cf. “I plan to go to the game tomorrow”

and “I went to the game yesterday”and “I went to the game yesterday”•Both relevant to whether I attended gameBoth relevant to whether I attended game

•The first describes present state of mind – The first describes present state of mind – presumed reliablepresumed reliable

•The second describes a memory – raises Qs The second describes a memory – raises Qs re memory and motive to fabricatere memory and motive to fabricate


• Evidence re a victim’s state of mind should Evidence re a victim’s state of mind should not be admitted unless the victim’s mental not be admitted unless the victim’s mental state is relevantstate is relevant– Sometimes relevance comes from charges (e.g. Sometimes relevance comes from charges (e.g.

robbery, rape, kidnap)robbery, rape, kidnap)– Sometimes relevance comes from the need to Sometimes relevance comes from the need to

respond to the defense (e.g. accident, self respond to the defense (e.g. accident, self defense, consent)defense, consent)

– Sometimes the defense may offer it (e.g. victim’s Sometimes the defense may offer it (e.g. victim’s statements showing positive relationship w/D) statements showing positive relationship w/D) • but see Evid. Code sec. 1252but see Evid. Code sec. 1252


• Peo. V. Guerra (2006) 37 Cal.4Peo. V. Guerra (2006) 37 Cal.4thth 1067, 1115-1116 1067, 1115-1116 – vic murdered during att. Rape by worker doing – vic murdered during att. Rape by worker doing remodeling next door. remodeling next door.

• Prosecution offered testimony of vic’s friend that Prosecution offered testimony of vic’s friend that she was thought defendant entered her home she was thought defendant entered her home when she was asleep and she was afraid of him when she was asleep and she was afraid of him

• Admitted over hearsay objection b/c her Admitted over hearsay objection b/c her statements circumstantially showed that her statements circumstantially showed that her consent to sex was less plausible consent to sex was less plausible

• Her state of mind re consent relevant to the Her state of mind re consent relevant to the special circumstance alleged, and thus it fell special circumstance alleged, and thus it fell within the state of mind exception within the state of mind exception


• Peo. V. Guerra (2006) 37 Cal.4Peo. V. Guerra (2006) 37 Cal.4thth 1067, 1067, 1115-1116 – vic murdered during att. 1115-1116 – vic murdered during att. Rape by worker doing remodeling next Rape by worker doing remodeling next door. door.

• Defense offered her statement to friend Defense offered her statement to friend that another worker (Roberto) annoyed that another worker (Roberto) annoyed her to show defendant was not sole source her to show defendant was not sole source of her complaints. of her complaints.

• Trial Court sustained hearsay objectionTrial Court sustained hearsay objection


• Peo. V. Guerra (2006) 37 Cal.4Peo. V. Guerra (2006) 37 Cal.4thth 1067, 1115-1116 1067, 1115-1116 – vic murdered during att. rape by worker doing – vic murdered during att. rape by worker doing remodeling next door. Defense offered her remodeling next door. Defense offered her statement to friend that another worker (Roberto) statement to friend that another worker (Roberto) annoyed her to show defendant was not sole annoyed her to show defendant was not sole source of her complaints. source of her complaints.

• Exclusion of statement proper b/c no evid. of 3d Exclusion of statement proper b/c no evid. of 3d pty culpability or evid that vic feared Roberto.pty culpability or evid that vic feared Roberto.

• Thus, vic’s state of mind as to Roberto not Thus, vic’s state of mind as to Roberto not relevant to an element of offense or to show vic relevant to an element of offense or to show vic acted in conformity with state of mind of acted in conformity with state of mind of annoyance.annoyance.


• Hypo: Defendant charged with Hypo: Defendant charged with kidnapping and murder. Prosecution kidnapping and murder. Prosecution calls friend who says the morning of calls friend who says the morning of the kidnapping she spoke with victim the kidnapping she spoke with victim who said defendant said he will kill who said defendant said he will kill me if I leave him.me if I leave him.

• Is this evidence admissible?Is this evidence admissible?


• A victim’s fear of the defendant is an A victim’s fear of the defendant is an emotional state that, if relevant, may emotional state that, if relevant, may be proved by the victim’s be proved by the victim’s declarations.declarations.– Comes up in situations where the Comes up in situations where the

defendant and victim know one anotherdefendant and victim know one another– e.g. self defense scenarios, domestic e.g. self defense scenarios, domestic

violence, sexual assault, kidnappingviolence, sexual assault, kidnapping

THEN EXISTING MENTAL, THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL EMOTIONAL, OR PHYSICAL

CONDITIONCONDITION• Rule 803: Rule 803: The following are not excluded by the The following are not excluded by the

hearsay rule, even though the declarant is hearsay rule, even though the declarant is available as a witness:available as a witness:

• (3) (3) Then existing mental, emotional, or Then existing mental, emotional, or physical conditionphysical condition. A statement of the . A statement of the declarant's then existing state of mind, emotion, declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of bodily health), but not including a statement of memory or belief to prove the fact remembered or memory or belief to prove the fact remembered or believed unless it relates to the execution, believed unless it relates to the execution, revocation, identification, or terms of declarant's revocation, identification, or terms of declarant's will.will.

Evid. Code sec. 1252Evid. Code sec. 1252

• Restriction on Admissibility of Hearsay Restriction on Admissibility of Hearsay under sections 1250, 1251 and 1253under sections 1250, 1251 and 1253

• Evidence of statement is inadmissible if Evidence of statement is inadmissible if circumstances show lack of trustworthiness circumstances show lack of trustworthiness – e.g. DV murder & Def wants put in statements he e.g. DV murder & Def wants put in statements he

says vic made about what a great guy he was or says vic made about what a great guy he was or how much vic liked himhow much vic liked him

• Note: no similar express provision in FRENote: no similar express provision in FRE

Statement of Declarant’s Statement of Declarant’s Then Existing Then Existing Mental/Physical StateMental/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 mindstate of mind• emotion, oremotion, or• physical sensationphysical sensation

• evidence must be offered to prove – phys or mental state – evidence must be offered to prove – phys or mental state – • at that timeat that time• or at any other time that is in issue in the caseor at any other time that is in issue in the case

• the evidence is offered to prove or explain acts or conduct the evidence is offered to prove or explain acts or conduct of declarantof declarant

• evidence of statement of memory or belief is not within evidence of statement of memory or belief is not within exception to prove fact remembered or believedexception to prove fact remembered or believed

• Note: No requirement of unavailabilityNote: No requirement of unavailability

Statement of Previously Statement of Previously Existing Mental/Physical Existing Mental/Physical StateState• Evid. Code sec. 1251:Evid. Code sec. 1251:• Subject to sec. 1252, statement of declarant’s Subject to sec. 1252, statement of declarant’s

previously existing previously existing • state of mindstate of mind• emotion, oremotion, or• physical sensationphysical sensation

• (a) unavailability required (a) unavailability required • (b) evidence must be offered to prove – prior (b) evidence must be offered to prove – prior

phys or mental state – When it is itself an issue in phys or mental state – When it is itself an issue in the casethe case

• -- and not offered to prove any fact other than -- and not offered to prove any fact other than such state of mind, emotion or physical sensationsuch state of mind, emotion or physical sensation


• Hypo: 3 Ds charged with murdering vic.- Defense is self defenseHypo: 3 Ds charged with murdering vic.- Defense is self defense• They claim he was a drug dealer whose spot was at their apt. They claim he was a drug dealer whose spot was at their apt.

bldg. They claim he threatened them with death if they continued bldg. They claim he threatened them with death if they continued to hang out there, b/c interfering with his drug business. to hang out there, b/c interfering with his drug business.

• One defendant claims vic was unhappy b/c he thought that this 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 defendant was trying to get vic’s gf to work as a prostitute for him rather than for vic.him rather than for vic.

• Prosecution says vic unhappy w/ defendants b/c they wear red Prosecution says vic unhappy w/ defendants b/c they wear red and tag the bldg with Norteno graffiti and thus draw police and tag the bldg with Norteno graffiti and thus draw police attentionattention

• Witnesses are defendants, vic’s gf and her son. Defendants will Witnesses are defendants, vic’s gf and her son. Defendants will be impeached b/c prior inconsistent stat to police (false alibi). be impeached b/c prior inconsistent stat to police (false alibi). Wit’s were thoroughly impeached at Prelim. HearingWit’s were thoroughly impeached at Prelim. Hearing

• What is admissible under FRE 803(3)/ §1250/ §1251? Apply What is admissible under FRE 803(3)/ §1250/ §1251? Apply §1252.§1252.

Statements for purposes of Statements for purposes of medical diagnosis or medical diagnosis or treatmenttreatment• Rule 803: Rule 803: The following are not excluded by the The following are not excluded by the

hearsay rule, even though the declarant is hearsay rule, even though the declarant is available as a witness:available as a witness:

• (4) (4) Statements for purposes of medical Statements for purposes of medical diagnosis or treatmentdiagnosis or treatment. Statements made for . Statements made for purposes of medical diagnosis or treatment and purposes of medical diagnosis or treatment and describing medical history, or past or present describing medical history, or past or present symptoms, pain, or sensations, or the inception or symptoms, pain, or sensations, or the inception or general character of the cause or external source general character of the cause or external source thereof insofar as reasonably pertinent to thereof insofar as reasonably pertinent to diagnosis or treatment.diagnosis or treatment.

Statement of For Purpose Statement of For Purpose of Medical of Medical Diagnosis/TreatmentDiagnosis/Treatment• Evid. Code sec. 1253:Evid. Code sec. 1253:• Very limited exceptionVery limited exception• Subject to sec. 1252;Subject to sec. 1252;• Declarant must be a minor at the Declarant must be a minor at the

time of the proceeding;time of the proceeding;• Statement was made when victim Statement was made when victim

was under the age of 12;was under the age of 12;• Statement must describe child abuseStatement must describe child abuse


1. “Doctor, my back hurts.”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 Admissible b/c describes then existing physical

conditioncondition• What result under FRE 803(3)?What result under FRE 803(3)?

– Admissible b/c describes then existing physical Admissible b/c describes then existing physical conditioncondition

• What result under FRE 803(4)?What result under FRE 803(4)?– Admissible b/c describes then existing physical Admissible b/c describes then existing physical

condition pertinent to medical treatment/diagnosiscondition pertinent to medical treatment/diagnosis


2. “Doctor, my back hurt last week.”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 conditionInadmissible 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 Inadmissible unless previous condition was itself at issue

in case and witness is unavailablein case and witness is unavailable

• What result under FRE 803(3)?What result under FRE 803(3)?– Inadmissible as a narrative of a past conditionInadmissible 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/diagnosisAdmissible b/c pertinent to medical treatment/diagnosis


3. “Doctor, my back has been hurting me since a 3. “Doctor, my back has been hurting me since a car hit me last month.”car hit me last month.”

• What result under Evid. Code sec. 1250?What result under Evid. Code sec. 1250?– Inadmissible b/c remembered factInadmissible 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 Some inadmissible b/c proves another fact – some may

come income in

• What result under FRE 803(3)?What result under FRE 803(3)?– Inadmissible b/c remembered factInadmissible b/c remembered fact

• What result under FRE 803(4)?What result under FRE 803(4)?– Admissible b/c pertinent to medical treatment/diagnosisAdmissible b/c pertinent to medical treatment/diagnosis


• Recent trial situation in Alameda County:Recent trial situation in Alameda County:– Vic is shot in eye in DV situation & gravely Vic is shot in eye in DV situation & gravely

wounded. Treating physician testifying and wounded. Treating physician testifying and says vic reported “my husband shot me in says vic reported “my husband shot me in the eye.” the eye.”

– Defense objects on hearsay groundsDefense objects on hearsay grounds– Prosecutor responds state of mind exception Prosecutor responds state of mind exception

for medical treatment or diagnosisfor medical treatment or diagnosis– How do you rule?How do you rule?


• Recent trial situation in Alameda Recent trial situation in Alameda County:County:– Apply FRE 803(3)Apply FRE 803(3)– Apply FRE 803(4)Apply FRE 803(4)– Apply § 1250Apply § 1250– Apply § 1251Apply § 1251– Apply § 1253Apply § 1253– Apply § 1252 (1250, 1251 & 1253 all subject Apply § 1252 (1250, 1251 & 1253 all subject

to 1252)to 1252)


• Recent suppression motion in Alameda Recent suppression motion in Alameda County -- Issue: was arrest validCounty -- Issue: was arrest valid– Police pick up Lo-Jack signal and follow it to a Police pick up Lo-Jack signal and follow it to a

house in the Oakland hills – they can see over a house in the Oakland hills – they can see over a picket fence into the front yard area and see picket fence into the front yard area and see Bobcat (mini bulldozer) in plain viewBobcat (mini bulldozer) in plain view

– Police radio confirms stolen vehicle is described Police radio confirms stolen vehicle is described as a Bobcat as a Bobcat

– Police talk to resident who says he bought it, Police talk to resident who says he bought it, but has no documentation of salebut has no documentation of sale


• Recent suppression motion in Alameda Recent suppression motion in Alameda County:County:– DA asks officer if he did further DA asks officer if he did further

investigation investigation – Officer answers that he then called Hertz Officer answers that he then called Hertz

Rental agent (victim) and got more infoRental agent (victim) and got more info– DA asks what Hertz told himDA asks what Hertz told him– PD objects on hearsay groundsPD objects on hearsay grounds– DA responds “state of mind”DA responds “state of mind”


• Recent suppression motion in Recent suppression motion in Alameda County:Alameda County:– Does it come in? What is the issue?Does it come in? What is the issue?– What is officer’s role here? He is not a What is officer’s role here? He is not a

party, he is a witness.party, he is a witness.– What is relevance of this witness’ state What is relevance of this witness’ state

of mind?of mind?


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

why not?why not?

STATEMENT AGAINST STATEMENT AGAINST INTERESTINTEREST• Rule 804. Hearsay Exceptions; Declarant UnavailableRule 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 The following are not excluded by the hearsay rule if the

declarant is unavailable as a witness:declarant is unavailable as a witness:• (3) (3) Statement against interestStatement against interest. A statement which was at . A statement which was at

the time of its making so far contrary to the declarant's the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.indicate the trustworthiness of the statement.

STATEMENT AGAINST STATEMENT AGAINST INTERESTINTEREST

• Rule 804 (b)(3) Rule 804 (b)(3) Statement against Statement against interestinterest..– at the time of its making so far contrary to: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 liabilityso far tended to subject to civil liability

• or to criminal liabilityor to criminal liability

• or to render invalid a claim against anotheror to render invalid a claim against another

(that a reasonable person in the declarant's position (that a reasonable person in the declarant's position would not have made the statement unless believing would not have made the statement unless believing it to be true)it to be true)

STATEMENT AGAINST STATEMENT AGAINST INTEREST INTEREST (cont.)(cont.)


• Unavailable declarantUnavailable declarant

• Statement so far contrary to interest:Statement so far contrary to interest:– Pecuniary, proprietary, civil or criminalPecuniary, proprietary, civil or criminal– Render invalid a claimRender invalid a claim– Subject to hatred, ridicule or social Subject to hatred, ridicule or social

disgracedisgrace


• “ “ I beat up that old lady when I I beat up that old lady when I snatched her purse”snatched her purse”

• ““I owe Jane $100.00 from the poker I owe Jane $100.00 from the poker game last week”game last week”

• ““I lied when I raised my hand in I lied when I raised my hand in Evidence class saying that I read the Evidence class saying that I read the materials on the state of mind materials on the state of mind exception”exception”

STATEMENT AGAINST STATEMENT AGAINST INTEREST INTEREST (cont.)(cont.)RULE OF CORROBORATIONRULE OF CORROBORATION

• FRE 804(b)(3)(B): A statement tending to expose the FRE 804(b)(3)(B): A statement tending to expose the declarant to criminal liability and offered to exculpate the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.clearly indicate the trustworthiness of the statement.

• P. v. Frierson (1991) 53 Cal.3d 730, 746 declaration against P. v. Frierson (1991) 53 Cal.3d 730, 746 declaration against criminal interest by 3d party that exculpates defendant should criminal interest by 3d party that exculpates defendant should be reviewed carefully because there is a be reviewed carefully because there is a ““general suspicion general suspicion with which the law looks upon such declarations.with which the law looks upon such declarations.””


• “ “ I overheard Joe say that he beat up that I overheard Joe say that he beat up that old lady when I snatched her purse”old lady when I snatched her purse”

• ““I planned the robbery. I got Joe to help I planned the robbery. I got Joe to help me do it. I needed the money to pay a me do it. I needed the money to pay a gambling debt I owed to Sam. It was Joe’s gambling debt I owed to Sam. It was Joe’s idea to tie the victim up and to pistol whip idea to tie the victim up and to pistol whip him. It was my idea to feed the dog him. It was my idea to feed the dog chocolate covered raisins to try and make chocolate covered raisins to try and make the victim tell where more money was.”the victim tell where more money was.”

DYING DECLARATIONDYING DECLARATION

• Premised on the notion that a dying Premised on the notion that a dying person no longer has any temporal person no longer has any temporal self- serving purposes to be furtheredself- serving purposes to be furthered

• Also on the idea that one facing death Also on the idea that one facing death will tell the truthwill tell the truth

• Principal condition for his exception is Principal condition for his exception is that statement be made under sense that statement be made under sense of immediately impending deathof immediately impending death


• Relevant factors in arguing this Relevant factors in arguing this exception:exception:– The victim’s physical conditionThe victim’s physical condition– The nature and seriousness of the woundsThe nature and seriousness of the wounds– The victim’s conductThe victim’s conduct– The victim’s statementsThe victim’s statements– The victim’s knowledge of the gravity of The victim’s knowledge of the gravity of

the conditionthe condition

STATEMENT UNDER BELIEF OF STATEMENT UNDER BELIEF OF IMPENDING DEATHIMPENDING DEATH

• Rule 804. Hearsay Exceptions; Declarant Rule 804. Hearsay Exceptions; Declarant UnavailableUnavailable

• (a) Definition of unavailability.(a) Definition of unavailability.• (b) Hearsay exceptions.(b) Hearsay exceptions.• The following are not excluded by the hearsay The following are not excluded by the hearsay

rule if the declarant is unavailable as a witness:rule if the declarant is unavailable as a witness:• (2) (2) Statement under belief of impending deathStatement under belief of impending death. .

In a prosecution for homicide or in a civil action or In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant proceeding, a statement made by a declarant while believing that the declarant's death was while believing that the declarant's death was imminent, concerning the cause or circumstances imminent, concerning the cause or circumstances of what the declarant believed to be impending of what the declarant believed to be impending death. death.



• Made by a dying personMade by a dying person

• About cause/circumstances of deathAbout cause/circumstances of death

• Personal knowledge of declarantPersonal knowledge of declarant

• Under sense of immediately Under sense of immediately impending deathimpending death

Difference – dying Difference – dying declarationdeclaration

• FRE – requires unavailable witnessFRE – requires unavailable witness

• Evid. Code – requires declarant to be Evid. Code – requires declarant to be deaddead

Forfeiture by Forfeiture by WrongdoingWrongdoing• Rule 804(b) Hearsay exceptions.Rule 804(b) Hearsay exceptions.• The following are not excluded by the hearsay The following are not excluded by the hearsay

rule if the declarant is unavailable as a witness:rule if the declarant is unavailable as a witness:• (6) Forfeiture by wrongdoing. A statement offered (6) Forfeiture by wrongdoing. A statement offered

against a party that has engaged or acquiesced against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a procure the unavailability of the declarant as a witness.witness.

• Proponent must prove foundational facts by a Proponent must prove foundational facts by a preponderance of the evidencepreponderance of the evidence

Forfeiture by Wrongdoing Forfeiture by Wrongdoing (cont.)(cont.)• Evid. Code sec. 1350:Evid. Code sec. 1350:

– Must be a serious felony Must be a serious felony – Unavailable DeclarantUnavailable Declarant– Clear/convincing Clear/convincing

evidence linking partyevidence linking party– To prevent prosecution To prevent prosecution

or arrest of partyor arrest of party– Death by homicide or Death by homicide or

kidnapping of declarantkidnapping of declarant– Memorialized in a tape Memorialized in a tape

recording or notarized recording or notarized writingwriting

– By a law enforcement By a law enforcement officialofficial

– Indicia of Indicia of trustworthiness must be trustworthiness must be presentpresent

– Statement is relevantStatement is relevant– Independent Independent

corroborative evidence corroborative evidence linking defendant to linking defendant to crimecrime

– 10 days notice or good 10 days notice or good cause showing cause showing

– Requires hearing outside Requires hearing outside presence of jurypresence of jury

See People v. Zambrano See People v. Zambrano (2007) 41 Cal.4(2007) 41 Cal.4thth 1082, 1082, 1143-11471143-1147

Forfeiture by Wrongdoing Forfeiture by Wrongdoing (cont.)(cont.)• Giles v. California 554 U.S. ___; 128 Giles v. California 554 U.S. ___; 128

S.Ct. 2678 (2008)S.Ct. 2678 (2008)– D attacks vic, beating her and threatening D attacks vic, beating her and threatening

to kill her; She calls police and gives to kill her; She calls police and gives statement statement

– 3 weeks later – he kills her, claiming self 3 weeks later – he kills her, claiming self defensedefense

– Prosecution offers Cop who took vic’s Prosecution offers Cop who took vic’s statementstatement

– Defense objects on hearsay/confrontationDefense objects on hearsay/confrontation

Forfeiture by Wrongdoing Forfeiture by Wrongdoing (cont.)(cont.)

• Giles v. California 554 U.S. ___; 128 Giles v. California 554 U.S. ___; 128 S.Ct. 2678 (2008)S.Ct. 2678 (2008)– More than the act of killing the declarant More than the act of killing the declarant

is requiredis required– The defendant’s intent is a key factorThe defendant’s intent is a key factor– To avoid the requirement of To avoid the requirement of

confrontation, it must be shown that the confrontation, it must be shown that the defendant killed declarant to prevent her defendant killed declarant to prevent her from testifyingfrom testifying

FORMER TESTIMONYFORMER TESTIMONY

• Rule 804 (b) Hearsay exceptions.Rule 804 (b) Hearsay exceptions.• The following are not excluded by the hearsay rule The following are not excluded by the hearsay rule

if the declarant is unavailable as a witness:if the declarant is unavailable as a witness:• (1) (1) Former testimonyFormer testimony. Testimony given as a . Testimony given as a

witness at another hearing of the same or a witness at another hearing of the same or a different proceeding, or in a deposition taken in different proceeding, or in a deposition taken in compliance with law in the course of the same or compliance with law in the course of the same or another proceeding, if the party against whom the another proceeding, if the party against whom the testimony is now offered, or, in a civil action or testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an proceeding, a predecessor in interest, had an opportunity and similar motive to develop the opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.testimony by direct, cross, or redirect examination.


• Rule 804 (b)(1): Civil casesRule 804 (b)(1): Civil cases– Prior testimony at a hearing or deposition Prior testimony at a hearing or deposition

(formal setting under oath)(formal setting under oath)– Prior hearing or deposition need not be same Prior hearing or deposition need not be same

casecase– Opposing party must have had opportunity to Opposing party must have had opportunity to

examineexamine– Opposing party’s motive in questioning must Opposing party’s motive in questioning must

have been similarhave been similar– Allows for predecessor in interest to have been Allows for predecessor in interest to have been

the prior opponent to current opposing partythe prior opponent to current opposing party


• Rule 804 (b)(1): Criminal casesRule 804 (b)(1): Criminal cases– Same rules with one large Same rules with one large

difference:difference:

•The party with the opportunity to The party with the opportunity to question on prior occasion must have question on prior occasion must have been the same party as the opposing been the same party as the opposing party in the present case.party in the present case.

FORMER TESTIMONY (cont.)FORMER TESTIMONY (cont.)Evid. Code § 1291Evid. Code § 1291• Unavailability requiredUnavailability required• Offered against party who offered it on former Offered against party who offered it on former

occasionoccasion• 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 Admissibility is subject to the same limitations as if witness was available, except:witness was available, except:

• (1) no new objections to form;(1) no new objections to form;• (2) no objections to competence or privilege that (2) no objections to competence or privilege that

did did not exist at the time the former testimony was not exist at the time the former testimony was givengiven

FORMER TESTIMONY (cont.)FORMER TESTIMONY (cont.)

• Sec. 1292 applies to party who was not a party in Sec. 1292 applies to party who was not a party in the prior hearingthe prior hearing– Applies where one occurrence gives rise to multiple claims Applies where one occurrence gives rise to multiple claims

-- E.g. new plaintiff, same defendant and witness is -- E.g. new plaintiff, same defendant and witness is unavailableunavailable

– Applies only in civil actionsApplies only in civil actions– Former party had right and opportunity to cross declarant Former party had right and opportunity to cross declarant

with similar motive and interest to that of present partywith similar motive and interest to that of present party


• Sec. 1293-narrow application: Sec. 1293-narrow application: • applies only in a W&I § 300 proceeding (juvenile applies only in a W&I § 300 proceeding (juvenile

dependency)-dependency)-– Allows prior preliminary hearing testimony of the minor Allows prior preliminary hearing testimony of the minor

child in this subsequent proceeding if defendant at PX child in this subsequent proceeding if defendant at PX had substantially same interest as parent against whom had substantially same interest as parent against whom testimony is being offeredtestimony is being offered

• 1294 contain special rules re to preliminary 1294 contain special rules re to preliminary hearing testimonyhearing testimony


Evid. Code § 1294 - special rule:Evid. Code § 1294 - special rule:– Witness now unavailableWitness now unavailable– Witness testified at PX in same caseWitness testified at PX in same case– Prior inconsistent statement was properly Prior inconsistent statement was properly

admitted under §1235 for the truth admitted under §1235 for the truth – Now when using former testimony, same prior Now when using former testimony, same prior

inconsistent statement may be admitted for the inconsistent statement may be admitted for the truthtruth

Why is this rule special?Why is this rule special?

BUSINESS RECORDSBUSINESS RECORDS

• Evid. Code sec. 1270 – 1272Evid. Code sec. 1270 – 1272

• FRE 803(6) & 803(7)FRE 803(6) & 803(7)

BUSINESS RECORDS BUSINESS RECORDS (cont.)(cont.)

• Evid. Code sec. 1270Evid. Code sec. 1270 – Business – Business defined –broad definition it includes defined –broad definition it includes everything everything that could keep a that could keep a recordrecord

BUSINESS RECORDS BUSINESS RECORDS (cont.)(cont.)Evid. Code sec. 1271 Evid. Code sec. 1271 – –

Business records exceptionBusiness records exception

• A writing made as a record ofA writing made as a record of

• An act, condition or event An act, condition or event

• Offered to prove the act Offered to prove the act condition or eventcondition or event

• Is admissible if:Is admissible if:

• (a) the writing was made in the (a) the writing was made in the regular course of a businessregular course of a business

• (b) the writing was made at or (b) the writing was made at or near the time of the act, near the time of the act, condition or event;condition or event;

• (c) the custodian or other (c) the custodian or other qualified witness testifies to its qualified witness testifies to its identity and the mode of its identity and the mode of its preparation; andpreparation; and

• (d) The sources of information (d) The sources of information and method and time of and method and time of preparation were such as to preparation were such as to indicate its trustworthinessindicate its trustworthiness

BUSINESS RECORDS BUSINESS RECORDS (cont.)(cont.)• Evid. Code sec. 1272Evid. Code sec. 1272 – Absence of Business records – 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 (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 acts, conditions or events at or near the time of the act, condition or event at to preserve such records; andevent at to preserve such records; and

• (b) The sources of information and the method and time of preparation (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 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.the act or event did not occur or that the condition did not exist.

BUSINESS RECORDS BUSINESS RECORDS (cont.)(cont.)FRE 803(6) FRE 803(6) Records of regularly conducted activity.Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any A memorandum, report, record, or data compilation, in any

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

http://www.law.cornell.edu/rules/fre/Rule90211.htm


BUSINESS RECORDS BUSINESS RECORDS (cont.)(cont.)FRE 803(7) FRE 803(7) Absence of entry in records kept in Absence of entry in records kept in

accordance with the provisions of paragraph accordance with the provisions of paragraph (6)(6). .

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

BUSINESS RECORDS BUSINESS RECORDS (cont.)(cont.)• Cell phone records:Cell phone records:• Time of call/duration of callTime of call/duration of call• Incoming/outgoing numbersIncoming/outgoing numbers• Whether *67 used (to block caller ID)Whether *67 used (to block caller ID)• Cell tower and side – range of 1-2 milesCell tower and side – range of 1-2 miles• Custodian testifies that stronger signal Custodian testifies that stronger signal

takes over closer signaltakes over closer signal• Cannot tell exactly where in area of tower Cannot tell exactly where in area of tower

and side call is madeand side call is made

Official RecordsOfficial Records

• Evid. Code sec. 1280 – 1284Evid. Code sec. 1280 – 1284

• FRE 803 (8) (9) & (10)FRE 803 (8) (9) & (10)

OFFICIAL RECORDS OFFICIAL RECORDS (cont.)(cont.)• Evid. Code sec. 1280 – Official recordsEvid. Code sec. 1280 – Official records• A writing made as a record ofA writing made as a record of• An act, condition or event An act, condition or event • Offered to prove the act condition or eventOffered to prove the act condition or event• Is admissible if:Is admissible if:• (a) the writing was made by and within the scope (a) the writing was made by and within the scope

of duty of a public employeeof duty of a public employee• (b) the writing was made at or near the time of (b) the writing was made at or near the time of

the act, condition or event; andthe act, condition or event; and• (c) the sources of information and method and (c) the sources of information and method and

time of preparation were such as to indicate its time of preparation were such as to indicate its trustworthinesstrustworthiness

OFFICIAL RECORDS OFFICIAL RECORDS (cont.)(cont.)• Evid. Code sec. 1284 – Statement of Evid. Code sec. 1284 – Statement of

absence of Official recordsabsence of Official records• Evidence of a writing of a public employeeEvidence of a writing of a public employee• Who is the official custodian of records in a Who is the official custodian of records in a

public officepublic office• Reciting a diligent search and failure to Reciting a diligent search and failure to

find a recordfind a record• Is admissible when offered to prove the Is admissible when offered to prove the

absence of a record in that officeabsence of a record in that office

OFFICIAL RECORDS OFFICIAL RECORDS (cont.)(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, to file the writing in a designated public office,

and and • the writing was made and filed as required by the writing was made and filed as required by

lawlaw

OFFICIAL RECORDS OFFICIAL RECORDS (cont.)(cont.)• FRE Rule 803. FRE Rule 803. (8) (8) Public records and reportsPublic records and reports. .

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

OFFICIAL RECORDS OFFICIAL RECORDS (cont.)(cont.)

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

OFFICIAL RECORDS OFFICIAL RECORDS (cont.)(cont.)• (10) (10) Absence of public record or entryAbsence of public record or entry. .

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


Miscellaneous Miscellaneous ExceptionsExceptions

• FRE 803 and 804FRE 803 and 804

• Evid. Code sec. 1200 - 1390Evid. Code sec. 1200 - 1390

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