Hearsay Rule & Exceptions in California – A Legal Guide

California Evidence Code § 1200 defines hearsay as any statement (a) made by someone other than the witness who is testifying and (b) offered to prove the truth of the matter asserted. In simpler terms, hearsay evidence is when a person shares something he or she heard from someone else, rather than from firsthand knowledge.

But the hearsay rule is not absolute. California, like other states, recognizes a long list of exceptions to the hearsay rule, including excited utterances, dying declarations, prior inconsistent statements and prior recollection recorded.

The language of the code section reads:

1200. (a) “Hearsay evidence” 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.

(b) Except as provided by law, hearsay evidence is inadmissible.

(c) This section shall be known and may be cited as the hearsay rule.

The reason why we have this California rule of evidence in criminal cases is that hearsay statements are simply not reliable enough to be accepted as evidence—because they are not made under oath, and the speaker cannot be cross-examined in court. 1 2 3

Examples

Here are some examples of evidence that would be considered hearsay evidence in California:

• A witness testifies that his sister told him that the defendant in a criminal case confessed to her—but the sister herself does not testify;
• In a California domestic violence case, a former girlfriend of the defendant says in a newspaper interview that she was scared of the defendant when she was dating him—but the former girlfriend does not testify at his trial; and
• In a Penal Code 503 PC – embezzlement case, the prosecution presents a letter from the defendant’s accountant (who does not testify) stating that the defendant is bankrupt, in order to prove that the defendant was bankrupt.

Exceptions to the hearsay rule

The California Evidence Code sets forth a long list of exceptions to the hearsay rule. In other words, some kinds of hearsay are admissible if they fall into certain defined categories.

Some of the most important exceptions that California criminal defendants should know about are:

1. Admissions by parties to the case that are used against the speaker—for example, a confession to a crime; 4
2. Statements, by a speaker who is unavailable as a witness, that are against his/her self-interest in an important way; 5
3. Prior statements by a witness at the trial that are inconsistent with his/her current testimony; 6
4. Prior statements by a witness at the trial that are consistent with his/her testimony—if these are used to rebut evidence that his/her testimony is unreliable; 7
5. Written statements by a witness regarding events that were fresh in his/her mind at the time the statement was made but that s/he has forgotten by the time of the trial; 8
6. Previous eyewitness identifications by a witness that were made when the crime or other event was fresh in his/her memory; 9
7. Spontaneous statements made in the excitement of the moment; 10
8. Statements made to explain the speaker’s actions, while s/he was performing those actions; 11
9. Statements made by a dying person about the causes or circumstances of his/her death; 12
10. Certain statements about the speaker’s mental or physical state that are offered to prove that s/he experienced that mental or physical state; 13
11. Certain statements made by children under the age of 12 in Penal Code 273d PC – child abuse cases or cases involving sex crimes against children; 14
12. Certain business or public records; 15
13. Former testimony that was given in an earlier court or official proceeding, when the witness is now unavailable to testify; 16
14. Certain statements about family history, community history, or a person’s reputation in the community; 17
15. In cases involving serious felonies, statements by witnesses who may have been murdered or kidnapped by the defendant; 18
16. Certain statements in which the speaker describes or explains a physical injury (or the threat of a physical injury) that was inflicted on him/her; 19 and
17. Certain videotaped statements by an elderly or dependent adult in Penal Code 368 PC – elder abuse cases. 20

In order to help you better understand the law, our California criminal defense attorneys 21 will address the following:

• 1. What is the hearsay rule in California?
  • 1.1. Legal definition of hearsay
  • 1.2. Reasoning behind the hearsay rule
  • 2.1. Party admissions and statements against interest
  • 2.2. Prior inconsistent statements or prior consistent statements
  • 2.3. Past recollection recorded; prior identification
  • 2.4. Spontaneous or contemporaneous statements
  • 2.5. Dying declarations
  • 2.6. Statements about mental or physical state
  • 2.7. Statements by children
  • 2.8. Business or public records
  • 2.9. Former testimony
  • 2.10. Family or community history/reputation
  • 2.11. Unavailable witnesses in serious felony cases
  • 2.12. Physical injury statements
  • 2.13. Elder abuse statements

  If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

  

  Under California Evidence Code 1200, hearsay evidence is generally not allowed in criminal jury trials.

  1. What is the hearsay rule in California?

  Simply put, the California hearsay rule—set forth in Evidence Code 1200 EC—says that hearsay statements are inadmissible in California court proceedings. 22

  This applies to both criminal and non-criminal (civil) trials, as well as to hearings held as part of the pretrial process and sentencing hearings. 23

  1.1. Legal definition of hearsay

  Under California law, the legal definition of a “hearsay statement” is any statement that

  1. Is not made by a witness testifying at the trial or hearing, and
  2. Is offered to prove the truth of what is stated. 24

  A “statement” can mean any of the following

  • A spoken (oral) statement,
  • A written statement, or
  • Nonverbal conduct that is intended as a substitute for an oral or written statement (for example, nodding, shaking one’s head, or shrugging). 25

  Example: Shane is a college student on trial for petty theft. He is accused of shoplifting hundreds of dollars’ worth of textbooks from the college bookstore.

  The prosecution calls as a witness Terry, a woman who lives in Shane’s dorm. Terry testifies that she knows Shane stole textbooks because her roommate, Ann, told her that she (Ann) saw him do so. Ann is not a witness at Shane’s trial.

  Terry’s testimony is hearsay evidence, and it is not admissible. Shane’s criminal defense lawyer objects, and the judge orders the jury to disregard what Terry said.

  On the other hand, statements that are

  • made by someone other than a witness testifying at trial, BUT
  • are not offered to prove the truth of their content,

  are generally not considered hearsay evidence. Therefore, such statements are acceptable evidence under the California Evidence Code. 26

  Example: Bill is on trial for Penal Code 187 murder. He is alleged to have committed the murder with Shelley, an accomplice.

  The prosecution introduces testimony from John, a third party. John testifies that Shelley asked him whether he could help her get a gun.

  John’s testimony about Shelley’s out-of-court statement is not hearsay evidence. That’s because Shelley’s statement is a request—and does not assert the truth of any fact. Thus, Shelley’s question about the gun is admissible evidence under Evidence Code 1200 EC. 27

  Example: Tom is on trial for California DUI. He has chosen not to testify at his own trial.

  The prosecution introduces tape recordings of Tom’s speech on the night he was arrested. The recordings are designed to show that Tom was slurring his speech and otherwise talking as if he were drunk.

  Because they are not being offered to prove the truth of anything Tom was saying, the tape recordings are not hearsay evidence. 28

  1.2. Reasoning behind the hearsay rule

  According to Riverside criminal defense lawyer Michael Scafiddi 29 :

  “Understanding why we have the hearsay rule can also help you understand how it works. The hearsay rule exists because hearsay statements are not reliable enough to serve as evidence in court, for two reasons: they are not made under oath, and the speaker is not subject to cross-examination by the other side in the litigation.”

  In addition, criminal defendants have the right to cross-examine witnesses who testify against them. This right is guaranteed by the portion of the Sixth Amendment to the United States Constitution known as the “Confrontation Clause.” 30

  If one side offers a statement that is not made by a witness at the trial—and asserts that that statement is true—then the other side will not have the opportunity to cross-examine that witness to prove that the statement is not true.

  2. What are the hearsay exceptions in California?

  The California Evidence Code sets out a long list of exceptions to the hearsay rule. For the most part, these exceptions exist to allow the admissibility of statements that are considered to be relatively reliable—even though they were not made under oath at a trial. 31

  2.1. Party admissions and statements against interest

  Evidence Code 1220 EC makes an exception to the hearsay rule for statements that are made by a party to litigation (for example, a criminal defendant) when those statements are offered against him/her. 32

  Example: Raymond is on trial for Penal Code 211 PC – robbery. He is pleading not guilty, claiming that he is not the person who committed the crime.

  But the prosecutor introduces Raymond’s acquaintance Tanya as a witness. Tanya testifies that Raymond told her one night, when he was drunk, that he did commit the robbery.

  Technically, Tanya’s testimony is hearsay—it is a statement made by Raymond when he was not testifying at a trial, and it is offered to prove the truth of its content (that Raymond committed the robbery). But it is admissible under the exception to the hearsay rule for admissions by a party.

  Similarly, Evidence Code 1230 EC provides a hearsay exception for “declarations against interest”—that is, out-of-court statements that are so contrary to the best interest of the speaker that no rational person would make them unless they were true. These include statements that

  • Negatively affect the speaker financially,
  • Subject the speaker to civil or criminal liability, or
  • Risk making the speaker an object of hatred or ridicule in the community. 33

  The “declarations against interest” exception applies to people who are not parties to the litigation. However, they also must be unavailable to testify for this exception to apply. 34

  2.2. Prior inconsistent statements or prior consistent statements

  Evidence Code 1235 EC makes an exception to the hearsay rule for evidence of out-of-court statements made by a witness that are inconsistent with his/her testimony in the case. 35

  However, even these inconsistent statements usually can only be admitted as evidence if

  1. The witness was given an opportunity to explain or deny the inconsistent statement while testifying, or
  2. The witness has not been excused from giving further testimony (and so can be called back to explain or deny the inconsistent statement). 36

  Example: Let’s return to Raymond from our previous example, who is on trial for burglary. Raymond is relying on alibi as a legal defense—his friend Ian is going to testify that Raymond was with him on the night the burglary took place.

  But after Ian’s testimony, the prosecution calls as a witness Ian’s estranged wife, Diana. Diana testifies that Ian recently told her that he hadn’t seen Raymond in over a year prior to the trial—which would mean that he couldn’t have been with him on the night of the burglary.

  Diana’s testimony is hearsay. But it is admissible as a prior inconsistent statement—as long as Ian is allowed to take the stand again to explain the inconsistency.

  Also, under Evidence Code 1236 EC, if

  • a prior inconsistent statement of a witness is introduced at trial as described above, or
  • the other side has suggested that the witness’s testimony is fabricated or the product of bias,

  then the witness’s side can offer evidence of his/her prior out-of-court statements that are consistent with his/her testimony—in order to show that that testimony is, in fact, reliable. 37

  2.3. Past recollection recorded; prior identification

  The “past recollection recorded” exception to the hearsay rule allows the admission of evidence of a statement previously made by a witness (out of court) if all of the following are true:

  1. The statement would have been admissible if s/he had made it while testifying,
  2. The statement concerns a matter which the witness now does not remember well enough to testify about it fully and accurately, and
  3. The statement is contained in a writing that was made when the events recorded in the writing had just occurred or were fresh in the witness’s memory. 38

  A similar hearsay exception exists for prior eyewitness identifications by a witness. Specifically, out-of-court identifications of a person as the perpetrator of a crime are admissible if they were made at a time when the crime was still fresh in the witness’s memory. 39

  2.4. Spontaneous or contemporaneous statements

  Another kind of hearsay that is admissible for its truth in California is a so-called “spontaneous statement.” This is a statement that

  1. Was intended to narrate, describe, or explain something that the speaker was perceiving, and
  2. Was made spontaneously while the speaker was stressed or excited by the events s/he was perceiving. 40

  Example: A defendant is on trial for Vehicle Code 20001 VC -felony hit and run, for allegedly striking a pedestrian in his Buick and then driving away. The prosecution calls Maria as a witness.

  Maria didn’t see the defendant’s Buick hit the pedestrian. But she did hear the accident, and then she heard another bystander shout, “A Buick just hit that man!” No one has been able to locate the bystander who shouted, so he is not testifying.

  Maria’s testimony about the bystander’s statement is hearsay–but such evidence is admissible anyway under the “spontaneous statements” exception.

  A similar hearsay exception is made for “contemporaneous statements.” These are statements that are

  1. Made to explain or qualify the behavior of the speaker, and
  2. Are made while the speaker is engaged in that behavior. 41

  2.5. Dying declarations

  Another exception to the hearsay rule is made for so-called “dying declarations.” These are:

  1. Statements made by a dying person,
  2. About the cause or circumstances of his/her death,
  3. That are based on his/her personal knowledge, and
  4. That are made when s/he knows that s/he is going to die soon. 42

  2.6. Statements about mental or physical state

  There is a hearsay exception for certain statements about the speaker’s mental or physical state. This includes statements about his/her

  • Intentions,
  • Plan,
  • Motive,
  • Mental feeling,
  • Pain, or
  • Bodily health. 43

  Statements about the speaker’s current mental or physical state are admissible if they are not made under circumstances that suggest they may be unreliable, AND the statements are offered either to

  • Prove the speaker’s state of mind or physical sensation as s/he described it, or
  • Prove or explain acts or conduct of the speaker. 44

  Statements about the speaker’s past mental or physical state are also admissible if all of the same things are true and the speaker is unavailable to serve as a witness in the current trial. 45

  Example: Brenda is on trial for Penal Code 451 PC – arson. The prosecution’s main witness is a man named Luke, who testifies that he saw Brenda running away from the scene of the fire on the night it occurred.

  Brenda’s defense attorney calls to the stand a friend of Luke’s named Spencer. Spencer testifies that, on the night of the fire, Luke said to him, “I’m so drunk; I barely know where I am.”

  Brenda’s defense lawyer then explains that, since Luke was drunk that night, his eyewitness identification of Brenda as the arsonist is not reliable.

  Luke’s statement about being drunk is hearsay. But it is admissible in trial court under this exception to the hearsay rule, since it is a description of Luke’s mental state on the night of the crime and is being offered just to show his mental state.

  

  Certain hearsay statements made by children are admissible in spite of the hearsay rule.

  2.7. Statements by children

  Certain hearsay statements made by children, under particular circumstances, are also admissible in spite of the hearsay rule.

  Sex crimes against children

  Out-of-court statements in cases involving sex crimes against children—such as Penal Code 261 PC rape of a child, Penal Code 285 PC incest against a child, and Penal Code 288 PC lewd acts with a child—are admissible if they

  1. Were made by a child under the age of 12 and included in a written report by a law enforcement officer or county welfare worker,
  2. Describe a sex crime that was committed against that child,
  3. Were made prior to a confession by the defendant,
  4. Were not made under circumstances that would suggest the statement is unreliable, and
  5. Were taken down in a trustworthy way by a law enforcement official. 46

  For this exception to apply, the child victim needs to be unavailable as a witness at trial or else refuse to testify. 47

  Child abuse or child neglect cases

  In cases involving child abuse or child neglect (as well as cases involving sex crimes against children), there are two separate hearsay exceptions.

  The first covers hearsay statements that:

  1. Were made by a victim who is a minor at the time of the trial,
  2. Were made by a victim who was under 12 when the alleged abuse occurred,
  3. Were made for purposes of medical treatment or diagnosis, and
  4. Describe the victim’s medical history or symptoms. 48

  The second covers non-medical hearsay statements, if all of the following are true:

  1. The statement was made by the alleged abuse victim when s/he was under the age of 12,
  2. The statement describes child abuse or neglect performed against this child,
  3. The court conducts a separate hearing without the jury present and determines that the statement seems to be reliable, and
  4. The child either testifies at trial or is unavailable as a witness (in which case there must be additional evidence of the abuse or neglect). 49

  2.8. Business or public records

  Certain written records are admissible evidence if all of the following are true:

  1. The writing was made in the regular course of a business,
  2. The writing was made at or near the time of the act, condition, or event it describes,
  3. A qualified witness testifies to the identity of the record and how it was prepared, and
  4. The method and time of preparation of the record were such as to indicate its trustworthiness. 50

  Example: Miguel is a doctor. He is on trial for violating California’s health care fraud laws.

  The case against Miguel rests on certain complicated financial records that were kept by his former administrative assistant, Cassie. Cassie has since died and cannot testify about the content of those records.

  However, Miguel’s new administrative assistant is able to testify as to what the records are and how they were prepared. All of the other criteria above are met as well. So these records are admissible as evidence despite technically being hearsay.

  Similarly, certain written records kept by government employees are admissible even if the employee who made them cannot testify about their content (and thus they are hearsay), as long as they were made in a way that indicates they are reliable. 51

  2.9. Former testimony

  Under Evidence Code 1291 EC, testimony given under oath in a different legal proceeding is also admissible, despite the hearsay rule, if the person who gave the testimony is unavailable as a witness in this proceeding, and EITHER

  1. The testimony is being offered against the party who presented it in the last proceeding, OR
  2. The person against whom the testimony is offered now was a party to the last proceeding and had a chance to cross-examine the witness in that one. 52

  2.10. Family or community history/reputation

  Other hearsay exceptions are available for

  • Statements about the family history and relationships of the speaker, 53
  • Statements concerning someone else’s family history, if they were made by a speaker who was a relative of that person or else otherwise was close enough to his/her family to have had accurate information, 54
  • Evidence of the general reputation in a community concerning an event that was important to that community, 55 and
  • Evidence of a person’s general reputation or particular trait in his community. 56

  Example: Fred is being charged with Penal Code 415 PC – disturbing the peace for initiating a bar fight. Carl is Fred’s neighbor and a witness for the prosecution. Carl testifies that “everyone” in their gated community knows about Fred’s reputation for being violent and impulsive.

  This testimony is hearsay, but it is admissible as evidence of Fred’s general reputation in his community. (However, it may be inadmissible because it is character evidence in a California criminal trial—which in most cases is not allowed. 57)

  2.11. Unavailable witnesses in serious felony cases

  Understandably, Evidence Code 1350 EC makes an exception to the hearsay rule for cases where a witness may have been killed or kidnapped to prevent him/her from testifying. 58

  This exception to the code applies when all of the following are true in a California criminal trial:

  1. The defendant is charged with a serious felony;
  2. There is clear and convincing evidence that the person who made the hearsay statement has been made unavailable by the defendant, either through homicide or through kidnapping;
  3. There is no evidence that the prosecution was involved in making the person unavailable to testify;
  4. The hearsay statement is in a tape recording or writing prepared by a law enforcement official;
  5. The statement was made under circumstances that indicate it is trustworthy and was not the result of inducement or coercion;
  6. The statement is relevant to the issues at trial; and
  7. The statement is backed up by other evidence connecting the defendant with the serious felony. 59

  2.12. Physical injury statements

  Another exception to the Evidence Code 1200 EC hearsay rule exists for certain statements that narrate, describe or explain a physical injury, or threat of a physical injury, to the speaker. 60

  For these hearsay statements to be admitted, all of the following have to be true:

  1. The speaker is unavailable as a witness,
  2. The statement was made at or near the time that the injury or threat occurred—and no more than five (5) years before the criminal charges involved in this trial were filed,
  3. The statement was made under circumstances that indicate its trustworthiness, and
  4. The statement was made in writing, was electronically recorded, or was made to a health care provider or law enforcement professional. 61

  Example: Peter is on trial for Penal Code 242 PC battery. He is accused of beating Eduardo.

  It turns out that Eduardo is an illegal immigrant from Guatemala. Before Peter’s trial begins, Eduardo is deported to Guatemala. No one can locate him, and he can’t testify at Peter’s trial.

  But the prosecution introduces the testimony of a doctor who treated Eduardo when he showed up at the emergency room with broken ribs. The doctor testifies that Eduardo told him that he had been beaten and described a man who looks a lot like Peter.

  This is hearsay evidence because Eduardo’s statement was made out of court—but it is admissible under this exception to the hearsay rule.

  2.13. Elder abuse statements

  Finally, Evidence Code 1380 provides a special hearsay exception that applies only to Penal Code 368 PC elder abuse cases. 62

  This exception applies to out-of-court statements by the victims of elder abuse that have been videotaped by law enforcement personnel. For the exception to apply, the speaker has to have been 65 or older, or a “dependent adult,” at the time of the alleged abuse—and needs to be unavailable to testify because s/he is either dead or disabled by the effects of aging. 63

  Also, there needs to be additional evidence that backs up the videotaped statement by the elder abuse victim. 64

  Legal References:

  1. Evidence Code 1200 – The hearsay rule general provisions. (“(a) “Hearsay evidence” 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. (b) Except as provided by law, hearsay evidence is inadmissible. (c) This section shall be known and may be cited as the hearsay rule.”)
  2. See same.
  3. Black’s Law Dictionary (9th ed. 2009), hearsay rule. (“The chief reasons for the rule are that out-of-court statements amounting to hearsay are not made under oath and are not subject to cross-examination.”)
  4. Evidence Code section 1220 – Admission of party. (“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.”)
  5. Evid Code 1230 – Declarations against interest. (“Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.”)
  6. Evidence Code 1235 – Inconsistent statements. (“Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.”)See also Evidence Code 770 – Evidence of inconsistent statement of witness; exclusion; exceptions. (“Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or (b) The witness has not been excused from giving further testimony in the action.”)
  7. Evidence Code 1236 – Prior consistent statements. (“Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791.”)See also Evidence Code 791 – Prior consistent statement of witness. (“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.”)
  8. Evidence Code 1237 – Past recollection recorded. (“(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which: (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness’ memory; (2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness’ statement at the time it was made; (3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and (4) Is offered after the writing is authenticated as an accurate record of the statement. (b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.”)
  9. Evidence Code 1238 – Prior identification. (“Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and: (a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence; (b) The statement was made at a time when the crime or other occurrence was fresh in the witness’ memory; and (c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.”)
  10. Evidence Code 1240 – Spontaneous statement. (“Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”)
  11. Evidence Code 1241 – Contemporaneous statement. (“Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Is offered to explain, qualify, or make understandable conduct of the declarant; and (b) Was made while the declarant was engaged in such conduct.”)
  12. Evidence Code 1242 – Dying declaration. (“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.”)
  13. Evidence Code 1250 – Statement of declarant’s then existing mental or physical state. (“(a) Subject to Section 1252, 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. (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.”)Evidence Code 1251 – Statement of declarant’s previously existing mental or physical state. (“Subject to Section 1252, evidence of a statement of the declarant’s state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible by the hearsay rule if: (a) The declarant is unavailable as a witness; and (b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation.”)See also Evidence Code 1252 – Restriction on admissibility of statement of mental or physical state (“Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness.”)
  14. Evidence Code 1228 – Admissibility of certain out-of-court statements of minors under the age of 12; establishing elements of certain sexually oriented crimes; notice to defendant. (“Notwithstanding any other provision of law, for the purpose of establishing the elements of the crime in order to admit as evidence the confession of a person accused of violating Section 261, 264.1, 285, 286, 288, 287, 289, or 647a of the Penal Code, a court, in its discretion, may determine that a statement of the complaining witness is not made inadmissible by the hearsay rule if it finds all of the following: (a) The statement was made by a minor child under the age of 12, and the contents of the statement were included in a written report of a law enforcement official or an employee of a county welfare department. (b) The statement describes the minor child as a victim of sexual abuse. (c) The statement was made prior to the defendant’s confession. The court shall view with caution the testimony of a person recounting hearsay where there is evidence of personal bias or prejudice. (d) There are no circumstances, such as significant inconsistencies between the confession and the statement concerning material facts establishing any element of the crime or the identification of the defendant, that would render the statement unreliable. (e) The minor child is found to be unavailable pursuant to paragraph (2) or (3) of subdivision (a) of Section 240 or refuses to testify. (f) The confession was memorialized in a trustworthy fashion by a law enforcement official. If the prosecution intends to offer a statement of the complaining witness pursuant to this section, the prosecution shall serve a written notice upon the defendant at least 10 days prior to the hearing or trial at which the prosecution intends to offer the statement. If the statement is offered during trial, the court’s determination shall be made out of the presence of the jury. If the statement is found to be admissible pursuant to this section, it shall be admitted out of the presence of the jury and solely for the purpose of determining the admissibility of the confession of the defendant.”)Evidence Code 1253 – Statements for purposes of medical diagnosis or treatment; contents of statement; child abuse or neglect; age limitations. (“Subject to Section 1252, evidence of a statement is not made inadmissible by the hearsay rule if the statement was made for purposes of medical diagnosis or treatment and describes medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. This section applies only to a statement made by a victim who is a minor at the time of the proceedings, provided the statement was made when the victim was under the age of 12 describing any act, or attempted act, of child abuse or neglect. “Child abuse” and “child neglect,” for purposes of this section, have the meanings provided in subdivision (c) of Section 1360. In addition, “child abuse” means any act proscribed by Chapter 5 (commencing with Section 281) of Title 9 of Part 1 of the Penal Code committed against a minor.”) Evidence Code 1360 – Statements describing an act or attempted act of child abuse or neglect; criminal prosecutions; requirements. (“(a) 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 performed with or on the child by another, or describing any attempted 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. (b) 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. (c) For purposes of this section, “child abuse” means an act proscribed by Section 273a, 273d, or 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code, and “child neglect” means any of the acts described in Section 11165.2 of the Penal Code.”)
  15. Evidence Code 1271 – Admissible writings. (“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: (a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”)Evidence Code 1280 – Record by a public employee. (“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: (a) The writing was made by and within the scope of duty of a public employee. (b) The writing was made at or near the time of the act, condition, or event. (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”)
  16. Evidence Code 1291 – Former testimony offered against party to former proceeding. (“(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: (1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or (2) 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 declarant with an interest and motive similar to that which he has at the hearing.”)
  17. Evidence Code 1310 – Statement concerning declarant’s own family history. (“(a) Subject to subdivision (b), 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. (b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.”)Evidence Code 1311 – Statement concerning family history of another. (“(a) Subject to subdivision (b), 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. (b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.”)Evidence Code 1320 – Reputation concerning community history. (“Evidence of reputation in a community is not made inadmissible by the hearsay rule if the reputation concerns an event of general history of the community or of the state or nation of which the community is a part and the event was of importance to the community.”)Evidence Code 1324 – Reputation concerning character. (“Evidence of a person’s general reputation with reference to his character or a trait of his character at a relevant time in the community in which he then resided or in a group with which he then habitually associated is not made inadmissible by the hearsay rule.”)
  18. Evidence Code 1350 – Unavailable declarant; hearsay rule. (“(a) In a criminal proceeding charging a serious felony, evidence of a statement made by a declarant is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness, and all of the following are true: (1) There is clear and convincing evidence that the declarant’s unavailability was knowingly caused by, aided by, or solicited by the party against whom the statement is offered for the purpose of preventing the arrest or prosecution of the party and is the result of the death by homicide or the kidnapping of the declarant. (2) There is no evidence that the unavailability of the declarant was caused by, aided by, solicited by, or procured on behalf of, the party who is offering the statement. (3) The statement has been memorialized in a tape recording made by a law enforcement official, or in a written statement prepared by a law enforcement official and signed by the declarant and notarized in the presence of the law enforcement official, prior to the death or kidnapping of the declarant. (4) The statement was made under circumstances which indicate its trustworthiness and was not the result of promise, inducement, threat, or coercion. (5) The statement is relevant to the issues to be tried. (6) The statement is corroborated by other evidence which tends to connect the party against whom the statement is offered with the commission of the serious felony with which the party is charged. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”)
  19. Evidence Code 1370 – Threat of infliction of injury. (“(a) 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 Section 240. (3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section. (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. (b) For purposes of paragraph (4) of subdivision (a), 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. (c) A statement is admissible pursuant to this section only if 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.”)
  20. Evidence Code 1380 – Elder and dependent adults; statements by victims of abuse. (“(a) In a criminal proceeding charging a violation, or attempted violation, of Section 368 of the Penal Code, evidence of a statement made by a declarant is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness, as defined in subdivisions (a)and (b) of Section 240, and all of the following are true: (1) The party offering the statement has made a showing of particularized guarantees of trustworthiness regarding the statement, the statement was made under circumstances which indicate its trustworthiness, and the statement was not the result of promise, inducement, threat, or coercion. In making its determination, the court may consider only the circumstances that surround the making of the statement and that render the declarant particularly worthy of belief. (2) There is no evidence that the unavailability of the declarant was caused by, aided by, solicited by, or procured on behalf of, the party who is offering the statement. (3) The entire statement has been memorialized in a videotape recording made by a law enforcement official, prior to the death or disabling of the declarant. (4) The statement was made by the victim of the alleged violation. (5) The statement is supported by corroborative evidence. (6) The victim of the alleged violation is an individual who meets both of the following requirements: (A) Was 65 years of age or older or was a dependent adult when the alleged violation or attempted violation occurred. (B) At the time of any criminal proceeding, including, but not limited to, a preliminary hearing or trial, regarding the alleged violation or attempted violation, is either deceased or suffers from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunction, to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired. (b) If the prosecution intends to offer a statement pursuant to this section, the prosecution shall serve a written notice upon the defendant at least 10 days prior to the hearing or trial at which the prosecution intends to offer the statement, unless the prosecution shows good cause for the failure to provide that notice. In the event that good cause is shown, the defendant shall be entitled to a reasonable continuance of the hearing or trial.”)
  21. Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
  22. Evidence Code 1200 – The hearsay rule, endnote 1, above.
  23. See same.See also Evidence Code 300 – Applicability of code [including the hearsay rule]. (“Except as otherwise provided by statute, this code applies in every action before the Supreme Court or a court of appeal or superior court, including proceedings in such actions conducted by a referee, court commissioner, or similar officer, but does not apply in grand jury proceedings.”)
  24. Evidence Code 1200 – The hearsay rule, endnote 1, above.
  25. Evidence Code 225 – Statement [for purposes of hearsay rule]. (““Statement” means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.”)
  26. Evidence Code 1200 – The hearsay rule, endnote 1, above.
  27. Loosely based on People v. Jurado (2006) 38 Cal.4th 72, 117.
  28. Based on People v. Young (1964) 224 Cal.App.2d 420, 423-24.
  29. Riverside criminal defense lawyer Michael Scafiddi uses his former experience as an Ontario police officer to represent clients in San Bernardino, Riverside, Banning, Fontana, Joshua Tree, Barstow and Victorville. He is on a first-name basis with many of the judges, prosecutors, probation officers, and police detectives throughout San Bernardino and Riverside Counties.
  30. U.S. Constitution, amend. VI. (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”)
  31. Black’s Law Dictionary (9th ed. 2009), hearsay exception. (“Any of several deviations from the hearsay rule, allowing the admission of otherwise inadmissible statements because the circumstances surrounding the statements provide a basis for considering the statements reliable. “)
  32. Evidence Code 1220 – Admission of party [hearsay exception], endnote 4, above.
  33. Evidence Code 1230 – Declarations against interest [exception to hearsay rule], endnote 5, above.
  34. See same.
  35. Evidence Code 1235 – Inconsistent statements [hearsay exception], endnote 6, above.
  36. Evidence Code 770 – Evidence of inconsistent statement of witness; exclusion; exceptions. (“Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded [as hearsay] unless: (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or (b) The witness has not been excused from giving further testimony in the action.”)
  37. See endnote 7, above.
  38. Evidence Code 1237 – Past recollection recorded [hearsay exception], endnote 8, above.
  39. Evidence Code 1238 – Prior identification [exception to the hearsay rule], endnote 9, above.
  40. Evidence Code 1240 – Spontaneous statement [hearsay exception], endnote 10, above.
  41. Evidence Code 1241 – Contemporaneous statement [exception to the hearsay rule], endnote 11, above.
  42. Evidence Code 1242 – Dying declaration [hearsay exception], endnote 12, above.
  43. See endnote 13, above.
  44. Evidence Code 1250 – Statement of declarant’s then existing mental or physical state [exception to the hearsay rule], endnote 13, above.
  45. Evidence Code 1251 – Statement of declarant’s previously existing mental or physical state [hearsay exception], endnote 13, above.
  46. Evidence Code 1228 – Admissibility of certain out-of-court statements of minors under the age of 12; establishing elements of certain sexually oriented crimes; notice to defendant [exception to the hearsay rule], endnote 14, above.
  47. See same. See also Evidence Code 240 EC – Unavailable as a witness [an important concept for the hearsay rule]. (“(a) Except as otherwise provided in subdivision (b), “unavailable as a witness” means that the declarant is any of the following: (1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant. (2) Disqualified from testifying to the matter. (3) Dead or unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity. (4) Absent from the hearing and the court is unable to compel his or her attendance by its process. (5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process. (6) Persistent in refusing to testify concerning the subject matter of the declarant’s statement despite having been found in contempt for refusal to testify.”)
  48. Evidence Code 1253 – Statements for purposes of medical diagnosis or treatment; contents of statement; child abuse or neglect; age limitations [hearsay exception], endnote 14, above.
  49. Evidence Code 1360 – Statements describing an act or attempted act of child abuse or neglect; criminal prosecutions; requirements [exception to the hearsay rule], endnote 14, above.
  50. Evidence Code 1271 – Admissible writings [hearsay exception], endnote 15, above.
  51. Evidence Code 1280 – Record by public employee [exception to the hearsay rule], endnote 15, above.
  52. Evidence Code 1291 – Former testimony offered against party to former proceeding [hearsay exception], endnote 16, above.
  53. Evidence Code 1310 – Statement concerning declarant’s own family history [exception to the hearsay rule], endnote 17, above.
  54. Evidence Code 1311 – Statement concerning family history of another [exception to the hearsay rule], endnote 17, above.
  55. Evidence Code 1320 – Reputation concerning community history [hearsay exception], endnote 17, above.
  56. Evidence Code 1324 – Reputation concerning character [exception to the hearsay rule], endnote 17, above.
  57. Evidence Code 1101 – Evidence of character to prove conduct [another California evidence rule like the hearsay rule]. (“(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”)
  58. Evidence Code 1350 – Unavailable declarant; hearsay rule, endnote 18, above.
  59. See same.
  60. Evidence Code 1370 – Threat of infliction of injury [hearsay exception], endnote 19, above.
  61. See same.
  62. Evidence Code 1380 – Elder and dependent adults; statements by victims of abuse [exception to the hearsay rule], endnote 20, above.
  63. See same.
  64. See same.