This document discusses exceptions to the rule against hearsay evidence. It begins by defining hearsay as evidence of a statement made by someone other than a witness testifying at trial that is being offered to prove the truth of the matter stated. It then examines three common hearsay exceptions: the business records exception, the state of mind exception, and experts relying on hearsay. For each exception, the document outlines the legal foundations and provides strategies for properly introducing evidence that would otherwise be hearsay.

1. Hearsay Evidence Exceptions
-The Proper Foundations-
Thomas J. Johnston, Esq.
Johnston & Hutchinson LLP

2. EVIDENCE BIG PICTURE
• All relevant evidence is admissible
except if shown to be:
–Privileged
–Unreliable
–Public Policy Reason

3. HEARSAY: RELIABILITY’S DAY OFF
Hearsay is evidence of a statement made by someone other
than a witness testifying at the current trial to prove the truth
of the matter stated.

4. HEARSAY DEFINITION IN ENGLISH
• Hearsay Declarant: Any one other than the
witness on the stand who gives a statement that
proves your point (or your opponent’s point).
(Evid. C 135)
• Hearsay Evidence: testimony, a writing, a video,
movie, material object, or just about anything
else that contains a statement that proves your
point (or your opponent’s point). (Evid C. 140)

5. USING HEARSAY EXCEPTIONS
FERRIS BUELLER HYPOTHETICAL
EASY WAY BLACK DIAMOND WAY
• Call Ferris Bueller to testify • Use Hearsay Exceptions
that he was too sick to go to
school – Business Records
Exception
• Call Mr. Bueller’s treating
physician to testify that he – State of Mind Exception
treated Mr. Bueller for an
illness that kept him home
from school – Expert Witness who
Relied on Hearsay

6. BUSINESS RECORDS EXCEPTION
FOUNDATION (Evid. Code Sec. 1271)
Statement is Admissible If:
• The writing was a record of an act, condition or event, and is offered to
prove the occurrence of that act, condition or event
• Made in Regular Course of Business
• Made at or near the time of the act, condition or event
• Custodian or other qualified witness testifies to identity and mode of
preparation
• Writing, source, and method is trustworthy (most important element)

7. HOW TO REMEMBER BUSINESS
RECORDS EXCEPTION
The ACE’S REGULAR BUSINESS was MADE AT THE
SAME TIME AS the CUSTODIAN’S TRUSTWORTHINESS
• The ACE’s (Writing recording or Act, Condition or Event to prove
occurrence of act, condition or event)
• REGULAR BUSINESS (Regular Course of Business) was
• MADE AT THE SAME TIME AS (made at or near the same time as
the a.c.e.)
• the CUSTODIAN’S (Custodian Testifies)
• TRUSTWORTHINESS (must be trustworthy)

8. HOW TO USE THE BUSINESS RECORDS
EXCEPTION WITHOUT LIVE TESTIMONY
EVIDENTIARY PURPOSE HOW TO GET IT IN
• Use Copy Service Records
• Use Diagnosis without Subpoena Pursuant to
calling Declarant Evidence Code Section
1560-62 & 1562:
– Proper Declaration from
• Use Opinion without calling
Custodian
Declarant
– Proper Declaration from your
• (Beware of Inconsistent Copy Service (Depo Officer)
Statements from Declarant) Since 2007

9. HOW TO USE STATE OF MIND, EMOTION, PHYSICAL
SENSATION EXCEPTION FOUNDATION (Evid. Code 1250)
TO PROVE CONDITION
• Use: Call a witness who said she
heard Ferris Bueller say he was
sick at the time in question.
• Trustworthiness A Requirement
• Statements about Past State of
Mind, Emotion, Physical
Sensation Not Admissible

10. USE EXPERT WITNESS WHO RELIES ON
HEARSAY (Evid. 801(b))
• Experts Can Rely on Hearsay
(Reports, records, oral and
written statements of declarants)
• Section 352 will LIMIT expert
from expounding on the hearsay
statement he relied upon.
• Cannot just read hearsay
statements – or chart entries
unless already admitted.
• Plan - admit first through
business records exception, then
call expert and have him
comment on that exhibit

11. DEFENSE’S TURN: HOW TO LIMIT THEIR USE OF
HEARSAY EXCEPTIONS
• Can call witness who heard
Ferris say he was fine.
• Can call Expert can testify
he was not sick based on
review of the records
• BE READY: Expert cannot
read from medical records
or quote from articles or
findings from studies
(important on SAE Studies)

12. ANY QUESTIONS?