Hearsay Evidence Exceptions-The Proper Foundations-     Thomas J. Johnston, Esq.    Johnston & Hutchinson LLP
EVIDENCE BIG PICTURE• All relevant evidence is admissible  except if shown to be:  –Privileged  –Unreliable  –Public Polic...
HEARSAY: RELIABILITY’S DAY OFF Hearsay is evidence of a statement made by someone otherthan a witness testifying at the cu...
HEARSAY DEFINITION IN ENGLISH• Hearsay Declarant: Any one other than the  witness on the stand who gives a statement that ...
USING HEARSAY EXCEPTIONS      FERRIS BUELLER HYPOTHETICAL         EASY WAY                   BLACK DIAMOND WAY• Call Ferri...
BUSINESS RECORDS EXCEPTION  FOUNDATION (Evid. Code Sec. 1271)Statement is Admissible If:• The writing was a record of an a...
HOW TO REMEMBER BUSINESS          RECORDS EXCEPTIONThe ACE’S REGULAR BUSINESS was MADE AT THESAME TIME AS the CUSTODIAN’S ...
HOW TO USE THE BUSINESS RECORDSEXCEPTION WITHOUT LIVE TESTIMONYEVIDENTIARY PURPOSE             HOW TO GET IT IN           ...
HOW TO USE STATE OF MIND, EMOTION, PHYSICALSENSATION EXCEPTION FOUNDATION (Evid. Code 1250)              TO PROVE CONDITIO...
USE EXPERT WITNESS WHO RELIES ON       HEARSAY (Evid. 801(b))                • Experts Can Rely on Hearsay                ...
DEFENSE’S TURN: HOW TO LIMIT THEIR USE OF           HEARSAY EXCEPTIONS• Can call witness who heard  Ferris say he was fine...
ANY QUESTIONS?
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Johnston Hearsay PPT

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  • 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.
  • 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.
  • Plaintiff wants to prove Ferris Bueller missed school because he was sick.
  • HOW TO REMEMBER: ACE’sREGULAR BUSINESS was MADE AT THE SAME TIME as the CUSTODIAN’S TRUSTWORTHINESS
  • HOW TO REMEMBER: ACE’sREGULAR BUSINESS was MADE AT THE SAME TIME as the CUSTODIAN’S TRUSTWORTHINESS
  • Statements of diagnosis and opinion are admissible provided the statement of opinion is based on personal observations and the opinion would be admissible if the declarant was a witness in Court. (Peopl v. Beeler (1994) 9 Cal. 4th 953, 980) also Jefferson’s Sec. 417Since 2007 Evidence Code Section 1560 (e) allows for copy service records to be admissible provided they have proper declaration from custodian and depo officer. Otherwise, need to subpoena in a double envelope, sealed, with tile and number of the action, name of witness and date of subpoena on the envelope, directed to the clerk of the court, opened at trial by the judge or clerk.
  • Evidence of a statement of the declarant’s then existing state of mind, emotion, physical sensation is admissible as an exception the hearsay rule when offered to prove the declarant’s state of mind, emotion, or physical sensation at that time (or any other time at issue), to explain acts or conduct of the declarant in conformity with that state of mind, emotion, or physical sensation. Also Declarant’s belief, intent, love, affection, hatred, grief, joy, fear, pain, sleeplessness, tiredness, etc. Very powerful exception.
  • Johnston Hearsay PPT

    1. 1. Hearsay Evidence Exceptions-The Proper Foundations- Thomas J. Johnston, Esq. Johnston & Hutchinson LLP
    2. 2. EVIDENCE BIG PICTURE• All relevant evidence is admissible except if shown to be: –Privileged –Unreliable –Public Policy Reason
    3. 3. HEARSAY: RELIABILITY’S DAY OFF Hearsay is evidence of a statement made by someone otherthan a witness testifying at the current trial to prove the truth of the matter stated.
    4. 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. 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. 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. 7. HOW TO REMEMBER BUSINESS RECORDS EXCEPTIONThe ACE’S REGULAR BUSINESS was MADE AT THESAME 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. 8. HOW TO USE THE BUSINESS RECORDSEXCEPTION WITHOUT LIVE TESTIMONYEVIDENTIARY 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. 9. HOW TO USE STATE OF MIND, EMOTION, PHYSICALSENSATION 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. 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. 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. 12. ANY QUESTIONS?

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