Transcript PERSONAL KNOWLEDGE REQUIREMENT

PERSONAL KNOWLEDGE
REQUIREMENT
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Evidence Code Sec. 702 requires a witness to
have personal knowledge of the matter to which
the witness is testifying
-subject to Sec. 801 (expert witnesses)
-it allows an objection to be made and it directs
the court to meet the objection by requiring
such personal knowledge to be shown before
the witness testifies concerning the matter.
PERSONAL KNOWLEDGE
REQUIREMENT (cont.)
Counsel: “Objection, foundation, no personal
knowledge”
Court response: “Lay your foundation”
This sequence often leads to hearsay issues,
but is a separate concept
PERSONAL KNOWLEDGE
REQUIREMENT (cont.)
FRE HAS SIMILAR PROVISIONS:
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FRE 602 requires personal knowledge of the
matter to which testifying
Subject to FRE 703 (expert witnesses)
Evidence to prove personal knowledge may, but
does not have to, include the witness’ own
testimony
MACHINE AND NON-HUMAN
EVIDENCE
Victim is in the street after having been
stabbed and is asked “who did it?”, and he
responds by pointing to defendant.
This assertive conduct, intended to be
substituted for words, is hearsay.
MACHINE AND NON-HUMAN
EVIDENCE (cont)
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If a trained narcotics sniffing dog alerts on
defendant at the checkpoint, is this
assertive conduct by the dog also
hearsay?
MACHINE AND NON-HUMAN
EVIDENCE (cont)
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The dog cannot be cross examined. But
the handlers can – they can be cross
examined about the dog’s reliability in the
past and his training.
MACHINE AND NON-HUMAN
EVIDENCE (cont)
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Machine evidence presents a similar issue:
if an officer was to testify that she knows
the defendant was speeding because
another officer told her so, that would be
hearsay. In this case the defense would
want the witness with personal knowledge
to testify to allow challenge to the
conclusion that defendant was speeding.
MACHINE AND NON-HUMAN
EVIDENCE (cont)
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However, if the officer testifies that she knows
defendant was speeding because the radar gun
shows that he was doing 50mph in a 30mph
zone, different issues are raised. Here the
defense would want to challenge witnesses who
design the radar gun, who service and calibrate
the radar gun and the officer who used it to test
whether was operated properly.
MACHINE AND NON-HUMAN
EVIDENCE (cont)
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Same issues in DUI cases with
breathalyzer machines, DNA, all sorts of
medical testing etc
MACHINE AND NON-HUMAN
EVIDENCE (cont)
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QUERY:
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What about clocks?
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Computer time stamps?
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Cell phone times?
MULTIPLE HEARSAY
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Hearsay within Hearsay
Rule: Each Level must be separately
justified to be admissible
Multiple Hearsay Example 1
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Patient goes to emergency room after
having been stabbed in a bar fight. Triage
nurse asks about how injury occurred.
Patient says defendant wrongfully accused
him of informing the police of defendant’s
drug dealing activities and stabbed him.
This exchange is documented in the
medical records along with the diagnosis
and treatment that the patient received.
Multiple Hearsay Example 1
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Prosecution offers the medical records
under the business records exception to
corroborate the injuries.
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What comes in?
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Under what theory?
Multiple Hearsay Example 2
Psychiatrist is hired by the defense to
assist in presenting a mental defense to
murder charges. Psychiatrist interviews
defendant as part of his preparation for
offering an opinion as to defendant’s
mental health presently and at the time of
the homicide.
Multiple Hearsay Example 2
In this interview, defendant describes his
relationship with the murder victim as one
where the victim made numerous threats of
bodily harm over some weeks before the killing.
Further, the defendant describes how the
pressure built up for him and exploded when the
victim threatened to rape defendant’s girlfriend.
Defendant relates that he snapped and killed the
victim.
Multiple Hearsay Example 2 (cont.)
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Defendant also relates that he was
physically abused as a child by his father
who was an alcoholic and abandoned by
his mother who was a drug addict.
Defense seeks to have psychiatrist testify
to opinion and the basis for it, which
includes the contents of defendant’s
interview.
Multiple Hearsay Example 2 (cont.)
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Defense seeks to have psychiatrist testify
to opinion and the basis for it, which
includes the contents of defendant’s
interview.
How do we analyze this scenario?
Who has what interest here?
Does this evidence come in?
Multiple Hearsay Example 3
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California Penal Code section 872(b)
creates an exception to Evidence Code
section 1200 to allow a holding order at a
preliminary hearing to be based on
hearsay so long as certain requirements
are met.
Multiple Hearsay Example 3(cont.)
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Police Officer testifies that he investigated the
auto burglary and the owner of the car told him
he had parked and locked the car that morning
when he arrived at work and had given no one
permission to enter the car.
Further, the owner told him that when he
returned to his car to go home, the car stereo
and speakers had been stolen and that the
dashboard and door panels had been damaged
in the process.
Multiple Hearsay Example 3(cont.)
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The owner also relates that he saw a man ride
by on a bike with the speakers strapped on the
back. He says that he confronted the man and
the man said that he bought the speakers a
week ago from a lady on the next block and
refused to return them.
The owner pointed down the street to a man
standing next to a bike with speakers on the
back. The owner identifies the man and the
speakers. The officer takes pictures and a
written statement from the owner.
Multiple Hearsay Example 3(cont.)
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The prosecution seeks to call only the officer at
the preliminary hearing.
How many layers of hearsay are in this
hypothetical?
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What evidence is admissible?
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How do we get this evidence in?
FRE 807 RESIDUAL EXCEPTION
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Allows the trial judge to craft a
hearsay exception for statements not
covered by the Rules being offered in
the case being tried.
FRE 807 RESIDUAL EXCEPTION
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Statement must have equivalent circumstantial
guarantees of trustworthiness; and
(A) the statement is offered as evidence of a
material fact;
(B) the statement is more probative on the point than
any other evidence the proponent can produce with
reasonable efforts; and
(C) the interests of justice favor the admission of the
statement.
FRE 807 RESIDUAL EXCEPTION
Notice requirement:
- proponent must give adequate notice
ahead of trial including the statement to be
offered and contact information for the
.
declarant
CF CALIFORNIA – NO CODIFIED
RESIDUAL EXCEPTION
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In re Cindy L. (1997) 17 Cal.4th 15, 27
– review of appellate court creation of
child dependency exception
Legislature left room in the area of
hearsay exceptions for the judiciary to
develop new exceptions as appropriate.
Compare legislative edict in the area of
privileges.
In re Cindy L. (cont)
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Courts must be cautious in creating new hearsay
exceptions because:
hearsay evidence is “inherently unreliable”;
the constitutional dimension, in the criminal
context, of 6th Amend. right of confrontation;
this area of the law is governed in large part by
an extensive statutory scheme; and
Courts may not create evidentiary exceptions
that conflict with statute.
UNAVAILABILITY
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FRE 804 (a)
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Cal. Evidence Code sec. 240
PRIVILEGE
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FRE 804 (a) (1): is exempted by ruling of
the court on the ground of privilege from
testifying concerning the subject matter of
the declarant's statement;
Evid. Code sec 240 (a) (1): Exempted or
precluded on the ground of privilege from
testifying concerning the matter to which
his or her statement is relevant.
DISQUALIFIED
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FRE 804 (a):
Evid. Code sec. 240 (a) (2): Disqualified
from testifying to the matter.
DEAD or UNABLE
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FRE 804 (a) (4): is unable to be present or
to testify at the hearing because of death
or then existing physical or mental illness
or infirmity;
Evid. Code sec. 240 (a) (3): Dead or
unable to attend or to testify at the
hearing because of then existing physical
or mental illness or infirmity.
Refusal to Testify
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FRE 804 (a) (2): persists in refusing to testify
concerning the subject matter of the declarant's
statement despite an order of the court to do
so;
Evid. Code sec. 240:
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Case Law: if witness refuses to testify, court can seek
to compel testimony – i.e. hold witness in contempt
and issue monetary or liberty sanctions
Cal Rules – Refusal to Testify
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Case Law:
Court must offer reasonable inducements
before finding contempt
Refusal to testify due to fear of retaliation
may be within “mental infirmity”
Mere inconvenience, including anguish
and discomfort resulting from testifying,
insufficient
Cal Rules – Refusal to Testify
(cont)
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Evid. Code sec. 240 (c) Expert testimony which
establishes that physical or mental trauma resulting from
an alleged crime has caused harm to a witness of
sufficient severity that the witness is physically unable to
testify or is unable to testify without suffering substantial
trauma may constitute a sufficient showing of
unavailability pursuant to paragraph (3) of subdivision
(a). As used in this section, the term "expert" means a
physician and surgeon, including a psychiatrist, orany
person described by subdivision (b), (c), or (e) of
Section 1010. The introduction of evidence to establish
the unavailability of a witness under this subdivision shall
not be deemed procurement of unavailability, in absence
of proof to the contrary.
Lack of Memory
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FRE 804 (a) (3): testifies to a lack of
memory of the subject matter of the
declarant's statement;
Evid. Code sec. 240:
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Case law: willful evasiveness
Lack of Memory (cont)
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Cal. Case Law: Willful Evasiveness
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If witness has no present memory of
statement, prior statement is not inconsistent
If witness refuses to testify, prior statement is
not inconsistent
If witness claims no present memory and the
court disbelieves the failure to recall, it is
deemed a lie and therefore the prior
statement is inconsistent
Beyond Process to Compel
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FRE 804 (a) (5): is absent from the hearing and
the proponent of a statement has been unable
to procure the declarant's attendance (or in the
case of a hearsay exception under subdivision
(b)(2), (3), or (4), the declarant's attendance or
testimony) by process or other reasonable
means.
Evid. Code sec. 240 (a) (4): Absent from the
hearing and the court is unable to compel his or
her attendance by its process.
Absent Despite Due Diligence
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FRE 804 (a) (5): is absent from the hearing and the
proponent of a statement has been unable to procure
the declarant's attendance (or in the case of a hearsay
exception under subdivision (b)(2), (3), or (4), the
declarant's attendance or testimony) by process or other
reasonable means.
Evid. Code sec. 240 (a) (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.
Proponent Bad Faith
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FRE 804 (a) A declarant is not unavailable as a witness if
exemption, refusal, claim of lack of memory, inability, or
absence is due to the procurement or wrongdoing of the
proponent of a statement for the purpose of preventing
the witness from attending or testifying.
Evid. Code sec. 240 (b): A declarant is not unavailable as
a witness if the exemption, preclusion, disqualification,
death, inability, or absence of the declarant was brought
about by the procurement or wrongdoing of the
proponent of his or her statement for the purpose of
preventing the declarant from attending or testifying.