Transcript Witness Declarations - UC Hastings College of the Law

Witness Declarations
PRESENT SENSE IMPRESSION
• Rule 803. Hearsay Exceptions; Availability
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of Declarant Immaterial
The following are not excluded by the hearsay
rule, even though the declarant is available as a
witness:
(1) Present sense impression. A statement
describing or explaining an event or condition
made while the declarant was percieving the
event or condition, or immediately thereafter.
Contemporaneous Statement
• Evid. Code sec. 1241
• Hearsay exception if:
• (a) offered to explain, qualify or make
understandable conduct of declarant
• and
• (b) was made at the time the declarant
was engaged in such conduct
FRE 803 (1) and Evid. Code
sec. 1241 are not the same
• Red light hypo – wife says that blue car
just ran the red light
• What is result under FRE 803(1)?
• What is result under Evid. Code sec.
1241?
FRE 803 (1) and Evid. Code
sec. 1241 are not the same
• Red light hypo – what if husband testifies
that wife was looking intently to her right
and he asks her what she is doing;
• wife says “that blue car just ran the red
light, he must be a drunk driver”
• What is result under FRE 803(1)?
• What is result under Evid. Code sec.
1241?
Evid. Code sec. 1241 (cont.)
• 1241 is similar to verbal acts concept and
says “this is a robbery, give me your
money or I will shoot”. Upon arrest, gun
is not loaded. Therefore, not offered for
truth of “will shoot”.
• Why does statement come in?
Evid. Code sec. 1241 (cont.)
• Words are act of robbery;
• sec. 1241;
• (cf. sec. 1220)
Evid. Code sec. 1241 (cont.)
• Ex: D has gun on V and says “I will kill you for
doing that”. D then shoots V. At trial for attmurder D claims accidental discharge. Now
offered for truth of “will kill”.
• Does statement come in under §1241?
• Under § 1220?
EXCITED UTTERANCE
• Rule 803. Hearsay Exceptions; Availability
•
•
of Declarant Immaterial
The following are not excluded by the hearsay
rule, even though the declarant is available as a
witness:
(2) Excited utterance. A statement relating to
a startling event or condition made while the
declarant was under the stress of excitement
caused by the event or condition.
Spontaneous Statement
• Evid. Code sec. 1240
• (a) purports to narrate, describe or
explain an act, condition or event
perceived by the declarant
(b) made spontaneously while under the
stress of excitement caused by such
perception
Spontaneous Statement (cont.)
• Narrate, describe or explain
• Act, condition or event
Spontaneous Statement (cont.)
• Spontaneously
• While under the stress of excitement of
event
Spontaneous Statement (cont.)
• Examples:
• 911 call describing car accident – “blue car
ran red light and hit white car”
• What other proof do we need?
Spontaneous Statement (cont.)
• Examples:
• 911 call – “I just came out from work and
my car is gone – a guy on the corner said
some kids drove it away”
• What are the issues?
Spontaneous Statement (cont.)
• Examples:
• 911 call – “my 5 year old daughter just
told me that my boyfriend touched her on
her privates last week”
• What issues are here?
Spontaneous Statement (cont.)
• Examples:
• The day after the crash, Driver calls
insurance agent to report accident. Agent
asks a series of questions about what
happened and who was at fault.
• What issues are here?
Spontaneous Statement (cont.)
• Examples:
• Woman calls 911 to report robbery that
just occurred. 911 operator asks series of
questions including description of
suspects, which way they went and extent
of injuries.
• What are the issues?
STATE OF MIND
• What a person thought at a given time
may be a material issue:
– e.g. mens rea distinguishes the degrees of
punishable homicide
– e.g. the testator’s intent in will contest
– e.g. defendant’s lack of concern may rise to
the level of negligence
– e.g. victim’s lack of consent in a kidnapping
STATE OF MIND (cont.)
What a person thought on a given occasion
can be proven in two ways:
1. Direct statement of state of mind
e.g. “I am mentally disordered.”
2. Indirectly by statement that reflects state of
mind – circumstantial evidence
e.g. “I am Elvis.”
STATE OF MIND (cont.)
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Hypo: (Adkins v. Brett) W states to P:
1. Went automobile riding w/ D
2. Dined out w/ D
3. D bought W flowers
4. D is able to give W a good time, when P is unable to
5. W intends to continue to accept D’s attentions; P can
do what he wants about it
6. P is distasteful to W
• What is direct evidence of state of mind and what is
circumstantial evidence of state of mind?
STATE OF MIND (cont.)
• Does the statement “I intend to continue to
•
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entertain his attentions” come in for the truth of
that statement?
Does the statement “You can do what you
please about it” come in for the truth of that
statement?
Does the statement “I find you to be distasteful”
come in for the truth of that statement?
STATE OF MIND (cont.)
• A person’s future intentions may be
proved through the state of mind
exception:
• “From the declared intent to do a
particular thing an inference that the thing
was done may fairly be drawn”
STATE OF MIND (cont.)
• A person’s future intentions may be
proved through the state of mind
exception:
– Ex: Mutual Life Ins. V. Hillmon 145 U.S. 285
(1892) –letters re plan to go to Colo. with
Hillmon – relevant on issue of whether it
could be declarant’s body and best evidence
available on plans to go
STATE OF MIND (cont.)
• A person’s future intentions may be
proved through the state of mind
exception:
– Ex: Peo. V. Alcade (1944) 24 Cal.2d 177 –
victim tells friend “I’m going out with Frank
tonight”. She turns up murdered and Frank
turns out to be defendant’s first name.
– Note: defendant objects that declaration is
inadmissible to prove his plan – how do you
rule?
STATE OF MIND (cont.)
• A person’s future intentions may be proved through the
state of mind exception:
Ex: Peo. V. Williams (1997) 16 Cal.4th 153, 205-206:
defendant’s statement to cellmate about intent to
suppress testimony admissible
“D’s declarations of intent are admissible as evidence of the
probable doing of the act….Specifically, the statement by
the defendant indicating he was ‘going to’ have
witnesses shot, would constitute evidence from which
the trier of fact could infer that he authorized the
shooting that actually occurred. Such evidence is
admissible to prove consciousness of guilt.”
STATE OF MIND (cont.)
• A person’s future intentions may be
proved through the state of mind
exception:
– Ex: Peo. V. Majors (1998) 18 Cal.4th 385, 404405 -- 187 vic’s statement to 3d party that he
intended to conduct a drug deal on night he
was murdered admissible; note defendant not
mentioned but other evidence connected him
to drug deal
STATE OF MIND (cont.)
• A person’s future intentions may be
proved through the state of mind
exception:
– Ex: Peo. V. Griffin (2004) 33 Cal.4th 536, 579
– victim tells friend on day she was murdered
that defendant had been fondling her and
that if he did it again she was going to
confront him and tell her mother
STATE OF MIND (cont.)
• Statements describing past state of mind
are generally disallowed:
– Statements of memory or remembered fact
usually inadmissible
– Fear that admitting such statements would
allow exception to swallow the rule – it is too
easy to cast all recollections as “state of
mind” of declarant
STATE OF MIND (cont.)
• Statements describing past state of mind
are generally disallowed:
– cf. “I plan to go to the game tomorrow” and
“I went to the game yesterday”
• Both relevant to whether I attended game
• The first describes present state of mind –
presumed reliable
• The second describes a memory – raises Qs re
memory and motive to fabricate
STATE OF MIND (cont.)
• Evidence re a victim’s state of mind should not
be admitted unless the victim’s mental state is
relevant
– Sometimes relevance comes from charges (e.g.
robbery, rape, kidnap)
– Sometimes relevance comes from the need to
respond to the defense (e.g. accident, self defense,
consent)
– Sometimes the defense may offer it (e.g. victim’s
statements showing positive relationship w/D)
• but see Evid. Code sec. 1252
STATE OF MIND (cont.)
• Peo. V. Guerra (2006) 37 Cal.4th 1067, 1115-1116 – vic
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murdered during att. Rape by worker doing remodeling
next door.
Prosecution offered testimony of vic’s friend that she
was thought defendant entered her home when she was
asleep and she was afraid of him
Admitted over hearsay objection b/c her statements
circumstantially showed that her consent to sex was less
plausible
Her state of mind re consent relevant to the special
circumstance alleged, and thus it fell within the state of
mind exception
STATE OF MIND (cont.)
• Peo. V. Guerra (2006) 37 Cal.4th 1067, 1115-
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1116 – vic murdered during att. Rape by worker
doing remodeling next door.
Defense offered her statement to friend that
another worker (Roberto) annoyed her to show
defendant was not sole source of her
complaints.
Trial Court sustained hearsay objection
STATE OF MIND (cont.)
• Peo. V. Guerra (2006) 37 Cal.4th 1067, 1115-1116 – vic
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murdered during att. rape by worker doing remodeling
next door. Defense offered her statement to friend that
another worker (Roberto) annoyed her to show
defendant was not sole source of her complaints.
Exclusion of statement proper b/c no evid. of 3d pty
culpability or evid that vic feared Roberto.
Thus, vic’s state of mind as to Roberto not relevant to an
element of offense or to show vic acted in conformity
with state of mind of annoyance.
STATE OF MIND (cont.)
• Hypo: Defendant charged with kidnapping
and murder. Prosecution calls friend who
says the morning of the kidnapping she
spoke with victim who said defendant said
he will kill me if I leave him.
• Is this evidence admissible?
STATE OF MIND (cont.)
• A victim’s fear of the defendant is an
emotional state that, if relevant, may be
proved by the victim’s declarations.
– Comes up in situations where the defendant
and victim know one another
– e.g. self defense scenarios, domestic violence,
sexual assault, kidnapping
THEN EXISTING MENTAL,
EMOTIONAL, OR PHYSICAL
CONDITION
• Rule 803: The following are not excluded by the
hearsay rule, even though the declarant is available as a
witness:
• (3) Then existing mental, emotional, or physical
condition. A statement of the declarant's then existing
state of mind, emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental feeling,
pain, and bodily health), but not including a statement of
memory or belief to prove the fact remembered or
believed unless it relates to the execution, revocation,
identification, or terms of declarant's will.
Evid. Code sec. 1252
• Restriction on Admissibility of Hearsay
•
under sections 1250, 1251 and 1253
Evidence of statement is inadmissible if
circumstances show lack of trustworthiness
– e.g. DV murder & Def wants put in statements he
says vic made about what a great guy he was or how
much vic liked him
• Note: no similar express provision in FRE
Statement of Declarant’s Then
Existing Mental/Physical State
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Evid. Code sec. 1250:
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subject to sec. 1252, statement of declarant’s then existing
•
state of mind
•
emotion, or
•
physical sensation
evidence must be offered to prove – phys or mental state –
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at that time
•
or at any other time that is in issue in the case
the evidence is offered to prove or explain acts or conduct of
declarant
evidence of statement of memory or belief is not within exception
to prove fact remembered or believed
Note: No requirement of unavailability
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Statement of Previously
Existing Mental/Physical State
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Evid. Code sec. 1251:
Subject to sec. 1252, statement of declarant’s
previously existing
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state of mind
emotion, or
physical sensation
(a) unavailability required
(b) evidence must be offered to prove – prior phys or
mental state – When it is itself an issue in the case
-- and not offered to prove any fact other than such
state of mind, emotion or physical sensation
STATE OF MIND (cont.)
• Hypo: 3 Ds charged with murdering vic.- Defense is self defense
• They claim he was a drug dealer whose spot was at their apt. bldg.
They claim he threatened them with death if they continued to hang
out there, b/c interfering with his drug business.
• 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 him
rather than for vic.
• Prosecution says vic unhappy w/ defendants b/c they wear red and
tag the bldg with Norteno graffiti and thus draw police attention
• Witnesses are defendants, vic’s gf and her son. Defendants will be
impeached b/c prior inconsistent stat to police (false alibi). Wit’s
were thoroughly impeached at Prelim. Hearing
• What is admissible under FRE 803(3)/ §1250/ §1251? Apply §1252.
Statements for purposes of
medical diagnosis or treatment
• Rule 803: The following are not excluded by the
hearsay rule, even though the declarant is available as a
witness:
• (4) Statements for purposes of medical diagnosis
or treatment. Statements made for purposes of
medical diagnosis or treatment and describing 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.
Statement of For Purpose of
Medical Diagnosis/Treatment
• Evid. Code sec. 1253:
• Very limited exception
• Subject to sec. 1252;
• Declarant must be a minor at the time of
the proceeding;
• Statement was made when victim was
under the age of 12;
• Statement must describe child abuse
STATE OF MIND (cont.)
1. “Doctor, my back hurts.”
• What result under Evid. Code sec. 1250?
– Admissible b/c describes then existing physical
condition
• What result under FRE 803(3)?
– Admissible b/c describes then existing physical
condition
• What result under FRE 803(4)?
– Admissible b/c describes then existing physical
condition pertinent to medical treatment/diagnosis
STATE OF MIND (cont.)
2. “Doctor, my back hurt last week.”
• What result under Evid. Code sec. 1250?
– Inadmissible as a narrative of a past condition
• What result under Evid. Code sec. 1251?
– Inadmissible unless previous condition was itself at issue in case
and witness is unavailable
• What result under FRE 803(3)?
– Inadmissible as a narrative of a past condition
• What result under FRE 803(4)?
– Admissible b/c pertinent to medical treatment/diagnosis
STATE OF MIND (cont.)
3. “Doctor, my back has been hurting me since a car hit me
last month.”
• What result under Evid. Code sec. 1250?
– Inadmissible b/c remembered fact
• What result under Evid. Code sec. 1251?
– Some inadmissible b/c proves another fact – some may come in
• What result under FRE 803(3)?
– Inadmissible b/c remembered fact
• What result under FRE 803(4)?
– Admissible b/c pertinent to medical treatment/diagnosis
STATE OF MIND (cont.)
• Recent trial situation in Alameda County:
– Vic is shot in eye in DV situation & gravely
wounded. Treating physician testifying and
says vic reported “my husband shot me in the
eye.”
– Defense objects on hearsay grounds
– Prosecutor responds state of mind exception
for medical treatment or diagnosis
– How do you rule?
STATE OF MIND (cont.)
• Recent trial situation in Alameda County:
– Apply FRE 803(3)
– Apply FRE 803(4)
– Apply § 1250
– Apply § 1251
– Apply § 1253
– Apply § 1252 (1250, 1251 & 1253 all subject
to 1252)
STATE OF MIND (cont.)
• Recent suppression motion in Alameda
County -- Issue: was arrest valid
– Police pick up Lo-Jack signal and follow it to a
house in the Oakland hills – they can see over
a picket fence into the front yard area and
see Bobcat (mini bulldozer) in plain view
– Police radio confirms stolen vehicle is
described as a Bobcat
– Police talk to resident who says he bought it,
but has no documentation of sale
STATE OF MIND (cont.)
• Recent suppression motion in Alameda
County:
– DA asks officer if he did further investigation
– Officer answers that he then called Hertz
Rental agent (victim) and got more info
– DA asks what Hertz told him
– PD objects on hearsay grounds
– DA responds “state of mind”
STATE OF MIND (cont.)
• Recent suppression motion in Alameda
County:
– Does it come in? What is the issue?
– What is officer’s role here? He is not a party,
he is a witness.
– What is relevance of this witness’ state of
mind?
STATE OF MIND (cont.)
• Recent suppression motion in Alameda
County:
– Apply FRE 803(3) – comes in, why?
– Apply FRE 803(4) – not under this §, why?
– Apply § 1250 – comes in, why?
– Apply § 1251 – not under this §, why?
– Apply § 1253 – not under this §, why?
– Apply § 1252 – does this § exclude it? Why or
why not?
STATEMENT AGAINST INTEREST
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Rule 804. Hearsay Exceptions; Declarant Unavailable
(a) Definition of unavailability.
(b) Hearsay exceptions.
The following are not excluded by the hearsay rule if the declarant
is unavailable as a witness:
• (3) Statement against interest. A statement which was at the time
of its making so far contrary to the declarant's pecuniary or
proprietary interest, or so far tended to subject the declarant to civil
or criminal liability, or to render invalid a claim by the declarant
against another, that a reasonable person in the declarant's position
would not have made the statement unless believing it to be true. A
statement tending to expose the declarant to criminal liability and
offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of
the statement.
STATEMENT AGAINST INTEREST
• Rule 804 (b)(3) Statement against interest.
– at the time of its making so far contrary to:
• Pecuniary interest;
• proprietary interest;
• so far tended to subject to civil liability
• or to criminal liability
• or to render invalid a claim against another
(that a reasonable person in the declarant's position would not
have made the statement unless believing it to be true)
STATEMENT AGAINST INTEREST
(cont.)
• Evid. Code sec. 1230
• Unavailable declarant
• Statement so far contrary to interest:
– Pecuniary, proprietary, civil or criminal
– Render invalid a claim
– Subject to hatred, ridicule or social disgrace
STATEMENT AGAINST INTEREST
• “ I beat up that old lady when I snatched
her purse”
• “I owe Jane $100.00 from the poker game
last week”
• “I lied when I raised my hand in Evidence
class saying that I read the materials on
the state of mind exception”
STATEMENT AGAINST INTEREST
(cont.)
RULE OF CORROBORATION
• FRE 804(b)(3)(B): A statement tending to expose the declarant
to criminal liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly indicate
the trustworthiness of the statement.
• P. v. Frierson (1991) 53 Cal.3d 730, 746 declaration against
criminal interest by 3d party that exculpates defendant should
be reviewed carefully because there is a “general suspicion
with which the law looks upon such declarations.”
STATEMENT AGAINST INTEREST
• “ I overheard Joe say that he beat up that old
lady when I snatched her purse”
• “I planned the robbery. I got Joe to help me do
it. I needed the money to pay a gambling debt
I owed to Sam. It was Joe’s idea to tie the
victim up and to pistol whip him. It was my idea
to feed the dog chocolate covered raisins to try
and make the victim tell where more money
was.”
DYING DECLARATION
• Premised on the notion that a dying
person no longer has any temporal selfserving purposes to be furthered
• Also on the idea that one facing death will
tell the truth
• Principal condition for his exception is that
statement be made under sense of
immediately impending death
DYING DECLARATION
• Relevant factors in arguing this exception:
– The victim’s physical condition
– The nature and seriousness of the wounds
– The victim’s conduct
– The victim’s statements
– The victim’s knowledge of the gravity of the
condition
STATEMENT UNDER BELIEF OF
IMPENDING DEATH
• Rule 804. Hearsay Exceptions; Declarant
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Unavailable
(a) Definition of unavailability.
(b) Hearsay exceptions.
The following are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
(2) Statement under belief of impending death. In a
prosecution for homicide or in a civil action or
proceeding, a statement made by a declarant while
believing that the declarant's death was imminent,
concerning the cause or circumstances of what the
declarant believed to be impending death.
DYING DECLARATION
• Evid. Code sec. 1242
• Made by a dying person
• About cause/circumstances of death
• Personal knowledge of declarant
• Under sense of immediately impending
death
Difference – dying declaration
• FRE – requires unavailable witness
• Evid. Code – requires declarant to be dead
Forfeiture by Wrongdoing
• Rule 804(b) Hearsay exceptions.
• The following are not excluded by the hearsay rule if the
•
declarant is unavailable as a witness:
(6) Forfeiture by wrongdoing. A statement offered
against a party that has engaged or acquiesced in
wrongdoing that was intended to, and did, procure the
unavailability of the declarant as a witness.
• Proponent must prove foundational facts by a
preponderance of the evidence
Forfeiture by Wrongdoing (cont.)
• Evid. Code sec. 1350:
– Must be a serious felony
– Unavailable Declarant
– Clear/convincing evidence
linking party
– To prevent prosecution or
arrest of party
– Death by homicide or
kidnapping of declarant
– Memorialized in a tape
recording or notarized
writing
– By a law enforcement
official
– Indicia of trustworthiness
must be present
– Statement is relevant
– Independent corroborative
evidence linking defendant
to crime
– 10 days notice or good
cause showing
– Requires hearing outside
presence of jury
See People v. Zambrano
(2007) 41 Cal.4th 1082,
1143-1147
Forfeiture by Wrongdoing (cont.)
• Giles v. California 554 U.S. ___; 128 S.Ct.
2678 (2008)
– D attacks vic, beating her and threatening to
kill her; She calls police and gives statement
– 3 weeks later – he kills her, claiming self
defense
– Prosecution offers Cop who took vic’s
statement
– Defense objects on hearsay/confrontation
Forfeiture by Wrongdoing (cont.)
• Giles v. California 554 U.S. ___; 128 S.Ct.
2678 (2008)
– More than the act of killing the declarant is
required
– The defendant’s intent is a key factor
– To avoid the requirement of confrontation, it
must be shown that the defendant killed
declarant to prevent her from testifying
FORMER TESTIMONY
• Rule 804 (b) Hearsay exceptions.
• The following are not excluded by the hearsay rule if the
•
declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at
another hearing of the same or a different proceeding,
or in a deposition taken in compliance with law in the
course of the same or another proceeding, if the party
against whom the testimony is now offered, or, in a civil
action or proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the testimony
by direct, cross, or redirect examination.
FORMER TESTIMONY
• Rule 804 (b)(1): Civil cases
– Prior testimony at a hearing or deposition (formal
setting under oath)
– Prior hearing or deposition need not be same case
– Opposing party must have had opportunity to
examine
– Opposing party’s motive in questioning must have
been similar
– Allows for predecessor in interest to have been the
prior opponent to current opposing party
FORMER TESTIMONY
• Rule 804 (b)(1): Criminal cases
– Same rules with one large difference:
• The party with the opportunity to question
on prior occasion must have been the same
party as the opposing party in the present
case.
FORMER TESTIMONY (cont.)
Evid. Code § 1291
• Unavailability required
• Offered against party who offered it on former occasion
• Offered against party:
• who was a party at prior hearing;
• had opportunity to cross examine at prior hearing;
• Had similar interests and motives as at prior hearing
• Admissibility is subject to the same limitations as if
witness was available, except:
•
(1) no new objections to form;
•
(2) no objections to competence or privilege that did
not exist at the time the former testimony was given
FORMER TESTIMONY (cont.)
• Sec. 1292 applies to party who was not a party in the
prior hearing
– Applies where one occurrence gives rise to multiple claims -E.g. new plaintiff, same defendant and witness is unavailable
– Applies only in civil actions
– Former party had right and opportunity to cross declarant with
similar motive and interest to that of present party
FORMER TESTIMONY (cont.)
• Sec. 1293-narrow application:
• applies only in a W&I § 300 proceeding (juvenile
dependency)-
– Allows prior preliminary hearing testimony of the minor child in
this subsequent proceeding if defendant at PX had substantially
same interest as parent against whom testimony is being offered
• 1294 contain special rules re to preliminary hearing
testimony
FORMER TESTIMONY (cont.)
Evid. Code § 1294 - special rule:
– Witness now unavailable
– Witness testified at PX in same case
– Prior inconsistent statement was properly
admitted under §1235 for the truth
– Now when using former testimony, same prior
inconsistent statement may be admitted for the truth
Why is this rule special?
BUSINESS RECORDS
• Evid. Code sec. 1270 – 1272
• FRE 803(6) & 803(7)
BUSINESS RECORDS (cont.)
• Evid. Code sec. 1270 – Business defined
–broad definition it includes everything
that could keep a record
BUSINESS RECORDS (cont.)
Evid. Code sec. 1271 – Business
records exception
• (a) the writing was made in the
• A writing made as a record of
• (b) the writing was made at or
• An act, condition or event
regular course of a business
near the time of the act, condition
or event;
• Offered to prove the act condition
• (c) the custodian or other qualified
• Is admissible if:
• (d) The sources of information
or event
witness testifies to its identity and
the mode of its preparation; and
and method and time of
preparation were such as to
indicate its trustworthiness
BUSINESS RECORDS (cont.)
• Evid. Code sec. 1272 – Absence of Business records
• Absence of a record of an asserted act, condition or event
• To prove the nonoccurrence of such asserted act, condition or event
• Is admissible if:
• (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 event
at to preserve such records; and
• (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
the act or event did not occur or that the condition did not exist.
BUSINESS RECORDS (cont.)
FRE 803(6) Records of regularly conducted activity.
A memorandum, report, record, or data compilation, in any form, of
acts, events, conditions, opinions, or diagnoses, made at or near the
time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business activity to
make the memorandum, report, record or data compilation, all as
shown by the testimony of the custodian or other qualified witness,
or by certification that complies with Rule 902(11), Rule 902(12), or
a statute permitting certification, unless the source of information or
the method or circumstances of preparation indicate lack of
trustworthiness. The term "business" as used in this paragraph
includes business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for profit.
BUSINESS RECORDS (cont.)
FRE 803(7) Absence of entry in records kept in
accordance with the provisions of paragraph (6).
• Evidence that a matter is not included in the memoranda
reports, records, or data compilations, in any form, kept
in accordance with the provisions of paragraph (6), to
prove the nonoccurrence or nonexistence of the matter,
if the matter was of a kind of which a memorandum,
report, record, or data compilation was regularly made
and preserved, unless the sources of information or
other circumstances indicate lack of trustworthiness.
BUSINESS RECORDS (cont.)
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Cell phone records:
Time of call/duration of call
Incoming/outgoing numbers
Whether *67 used (to block caller ID)
Cell tower and side – range of 1-2 miles
Custodian testifies that stronger signal takes
over closer signal
Cannot tell exactly where in area of tower and
side call is made
Official Records
• Evid. Code sec. 1280 – 1284
• FRE 803 (8) (9) & (10)
OFFICIAL RECORDS (cont.)
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Evid. Code sec. 1280 – Official records
A writing made as a record of
An act, condition or event
Offered to prove the act condition or event
Is admissible if:
(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; and
• (c) the sources of information and method and time of
preparation were such as to indicate its trustworthiness
OFFICIAL RECORDS (cont.)
• Evid. Code sec. 1284 – Statement of absence of
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Official records
Evidence of a writing of a public employee
Who is the official custodian of records in a
public office
Reciting a diligent search and failure to find a
record
Is admissible when offered to prove the absence
of a record in that office
OFFICIAL RECORDS (cont.)
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Evid. Code sec. 1281 – Vital statistics records -A writing made as a record of
a birth, fetal death, death or marriage
is admissible if:
the maker of the record was required by law
to file the writing in a designated public office,
and
the writing was made and filed as required by
law
OFFICIAL RECORDS (cont.)
• FRE Rule 803. (8) Public records and reports.
Records, reports, statements, or data compilations, in
any form, of public offices or agencies, setting forth (A)
the activities of the office or agency, or (B) matters
observed pursuant to duty imposed by law as to which
matters there was a duty to report, excluding, however,
in criminal cases matters observed by police officers and
other law enforcement personnel, or (C) in civil actions
and proceedings and against the Government in criminal
cases, factual findings resulting from an investigation
made pursuant to authority granted by law, unless the
sources of information or other circumstances indicate
lack of trustworthiness.
OFFICIAL RECORDS (cont.)
• FRE Rule 803(9) Records of vital
statistics. Records or data compilations,
in any form, of births, fetal deaths,
deaths, or marriages, if the report thereof
was made to a public office pursuant to
requirements of law.
OFFICIAL RECORDS (cont.)
• (10) Absence of public record or entry. To
prove the absence of a record, report,
statement, or data compilation, in any form, or
the nonoccurrence or nonexistence of a matter
of which a record, report, statement, or data
compilation, in any form, was regularly made
and preserved by a public office or agency,
evidence in the form of a certification in
accordance with rule 902, or testimony, that
diligent search failed to disclose the record,
report, statement, or data compilation, or entry.
Miscellaneous Exceptions
• FRE 803 and 804
• Evid. Code sec. 1200 - 1390