Steven Magnone

HEARSAY EXCEPTIONS

Federal Rules of Evidence (FRE), Rules 801 – 807

California Evidence Code (CEC) §1200 - 1390

GOVERNING STATUTES

Rachel was assaulted by Jim, a wealthy entrepreneur. She suff ered skin abrasions, bruises, and a black eye.

Rachel has fi led suit against Jim for both general and punitive damages.

To be awarded punitive damages, Rachel must show that Jim's conduct was intentional and malicious.

J im has claimed that he went into a rage upon seeing Rachel with another man, and that he lost control and assaulted her without ever forming an intent to hurt her.

Rachel wants to introduce the following evidence to support her claim that Jim acted premeditatedly, intentionally, and maliciously.

RACHEL & JIM

J im's diary, in which he recorded Rachel's whereabouts several times each week for the previous three (3) months.

Yes, i t is admissible as a recorded recol lect ion under FRE 803(5) and CEC 1237. In the federal statute, there are three elements on how i t can be an exception to hearsay:

803(5) Recorded Recollection . A record that:(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and(C) accurately reflects the witness’s knowledge.If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

The addit ional element of the exception that “I f admitted, the record may be read into evidence but may be received as an exhibit only i f off ered by an adverse party” means, in the scenario in this exercise, J im can use his diary to refresh his recol lect ion, but Rachel , being the adverse party, can enter the physical diary into evidence i f J im “cannot recal l” that he recorded Rachel ’s whereabouts.

JIM’S DIARY

A note written by J im to his secretary tell ing her to send fl owers to Rachel with the message, "I ' l l be watching you.“

Yes, th is statement is admissib le under FRE 801(d)(2) . In addit ion to the statement being off ered is against the opposing party, there is one of fi ve e lements that need to be sat isfi ed to make i t an exception:

801(d)(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:(A) was made by the party in an individual or representative capacity;(B) is one the party manifested that it adopted or believed to be true;(C) was made by a person whom the party authorized to make a statement on the subject;(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

Thus, the note contain ing “ I ’ l l be watching you” can be entered in on direct examinat ion of the secretary as a non-hearsay statement by the opponent as an admission against h is interest that supports Rachel ’s assert ion of J im’s premeditat ion and intent ional battery. I t can also be used for impeachment purposes against J im for h is assert ion that he never formed intent to hurt Rachel .

JIM’S NOTE

A note written by Jim's secretary to the company operator saying, "Jim says to make sure that any calls from Rachel are put directly through to him.“

This is an example of double-hearsay or hearsay within hearsay where the secretary is communicating to another party what J im said. The statute that governs this scenario is FRE 805 which states:

FRE 805 Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.

So the secretary’s statement is hearsay without exemption unless, under direct examination, it is used to help the secretary recollection of J im’s statement under FRE 803(5). The statement can then be used to form an inference of J im’s obsession over Rachel and his state of mind.

JIM’S PHONE REDIRECT

Testimony from Rachel's friend that Rachel repeatedly told her that she was frightened of J im.

This is hearsay without exemption and not admiss ib le. The statute that governs excited utterances is FRE 803(2):

FRE 803(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Cal i fornia a lso has a statute that governs hearsay exemption and exited utterances. This is found in CEC 1240(b):

CEC 1240. 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.

Thus, Rachel can make the statement whi le stressed and/or f r ightened but unless she made the statement spontaneously and whi le st i l l “exci ted” f rom an event or condit ion.

RACHEL’S FRIEND