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Hearsay II: You Be the Judge  


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1. What’s the main purpose behind the hearsay rule? Help Line

  1. Efficiency.
  2. Cross-examination.
  3. Tradition.
  4. All of the above.

 

 

 

 

 

 

 



 

 

2. Hearsay is inadmissible at which of the following types of hearings?Help Line

  1. Small Claims.
  2. Non-death-penalty sentencing hearings.
  3. Criminal probation violation.
  4. Juvenile dependency.

 

 

 

 

 

 

 

 

 

 

 

 

3. At trial, a police officer testifies that Sleuth, a drug-sniffing dog, alerted him to a suspicious package at the airport. Which of the following is true about Sleuth’s conduct?Help Line

  1. Inadmissible hearsay.  By his conduct Sleuth is asserting that there are drugs in the package.
  2. Not hearsay. There’s no way to determine whether Sleuth intends to assert anything with his conduct.
  3. Not hearsay. A dog is not a declarant for hearsay purposes.
  4. Admissible hearsay.  Sleuth’s assertive conduct fits within the spontaneous-statement exception.

 

 

 

 

 

 

 

 

 

 

 

4. A sex therapist will testify that when anatomically correct dolls were given to an eight-year-old molestation victim, she would play with them simulating oral sex. What about this statement?Help Line

  1. The child is clearly asserting her knowledge about sex, so it’s hearsay.
  2. It may be hearsay, but it goes to the child’s state of mind and thus is admissible.
  3. The child’s act of playing is not assertive conduct covered by the hearsay rule.

 

 

 

 

 

 

 

 

 

 

 

 

 

5. In the last years of her life, Aunt Lulu was described by her son as “in the poppies.” When she left her multimillion-dollar estate to her 29-year-old gardener, her son tried to prove she was not of sound mind. He testified about how he had to monitor her calls, drive her to the doctor, handle all of her financial affairs, give her medication, and keep her away from the gardener. Evidence of this conduct is:Help Line

  1. Assertive conduct and thus hearsay.
  2. Non-assertive, so not hearsay.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6. A police officer arrives at the defendant’s door and says, “Your wife has been shot and killed.” The defendant smiles briefly, then lowers his head, slowly raising it with a sad look.

Whether an action is deemed assertive conduct for hearsay purposes depends heavily on the circumstances surrounding it. Which is most likely true in this situation?

  1. The smile is hearsay; the sad look is not.
  2. The smile is not hearsay; the sad look is hearsay.
  3. Both are hearsay.
  4. Neither is hearsay.

 

 

 

 

 

 

 

 

 

 

 

7. Soon after his house was built, Dan complained to his neighbors, “The roof leaks, and there are cracks in the foundation…but what can I do? I don’t have the money to sue.” Ten years later, Dan sues the builder for “undiscovered defects.” The builder’s lawyer tries to introduce Dan’s prior statement at summary judgment on a statute of limitations issue. The statement is:Help Line

  1. Hearsay and inadmissible.
  2. Hearsay but admissible.
  3. Not hearsay and admissible.

 

 

 

 

 

 

 

 

 

 

 

8. The defendant is charged with possession of cocaine found in her car trunk. Her defense is that the drugs weren’t hers and she didn’t know anything about them. When stopped by the police, she told them, “Go ahead and look. I’ve got nothing to hide.” At trial, the defendant tries to introduce those statements. Which is true?Help Line

  1. Both statements are hearsay.
  2. Neither statement is hearsay.
  3. The first statement is hearsay; the second is not.
  4. The first statement is not hearsay; the second is.

 

 

 

 

 

 

 

 

 

 

 

 

9. Bill’s accused of murdering Ashley.  To prove motive, the state offers a letter found in Bill’s apartment that reads in part, “Dear Bill, I want to break off the relationship immediately. I’m tired of being beaten every time you get drunk. Find yourself another punching bag. Ashley”

The letter is admissible as:Help Line

  1. A declaration against Bill’s penal interest.
  2. As non-hearsay evidence of Ashley’s state of mind.
  3. As non-hearsay evidence to show Bill’s state of mind.
  4. None of the above.

 

 

 

 

 

 

 

 

 

 

 

 

10. Paolo is suing Drew for injuries sustained in a head-on accident when Drew passed a slow-moving farm tractor on a blind curve. Drew would testify that he passed because the tractor operator waved him around. Drew’s testimony about the tractor operator’s motion is:Help Line

  1. Admissible because non-assertive conduct.
  2. Admissible because not offered for the truth of the matter asserted.
  3. Admissible as a spontaneous statement.
  4. Inadmissible because self-serving.

 

 

 

 

 

 

 

 

 

 

 

 

11. Exceptions to the hearsay rule can be found:Help Line

  1. Only in the Evidence Code.
  2. Only in the Evidence Code and the Code of Civil Procedure.
  3. Only in California statutes, and California decisional law.
  4. In statutes, decisional law, and the Constitutions of California and the United States.

 

 

 

 

 

 

 

 

 

 

 

12. Jake is charged with driving under the influence of alcohol.  At his trial his attorney asks him: “What did you tell the officer about how much you had to drink that evening?”  In response to the DA’s hearsay objection, Jake’s attorney says, “The witness is right here, and the DA can cross-examine him about his statement to her heart’s content.  Plus, it’s a party admission, your honor.”  What’s your ruling?Help Line

  1. Overruled.  It isn’t an out-of-court statement because the declarant is testifying at this trial.
  2. Overruled.  It’s a party admission.
  3. Sustained.

 

 

 

 

 

 

 

 

 

 

 

 

13. Jake is charged with driving under the influence.  At his trial, the arresting officer testifies: “On the way to the station I told the suspect that he ‘looked drunker than a skunk’ and he didn’t say anything.”  Jake’s attorney objects that it’s hearsay.  The DA responds “It’s an adoptive admission, your honor.”  What’s your ruling?Help Line

  1. Overruled.
  2. Sustained.

 

 

 

 

 

 

 

 

 

 

 

 

 

14. Which of the following is true concerning the authorized-admission exception?Help Line

  1. The jury makes the final decision as to whether the declarant was authorized to make such a statement.
  2. The authorization must be express.
  3. The declarant must be a high-level employee.
  4. The statement must concern a fact within the scope of the authorized spokesperson’s employment.

 

 

 

 

 

 

 

 

 

 

 

 

15. Nader and Michael were indicted for conspiracy to traffic in cocaine. The government cut a deal with Nader in which he agreed to testify against Michael in return for a reduced sentence. Nader testified before the Grand Jury that Michael supplied the cocaine. At Michael’s trial, however, Nader exercised his 5th Amendment right to refuse to testify. The government offers Nader’s Grand Jury testimony.

Over a hearsay objection the prosecutor’s best argument for admitting the Grand Jury transcript is:Help Line

  1. Former testimony.
  2. Declaration against interest.
  3. Prior inconsistent statement.
  4. Declaration by co-conspirator.

 

 

 

 

 

 

 

 

 

 

 

 

16. Assume that Nader does testify for the prosecution at Michael’s trial but says he cannot remember many important details about the alleged conspiracy. The government offers Nader’s portions of Grand Jury testimony concerning those details.

Over a hearsay objection the prosecutor’s best argument for admitting the Grand Jury testimony is:Help Line

  1. Former testimony.
  2. Declaration against interest.
  3. Prior inconsistent statement.
  4. Declaration by co-conspirator.

 

 

 

 

 

 

 

 

 

 

 

 

17. On direct exam, Nader testifies that Michael “was really hammered” on the date of the alleged cocaine sale.  On cross-exam the defense attorney holds up a sheet of paper and asks, “In fact, didn’t you tell my investigator last week that ‘Michael had a buzz on’?”  The prosecutor objects that it’s hearsay.  The defense responds: “It’s a prior inconsistent statement, your honor.” 

What’s your ruling?Help Line

  1. Sustained.  The previous statement wasn’t under oath.
  2. Sustained.  The witness hasn’t been shown the interview statement.
  3. Sustained.  The prior statement isn’t inconsistent.
  4. Overruled. 

 

 

 

 

 

 

 

 

 

 

 

 

 

18. On redirect, after being impeached at trial by the statement he made to the defense investigator last week, Nader testifies that he told his wife yesterday that Michael was in fact “pretty wasted” on the date of the incident.  The defense attorney objects that it is hearsay.  The prosecutor responds that it is a prior consistent statement. 

How doyou rule? Help Line

  1. Sustained.  The consistent statement didn’t precede the inconsistent statement.
  2. Sustained.  The previous statement is not really consistent with the trial testimony that he was “hammered.”
  3. Overruled.  This fits the prior consistent statement exception.
  4. Overruled.  This is not hearsay because the declarant is on the witness stand.

 

 

 

 

 

 

 

 

 

 

 

 

 

19. At Michael’s trial, Detective Doran testifies that Claudia McNulty, whose whereabouts are now unknown, pointed Michael out in a lineup as the person who sold cocaine to her.  The defense objects“Hearsay.” 

What’s your ruling?Help Line

  1. Overruled.  There is no statement for hearsay purposes.
  2. Overruled.  Spontaneous Statement.
  3. Overruled.  Prior Identification.
  4. Sustained.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

20. At Michael’s trial,  a defense witness testifies: “Michael came up to me about one minute after I observed Claudia McNulty speak with him and then walk away.  Michael said: ‘That chick just asked me to sell her some blow.  I told her I didn’t do that sort of thing.’” 

How many incidents of potential hearsay do we have here?Help Line

  1. One
  2. Two
  3. Three

 

 

 

 

 

 

 

 

 

 

 

 

 

21. At Michael’s trial,  a defense witness testifies: “Michael came up to me about one minute after I observed Claudia McNulty speak with him and then walk away.  Michael said: ‘That chick just asked me to sell her some blow.  I told her I didn’t do that sort of thing.’”   In response to the DA’s hearsay objection, the defense attorney responds: “Michael’s and Claudia’s statements to each other are not hearsay.”  Do you agree?Help Line

  1. Yes.
  2. No.

 

 

 

 

 

 

 

 

 

 

 

 

22. The DA responds: “Even though Michael’s and Claudia’s conversation during the event is not hearsay, Michael’s statement to the witness describing that conversation is.”  What’s the defense attorney’s best argument for admitting Michael’s statement to the witness describing the conversation?Help Line

  1. Party admission.
  2. Contemporaneous statement.
  3. Spontaneous statement.
  4. Declaration against interest.

 

 

 

 

 

 

 

 

 

 

 

 

23. “Doctor, I have a pain in my hip. Can’t you do something for me?” Under what possible bases may the plaintiff offer this, his past statement, at trial?Help Line

  1. Party admission.
  2. Statement for purpose of medical diagnosis.
  3. Statement of then existing mental or physical state.

 

 

 

 

 

 

 

 

 

 

 

 

 

24. Plaintiff offers an entry in her medical record which states: “Ms. Marquez has incurred major damage to multiple internal organs.”  To lay the foundation for admission, she elicited from the custodian of records at Ojai Valley Medical Center that this record of hers was made and kept in the normal course of hospital business, that the entry was made by hospital resident Dr. Jennifer Ngyuen, and that it was part of Dr. Ngyuen’s duties to make such entries at or very near the time of her observations.  Defense attorney objects based on hearsay. 

How do you rule? Help Line

  1. Sustained.  It is not a record of an “act, condition, or event.”
  2. Sustained.  No indication of trustworthiness.
  3. Sustained.   No indication that Dr. Ngyuen’s entry is based on first hand knowledge.
  4. Overruled.

 

 

 

 

 

 

 

 

 

 

 

 

25. Harvey was in a plane crash.  His son testifies that several weeks later, he was present when Harvey’s doctor told Harvey that he believed Harvey’s injuries were just too severe and that he would die from them within a few weeks.  Later, Harvey told his son and the doctor: “The plane was bucking and swaying and people were thrown around the cabin.  Then it straightened out and everything seemed fine.  Then all of a sudden we went down.  What a way to die!”    Harvey then lapsed into the coma he is still in at the time of trial.  The plaintiff offers Harvey’s statement.  The defense objects to it as hearsay.  The plaintiff responds that it’s a dying declaration. 

How do you rule? Help Line

  1. Overruled.
  2. Sustained.
  3. Rephrase the question.

 

 

 

 

 

 

 

 

 

 

 

 

26. When Hank lived in a facility for early-stage Alzheimer’s residents, he charged that one of the facility’s employees assaulted him.  A family videotape shows Hank repeating the charges about 8 months after the alleged incident.  The DA has photos of Hank’s bruises and medical records concerning the injuries he claims occurred.  His disease has progressed to the point that he is unavailable for trial.  The prosecution offers Hank’s out-of-court statement per Evid C §1380.

Is it admissible?Help Line

  1. No.  The video wasn’t taken by law-enforcement officials.
  2. No. The DA hasn’t offered corroborating evidence.
  3. No.  The circumstances surrounding the taping do not indicate trustworthiness.
  4. Yes.

 

 

 

 

 

 

 

 

 

 

 

 

Not correct1.a. Efficiency.

Incorrect.  The hearsay rule does indeed promote trial efficiency because it prevents a witness from repeating her in-court testimony by relating similar prior out-of-court statements.  But there is a better answer. 

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Correct1.b. Cross-examination.

Correct. At the heart of our judicial system is the belief that a party has the right to confront adverse witnesses and to have the declarant whose statement is introduced face the confronting party in court.  In this way, the reliability of the statement may be tested by cross-examination.  The opposing party should be able to test the declarant’s testimonial capacities—perception, memory, communication, and sincerity—at the time the statement is made. [Evid C §§1200, 780.]

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Not correct1.c. Tradition.

Incorrect.  There is a good current reason for the hearsay rule. 

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Not correct1.d.  All the above.

Incorrect.  One answer stands out.

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Not correct2.a. Small Claims.

Incorrect. The hearsay rules don’t apply during small-claims trials and any subsequent trials de novo in Superior Court.  However, as trial judge, you should still take Evid C §352 into account when deciding whether to admit such statements.  Houghtaling v. Superior Court (1993) 17 CA 4th, 1128, 1138-1139.  See Simons, California Evidence Manual (2012 ed.) §2:101.

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Not correct2.b. Non-death-penalty sentencing hearing.

Incorrect. The hearsay rules don’t apply during sentencing hearings as long as there is a substantial basis for believing the evidence is reliable.  People v. Lamb (19990 76 CA4th 664, 682. See Simons, California Evidence Manual (2012 ed.) §2:101.

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Not correct2.c. Criminal probation violation.

Incorrect. The hearsay rules don’t apply during probation-violation hearings as long as such evidence is accompanied by a reasonable indicia of reliability.  People v. Arreola (1994) 7 CA4th 1144, 1160.  See Simons, California Evidence Manual (2012 ed.) 2:101.

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Correct2.d. Juvenile dependency.

Correct. The hearsay rules do apply during juvenile-dependency hearings.  However there is a judicially created exception for child declarants provided certain requirements concerning reliability, availability, and notice have been met.  In re Cindy L. (1997) 17 CA4th 15, 29-30.  See Simons, California Evidence Manual (2012 ed.) §2:101.

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Not correct3.a. Inadmissible hearsay.

Incorrect.   You are correct that Sleuth’s conduct is probably an out-of-court assertive statement.  However, it isn’t hearsay. [Evid C §§225,1200.]

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Not correct3.b. Not hearsay.

Incorrect.   The circumstances, including Sleuth’s training, suggest that Sleuth is intending to assert that drugs are in the package.  Therefore, he is making the type of assertive statement generally prohibited by the hearsay rules.  [Evid C §225.]

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Correct3.c. Not hearsay.

Correct. According to Evid C §225, “‘Statement’ means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.”  Evid C §175 defines a “person” as “a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.”  Although Sleuth cannot be a hearsay declarant, admitting testimony concerning his conduct will require laying a proper foundation to show the reliability of the dog’s scent-tracking ability.

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Not correct3.d. Admissible hearsay.

Incorrect. You’re correct that Sleuth’s conduct might fit the spontaneous statement hearsay exception—if it were hearsay to begin with. [Evid C §1240.]

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Not correct4.a. The child is clearly asserting her knowledge about sex, so it’s hearsay.

Incorrect. The statement is not hearsay because it’s unlikely that the child intends the conduct as a substitute for words. Nonassertive conduct is not hearsay. It would be hearsay if her conduct came after the sex therapist said to her: “Show me what the man made you do.” [Evid C §225.]

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Not correct4.b. It may be hearsay, but it goes to the child’s state of mind and thus is admissible.

Incorrect. The statement is not hearsay because it’s unlikely that the child intends the conduct as a substitute for words. Nonassertive conduct is not hearsay. It would be hearsay if her conduct came after the sex therapist said to her: “Show me what the man made you do.”  [Evid C §225.]

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Correct4.c. The child’s act of playing is not assertive conduct covered by the hearsay rule.

Correct. The statement is not hearsay because it’s unlikely that the child intends the conduct as a substitute for words. Nonassertive conduct is not hearsay. It would be hearsay if her conduct came after the sex therapist said to her: “Show me what the man made you do.”  [Evid C §225.]

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Not correct5.a. Assertive conduct and thus hearsay.

Incorrect. You are correct that the conduct of the son would seem to be an implied assertion that, “Aunt Lulu, is not fit to do certain things anymore,” which is exactly what he’s trying to prove. However, it doesn’t appear that he intended to assert anything by this conduct, so it isn’t assertive conduct for hearsay purposes.  Thus, the evidence is non hearsay and admissible.  [Evid C §225.]

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Correct5.b.  Non-assertive, so not hearsay.

Correct. The conduct of the son would seem to be an implied assertion that, “Aunt Lulu, is not fit to do certain things anymore,” which is exactly what he’s trying to prove. However, it doesn’t appear that he intended to assert anything by this conduct, so it isn’t assertive conduct for hearsay purposes.  Thus, the evidence is non hearsay and admissible. [Evid C §225.]

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Not correct6.a. The smile is hearsay; the sad look is not.

Incorrect. It’s safe to assume that the defendant did not intend to communicate to the officer with his smile, as a substitute for an oral or verbal expression, that he was happy about his wife’s death.  Rather, the smile appears to be a spontaneous response to the officer’s statement.  Without intent, conduct is not an assertive statement for hearsay purposes.  Its admissibility is based on general principles of relevancy rather than on a hearsay analysis.  If the inferences to be drawn from the actor’s nonassertive conduct are reasonable and nonspeculative, the evidence of the conduct is admissible to prove the inferred facts.

On the other hand, it appears that the defendant did intend to assert with his sad look that he was indeed sad about her death.  Thus, that look is an assertive statement for hearsay purposes and inadmissible if offered by the defendant.  However the prosecution could offer it as a party admission if they so choose. [Evid C §§225, 1220.]

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Correct6.b. The smile is not hearsay; the sad look is hearsay.

Correct. It’s safe to assume that the defendant did not intend to communicate to the officer with his smile, as a substitute for an oral or verbal expression, that he was happy about his wife’s death.  Rather, the smile appears to be a spontaneous response to the officer’s statement.  Without intent, conduct is not an assertive statement for hearsay purposes.  Its admissibility is based on general principles of relevancy rather than on a hearsay analysis.  If the inferences to be drawn from the actor’s nonassertive conduct are reasonable and nonspeculative, the evidence of the conduct is admissible to prove the inferred facts.

On the other hand, it appears that the defendant did intend to assert with his sad look that he was indeed sad about her death.  Thus, that look is an assertive statement for hearsay purposes and inadmissible if offered by the defendant.  However the prosecution could offer it as a party admission if they so choose. [Evid C §§225, 1220.]

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Not correct6.c. Both are hearsay.

Incorrect.   Only one is hearsay. It’s safe to assume that the defendant did not intend to communicate to the officer with his smile, as a substitute for an oral or verbal expression, that he was happy about his wife’s death.  Rather, the smile appears to be a spontaneous response to the officer’s statement.  Without intent, conduct is not an assertive statement for hearsay purposes.  Its admissibility is based on general principles of relevancy rather than on a hearsay analysis.  If the inferences to be drawn from the actor’s nonassertive conduct are reasonable and nonspeculative, the evidence of the conduct is admissible to prove the inferred facts.

On the other hand, it appears that the defendant did intend to assert with his sad look that he was indeed sad about her death.  Thus, that look is an assertive statement for hearsay purposes and inadmissible if offered by the defendant.  However the prosecution could offer it as a party admission if they so choose. [Evid C §§225, 1220.]

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Not correct6.d. Neither is hearsay.

Incorrect.   One is hearsay.   It’s safe to assume that the defendant did not intend to communicate to the officer with his smile, as a substitute for an oral or verbal expression, that he was happy about his wife’s death.  Rather, the smile appears to be a spontaneous response to the officer’s statement.  Without intent, conduct is not an assertive statement for hearsay purposes.  Its admissibility is based on general principles of relevancy rather than on a hearsay analysis.  If the inferences to be drawn from the actor’s nonassertive conduct are reasonable and nonspeculative, the evidence of the conduct is admissible to prove the inferred facts.

On the other hand, it appears that the defendant did intend to assert with his sad look that he was indeed sad about her death.  Thus, that look is an assertive statement for hearsay purposes and inadmissible if offered by the defendant.  However the prosecution could offer it as a party admission if they so choose. [Evid C §§225, 1220.]

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Not correct7.a. Hearsay and inadmissible.

Incorrect. Dan’s statement about the roof and foundation are not being offered for the truth—that the construction was faulty—but rather as circumstantial evidence indicating that Dan knew so and thus violated the statute of limitations by delaying his lawsuit.  Therefore it is not hearsay.  [Evid C §1200.] If Dan had said “I know the roof leaks and the foundation has cracks,” the statement would be hearsay because it would be direct rather than circumstantial evidence of his state of mind and thus would be offered for the truth it asserts.  Then the defense could offer it as either a party admission [Evid C §1220] or statement of present mental state [Evid C §1250] hearsay exception.

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Not correct7.b. Hearsay but admissible.

Incorrect. Dan’s statement about the roof and foundation are not being offered for the truth—that the construction was faulty—but rather as circumstantial evidence indicating that Dan knew so and thus violated the statute of limitations by delaying his lawsuit.  Therefore it is not hearsay.  [Evid C §1200.] If Dan had said “I know the roof leaks and the foundation has cracks,” the statement would be hearsay because it would be direct rather than circumstantial evidence of his state of mind and thus would be offered for the truth it asserts.  Then the defense could offer it as either a party admission [Evid C §1220] or statement of present mental state [Evid C §1250] hearsay exception.

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Correct7.c. Not hearsay and admissible.

Correct. Dan’s statement about the roof and foundation are not being offered for the truth—that the construction was faulty—but rather as circumstantial evidence indicating that Dan knew so and thus violated the statute of limitations by delaying his lawsuit.  Therefore it is not hearsay.  [Evid C §1200.] If Dan had said “I know the roof leaks and the foundation has cracks,” the statement would be hearsay because it would be direct rather than circumstantial evidence of his state of mind and thus would be offered for the truth it asserts.  Then the defense could offer it as either a party admission [Evid C §1220] or statement of present mental state [Evid C §1250] hearsay exception.

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Not correct8.a. Both statements are hearsay.

Incorrect.   The first statement (“Go ahead and look”) is not hearsay because it isn’t offered for it’s truth.  It is being offered as circumstantial evidence of the state of mind of the declarant, i.e., she wouldn’t have said it if she knew she had cocaine in her trunk.  On the other hand, the second statement (“I’ve got nothing to hide”) is direct rather than circumstantial evidence of the thoughts or actions of the speaker—that as far as she knew there were no drugs in her trunk.  Therefore that second statement is being offered for the truth asserted. [Evid C §1200.]

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Not correct8.b. Neither statement is hearsay.

Incorrect. The first statement (“Go ahead and look”) is not hearsay because it isn’t offered for it’s truth.  It is being offered as circumstantial evidence of the state of mind of the declarant, i.e., she wouldn’t have said it if she knew she had cocaine in her trunk.  On the other hand, the second statement (“I’ve got nothing to hide”) is direct rather than circumstantial evidence of the thoughts or actions of the speaker—that as far as she knew there were no drugs in her trunk.  Therefore that second statement is being offered for the truth asserted. [Evid C §1200.]

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Not correct8.c. The first statement is hearsay; the second is not.

Incorrect. The first statement (“Go ahead and look”) is not hearsay because it isn’t offered for it’s truth.  It is being offered as circumstantial evidence of the state of mind of the declarant, i.e., she wouldn’t have said it if she knew she had cocaine in her trunk.  On the other hand, the second statement (“I’ve got nothing to hide”) is direct rather than circumstantial evidence of the thoughts or actions of the speaker—that as far as she knew there were no drugs in her trunk.  Therefore that second statement is being offered for the truth asserted.  [Evid C §1200.]

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Correct8.d. The first statement is not hearsay; the second is.

Correct.   The first statement (“Go ahead and look”) is not hearsay because it isn’t offered for it’s truth.  It is being offered as circumstantial evidence of the state of mind of the declarant, i.e., she wouldn’t have said it if she knew she had cocaine in her trunk.  On the other hand, the second statement (“I’ve got nothing to hide”) is direct rather than circumstantial evidence of the thoughts or actions of the speaker—that as far as she knew there were no drugs in her trunk.  Therefore that second statement is being offered for the truth asserted.  [Evid C §1200.]

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Not correct9.a.  a declaration against Bill’s penal interest.

Incorrect. The letter is not a declaration against Bill’s interest because Bill is not the one making the declaration.  [Evid C §1230.]

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Not correct9.b. as non-hearsay evidence of Ashley’s state of mind.

Incorrect. The letter is direct evidence of her state of mind, as opposed to circumstantial evidence of her thoughts or actions.  Therefore, it would be hearsay if offered for that purpose.  [Evid C §1200.]

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Correct9.c. as non-hearsay evidence to show Bill’s state of mind.

Correct. The letter is non-hearsay.  It isn’t offered for the truth of the matter asserted, but rather to show how it affected Bill’s state of mind—that is, the effect on the reader. Since the letter was found in his apartment, it appears that Bill read it, and so it goes to his motive. [Evid C §1200.]   Some judges would use Evid C §352 to redact the statements indicating prior incidents of domestic violence.   Note as well that if the statements about prior abuse were admitted for their truth, the prosecution would still face a character evidence hurdle under Evid C §1101.  See Evid C §1109 for circumstances under which prior incidents of domestic violence may be admissible.

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Not correct9.d.  None of the above.

Incorrect. One of the choices is correct.

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Not correct10.a.  Admissible because non-assertive conduct.

Incorrect. The tractor operator’s wave, the equivalent of his saying the road is clear ahead, is assertive conduct.  [Evid C §225.]

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Correct10.b. Admissible because not offered for the truth of the matter asserted.

Correct. This is admissible non-hearsay because it’s not being offered for the truth of the matter asserted (“It’s safe to pass”).  Instead the assertive conduct is being offered to show its effect on Drew—i.e., he acted reasonably in light of the tractor driver’s “statement.”  [Evid C §§225, 1200.]

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Not correct 10.c. Admissible as a spontaneous statement.

Incorrect. There is no indication that the tractor operator’s perceptions caused him to be “under the stress of excitement” when he signaled to Drew, nor is it hearsay to begin with. [Evid C §1240.]

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Not correct10.d.  Inadmissible because self-serving.

Incorrect. “Self-serving” has no legal significance. If evidence wasn’t self-serving, lawyers would never offer it.

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Not correct11.a.  Only in the Evidence Code.

Incorrect.  According to Evid C §1200(b) hearsay is inadmissible “except as defined by law.”  Evid C §160 states, “’Law’ includes constitutional, statutory and decisional law.”

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Not correct11.b.  Only in the Evidence Code and the Code of Civil Procedure.

Incorrect.  According to Evid C §1200(b) hearsay is inadmissible “except as defined by law.”  Evid C §160 states, “‘Law’ includes constitutional, statutory and decisional law.”

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Not correct11.c. Only in California statutes, and California decisional law.

Incorrect.  According to Evid C §1200(b) hearsay is inadmissible “except as defined by law.”  Evid C §160 states, “‘Law’ includes constitutional, statutory and decisional law.”

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Correct11.d.  In statutes, decisional law, and the Constitutions of California and the United States.

Correct.  According to Evid C §1200(b) hearsay is inadmissible “except as defined by law.”  Evid C §160 states, “’Law’ includes constitutional, statutory and decisional law.”

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Not correct12.a. Overruled.  It isn’t an out-of-court statement because the declarant is testifying at this trial.

Incorrect.  Jake’s prior statement is out-of-court for hearsay purposes since it was made at a time other than while testifying at this trial. [Evid C §1200.]

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Not correct12.b.  Overruled.  It’s a party admission.

Incorrect.   A party cannot offer his or her own statements as party admissions.  [Evid C §1220.]

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Correct12.c. Sustained. 

Correct.  Jake’s prior statement is out of court for hearsay purposes since it was made at a time other than while testifying at this trial.  [Evid C §1200.] A party cannot offer his or her own statements as party admissions.  [Evid C §1220.]

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Not correct13.a.  Overruled.

Incorrect.   The witness’s earlier statement to the defendant is hearsay because it is an out-of-court statement being offered to prove the truth of the matter asserted.  A party can adopt another’s statement by his or her “words or other conduct” including silence. The DA can argue here that Jake or anyone else in this situation would certainly deny the officer’s accusation if he weren’t in fact “drunker than a skunk.”  However, as trial judge, you should look at all of the surrounding circumstances when making the ruling including whether they “lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution.”  People v. Castille (2003) 108 CA4th 469.  Since most people know they do not need to speak with a law enforcement officer after they’ve been arrested, the circumstances do not indicate that Jake’s silence in the face of this accusation “manifested his adoption or his belief in its truth.”  [Evid C §1221.]

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Correct13.b. Sustained. 

Correct.   The witness’s earlier statement to the defendant is hearsay because it is an out-of-court statement being offered to prove the truth of the matter asserted.  A party can adopt another’s statement by his or her “words or other conduct” including silence.    The DA can argue here that Jake or anyone else in this situation would certainly deny the officer’s accusation if he weren’t in fact “drunker than a skunk.”  However, as trial judge, you should look at all of the surrounding circumstances when making the ruling including whether they “lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution.”  People v. Castille (2003) 108 CA4th 469.  Since most people know they needn’t speak with law enforcement officers after they’ve been arrested, the circumstances do not indicate that Jake’s silence in the face of this accusation “manifested his adoption or his belief in its truth.” [Evid C §1221.]

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Correct14.a. The jury makes the final decision as to whether the declarant was authorized to make such a statement.

Correct.  As trial judge, you make a threshold decision per Evid C §403 as to whether a reasonable jury could find the declarant was authorized to make such a statement on behalf of the party.  The jury makes the final decision. [Evid C §§403, 1222.]

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Not correct14.b.  The authorization must be express.

Incorrect.   The authorization may be express or implied. [Evid C §1222.]

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Not correct14.c. The declarant must be a high-level employee.

Incorrect.   Though the court may find that a high-level employee such as a general manager, CFO, or in-house counsel has implied authorization to speak for the party, there is no requirement that the declarant be such an employee. [Evid C §1222.]

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Not correct14.d. The statement must concern a fact within the scope of the authorized spokesperson’s employment.

Incorrect.   There is no requirement that the fact be within the scope of the spokesperson’s employment as long as there is sufficient evidence to indicate that the person was authorized to speak for the party concerning the topic at issue. [Evid C §1222.]

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Not correct 15.a. Former testimony.   

Incorrect.   You’re correct that Nader’s statements before the Grand Jury fit the Evidence Code’s definition of “former testimony.” [Evid C §1290.] Also his refusal to testify at Michael’s current trial makes him unavailable for purposes of the Former Testimony exception. [Evid C §240.]  However, since Michael did not have “the right and opportunity to cross-examine” Nader at the earlier proceeding, Nader’s earlier statements do not fit the Former Testimony exception.  [Evid C §1291.]

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Correct15.b.  declaration against interest

Probably correct.  This should qualify as a declaration against interest because Nader is unavailable at the present trial and his statements appear to be contrary to his penal interest.  [Evid C §§240, 1230.]  However, you must scrutinize the offered statements to be sure they really would appear to Nader to be against his interest at the time they were made.  If the statements actually were exculpatory in nature, appearing to throw all of the blame Michael’s way, the court might decide that the declaration against interest exception does not fit.  Also, even if the judge finds that the Declaration Against Interest hearsay exception applies,  admission of these statements would probably violate Michael’s right to confrontation since they were “testimonial,”—i.e., were induced by the police or prosecution and were recorded—and the defendant had no opportunity to cross-examine the declarant.  Crawford v. Washington (2004) 124 S.Ct. 1354.

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Not correct15.c.  Prior inconsistent statement. 

Incorrect.   Since Nader is not testifying at Michael’s trial, his prior statements do not qualify as prior inconsistent statements. [Evid C §1235.]  You do have leeway in using this exception when they find a witness deliberately evasive when stating she does not recall events at trial.  However, here, Nader is not testifying at all. 

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Not correct15.d. Declaration by co-conspirator.  

Incorrect.   Though Nader and Michael may have been co-conspirators, the Admission of Co-conspirator exception requires that the statement be made prior to or during the conspiracy and in furtherance of its objective.  A co-conspirator’s statements to a Grand Jury made well after the alleged crime don’t fit either requirement. [Evid C §1223.] 

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Not correct16.a. Former testimony.

Incorrect.   You’re correct that Nader’s statements before the Grand Jury fit the Evidence Code’s definition of “former testimony.”  [Evid C §1290.]  However his lack of memory at trial concerning certain events does not make him unavailable. [Evid C §240.] Further, Michael did not have “the right and opportunity to cross-examine” Nader at the earlier proceeding.  Therefore, his earlier statements do not fit the Former Testimony exception.  [Evid C §1291(a)(2).]

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Not correct16.b. Declaration against interest.

Incorrect.   Though portions of Nader’s prior testimony might otherwise qualify as declarations against his interest, his lack of memory at the current trial concerning certain events does not make him unavailable. [Evid C §§240, 1230.]

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Correct16.c.   Prior inconsistent statement.

Correct.   Nader’s prior statements might qualify as prior inconsistent statements.  [Evid C §1235.]   Judges have leeway in using this exception when they find a witness deliberately evasive when stating at trial that he does not recall events.    People v. Green (1971) 3 Cal. 3d 981, 988-989.

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Not correct16.d.  Declaration by co-conspirator.  

Incorrect.   Though Nader and Michael may have been co-conspirators, the Admission of Co-conspirator exception requires that the statement be made prior to or during the conspiracy and in furtherance of its objective.  A co-conspirator’s statements to a Grand Jury made well after the alleged crime don’t fit either requirement.  [Evid C §1223.] 

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Not correct17.a.    Sustained.  The previous statement wasn’t under oath

Incorrect.  A prior inconsistent statement needn’t be under oath.  [Evid C §1235.] 

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Not correct17.b.   Sustained.  The witness hasn’t been shown the interview statement.

Incorrect.  The examining attorney needn’t show an impeaching document to a witness.  She can simply read it out loud if it is a deposition or preliminary examination transcript or a document already in evidence.  If, like this, it is an item not in evidence, counsel must ask the witness if he said it.   If the witness denies saying it, counsel must call the person who heard it and prove the inconsistency extrinsically. [Evid C §1235.] 

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Correct17.c.    Sustained.  The prior statement isn’t inconsistent.

Correct.   There may not be a big enough difference between “was really hammered” and “had a buzz on” to qualify as an inconsistency for purposes of the Prior Inconsistent Statement exception.  [Evid C §1235.]   This is, however, a judgment call over which you, as trial judge, have much discretion.  A better approach would be for the attorney to cement in the inconsistency with: “On direct you said Michael ‘was really hammered’ didn’t you?” [Answer: “Yes.”] “In fact, he just had a buzz on didn’t he?”  If the witness responds “No,” then he can be impeached with a clear inconsistency.

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Correct17.d. Overruled.   

Correct.   Many judges would find that these statements are inconsistent enough to fit the exception.  However, many other judges would rule that there just isn’t a big enough difference between “was really hammered” and “had a buzz on” to qualify as an inconsistency for purposes of the Prior Inconsistent Statement exception.  [Evid C §1235.]   This is a judgment call over which you, as trial judge, have much discretion.  A better approach would be for the attorney to cement in the inconsistency with: “On direct you said Michael ‘was really hammered’ didn’t you?” [Answer: “Yes.”] “In fact, he just had a buzz on didn’t he?”  If the witness responds “No,” then he can be impeached with a clear inconsistency.

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Correct18.a. Sustained. The consistent statement didn’t precede the inconsistent statement.

Correct.   A prior consistent statement must precede either the inconsistent statement that has been admitted or precede any alleged motive to lie.  Here the consistent statement was later in time than the inconsistent one.  [Evid C §1236.]

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Not correct18.b.   Sustained. The previous statement is not really consistent with the trial testimony that he was “hammered.”

Incorrect.   The difference between “really hammered” and “wasted” is so slight that this would qualify as consistent if that were the only criteria for the Prior Consistent Statement exception.  [Evid C §1236.]

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Not correct18.c.    Overruled.  This fits the prior consistent statement exception.

Incorrect.  

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Not correct18.d. Overruled. This is not hearsay because the declarant is on the witness stand.  

Incorrect.   Prior statements of witnesses are out of court for hearsay purposes.  They are “evidence of a statement that was made other than by a witness while testifying at the hearing.” [Evid C §1200(a).]

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Not correct19.a.  Overruled. There is no statement for hearsay purposes.

Incorrect.   Claudia’s pointing the defendant out in a lineup is a classic example of assertive conduct.  It is a “statement” for hearsay purposes. [Evid C §§225, 1200.] 

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Not correct19.b. Overruled. Spontaneous Statement. 

Incorrect.   The Spontaneous Statement exception requires that the statement at issue be a description of an act, condition or event made while the declarant is still under the “stress of excitement caused by such perception.”  Here there is no evidence that Claudia is describing the event or was feeling any sort of stress or excitement.  [Evid C §1240.]

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Not correct19.c.Overruled. Prior Identification. 

Incorrect.   The Prior Identification exception applies only to prior statements of witnesses who actually testify at the trial.  Claudia is “in the wind.”  [Evid C §1238.]

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Correct19.d. Sustained.   

Correct.  Claudia’s pointing is a “statement” because it is assertive conduct. [Evid C §225.]  It isn’t a Spontaneous Statement because there is no evidence that she is under any stress or excitement.  [Evid C §1240.]  And it doesn’t fit the Prior Identification exception because she isn’t testifying at the current trial.  [Evid C §1238.]

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Not correct20.a. One.   

Incorrect.   There are three incidents of potential hearsay:  Michael’s statement to the defense witness, Claudia’s statement to Michael, and Michael’s statement to Claudia.  All three must be analyzed.  [Evid C §1201.]

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Not correct20.b. Two.   

Incorrect.   There are three incidents of potential hearsay:  Michael’s statement to the defense witness, Claudia’s statement to Michael, and Michael’s statement to Claudia.  All three must be analyzed.  [Evid C §1201.]

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Correct20.c.   Three.

Correct.   There are three incidents of potential hearsay:  Michael’s statement to the defense witness, Claudia’s statement to Michael, and Michael’s statement to Claudia.  All three must be analyzed.  [Evid C §1201.]

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Correct 21.a.   Yes.

Correct.  Claudia’s request to buy coke is a question, not a “statement” for hearsay purposes, nor does it depend on being true to be relevant.  Rather, Claudia’s question is an offer to enter into a contract to buy drugs from Michael and is therefore an operative fact. [Evid C §225.]  Michael’s response similarly is not hearsay because, as a rejection of the offer to buy drugs, it consists of operative words—i.e., it has legal significance just by being spoken.  The statement is relevant because it is offered to show he did not sell McNulty drugs and, therefore, did not commit the crime he is charged with. He needn’t be cross-examined about the truth of the words uttered.  What matters is whether they were actually said.  [Evid C §1200.]

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Not correct 21.b. No.   

Incorrect.  Claudia’s request to buy coke is a question, not a “statement” for hearsay purposes, nor does it depend on being true to be relevant.  Rather, Claudia’s question is an offer to enter into a contract to buy drugs from Michael and is therefore an operative fact.  [Evid C §225.]  Michael’s response similarly is not hearsay because, as a rejection of the offer to buy drugs, it consists of operative words—i.e., it has legal significance just by being spoken.  He needn’t be cross-examined about the truth of the words uttered.  What matters is whether they were actually said. [Evid C §1200.]

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Not correct22.a. Party admission.

Incorrect.   Michael cannot offer his own statements as Party Admissions. [Evid C §1220.]

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Not correct22.b. Contemporaneous statement.  

Incorrect.   Michael’s statement to the defense witness describing the alleged transaction was not a Contemporaneous Statement because he wasn’t describing the event as it was occurring, nor is it clear that the statement is being offered to “explain, qualify, or make understandable” his conduct.  [Evid C §1241.]

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Correct22.c. Spontaneous statement.

Correct.   This is the best argument for admissibility.  Though there is no direct evidence that Michael was under the stress or excitement caused by the event, his statement was made only a minute later and the event is the kind that might induce enough excitement to ensure reliability.  According to the Law Revision Commission Comment to Evid C §1240: “The rationale of this exception is that the spontaneity of such statements and the consequent lack of opportunity for reflection and deliberate fabrication provide an adequate guarantee of their trustworthiness.”   Though this is the best argument for admissibility, many courts would question whether the excitement was sufficient to ensure reliability.

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Not correct22.d. Declaration against interest.

Incorrect.   Michael’s statement is not against his interests, nor is he unavailable to testify.  [Evid C §1235.] 

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Not correct23.a. Party admission.

Incorrect.  The plaintiff cannot offer his own past statements as Party Admissions.  [Evid C §1220.]

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Not correct23.b. Statement for purpose of medical diagnosis.

Incorrect.  The California Evidence Code provides no hearsay exception for statements made for the purpose of medical diagnosis and treatment, except for those made by minors who are alleged victims of child abuse or neglect.  [Evid C §1253.]

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Correct23.c. Statement of then existing mental or physical state.

Correct.  The plaintiff’s statement of pain, made while he is experiencing it, is admissible if his physical condition at that time is an issue in the case. [Evid C §1250.]

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Correct24.a. Sustained. It is not a record of an “act, condition, or event.” 

Correct.   The Business Records exception, Evid C §1271, restricts admissible entries to those of an “act, condition, or event.”  For purposes of this exception, California trial judges generally restrict permissible “condition[s]” to those which are fairly easy to diagnose and do not require cross-examination—e.g., simple fractures, bruises, lacerations, and patient complaints rather than medical diagnosis requiring interpretation and expert opinion.  Here the entry is not clear cut, nor do we know how easy it would be to make an accurate diagnosis.  Therefore, most judges would rule that the entry is inadmissible hearsay.

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Not correct24.b.  Sustained. No indication of trustworthiness. 

Incorrect.   There is enough of a foundation here to guarantee trustworthiness.  If defendant wants to test the trustworthiness of the entry, he should either voir dire the custodian of records or present affirmative evidence. [Evid C §1271.]

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Not correct24.c. Sustained. No indication that Dr. Ngyuen’s entry is based on first hand knowledge.

Incorrect.    Evid C §1271 does not require the plaintiff to demonstrate that Dr. Ngyuen’s entry is based on her own first-hand knowledge.  However, first-hand knowledge would certainly be an issue relevant to the trustworthiness element of the Business Records foundation.  Defendant can explore the issue on voir dire and if, for example, Dr. Ngyuen’s diagnosis is based on information of questionable reliability—say, information provided by the patient’s friends or other lay people, you could very well find that the trustworthiness element has not been met.  [Evid C §1271.]

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Not correct24.d.  Overruled.

Incorrect.   Please try again.

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Not correct25.a. Overruled.   

Incorrect.   Though Harvey is unavailable and made the statement while believing his death was imminent, Evid C §1242 requires that the declarant actually die from the incident he describes. No amount of rephrasing will turn this statement into a Dying Declaration. 

Note that in federal court, the declarant needn’t ultimately die but must be unavailable to testify. [FRE §804(b)(2).]

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Correct25.b.   Sustained.

Correct.   Though Harvey is unavailable and made the statement while believing his death was imminent, Evid C §1242 requires that the declarant actually die from the incident he describes. No amount of rephrasing will turn this statement into a Dying Declaration. 

Note that in federal court, the declarant needn’t ultimately die but must be unavailable to testify. [FRE §804(b)(2).]

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Not correct25.c.Rephrase the question. 

Incorrect.   Though Harvey is unavailable and made the statement while believing his death was imminent, Evid C §1242 requires that the declarant actually die from the incident he describes. No amount of rephrasing will turn this statement into a Dying Declaration. 

Note that in federal court, the declarant needn’t ultimately die but must be unavailable to testify. [FRE §804(b)(2).]

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Correct26.a. No. The video wasn’t taken by law-enforcement officials.

Correct.  Evid C §1380 requires that law-enforcement officials do the videotaping.  Answer c. is also correct because as far as we know, the DA has not met its burden of demonstrating “particular guarantees of trustworthiness.”  The video was taken 8 months after the incident, it appears that the victim was suffering from dementia at the time of the taping, and he might understandably have an interest in restitution from the facility.  [Evid C §1380, People v. Watson (2003) 114 CA4th 142.]

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Not correct26.b. No. The DA hasn’t offered corroborating evidence.

Incorrect.   The DA has produced corroborating evidence in the form of photos and medical records.  [Evid C §1380.]

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Correct26.c. No. The circumstances surrounding the taping do not indicate trustworthiness.  

Correct.   As far as we know, the DA has not met its burden of demonstrating “particular guarantees of trustworthiness.”  The video was taken 8 months after the incident, it appears that the victim was suffering from dementia at the time of the taping, and he might understandably have an interest in restitution from the facility.  [Evid C §1380, People v. Watson (2003) 114 CA4th 142.]  Answer a. is also correct because Evid C §1380 requires that law-enforcement officials do the videotaping.

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Not correct26.d. Yes.   

Incorrect.   Evid C §1380 requires that law-enforcement officials do the videotaping.  Also, as far as we know, the DA has not met its burden of demonstrating “particular guarantees of trustworthiness.”  The video was taken 8 months after the incident, it appears that the victim was suffering from dementia at the time of the taping, and he might understandably have an interest in restitution from the facility. [Evid C §1380 People v. Watson (2003) 114 CA4th 142.]

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