Evidence HEARSAY REVIEW

HEARSAY REVIEW -Blind person perceiving [801(d)(1)(C)]—need to call police man and then call blind witness to testify -Cal.—1-2 questions -Prior Inconsistent Statements -Cal/Fed. = admissible to impeach -Fed. = admissible TOMA [801(d)(1)(A)]—inconsistent; oath/penalty perjury; prior proceeding -Cal. = admissible TOMA…but doesn‟t have restrictions -Prior Consistent Statements -Cal. = prior consistent statements admissible as long as it was made before the inconsistent statement -803(8)(C)—Evaluative Reports/factual findings: undertaken an investigation [police officer reaching conclusion as to fault; administrative agency that decides if alien is deportable] -Limitations on useNOT admissible against criminal D, however admissible against the government -Conclusion MUST be trustworthy -Cal. = does NOT have this exception -801(d)(1)(D): -Cal. = to be admissible…employee‟s acts/conduct MUST be the basis of the claim [MUCH narrower than federal] -803(3) v. Circumstantial Evidence of State of Mind -E.g.—„I am angry‟ = direct evidence of state of mind 803(3)…[„I‟m happy‟] -E.g.—„He is ugly‟ offered to prove that he doesn‟t like him = fact that he said something disparaging, it is unlikely that he likes that person [circumstantial evidence of state of mindNOT hearsay] -E.g.—„Don‟t light that cigarette, it smells like gas‟, then light cigarette = use as circumstantial evidence of state of mind—effect on hearer -Hillmon—using letters written by someone alleged to be H‟s victim…alleged to have killed W [admitted letters written to W‟s sister and fiancé that he was going to CC and going with H]if he did go to CC and he did go with H, there would be opportunity to kill him and it is more likely that it was W‟s body, NOT H‟s -Allowed to use party‟s statement of intent to prove what the party intended to do [803(3)] -Admissible NOT just to prove that W went to CC, but that he went there with H…using W‟s letter to prove H‟s acts -There was a lot of independent evidence that H went to CC, but that wasn‟t mentioned in the opinion [construed that one person‟s statement of future intent can be used to future conduct of a 3rd party] -HUGE problem with reliabilityNOT clear whether the broadest use of Hillmon is permitted under 803(3)…Chase‟s opinion is that it would NOT -Will Contest—backward looking statements permitted „I disinherited my son today because I don‟t approve of his lifestyle‟ -Can NOT offer fact that remembered/believed to prove the fact remembered/believed—„He poisoned me‟ to prove H poisoned her -Cal. = backward looking statement is permissible if declarant is unavailable and state of mind of declarant is at issue -803(6): Business Records…opinion of outside consultant…must have HS to cover this exception [otherwise statement will be redacted] -803(1): Present Sense Impression…physical condition [ache or pain] is considered a present sense impression -804(b)(3): Statements against interest -Williamson: -statements that subject/inculpate declarant to propriety or penal fault -limits prosecution‟s use…but NOT D‟s use -If D uses statement to exculpate, it must be corrobarated -Party Admissions: anything party says… -Statements Against Interest: by anyone, but AGAINST interest [must be unavailable]… -If party usually can‟t satisfy unavailability requirement [should use 801(d)(2)], UNLESS criminal D and unavailable because 5th Amendment privilege -803(22): Judgment of Prior Conviction -If want to prove conviction = just use public records 803(8) -If want to prove essential elements [limited to felony and NOT plea of nolo contendere]offering to prove that D had a weapon by charge of assault with deadly weapon -803(2): Excited Utterance—„relates to‟ is broader… -“The floor is slippery, that person hasn‟t cleaned up here in 12 hours” -Admissible under Fed./Cal. -Cal. = narrate, describe or explain [broader]…narrower time limit [focus on spontaneity] -806: Impeaching Declarant -NOT required to have opportunity to cross examine the declarant [as you do with testifying witness]