PERSONAL KNOWLEDGE REQUIREMENT

1. PERSONAL KNOWLEDGE REQUIREMENT • Evidence Code Sec. 702 requires a witness to have personal knowledge of the matter to which the witness is testifying • -subject to Sec. 801 (expert witnesses) • -it allows an objection to be made and it directs the court to meet the objection by requiring such personal knowledge to be shown before the witness testifies concerning the matter.

2. PERSONAL KNOWLEDGE REQUIREMENT (cont.) Counsel: “Objection, foundation, no personal knowledge” Court response: “Lay your foundation” This sequence often leads to hearsay issues, but is a separate concept

3. PERSONAL KNOWLEDGE REQUIREMENT (cont.) FRE HAS SIMILAR PROVISIONS: • FRE 602 requires personal knowledge of the matter to which testifying • Subject to FRE 703 (expert witnesses) • Evidence to prove personal knowledge may, but does not have to, include the witness’ own testimony

4. MACHINE AND NON-HUMAN EVIDENCE Victim is in the street after having been stabbed and is asked “who did it?”, and he responds by pointing to defendant. This assertive conduct, intended to be substituted for words, is hearsay.

5. MACHINE AND NON-HUMAN EVIDENCE (cont) • If a trained narcotics sniffing dog alerts on defendant at the checkpoint, is this assertive conduct by the dog also hearsay?

6. MACHINE AND NON-HUMAN EVIDENCE (cont) • The dog cannot be cross examined. But the handlers can – they can be cross examined about the dog’s reliability in the past and his training.

7. MACHINE AND NON-HUMAN EVIDENCE (cont) • Machine evidence presents a similar issue: if an officer was to testify that she knows the defendant was speeding because another officer told her so, that would be hearsay. In this case the defense would want the witness with personal knowledge to testify to allow challenge to the conclusion that defendant was speeding.

8. MACHINE AND NON-HUMAN EVIDENCE (cont) • However, if the officer testifies that she knows defendant was speeding because the radar gun shows that he was doing 50mph in a 30mph zone, different issues are raised. Here the defense would want to challenge witnesses who design the radar gun, who service and calibrate the radar gun and the officer who used it to test whether was operated properly.

9. MACHINE AND NON-HUMAN EVIDENCE (cont) • Same issues in DUI cases with breathalyzer machines, DNA, all sorts of medical testing etc

10. MACHINE AND NON-HUMAN EVIDENCE (cont) • QUERY: • What about clocks? • Computer time stamps? • Cell phone times?

11. MULTIPLE HEARSAY • Hearsay within Hearsay • Rule: Each Level must be separately justified to be admissible

12. Multiple Hearsay Example 1 • Patient goes to emergency room after having been stabbed in a bar fight. Triage nurse asks about how injury occurred. Patient says defendant wrongfully accused him of informing the police of defendant’s drug dealing activities and stabbed him. This exchange is documented in the medical records along with the diagnosis and treatment that the patient received.

13. Multiple Hearsay Example 1 • Prosecution offers the medical records under the business records exception to corroborate the injuries. • What comes in? • Under what theory?

14. Multiple Hearsay Example 2 Psychiatrist is hired by the defense to assist in presenting a mental defense to murder charges. Psychiatrist interviews defendant as part of his preparation for offering an opinion as to defendant’s mental health presently and at the time of the homicide.

15. Multiple Hearsay Example 2 In this interview, defendant describes his relationship with the murder victim as one where the victim made numerous threats of bodily harm over some weeks before the killing. Further, the defendant describes how the pressure built up for him and exploded when the victim threatened to rape defendant’s girlfriend. Defendant relates that he snapped and killed the victim.

16. Multiple Hearsay Example 2 (cont.) • Defendant also relates that he was physically abused as a child by his father who was an alcoholic and abandoned by his mother who was a drug addict. • Defense seeks to have psychiatrist testify to opinion and the basis for it, which includes the contents of defendant’s interview.

17. Multiple Hearsay Example 2 (cont.) • Defense seeks to have psychiatrist testify to opinion and the basis for it, which includes the contents of defendant’s interview. • How do we analyze this scenario? • Who has what interest here? • Does this evidence come in?

18. Multiple Hearsay Example 3 • California Penal Code section 872(b) creates an exception to Evidence Code section 1200 to allow a holding order at a preliminary hearing to be based on hearsay so long as certain requirements are met.

19. Multiple Hearsay Example 3(cont.) • Police Officer testifies that he investigated the auto burglary and the owner of the car told him he had parked and locked the car that morning when he arrived at work and had given no one permission to enter the car. • Further, the owner told him that when he returned to his car to go home, the car stereo and speakers had been stolen and that the dashboard and door panels had been damaged in the process.

20. Multiple Hearsay Example 3(cont.) • The owner also relates that he saw a man ride by on a bike with the speakers strapped on the back. He says that he confronted the man and the man said that he bought the speakers a week ago from a lady on the next block and refused to return them. • The owner pointed down the street to a man standing next to a bike with speakers on the back. The owner identifies the man and the speakers. The officer takes pictures and a written statement from the owner.

21. Multiple Hearsay Example 3(cont.) • The prosecution seeks to call only the officer at the preliminary hearing. • How many layers of hearsay are in this hypothetical? • What evidence is admissible? • How do we get this evidence in?

22. FRE 807 RESIDUAL EXCEPTION • Allows the trial judge to craft a hearsay exception for statements not covered by the Rules being offered in the case being tried.

23. FRE 807 RESIDUAL EXCEPTION • Statement must have equivalent circumstantial guarantees of trustworthiness; and • (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point than any other evidence the proponent can produce with reasonable efforts; and (C) the interests of justice favor the admission of the statement.

24. FRE 807 RESIDUAL EXCEPTION Notice requirement: - proponent must give adequate notice ahead of trial including the statement to be offered and contact information for the declarant.

25. CF CALIFORNIA – NO CODIFIED RESIDUAL EXCEPTION • In re Cindy L. (1997) 17 Cal.4th 15, 27 – review of appellate court creation of child dependency exception • Legislature left room in the area of hearsay exceptions for the judiciary to develop new exceptions as appropriate. • Compare legislative edict in the area of privileges.

26. In re Cindy L. (cont) • Courts must be cautious in creating new hearsay exceptions because: • hearsay evidence is “inherently unreliable”; • the constitutional dimension, in the criminal context, of 6th Amend. right of confrontation; • this area of the law is governed in large part by an extensive statutory scheme; and • Courts may not create evidentiary exceptions that conflict with statute.

27. UNAVAILABILITY • FRE 804 (a) • Cal. Evidence Code sec. 240

28. PRIVILEGE • FRE 804 (a) (1): is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; • Evid. Code sec 240 (a) (1): Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant.

29. DISQUALIFIED • FRE 804 (a): • Evid. Code sec. 240 (a) (2): Disqualified from testifying to the matter.

30. DEAD or UNABLE • FRE 804 (a) (4): is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; • Evid. Code sec. 240 (a) (3): Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.

31. Refusal to Testify • FRE 804 (a) (2): persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; • Evid. Code sec. 240: • Case Law: if witness refuses to testify, court can seek to compel testimony – i.e. hold witness in contempt and issue monetary or liberty sanctions

32. Cal Rules – Refusal to Testify • Case Law: • Court must offer reasonable inducements before finding contempt • Refusal to testify due to fear of retaliation may be within “mental infirmity” • Mere inconvenience, including anguish and discomfort resulting from testifying, insufficient

33. Cal Rules – Refusal to Testify (cont) • Evid. Code sec. 240 (c) Expert testimony which establishes that physical or mental trauma resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As used in this section, the term "expert" means a physician and surgeon, including a psychiatrist, orany person described by subdivision (b), (c), or (e) of Section 1010. The introduction of evidence to establish the unavailability of a witness under this subdivision shall not be deemed procurement of unavailability, in absence of proof to the contrary.

34. Lack of Memory • FRE 804 (a) (3): testifies to a lack of memory of the subject matter of the declarant's statement; • Evid. Code sec. 240: • Case law: willful evasiveness

35. Lack of Memory (cont) • Cal. Case Law: Willful Evasiveness • If witness has no present memory of statement, prior statement is not inconsistent • If witness refuses to testify, prior statement is not inconsistent • If witness claims no present memory and the court disbelieves the failure to recall, it is deemed a lie and therefore the prior statement is inconsistent

36. Beyond Process to Compel • FRE 804 (a) (5): is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means. • Evid. Code sec. 240 (a) (4): Absent from the hearing and the court is unable to compel his or her attendance by its process.

37. Absent Despite Due Diligence • FRE 804 (a) (5): is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means. • Evid. Code sec. 240 (a) (5): Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process.

38. Proponent Bad Faith • FRE 804 (a) A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. • Evid. Code sec. 240 (b): A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the declarant from attending or testifying.