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Witness Declarations

Witness Declarations. PRESENT SENSE IMPRESSION. 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:

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Witness Declarations

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  1. Witness Declarations

  2. PRESENT SENSE IMPRESSION • 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: • (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.

  3. 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

  4. 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?

  5. 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?

  6. 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?

  7. Evid. Code sec. 1241 (cont.) • Words are act of robbery; • sec. 1241; • (cf. sec. 1220)

  8. 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 att-murder D claims accidental discharge. Now offered for truth of “will kill”. • Does statement come in under §1241? • Under § 1220?

  9. 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.

  10. 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

  11. Spontaneous Statement (cont.) • Narrate, describe or explain • Act, condition or event

  12. Spontaneous Statement (cont.) • Spontaneously • While under the stress of excitement of event

  13. Spontaneous Statement (cont.) • Examples: • 911 call describing car accident – “blue car ran red light and hit white car” • What other proof do we need?

  14. 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?

  15. 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?

  16. 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?

  17. 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?

  18. 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

  19. 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.”

  20. STATE OF MIND (cont.) • 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?

  21. STATE OF MIND (cont.) • Does the statement “I intend to continue to 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?

  22. 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”

  23. 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

  24. 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?

  25. 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.”

  26. 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, 404-405 -- 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

  27. 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

  28. 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

  29. 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

  30. 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

  31. STATE OF MIND (cont.) • Peo. V. Guerra (2006) 37 Cal.4th 1067, 1115-1116 – vic 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

  32. STATE OF MIND (cont.) • Peo. V. Guerra (2006) 37 Cal.4th 1067, 1115-1116 – 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

  33. STATE OF MIND (cont.) • Peo. V. Guerra (2006) 37 Cal.4th 1067, 1115-1116 – 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. • 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.

  34. 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?

  35. 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

  36. 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.

  37. 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

  38. Statement of Declarant’s Then Existing Mental/Physical State • Evid. Code sec. 1250: • 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 – • 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

  39. Statement of Previously Existing Mental/Physical State • Evid. Code sec. 1251: • Subject to sec. 1252, statement of declarant’s previously existing • 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

  40. 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.

  41. 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.

  42. 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

  43. 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

  44. 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

  45. 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

  46. 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?

  47. 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)

  48. 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

  49. 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”

  50. 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?

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