Evidence Code Section 1200
Hearsay is generally inadmissible in legal proceedings, as hearsay statements are considered to be too unreliable to prove the truth of the matter stated. The rules of evidence in California are governed by statute, condensed within the Evidence Code.
Evidence Code Section 1200 defines hearsay as:
“evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.”
The Evidence Code further instructs,
“except as provided by law, hearsay evidence is inadmissible.”
This applies because hearsay statements are traditionally made by third party individuals who are unavailable to testify at trial. Ultimately, hearsay statements are inadmissible because they are not made under oath and the declarant is unavailable for cross-examination.
Some examples of hearsay include:
- A mother testifies that her son told her he heard his best friend confess to kidnapping, but the son is unavailable to testify at trial;
- On a radio interview, a former colleague states that her co-worker was menacing towards her and other staff members, but does not testify at his assault trial (cannot be used to prove that the accused was indeed menacing);
- A letter from the defendant’s boyfriend stating that she stole money from him but he does not testify and the letter is admitted to prove the defendant is destitute and stole said money.
Because the speaker is unable to testify and the declarations were made outside of court, there is an inherent lack of trustworthiness and reliability attached to hearsay statements. This is the case even if the statement(s) were made in an official capacity, under oath (i.e., during a deposition, in a sworn declaration, contained within a report, or uttered during a previous court proceeding).
Essentially, hearsay cannot be admitted into evidence as substantive proof of the underlying accusation.
However, a seasoned and well-versed criminal defense attorney will know how to distinguish hearsay from admissible evidence. Although hearsay statements are widely inadmissible, there are some narrow exceptions set forth within the Evidence Code allowing certain hearsay statements to be entered into evidence. Some of these exceptions are:
- A statement made out of court that is not offered for the truth of its contents;
- Absence of business records;
- Absence of official records;
- Adoptive admissions;
- Authorized admissions;
- Business records;
- Co-conspirators’ admissions;
- Contemporaneous statements;
- Declarant’s liability;
- Declarations against interests;
- Dying declarations;
- Federal records;
- Former testimony;
- General interest;
- Minor’s injuries;
- Past recollection recorded;
- Prior consistent statements;
- Prior inconsistent statements;
- Prior identification;
- Public or official records;
- Spontaneous statements;
- State of mind or body;
- Statement of declarant’s previously existing mental/physical state;
- Statement of right or title;
- Vital statistics;
- Wrongful death.
Furthermore, not everything that gives the impression of hearsay may in fact be inadmissible. A knowledgeable attorney will be able to discern what is truly non-hearsay, and understand that conduct may or may not be considered hearsay given the particular situation. Namely, non-verbal communication that is designed to be a proxy for verbal expression is hearsay if presented in court to prove the truth of what was intended to be communicated.
Conversely, matters related to whether something occurred, whether something was said, or whether an action was taken do not implicate the hearsay rule since these statements convey operative facts and are therefore non-hearsay (i.e., statements made out of court that are not offered for the truth of their contents). Similarly, statements made out of court are not considered hearsay if admitted for impeachment purposes or to attack the credibility of a witness. And an out-of-court statement made by a party opponent can be introduced for both its veracity and for impeachment purposes.
A skillful attorney will not only be well-educated in the rules of evidence, but will know how to utilize the hearsay rule appropriately. It is necessary to know how and when to artfully object to the prosecution’s use of hearsay.
For what purpose will the evidence be used? If it is indeed hearsay (being used for the truth of its contents), is there a valid exception or statute that allows its admittance?
If it’s not hearsay, are there any authentication or foundation issues to object to its use? Is it practical to file a motion in limine to petition the court to exclude the evidence? Or were there any preliminary decisions by the court barring the non-hearsay material?
Moreover, a practiced attorney will understand that the hearsay proponent bears the burden of proving the non-availability of a witness (the Evidence Code permits an exception to the hearsay rule when it is believed a witness may have been killed or kidnapped to obstruct his/her testimony), proving the evidence to be non-hearsay and/or proving the evidence to be hearsay that qualifies for an exception.
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Seppi Esfandi is an Expert Criminal Defense Attorney who has over 20 years of practice defending a variety of criminal cases.