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  a. Summary: Non-hearsay uses of out of court statements:
a. DECLARANT¶S STATE OF MIND
1. LYONS v MORRIS COSTUMES (MISTAKE)
2. US v. PARRY (KNOWLEDGE)
b. EFFECT ON LISTENER
1. SUBRAMANIAM v. PP (FEAR, DURESS)
2. US v. JOHNSON (KNOWLEDGE)
3. US v. JEFFERSON (KNOWLEDGE)
c. VERBAL ACTS (³OPERATIVE CONDUCT´)
1. US v. SAAVEDRA (FRAUD)
2. Hanson v Johnson (transfer)
3. Creaghe v Iowa (cancellation)
4. US v Montana (demand)
d. possible uses of out of court statements;
1. mistake
2. knowledge
3. fear, duress
4. fraud, etc.
e. introduced to prove matter asserted?
1. what is matter asserted?
2. person introducing it want that proved? ï hearsay
3. if used to prove something else, make other
inferences, then ï non-hearsay.
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a. Communicate w/o trying²like putting on sweater to signal cold;

judges sometimes treat conduct as hearsay.
a. FRE defines ³statements´ to include non-verbal conduct
only when it is intended as a form of communication.
1. nonverbal conduct of a person, if it is intended by
the person as an V
. FRE 801.
b. Verbal expressions that reveal something other than
intended meaningï generally treated as non-hearsay (admissible), either
on ground that not offer to prove matter asserted or there is no matter
asserted.
b. Signaling w/o words
 a. Captain took family on board (X) ï thought it was safe (Y)
ï (Y is true) ship was safe
b. English law ï hearsay
c. American law ï Hearsay only if conduct X is assertive
conduct.
c. Say one thing mean another
a. Said X ï thought Y ï Y is true
b. English law ï hearsay
c. American law ï not hearsay (unless X was intended to
communicated Y).
d. Assertive conduct ï can be hearsay
a. Nodding to indicate yes
b. Raising hand to indicate yes
c. Keeping hand down to indicate no.
d. Pointing at picture to identify assailant.
e. Non-assertive conduct ï cannot be hearsay
a. Taking off sweater b/c warm
b. Staying silent because temperature is comfortable.
c. Fleeing country to escape prosecution
f. Ask what was declarant trying to communicate?





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a. ÷
  
Not hearsay if witness/declarant, is in court,
under oath, and statement is
a. witness said something in the past that contradicts what he
is saying now.
1. [witness is declarant basically, hearsay, but the
declarant is actually now in court, for you to cross-examine; so
should not be prohibited by hearsay rule]
b. Consistent, but offered to rebut charge of recent fabrication
of improper motive or influence.
c. Identification of person after perceiving him.
d. Notes: Why not exempt all prior statements by witnesses?
Drafters of FRE did not go this far«more of experience than of logic.
e.  : Prior inconsistent statements
1. no need to consider hearsay rules at all if introduce
prior inconsistent statements used solely to impeach.
 2. don't have to testify.
f. CEC: May be offered as substantive evidence, FRE is not.
g. Under FRE, prior statement must be under oath to prove
the truth of the matter asserted in order to go to substantive evadence.
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1. F attacked by R, lost memory but later identified R;
at witness stand, said could not remember seeing assailant, only
that he identified him to investigator.
2. 801(d)(1)(C): not hearsay a prior statement of
identification of a person made after perceiving the person, if
declarant testifies at trial or hearing, subject to cross-exam.
3. premise for this rule is that, with adequate
safeguards against suggestiveness, out of court IDs were generally
preferable to courtroom IDs.
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‡ Record concerning matter about which witness once had knowledge bu
now has insufficient recollection to testify fully and accurately
‡ must have been made or adopted by the witness when the matter was fresh
in the witness's memory
‡ must reflect that knowledge correctly.
‡ May then be read into evidence, but not admitted as exhibit unless by
adverse party.

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a. Elements
1. record of business
2. regularly maintained
3. made promptly
4. based on knowledge
 ƒ. supported by testimony [or]
appears trustworthy. CEC
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a. Rationale? Reliability and practical necessity«
b. Religious rationale no longer apply, but psychological
pressures«
c. Shepard²Cardozo
1. conscious of swift and certain doom.
d. Imminent death and subject matter:
1. must be in prosecution for 

 or in civil
proceeding with no posse of imprisonment.
2. must concern death²cause or circumstances«he
statement must concern ''the cause or circumstances'' of what
declarant ''believed to be impending death.''
3. Must Have personal knowledge, not speculation
a. The difficult cases are those where the
declarant's statement launches into a narrative, relating to
something like an earlier argument between the parties, or a
previous threat, situations in which courts have often
excluded statements on the basis that they do not relate to
the cause and circumstances of impending death. If the
court interprets the exception broadly, such statements can
be considered as bearing on the cause of death.
4. federal rule²do not have to die
a. Belief in the certainty of death, is an
indispensable requirement
b. Death need not actually have occurred. The
guarantee of trustworthiness is that at the time the
statement was made, the declarant believed that the
declarant's death was imminent.
ƒ. CA rule²likely you do have to die
e. limitations:
f. Confrontation clause issues: Appellate courts will
eventually either exclude dying declarations from confrontation
requirements altogether or develop rules for determining whether a
proffered dying declaration is ''testimonial'' under 2V


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‡ ‡ Elements:
‡ Contrary to pecuniary
‡ Regardless of the type of interest involved, the
declarant must be  
' , as defined in Rule 804(a)
‡ The declarant must have  
 the facts to
which the statement relates.
 ‡ At the moment the statement is made the declarant
must believe that the statement is against the declarant's interest.
‡ Only a    * +
    are
admissible against other persons under this hearsay exception. If
the statement or any part of it serves the    *
 , it is
not admissible as a statement against interest
‡ A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused in not
admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement.
‡ CA rule expands scope²statements created against social
interest²e.g., disgrace in the community²but this is rarely used.
‡ ³created such a risk of making him an object of
hatred, ridicule, or social disgrace in the community.´

‡ Williamson: ³804b3«does not allow admission of

non-self-inculpatory statements, even if they are made within a
broader narrative that is generally self-inculpatory.´
‡ fear that criminals in custody would try to curry
favor with police by incriminating others.


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orfeiture by Wrongdoing
‡ FRE 804(b)(6): A statement offered against a party that has engaged or
acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the
declarant as a witness.
  
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Character Evidence
ß? FRE 404(a): Character Evidence Generally: Evidence of a person¶s character or a trait of
character is not admissible for the purpose of proving action in conformity therewith on a
particular occasion, except:
ß? CEC 1101 Evidence of Character to Prove Conduct
? (a): Except as provided in this section and in Sections 1102, 1103, 1108, and
1109, evidence of a person¶s character or a trait of his or her character (whether in
the form of an opinion, evidence of reputation, or evidence of specific instances
of his or her conduct) in inadmissible when offered to prove his or her conduct on
a specific occasion:
? (b) Nothing in this section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some fact (
such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, or whether a defendant in a prosecution for an
unlawful sexual act or attempted sexual act did no reasonably and in good faith
believe that the victim consented) other than his or her disposition to commit such
an act.
ß? Character in issue:
? Notice: Employee¶s character relevant to RR¶s negligence
? Parent¶s character relevant to parental fitness
? Relevant to truth of alleged libel, and to damages.
Exceptions to Character Evidence Ban:
ß? FRE 404(a)
? (1): Character of the Accused: In a criminal case, evidence of a pertinent trait of
character offered by an accused, or by the prosecution to rebut the same, or if
evidence of a trait of character of the alleged victim of the crime is offered by an
accused and admitted under Rule 404(a)(2), evidence of the same trait of
character of the accused offered by the prosecution;
? (2): Character of the Victim: In a criminal case, and subject to the limitation of
rule 412, evidence of a pertinent trait of character of the alleged victim of the
crime offered by an accused, or by the prosecution to rebut the same, or evidence
of a character trait of peacefulness of the alleged victim offered by the
 prosecution in a homicide case to rebut evidence that the alleged victim was the
first aggressor (Not in CEC);
ß? Defendant can open either door.
? (3) Character of witness: Evidence of the character of a witness as provided in
rules 607-609.
ß? 404(b): Other Crimes, Wrongs or Acts: Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preperation, plan, knowledge, identity, or absence of mistake or
accident, rovided that upon request by the accused, the prosecution in a criminal case
shall provide reasonable notive in advance of trial, or during trial if the court excuses
pretrial notive on good cause shown, of the general nature of any such evidence it intends
to introduce at trial.
ß? CEC 1102 Opinion and reputation evidence of character of criminal defendant to prove
conduct: In a criminal action evidence of the defendant¶s character or a trait of his
character in the form of an opinion or evidence of his reputation is not made inadmissible
by Section 1101 if such evidence is:
? (a) Offered by the defendant to prove his conduct in conformity with such
character or trait of character. (Defendant can open either door)
? (b) Offered b the prosecution to rebut evidence adduced by the defendant under
subdivision (a)
ß? CEC 1103 Character evidence of the crime victim to prove conduct . . .
? (a) In a criminal action, evidence of the character or a trait of character (in the
form of an opinion, evidence of reputation, or evidence of specific instances of
conduct) of the victim of the crime for which the defendant is being prosecuted is
not made inadmissible by Section 1101 if the evidence is:
ß? (1) Offered by the defendant to prove the conduct of the victim in
conformity with the character or trait of character. (Defendant opens either
door.)
ß? (2) Offered by the prosecution to rebut evidence adduced by the defendant
under paragraph (1)
? (b) In a criminal action, evidence of the defendant¶s character for violence or trait
of character for violence ( in the form of an opinion, evidence of reputation, or
evidence of specific instances of conduct) is not made inadmissible by Section
1101 if the evidence is offered by the prosecution to prove conduct of the
defendant in conformity with character or trait of character and is offered after
evidence that the victim had a character for violence or a trait of character tending
to chow violence has been adduced by the defendant under paragraph (1) of
subdivision (a).
Methods of Proving Character
ß? FRE 40ƒ Methods of Proving Character:
? (a) Reputation or Opinion: In all cases in which evidence of character or a trait of
character is admissible, proof may be made by testimony as to reputation or by
testimony in the form of opinion. On cross-examination, inquiry is allowable into
relevant specific instances of conduct (but only to show what the witness¶s
standard of opinion concerning reputation).
 ? (b) Specific instances of conduct: In cases in which character or a trait of
character of a person is an essential element of a charge claim, or defense, proof
may also be made of specific instances of that person¶s conduct.
ß? CEC: see 1102-03 supra.
Habit
Ô? FRE 407: Evidence of the habit of a person or of the routine practice of an organization,
is relevant to prove that the conduct of the person or organization on a particular occasion
was in conformity with the habit or routine practice.
Ô? CEC 1104 Character trait for care or skill: Except as provided in Section 1102 and 1103,
evidence of a trait of a person¶s character with repect to care or skill is inadmissible to
prove the quality of his conduct on a specific occasion
Ô? CEC 110ƒ Habit or custom to prove specific behavior: Any otherwise admissible
evidence of habit or custom is admissible to prove conduct on a specific occasion in
conformity with the habit or custom.
Ô? McCormick on Habit:
? A regular practice of meeting a particular kind of situation with a specific type of
conduct
? Habitual acts become semi-automatic. A volitional act is less likely to be
considered habit.
? More probative, less prejudicial than character evidence.
Character of the Victim in Sex Cases:
Ô? FRE 412
? (a) Evidence Generally Admissible. The following evidence is not admissible in
any civil or criminal proceeding involving alleged sexual misconduct as provided
in subdivisions (b) and (c):
ß? (1) Evidence offered to prove that any alleged victim engaged in other
sexual behavior
ß? (2) Evidence offered to prove any alleged victim¶s sexual predisposition
? (b) Exceptions:
ß? (1) In a criminal case, the following evidence is admissible:
Ô? (A) evidence of specific instances of sexual behavior by the
alleged victim offered to prove that a person other than the accused
was the source of semen, injury or other physical evidence
Ô? (B)Evidence of specific instances of sexual behavior by the alleged
victim with respect to the person accused of the sexual misconduct
offered by the accused to prove consent or by the prosecution; and
Ô? (C) evidence the exclusion of which would violate the
constitutional rights of the defendant.
ß? (2) In a civil case, evidence offered to prove the sexual behavior or sexual
predisposition of any alleged victim is admissible if it is otherwise
admissible under these rules and its probative value substantially
outweighs the danger of harm to any victim and of unfair prejudice to any
party. Evidence of an alleged victim¶s reputation is admissible only if it
has be placed in controversy by the alleged victim.
Ô? CEC 1103
 ? (c) (1): In any prosecution for rape or sexual assault except where the crime is
alleged to have occurred in a local detention facility or a state prison, opinion
evidence, reputation evidence, and evidence of specific instances of conduct of
the complaining witness¶s sexual conduct, or any of that evidence,, is not
admissible by the defendant in order to prove consent by the complaining witness.
? (2) Evidence of the manner in which the victim was dressed at the time of the
commission of the offense shall not be admissible when offered by either party on
the issue of consent in any prosecution for an offense specified in (1), unless the
evidence is determined by the court to be relevant and admissible in the interests
of justice.
? Paragraph (1) shall not be applicable to evidence of the complaining witness¶
sexual conduct with the defendant.
Ô? CEC 1106 Sexual harassment, sexual assault, or sexual battery cases
? (a) IN any civil action alleging conduct which constitutes sexual harassment,
sexual assault, or sexual battery, opinion evidence, reputation evidence, and
evidence of specific instances of plaintiff¶s sexual conduct, or any of such
evidence, is not admissible by the defendant in order to prove consent by the
plaintiff or the absene of injury to the plaintiff, unless the injury alleged by the
plaintiff is in the nature of loss of consortium.
? (b) (a) shall not be applicable t evidence of the plaintiff¶s conduct with the alleged
perpetrator.
Character of the Defendant in Sex Cases:
Ô? 413(a) In a criminal case in which the defendant is accused of sexual assault, evidence of
the defendant¶s commission of another offense or offenses of sexual assault is admissible,
and may be considered for its bearing on any matter to which it is relevant
Ô? 414(a) IN a criminal case in which the defendant is accused of an offense of child
molestation, . . .
Ô? 41ƒ(a) In any civil case in which a claim for damages or other relief is predicated on a
party¶s alleged commission of conduct constituting an offense of sexual assault, 414 and
41ƒ govern.

Attorney strategy
Not discoverable in Cal
Fed: No ruleing. much higher showing (at a minimum) than regular work product.