Hearsay is defined as an out-of-court statement introduced to prove the truth of its contents. In a prior article, we discussed out-of-court statements which did not constitute hearsay and, therefore, are admissible in evidence.
As an example, an offer made by a seller to sell his car to a prospective buyer for $5000, and the prospective buyer’s statement that he accepted that offer, would not constitute hearsay, because such statements would not be offered into evidence to prove that the seller would in fact sell his car to the buyer or that the buyer would in fact pay $5000 for the seller’s car. Rather, the statements of offer and acceptance may be introduced to simply prove that they were made, because the very words of “offer” and “acceptance” have “independent legal significance,” in that they constituted the execution of a contract between the buyer and seller.
In this article, we discuss seven of the most common exceptions to the hearsay rule. They permit in evidence out-of-court statements, either oral or in writing, which are in fact used to prove the truth of the contents (“hearsay”), but which for various policy reasons, the legislatures and courts have permitted in evidence.
- Admissions of a Party. A “party” is a plaintiff or a defendant in a matter litigated in court, or a claimant (or petitioner) or a respondent in a non-court proceeding, such as an arbitration or administrative proceeding. The law permits in evidence a statement made by such a party, regardless of the fact it is introduced to prove the truth of its contents. The policy for admitting a statement of a party is that the party is present and can testify about the statement he/she allegedly made, and can deny it was made, or explain what he/she meant by it.
Admissions of a party include what are known as “adoptive admissions.” California Evidence Code §1221 provides:
“Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.”
An “adoptive admission” is one which the party has not expressed in words, and is typically a statement made by someone else, which the party has, in effect, adopted as his own statement based on his conduct. For instance, if A says to B in reference to C, who is present at that time, “This is my new partner,” and C does not deny it, his failure to deny it is an adoptive admission by him that he is in fact A’s partner.
- Declarations against Interest. A declaration of a non-party, which is against the interest of the person making the statement, although introduced to prove the truth of its contents, is admissible. The theory behind this exception is that one would not speak falsely or mistakenly when saying something detrimental or prejudicial to himself. A declaration is against one’s interest if it is “so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjects him to the risk of civil and criminal liability, or so far tends to render invalid a claim by him against another, or creates such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.” California Evidence Code §1230.
However, in California state courts, for this exception to apply, the person making the statement must be “unavailable as a witness.” Id. If the witness who made the statement can be brought into court, such as by way of a subpoena served on him, the party seeking to introduce the statement must bring the witness into court, so that he may be questioned directly about the statement, and cross-examined by the party opposing statement.
- Spontaneous Statements, or “Excited Utterances.” Statements made by a person without deliberation or reflection are permitted in evidence, regardless of the fact they are introduced to prove the truth of their content, on the theory that the statements are most likely true and trustworthy under such circumstances. A typical example would be a statement blurted out by the speaker immediately after and in response to a startling incident. For instance, a witness’s statement, “Oh my God, he just went through a red light,” right after a serious auto accident, would qualify for admission under this exception. See California Evidence Code §1240.
- Dying Declarations. California Evidence Code §1242 permits proof of “a statement made by a dying person respecting the cause and circumstances of his death,” if it was made “upon his personal knowledge and under a sense of immediately impending death.” The policy permitting one who heard such a statement to testify that the statement was made is the fact that, because of the solemnity of the circumstances, one on his deathbed would not be expected to speak falsely.
- Statements of Physical or Mental State. California Evidence Code §1250 provides that, “A statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health)” is admissible when the evidence is offered to prove the declarant’s state of mind, emotion or physical sensation at any time when it is itself an issue, or to prove or explain the acts of the person making the statement.
A typical example would be a statement of intent. If, for instance, A told B that he would be traveling from California to Colorado on Monday of the following week, B would be permitted to testify that A told him that. The theory for permitting B to so testify is that it is likely that one will do that which he states he intends to do. In other words, the statement is considered reliable and the purpose for the hearsay rule would not be served by denying its admission in evidence.
- Business records. Not all out-of-court statements are oral. Some are written. Business records are a prime example. Most businesses keep records of their transactions, and the law permits their admission in evidence, even for the purpose of proving the truth of the contents of the records, so long as the following conditions are met:
(1) The writing or record must have been made in the regular course of the business;
(2) It must have been made at or near the time of the act, condition, or event it records;
(3) The custodian or other qualified witness testifies to its identity and the way in which it was prepared; and
(4) The sources of information and the method and time of preparation of the record are such as to indicate its trustworthiness. See California Evidence Code §1271.
- Official Records and Writings. Official records and writings are admissible if they are statements of a public official, so long as it is shown that the official was under a duty to make the statement, and that the statement was based on facts within the official’s personal knowledge. The policy consideration behind this exception is the fact that public functions could not be conveniently performed if government officials were always required to appear in court and testify to their acts. See California Evidence Code §1280.
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