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Hearsay Rule

Review of the California Hearsay Rule - Evidence Code 1200

California's "hearsay rule," defined under Evidence Code 1200, is a law that states that third-party hearsay cannot be used as evidence in a trial. This rule is based on the principle that hearsay is often unreliable and cannot be cross-examined.

In other words, EC 1200 is the statute that makes hearsay generally inadmissible in any court proceedings. The description of hearsay is straightforward. It's a statement made by someone other than the testifying witness that is offered to prove the truth.

Hearsay Rule in California - Evidence Code 1200
Hearsay evidence is not normally allowed in a criminal jury trial as it's deemed unreliable.

The legal definition of the hearsay rule under Evidence Code 1200 says: “(a) “Hearsay evidence” is 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…except as provided by law, hearsay evidence is inadmissible.

The primary reason for this rule of evidence in California criminal cases is that hearsay statements are not reliable enough to be accepted as valid evidence. Further, they are not made under oath and can't be subjected to cross-examination in court.

A traditional hearsay example includes a scenario where a witness testifies that a friend told them the defendant confessed to committing the crime. Still, the friend who allegedly told them does not provide testimony.

While the hearsay rule is intended to protect the defendant and ensure fairness, it is more than a little confusing because there are so many exceptions that it can be challenging to determine what is and is not "acceptable" hearsay. Our Los Angeles criminal defense attorneys will explore this rule in more detail below to clear up some of that confusion.

What Is Hearsay?

Evidence Code 1200 defines hearsay evidence as evidence of a statement made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.

To put it simply, hearsay occurs when a witness shares something someone else said out of court. It becomes "hearsay evidence" when the attorney attempts to use that out-of-court statement to confirm a fact they're trying to establish.

A “statement” could mean a verbal statement, a written statement, or nonverbal conduct such as hand gestures, head shaking, or shoulder shrugging. This rule applies to criminal and civil trials and hearings held as part of the pretrial process and sentencing hearings.

Why Does the Hearsay Rule Exist?

There are two main reasons why the hearsay rule exists. In general, they are not usually considered admissible evidence in court as they are deemed unreliable:

  • Third-hand statements are frequently unreliable. Like in the game "telephone," the more often a word is repeated between people, the more it can deviate from what was first said. Hearsay is unreliable because human memory is often unreliable;
  • Hearsay can't be cross-examined. One of the rights guaranteed in the Sixth Amendment is that defendants have the right to cross-examine those who testify against them. Hearsay is a statement made out of court by someone not on the stand, so the statement can't be verified by cross-examination.

Suppose the prosecution offers a statement that is not made by a witness at a trial and claims their statement is true. In that case, the defense doesn't have the opportunity to cross-examine that witness to prove their statement is not valid. Next, let's examine the Evidence Code 1200 hearsay rule exceptions below.

What are the Hearsay Exceptions?

Even though hearsay generally can't be used as evidence against a defendant, California law has established more than a dozen exceptions to the rule—instances in which hearsay is considered admissible without being unfair to the defendant. Some of the most notable exceptions include the following but are not limited to.

Hearsay admissions made by defendant against themselves – Evidence Code 1220  

If a witness relates a self-incriminating statement allegedly made by the defendant out of court (e.g., admitting to the crime), that statement can be used against the defendant even though it's technically hearsay.

What are the Hearsay Exceptions?
There are numerous exceptions where hearsay is considered admissible in a criminal trial.

Statements made against one's interest – Evidence Code 1230

If the witness relates hearsay that damages their interests (e.g., implicates them in a crime), it's more reliable because no reasonable person would inflict self-damage unless the statement were true. This is known as “declarations against interest,” which are out-of-court statements contrary to the speaker's best interest that no rational person would make unless true.

Prior inconsistent statements – Evidence Code EC 1235

Hearsay may be admissible when used to show inconsistency in a witness' statements on the stand, e.g., a witness relates something said by another witness that doesn't jibe with what the first witness said in court. This is considered reliable because it impeaches, or discredits, the witness' testimony.

Further, under Evidence Code 1236 EC, if a prior inconsistent statement of a witness is presented at trial as noted above, or the other side suggested their testimony is fabricated or biased, then the witness's side could give their prior out-of-court statements that are consistent with their testimony to show it's reliable.

Deathbed/dying declarations – Evidence Code 1242

A dying declaration is a statement made by someone on their deathbed about how they were injured or what happened to them. These are allowed as evidence because it's not likely that someone would lie about information relevant to their death when they believe it is imminent.

Spontaneous statements – Evidence Code 1240

A spontaneous statement is one by a speaker spontaneously as an event is happening—a statement that is not the result of questioning by law enforcement or another party. These statements are admissible as hearsay because the speaker does not tailor their story to fit a pre-determined narrative.

Previously recorded recollections or identification – Evidence Code 1237

If a witness's memory of an event was previously captured in a written or recorded format (e.g., via notes, video, audio recordings), that may be used as hearsay evidence if the witness's memory of the event is fuzzy and the witness testifies that the recollection is accurate. This exception applies to both identification of the defendant in a lineup and statements made by witnesses about relevant events.

Business records – Evidence Code 1271

Records kept in the ordinary course of business are considered reliable evidence and thus may be used as hearsay in court. This exception includes everything from ledgers to financial statements to email correspondence.

Certain written records are admissible evidence if they were made in the regular course of a business and made near the time of the act. Further, a qualified witness will have to testify how it was prepared to show its reliability.

Statements made by child abuse and elder abuse victims.

Victims of child abuse or child sex crimes under the age of 12 do not have to testify in court; neither do elder abuse victims (elder dependents over age 65). In such cases, video or recorded statements made by these victims are admissible in court.

California Hearsay Rule Exceptions
An exception to the hearsay rule includes statements made by child abuse and elder abuse victims.

Out-of-court statements in cases involving serious sex crimes against children, like Penal Code 261 PC rape and Penal Code 288 PC lewd acts with a minor, are admissible if they are made by a child under 12 and made in a written report by police or an employee in the welfare department.

Unavailable witnesses for serious felonies only – Evidence Code 1350

In serious felony cases, prior statements made by a witness who was killed or kidnapped to prevent them from testifying may be admitted as hearsay evidence.

This exception to the rule applies in a California criminal trial when the defendant is charged with a serious felony crime. There is clear and convincing evidence that the person making the hearsay statement has been made unavailable by the defendant, either through homicide or kidnapping, along with other requirements.

Other exceptions to the hearsay rule include former testimony under Evidence Code 1291, physical injury statements, and Penal Code 368 elder abuse statements under Evidence Code 1380.

Related Content

If you have been charged with a crime and need more information about how California Evidence Code 1200 hearsay rule might apply to your case, then reach out to us to examine your case details.

Eisner Gorin LLP is a top-ranked criminal defense law firm in Los Angeles County. We provide superior legal representation to people across Southern California.  You can contact us for an initial case review by calling (310) 328-3776 or filling out the contact form.

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