personal knowledge requirement

PERSONAL KNOWLEDGE PERSONAL KNOWLEDGE REQUIREMENTREQUIREMENT

Evidence Code Sec. 702 requires a witness Evidence Code Sec. 702 requires a witness to have personal knowledge of the matter to have personal knowledge of the matter to which the witness is testifying to which the witness is testifying

-subject to Sec. 801 (expert witnesses) -subject to Sec. 801 (expert witnesses)

-it allows an objection to be made and it -it allows an objection to be made and it directs the court to meet the objection by directs the court to meet the objection by requiring such personal knowledge to be requiring such personal knowledge to be shown before the witness testifies shown before the witness testifies concerning the matter.concerning the matter.

PERSONAL KNOWLEDGE PERSONAL KNOWLEDGE REQUIREMENT (cont.)REQUIREMENT (cont.)

Counsel: “Objection, foundation, no Counsel: “Objection, foundation, no personal knowledge”personal knowledge”

Court response: “Lay your foundation”Court response: “Lay your foundation”

This sequence often leads to hearsay This sequence often leads to hearsay issues, but is a separate conceptissues, but is a separate concept

PERSONAL KNOWLEDGE PERSONAL KNOWLEDGE REQUIREMENT (cont.)REQUIREMENT (cont.)

FRE HAS SIMILAR PROVISIONS:FRE HAS SIMILAR PROVISIONS:

FRE 602 requires personal knowledge of FRE 602 requires personal knowledge of the matter to which testifyingthe matter to which testifying

Subject to FRE 703 (expert witnesses)Subject to FRE 703 (expert witnesses)

Evidence to prove personal knowledge Evidence to prove personal knowledge may, but does not have to, include the may, but does not have to, include the witness’ own testimonywitness’ own testimony

MACHINE AND NON-HUMAN MACHINE AND NON-HUMAN EVIDENCEEVIDENCE

Victim is in the street after having Victim is in the street after having been stabbed and is asked “who did been stabbed and is asked “who did it?”, and he responds by pointing to it?”, and he responds by pointing to defendant.defendant.

This assertive conduct, intended to This assertive conduct, intended to be substituted for words, is hearsay.be substituted for words, is hearsay.

MACHINE AND NON-HUMAN MACHINE AND NON-HUMAN EVIDENCE (cont)EVIDENCE (cont)

If a trained narcotics sniffing dog If a trained narcotics sniffing dog alerts on defendant at the alerts on defendant at the checkpoint, is this assertive conduct checkpoint, is this assertive conduct by the dog also hearsay?by the dog also hearsay?


The dog cannot be cross examined. The dog cannot be cross examined. But the handlers can – they can be But the handlers can – they can be cross examined about the dog’s cross examined about the dog’s reliability in the past and his training.reliability in the past and his training.


Machine evidence presents a similar Machine evidence presents a similar issue: if an officer was to testify that issue: if an officer was to testify that she knows the defendant was speeding she knows the defendant was speeding because another officer told her so, because another officer told her so, that would be hearsay. In this case the that would be hearsay. In this case the defense would want the witness with defense would want the witness with personal knowledge to testify to allow personal knowledge to testify to allow challenge to the conclusion that challenge to the conclusion that defendant was speeding.defendant was speeding.


However, if the officer testifies that she However, if the officer testifies that she

knows defendant was speeding because knows defendant was speeding because the radar gun shows that he was doing the radar gun shows that he was doing 50mph in a 30mph zone, different issues 50mph in a 30mph zone, different issues are raised. Here the defense would want are raised. Here the defense would want to challenge witnesses who design the to challenge witnesses who design the radar gun, who service and calibrate the radar gun, who service and calibrate the radar gun and the officer who used it to radar gun and the officer who used it to test whether was operated properly. test whether was operated properly.


Same issues in DUI cases with Same issues in DUI cases with

breathalyzer machines, DNA, all sorts breathalyzer machines, DNA, all sorts of medical testing etcof medical testing etc


QUERY:QUERY:

What about clocks?What about clocks?

Computer time stamps?Computer time stamps?

Cell phone times?Cell phone times?

MULTIPLE HEARSAYMULTIPLE HEARSAY

Hearsay within HearsayHearsay within Hearsay

Rule: Each Level must be separately Rule: Each Level must be separately justified to be admissiblejustified to be admissible

Multiple Hearsay Example 1Multiple Hearsay Example 1

Patient goes to emergency room after Patient goes to emergency room after having been stabbed in a bar fight. having been stabbed in a bar fight. Triage nurse asks about how injury Triage nurse asks about how injury occurred. Patient says defendant occurred. Patient says defendant wrongfully accused him of informing the wrongfully accused him of informing the police of defendant’s drug dealing police of defendant’s drug dealing activities and stabbed him. This activities and stabbed him. This exchange is documented in the medical exchange is documented in the medical records along with the diagnosis and records along with the diagnosis and treatment that the patient received. treatment that the patient received.


Prosecution offers the medical Prosecution offers the medical records under the business records records under the business records exception to corroborate the injuries.exception to corroborate the injuries.

What comes in?What comes in?

Under what theory?Under what theory?


Psychiatrist is hired by the defense Psychiatrist is hired by the defense to assist in presenting a mental to assist in presenting a mental defense to murder charges. defense to murder charges. Psychiatrist interviews defendant as Psychiatrist interviews defendant as part of his preparation for offering an part of his preparation for offering an opinion as to defendant’s mental opinion as to defendant’s mental health presently and at the time of health presently and at the time of the homicide. the homicide.


In this interview, defendant describes his In this interview, defendant describes his relationship with the murder victim as one relationship with the murder victim as one where the victim made numerous threats where the victim made numerous threats of bodily harm over some weeks before of bodily harm over some weeks before the killing. the killing.

Further, the defendant describes how the Further, the defendant describes how the pressure built up for him and exploded pressure built up for him and exploded when the victim threatened to rape when the victim threatened to rape defendant’s girlfriend. Defendant relates defendant’s girlfriend. Defendant relates that he snapped and killed the victim. that he snapped and killed the victim.

Multiple Hearsay Example 2 (cont.)Multiple Hearsay Example 2 (cont.)

Defendant also relates that he was Defendant also relates that he was physically abused as a child by his physically abused as a child by his father who was an alcoholic and father who was an alcoholic and abandoned by his mother who was a abandoned by his mother who was a drug addict. drug addict.

Defense seeks to have psychiatrist Defense seeks to have psychiatrist testify to opinion and the basis for it, testify to opinion and the basis for it, which includes the contents of which includes the contents of defendant’s interview.defendant’s interview.

Multiple Hearsay Example 2 (cont.)Multiple Hearsay Example 2 (cont.)

Defense seeks to have psychiatrist Defense seeks to have psychiatrist testify to opinion and the basis for it, testify to opinion and the basis for it, which includes the contents of which includes the contents of defendant’s interview.defendant’s interview.

How do we analyze this scenario?How do we analyze this scenario? Who has what interest here?Who has what interest here? Does this evidence come in?Does this evidence come in?


California Penal Code section 872(b) California Penal Code section 872(b) creates an exception to Evidence creates an exception to Evidence Code section 1200 to allow a holding Code section 1200 to allow a holding order at a preliminary hearing to be order at a preliminary hearing to be based on hearsay so long as certain based on hearsay so long as certain requirements are met. requirements are met.

Multiple Hearsay Example 3(cont.)Multiple Hearsay Example 3(cont.)

Police Officer testifies that he investigated Police Officer testifies that he investigated the auto burglary and the owner of the car the auto burglary and the owner of the car told him he had parked and locked the car told him he had parked and locked the car that morning when he arrived at work and that morning when he arrived at work and had given no one permission to enter the had given no one permission to enter the car. car.

Further, the owner told him that when he Further, the owner told him that when he returned to his car to go home, the car returned to his car to go home, the car stereo and speakers had been stolen and stereo and speakers had been stolen and that the dashboard and door panels had that the dashboard and door panels had been damaged in the process. been damaged in the process.


The owner also relates that he saw a man The owner also relates that he saw a man ride by on a bike with the speakers strapped ride by on a bike with the speakers strapped on the back. He says that he confronted the on the back. He says that he confronted the man and the man said that he bought the man and the man said that he bought the speakers a week ago from a lady on the next speakers a week ago from a lady on the next block and refused to return them. block and refused to return them.

The owner pointed down the street to a man The owner pointed down the street to a man standing next to a bike with speakers on the standing next to a bike with speakers on the back. The owner identifies the man and the back. The owner identifies the man and the speakers. The officer takes pictures and a speakers. The officer takes pictures and a written statement from the owner. written statement from the owner.


The prosecution seeks to call only the The prosecution seeks to call only the officer at the preliminary hearing. officer at the preliminary hearing.

How many layers of hearsay are in this How many layers of hearsay are in this hypothetical?hypothetical?

What evidence is admissible?What evidence is admissible?

How do we get this evidence in?How do we get this evidence in?

FRE 807 RESIDUAL EXCEPTIONFRE 807 RESIDUAL EXCEPTION

Allows the trial judge to craft a hearsay exception for statements not covered by the Rules being offered in the case being tried.

FRE 807 RESIDUAL EXCEPTIONFRE 807 RESIDUAL EXCEPTION Statement must have equivalent circumstantial

guarantees of trustworthiness; and (A) the statement is offered as evidence of a

material fact;

(B) the statement is more probative on the point than any other evidence the proponent can produce with

reasonable efforts; and

(C) the interests of justice favor the admission of the statement.

FRE 807 RESIDUAL EXCEPTIONFRE 807 RESIDUAL EXCEPTION

Notice requirement:

- proponent must give adequate notice ahead of trial including the statement to be offered and contact information for the

declarant.

CF CALIFORNIA – NO CODIFIED CF CALIFORNIA – NO CODIFIED RESIDUAL EXCEPTIONRESIDUAL EXCEPTION

In re Cindy L. In re Cindy L. (1997) 17 Cal.4th 15, (1997) 17 Cal.4th 15, 27 – review of appellate court 27 – review of appellate court creation of child dependency exceptioncreation of child dependency exception

Legislature left room in the area of Legislature left room in the area of hearsay exceptions for the judiciary to hearsay exceptions for the judiciary to develop new exceptions as develop new exceptions as appropriate. appropriate.

Compare legislative edict in the area of Compare legislative edict in the area of privileges.privileges.

In re Cindy L.In re Cindy L. (cont) (cont)

Courts must be cautious in creating new Courts must be cautious in creating new hearsay exceptions because:hearsay exceptions because:

hearsay evidence is “inherently unreliable”; hearsay evidence is “inherently unreliable”; the constitutional dimension, in the criminal the constitutional dimension, in the criminal

context, of 6context, of 6thth Amend. right of Amend. right of confrontation;confrontation;

this area of the law is governed in large this area of the law is governed in large part by an extensive statutory scheme; andpart by an extensive statutory scheme; and

Courts may not create evidentiary Courts may not create evidentiary exceptions that conflict with statute.exceptions that conflict with statute.

UNAVAILABILITYUNAVAILABILITY

FRE 804 (a)FRE 804 (a)

Cal. Evidence Code sec. 240Cal. Evidence Code sec. 240

PRIVILEGEPRIVILEGE

FRE 804 (a) (1): is exempted by ruling FRE 804 (a) (1): is exempted by ruling of the court on the ground of privilege of the court on the ground of privilege from testifying concerning the subject from testifying concerning the subject matter of the declarant's statement; matter of the declarant's statement;

Evid. Code sec 240 (a) (1): Exempted Evid. Code sec 240 (a) (1): Exempted or precluded on the ground of or precluded on the ground of privilege from testifying concerning privilege from testifying concerning the matter to which his or her the matter to which his or her statement is relevant. statement is relevant.

DISQUALIFIEDDISQUALIFIED

FRE 804 (a):FRE 804 (a):

Evid. Code sec. 240 (a) (2): Evid. Code sec. 240 (a) (2): Disqualified from testifying to the Disqualified from testifying to the matter. matter.

DEAD or UNABLEDEAD or UNABLE

FRE 804 (a) (4): is unable to be FRE 804 (a) (4): is unable to be present or to testify at the hearing present or to testify at the hearing because of death or then existing because of death or then existing physical or mental illness or infirmity; physical or mental illness or infirmity;

Evid. Code sec. 240 (a) (3): Dead or Evid. Code sec. 240 (a) (3): Dead or unable to attend or to testify at the unable to attend or to testify at the hearing because of then existing hearing because of then existing physical or mental illness or infirmity. physical or mental illness or infirmity.

Refusal to TestifyRefusal to Testify

FRE 804 (a) (2): persists in refusing to FRE 804 (a) (2): persists in refusing to testify concerning the subject matter of testify concerning the subject matter of the declarant's statement despite an order the declarant's statement despite an order of the court to do so; of the court to do so;

Evid. Code sec. 240: Evid. Code sec. 240:

Case Law: if witness refuses to testify, court Case Law: if witness refuses to testify, court can seek to compel testimony – i.e. hold can seek to compel testimony – i.e. hold witness in contempt and issue monetary or witness in contempt and issue monetary or liberty sanctionsliberty sanctions

Cal Rules – Refusal to TestifyCal Rules – Refusal to Testify

Case Law: Case Law: Court must offer reasonable Court must offer reasonable

inducements before finding contemptinducements before finding contempt Refusal to testify due to fear of Refusal to testify due to fear of

retaliation may be within “mental retaliation may be within “mental infirmity”infirmity”

Mere inconvenience, including anguish Mere inconvenience, including anguish and discomfort resulting from and discomfort resulting from testifying, insufficienttestifying, insufficient

Cal Rules – Refusal to Testify Cal Rules – Refusal to Testify (cont)(cont)

Evid. Code sec. 240 (c) Expert testimony which Evid. Code sec. 240 (c) Expert testimony which establishes that physical or mental trauma establishes that physical or mental trauma resulting from an alleged crime has caused harm resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify is physically unable to testify or is unable to testify without suffering substantial trauma may without suffering substantial trauma may constitute a sufficient showing of unavailability constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As pursuant to paragraph (3) of subdivision (a). As used in this section, the term "expert" means a used in this section, the term "expert" means a physician and surgeon, including a psychiatrist, physician and surgeon, including a psychiatrist, orany person described by subdivision (b), (c), or orany person described by subdivision (b), (c), or (e) of Section 1010. The introduction of evidence (e) of Section 1010. The introduction of evidence to establish the unavailability of a witness under to establish the unavailability of a witness under this subdivision shall not be deemed procurement this subdivision shall not be deemed procurement of unavailability, in absence of proof to the of unavailability, in absence of proof to the contrary. contrary.

Lack of MemoryLack of Memory

FRE 804 (a) (3): testifies to a lack of FRE 804 (a) (3): testifies to a lack of memory of the subject matter of the memory of the subject matter of the declarant's statement;declarant's statement;

Evid. Code sec. 240: Evid. Code sec. 240: Case law: willful evasivenessCase law: willful evasiveness

Lack of Memory (cont)Lack of Memory (cont)

Cal. Case Law: Willful EvasivenessCal. Case Law: Willful Evasiveness If witness has no present memory of If witness has no present memory of

statement, prior statement is not statement, prior statement is not inconsistentinconsistent

If witness refuses to testify, prior If witness refuses to testify, prior statement is not inconsistentstatement is not inconsistent

If witness claims no present memory If witness claims no present memory and the court disbelieves the failure to and the court disbelieves the failure to recall, it is deemed a lie and therefore recall, it is deemed a lie and therefore the prior statement is inconsistentthe prior statement is inconsistent

Beyond Process to CompelBeyond Process to Compel

FRE 804 (a) (5): is absent from the hearing FRE 804 (a) (5): is absent from the hearing and the proponent of a statement has been and the proponent of a statement has been unable to procure the declarant's attendance unable to procure the declarant's attendance (or in the case of a hearsay exception under (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other attendance or testimony) by process or other reasonable means.reasonable means.

Evid. Code sec. 240 (a) (4): Absent from the Evid. Code sec. 240 (a) (4): Absent from the hearing and the court is unable to compel his hearing and the court is unable to compel his or her attendance by its process. or her attendance by its process.

Absent Despite Due DiligenceAbsent Despite Due Diligence FRE 804 (a) (5): is absent from the hearing and FRE 804 (a) (5): is absent from the hearing and

the proponent of a statement has been unable to the proponent of a statement has been unable to procure the declarant's attendance (or in the case procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or (3), or (4), the declarant's attendance or testimony) by process or other reasonable testimony) by process or other reasonable means.means.

Evid. Code sec. 240 (a) (5): Absent from the Evid. Code sec. 240 (a) (5): Absent from the hearing and the proponent of his or her hearing and the proponent of his or her statement has exercised reasonable diligence but statement has exercised reasonable diligence but has been unable to procure his or her attendance has been unable to procure his or her attendance by the court's process. by the court's process.

Proponent Bad FaithProponent Bad Faith FRE 804 (a) A declarant is not unavailable as a FRE 804 (a) A declarant is not unavailable as a

witness if exemption, refusal, claim of lack of witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness statement for the purpose of preventing the witness from attending or testifying.from attending or testifying.

Evid. Code sec. 240 (b): A declarant is not Evid. Code sec. 240 (b): A declarant is not unavailable as a witness if the exemption, preclusion, unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the disqualification, death, inability, or absence of the declarant was brought about by the procurement or declarant was brought about by the procurement or wrongdoing of the proponent of his or her statement wrongdoing of the proponent of his or her statement for the purpose of preventing the declarant from for the purpose of preventing the declarant from attending or testifying. attending or testifying.

personal knowledge requirement

Documents

multiple hearsay hearsay

hearsay issues

nonhuman evidence contif

nonhuman evidence contquery

hearsay rule

nonhuman evidence contthe

nonhuman evidencevictim

medical records