Hearsay Rule & Exceptions in California – A Legal Guide

California Evidence Code § 1200 defines hearsay as any statement (a) made by someone other than the witness who is testifying and (b) offered to prove the truth of the matter asserted. In simpler terms, hearsay evidence is when a person shares something he or she heard from someone else, rather than from firsthand knowledge.

But the hearsay rule is not absolute. California, like other states, recognizes a long list of exceptions to the hearsay rule, including excited utterances, dying declarations, prior inconsistent statements and prior recollection recorded.

The language of the code section reads:

1200. (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.

(b) Except as provided by law, hearsay evidence is inadmissible.

(c) This section shall be known and may be cited as the hearsay rule.

The reason why we have this California rule of evidence in criminal cases is that hearsay statements are simply not reliable enough to be accepted as evidence—because they are not made under oath, and the speaker cannot be cross-examined in court. ^{1 2 3}

Examples

Here are some examples of evidence that would be considered hearsay evidence in California:

• A witness testifies that his sister told him that the defendant in a criminal case confessed to her—but the sister herself does not testify;
• In a California domestic violence case, a former girlfriend of the defendant says in a newspaper interview that she was scared of the defendant when she was dating him—but the former girlfriend does not testify at his trial; and
• In a Penal Code 503 PC – embezzlement case, the prosecution presents a letter from the defendant’s accountant (who does not testify) stating that the defendant is bankrupt, in order to prove that the defendant was bankrupt.

Exceptions to the hearsay rule

The California Evidence Code sets forth a long list of exceptions to the hearsay rule. In other words, some kinds of hearsay are admissible if they fall into certain defined categories.

Some of the most important exceptions that California criminal defendants should know about are:

1. Admissions by parties to the case that are used against the speaker—for example, a confession to a crime;⁴
2. Statements, by a speaker who is unavailable as a witness, that are against his/her self-interest in an important way;⁵
3. Prior statements by a witness at the trial that are inconsistent with his/her current testimony;⁶
4. Prior statements by a witness at the trial that are consistent with his/her testimony—if these are used to rebut evidence that his/her testimony is unreliable;⁷
5. Written statements by a witness regarding events that were fresh in his/her mind at the time the statement was made but that s/he has forgotten by the time of the trial;⁸
6. Previous eyewitness identifications by a witness that were made when the crime or other event was fresh in his/her memory;⁹
7. Spontaneous statements made in the excitement of the moment;¹⁰
8. Statements made to explain the speaker’s actions, while s/he was performing those actions;¹¹
9. Statements made by a dying person about the causes or circumstances of his/her death;¹²
10. Certain statements about the speaker’s mental or physical state that are offered to prove that s/he experienced that mental or physical state;¹³
11. Certain statements made by children under the age of 12 in Penal Code 273d PC – child abuse cases or cases involving sex crimes against children;¹⁴
12. Certain business or public records;¹⁵
13. Former testimony that was given in an earlier court or official proceeding, when the witness is now unavailable to testify;¹⁶
14. Certain statements about family history, community history, or a person’s reputation in the community;¹⁷
15. In cases involving serious felonies, statements by witnesses who may have been murdered or kidnapped by the defendant;¹⁸
16. Certain statements in which the speaker describes or explains a physical injury (or the threat of a physical injury) that was inflicted on him/her;¹⁹ and
17. Certain videotaped statements by an elderly or dependent adult in Penal Code 368 PC – elder abuse cases.²⁰

In order to help you better understand the law, our California criminal defense attorneys ²¹ will address the following:

• 1. What is the hearsay rule in California?
  • 1.1. Legal definition of hearsay
  • 1.2. Reasoning behind the hearsay rule
• 2. What are the hearsay exceptions in California?
  • 2.1. Party admissions and statements against interest
  • 2.2. Prior inconsistent statements or prior consistent statements
  • 2.3. Past recollection recorded; prior identification
  • 2.4. Spontaneous or contemporaneous statements
  • 2.5. Dying declarations
  • 2.6. Statements about mental or physical state
  • 2.7. Statements by children
  • 2.8. Business or public records
  • 2.9. Former testimony
  • 2.10. Family or community history/reputation
  • 2.11. Unavailable witnesses in serious felony cases
  • 2.12. Physical injury statements
  • 2.13. Elder abuse statements

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is the hearsay rule in California?

Simply put, the California hearsay rule—set forth in Evidence Code 1200 EC—says that hearsay statements are inadmissible in California court proceedings.²²

This applies to both criminal and non-criminal (civil) trials, as well as to hearings held as part of the pretrial process and sentencing hearings.²³

1.1. Legal definition of hearsay

Under California law, the legal definition of a “hearsay statement” is any statement that

1. Is not made by a witness testifying at the trial or hearing, and
2. Is offered to prove the truth of what is stated.²⁴

A “statement” can mean any of the following

• A spoken (oral) statement,
• A written statement, or
• Nonverbal conduct that is intended as a substitute for an oral or written statement (for example, nodding, shaking one’s head, or shrugging).²⁵

Example: Shane is a college student on trial for petty theft. He is accused of shoplifting hundreds of dollars’ worth of textbooks from the college bookstore.

The prosecution calls as a witness Terry, a woman who lives in Shane’s dorm. Terry testifies that she knows Shane stole textbooks because her roommate, Ann, told her that she (Ann) saw him do so. Ann is not a witness at Shane’s trial.

Terry’s testimony is hearsay evidence, and it is not admissible. Shane’s criminal defense lawyer objects, and the judge orders the jury to disregard what Terry said.

On the other hand, statements that are

• made by someone other than a witness testifying at trial, BUT
• are not offered to prove the truth of their content,

are generally not considered hearsay evidence. Therefore, such statements are acceptable evidence under the California Evidence Code.²⁶

Example: Bill is on trial for Penal Code 187 murder. He is alleged to have committed the murder with Shelley, an accomplice.

The prosecution introduces testimony from John, a third party. John testifies that Shelley asked him whether he could help her get a gun.

John’s testimony about Shelley’s out-of-court statement is not hearsay evidence. That’s because Shelley’s statement is a request—and does not assert the truth of any fact. Thus, Shelley’s question about the gun is admissible evidence under Evidence Code 1200 EC.²⁷

Example: Tom is on trial for California DUI. He has chosen not to testify at his own trial.

The prosecution introduces tape recordings of Tom’s speech on the night he was arrested. The recordings are designed to show that Tom was slurring his speech and otherwise talking as if he were drunk.

Because they are not being offered to prove the truth of anything Tom was saying, the tape recordings are not hearsay evidence.²⁸

1.2. Reasoning behind the hearsay rule

According to Riverside criminal defense lawyer Michael Scafiddi²⁹:

“Understanding why we have the hearsay rule can also help you understand how it works. The hearsay rule exists because hearsay statements are not reliable enough to serve as evidence in court, for two reasons: they are not made under oath, and the speaker is not subject to cross-examination by the other side in the litigation.”

In addition, criminal defendants have the right to cross-examine witnesses who testify against them. This right is guaranteed by the portion of the Sixth Amendment to the United States Constitution known as the “Confrontation Clause.”³⁰

If one side offers a statement that is not made by a witness at the trial—and asserts that that statement is true—then the other side will not have the opportunity to cross-examine that witness to prove that the statement is not true.

2. What are the hearsay exceptions in California?

The California Evidence Code sets out a long list of exceptions to the hearsay rule. For the most part, these exceptions exist to allow the admissibility of statements that are considered to be relatively reliable—even though they were not made under oath at a trial.³¹

2.1. Party admissions and statements against interest

Evidence Code 1220 EC makes an exception to the hearsay rule for statements that are made by a party to litigation (for example, a criminal defendant) when those statements are offered against him/her.³²

Example: Raymond is on trial for Penal Code 211 PC – robbery. He is pleading not guilty, claiming that he is not the person who committed the crime.

But the prosecutor introduces Raymond’s acquaintance Tanya as a witness. Tanya testifies that Raymond told her one night, when he was drunk, that he did commit the robbery.

Technically, Tanya’s testimony is hearsay—it is a statement made by Raymond when he was not testifying at a trial, and it is offered to prove the truth of its content (that Raymond committed the robbery). But it is admissible under the exception to the hearsay rule for admissions by a party.

Similarly, Evidence Code 1230 EC provides a hearsay exception for “declarations against interest”—that is, out-of-court statements that are so contrary to the best interest of the speaker that no rational person would make them unless they were true. These include statements that

• Negatively affect the speaker financially,
• Subject the speaker to civil or criminal liability, or
• Risk making the speaker an object of hatred or ridicule in the community.³³

The “declarations against interest” exception applies to people who are not parties to the litigation. However, they also must be unavailable to testify for this exception to apply.³⁴

2.2. Prior inconsistent statements or prior consistent statements

Evidence Code 1235 EC makes an exception to the hearsay rule for evidence of out-of-court statements made by a witness that are inconsistent with his/her testimony in the case.³⁵

However, even these inconsistent statements usually can only be admitted as evidence if

1. The witness was given an opportunity to explain or deny the inconsistent statement while testifying, or
2. The witness has not been excused from giving further testimony (and so can be called back to explain or deny the inconsistent statement).³⁶

Example: Let’s return to Raymond from our previous example, who is on trial for burglary. Raymond is relying on alibi as a legal defense—his friend Ian is going to testify that Raymond was with him on the night the burglary took place.

But after Ian’s testimony, the prosecution calls as a witness Ian’s estranged wife, Diana. Diana testifies that Ian recently told her that he hadn’t seen Raymond in over a year prior to the trial—which would mean that he couldn’t have been with him on the night of the burglary.

Diana’s testimony is hearsay. But it is admissible as a prior inconsistent statement—as long as Ian is allowed to take the stand again to explain the inconsistency.

Also, under Evidence Code 1236 EC, if

• a prior inconsistent statement of a witness is introduced at trial as described above, or
• the other side has suggested that the witness’s testimony is fabricated or the product of bias,

then the witness’s side can offer evidence of his/her prior out-of-court statements that are consistent with his/her testimony—in order to show that that testimony is, in fact, reliable.³⁷

2.3. Past recollection recorded; prior identification

The “past recollection recorded” exception to the hearsay rule allows the admission of evidence of a statement previously made by a witness (out of court) if all of the following are true:

1. The statement would have been admissible if s/he had made it while testifying,
2. The statement concerns a matter which the witness now does not remember well enough to testify about it fully and accurately, and
3. The statement is contained in a writing that was made when the events recorded in the writing had just occurred or were fresh in the witness’s memory.³⁸

A similar hearsay exception exists for prior eyewitness identifications by a witness. Specifically, out-of-court identifications of a person as the perpetrator of a crime are admissible if they were made at a time when the crime was still fresh in the witness’s memory.³⁹

2.4. Spontaneous or contemporaneous statements

Another kind of hearsay that is admissible for its truth in California is a so-called “spontaneous statement.” This is a statement that

1. Was intended to narrate, describe, or explain something that the speaker was perceiving, and
2. Was made spontaneously while the speaker was stressed or excited by the events s/he was perceiving.⁴⁰

Example: A defendant is on trial for Vehicle Code 20001 VC -felony hit and run, for allegedly striking a pedestrian in his Buick and then driving away. The prosecution calls Maria as a witness.

Maria didn’t see the defendant’s Buick hit the pedestrian. But she did hear the accident, and then she heard another bystander shout, “A Buick just hit that man!” No one has been able to locate the bystander who shouted, so he is not testifying.

Maria’s testimony about the bystander’s statement is hearsay–but such evidence is admissible anyway under the “spontaneous statements” exception.

A similar hearsay exception is made for “contemporaneous statements.” These are statements that are

1. Made to explain or qualify the behavior of the speaker, and
2. Are made while the speaker is engaged in that behavior.⁴¹

2.5. Dying declarations

Another exception to the hearsay rule is made for so-called “dying declarations.” These are:

1. Statements made by a dying person,
2. About the cause or circumstances of his/her death,
3. That are based on his/her personal knowledge, and
4. That are made when s/he knows that s/he is going to die soon.⁴²

2.6. Statements about mental or physical state

There is a hearsay exception for certain statements about the speaker’s mental or physical state. This includes statements about his/her

• Intentions,
• Plan,
• Motive,
• Mental feeling,
• Pain, or
• Bodily health.⁴³

Statements about the speaker’s current mental or physical state are admissible if they are not made under circumstances that suggest they may be unreliable, AND the statements are offered either to

• Prove the speaker’s state of mind or physical sensation as s/he described it, or
• Prove or explain acts or conduct of the speaker.⁴⁴

Statements about the speaker’s past mental or physical state are also admissible if all of the same things are true and the speaker is unavailable to serve as a witness in the current trial.⁴⁵

Example: Brenda is on trial for Penal Code 451 PC – arson. The prosecution’s main witness is a man named Luke, who testifies that he saw Brenda running away from the scene of the fire on the night it occurred.

Brenda’s defense attorney calls to the stand a friend of Luke’s named Spencer. Spencer testifies that, on the night of the fire, Luke said to him, “I’m so drunk; I barely know where I am.”

Brenda’s defense lawyer then explains that, since Luke was drunk that night, his eyewitness identification of Brenda as the arsonist is not reliable.

Luke’s statement about being drunk is hearsay. But it is admissible in trial court under this exception to the hearsay rule, since it is a description of Luke’s mental state on the night of the crime and is being offered just to show his mental state.

2.7. Statements by children

Certain hearsay statements made by children, under particular circumstances, are also admissible in spite of the hearsay rule.

Sex crimes against children

Out-of-court statements in cases involving sex crimes against children—such as Penal Code 261 PC rape of a child, Penal Code 285 PC incest against a child, and Penal Code 288 PC lewd acts with a child—are admissible if they

1. Were made by a child under the age of 12 and included in a written report by a law enforcement officer or county welfare worker,
2. Describe a sex crime that was committed against that child,
3. Were made prior to a confession by the defendant,
4. Were not made under circumstances that would suggest the statement is unreliable, and
5. Were taken down in a trustworthy way by a law enforcement official.⁴⁶

For this exception to apply, the child victim needs to be unavailable as a witness at trial or else refuse to testify.⁴⁷

Child abuse or child neglect cases

In cases involving child abuse or child neglect (as well as cases involving sex crimes against children), there are two separate hearsay exceptions.

The first covers hearsay statements that:

1. Were made by a victim who is a minor at the time of the trial,
2. Were made by a victim who was under 12 when the alleged abuse occurred,
3. Were made for purposes of medical treatment or diagnosis, and
4. Describe the victim’s medical history or symptoms.⁴⁸

The second covers non-medical hearsay statements, if all of the following are true:

1. The statement was made by the alleged abuse victim when s/he was under the age of 12,
2. The statement describes child abuse or neglect performed against this child,
3. The court conducts a separate hearing without the jury present and determines that the statement seems to be reliable, and
4. The child either testifies at trial or is unavailable as a witness (in which case there must be additional evidence of the abuse or neglect).⁴⁹

2.8. Business or public records

Certain written records are admissible evidence if all of the following are true:

1. The writing was made in the regular course of a business,
2. The writing was made at or near the time of the act, condition, or event it describes,
3. A qualified witness testifies to the identity of the record and how it was prepared, and
4. The method and time of preparation of the record were such as to indicate its trustworthiness.⁵⁰

Example: Miguel is a doctor. He is on trial for violating California’s health care fraud laws.

The case against Miguel rests on certain complicated financial records that were kept by his former administrative assistant, Cassie. Cassie has since died and cannot testify about the content of those records.

However, Miguel’s new administrative assistant is able to testify as to what the records are and how they were prepared. All of the other criteria above are met as well. So these records are admissible as evidence despite technically being hearsay.

Similarly, certain written records kept by government employees are admissible even if the employee who made them cannot testify about their content (and thus they are hearsay), as long as they were made in a way that indicates they are reliable.⁵¹

2.9. Former testimony

Under Evidence Code 1291 EC, testimony given under oath in a different legal proceeding is also admissible, despite the hearsay rule, if the person who gave the testimony is unavailable as a witness in this proceeding, and EITHER

1. The testimony is being offered against the party who presented it in the last proceeding, OR
2. The person against whom the testimony is offered now was a party to the last proceeding and had a chance to cross-examine the witness in that one.⁵²

2.10. Family or community history/reputation

Other hearsay exceptions are available for

• Statements about the family history and relationships of the speaker,⁵³
• Statements concerning someone else’s family history, if they were made by a speaker who was a relative of that person or else otherwise was close enough to his/her family to have had accurate information,⁵⁴
• Evidence of the general reputation in a community concerning an event that was important to that community,⁵⁵ and
• Evidence of a person’s general reputation or particular trait in his community.⁵⁶

Example: Fred is being charged with Penal Code 415 PC – disturbing the peace for initiating a bar fight. Carl is Fred’s neighbor and a witness for the prosecution. Carl testifies that “everyone” in their gated community knows about Fred’s reputation for being violent and impulsive.

This testimony is hearsay, but it is admissible as evidence of Fred’s general reputation in his community. (However, it may be inadmissible because it is character evidence in a California criminal trial—which in most cases is not allowed.⁵⁷⁾

2.11. Unavailable witnesses in serious felony cases

Understandably, Evidence Code 1350 EC makes an exception to the hearsay rule for cases where a witness may have been killed or kidnapped to prevent him/her from testifying.⁵⁸

This exception to the code applies when all of the following are true in a California criminal trial:

1. The defendant is charged with a serious felony;
2. There is clear and convincing evidence that the person who made the hearsay statement has been made unavailable by the defendant, either through homicide or through kidnapping;
3. There is no evidence that the prosecution was involved in making the person unavailable to testify;
4. The hearsay statement is in a tape recording or writing prepared by a law enforcement official;
5. The statement was made under circumstances that indicate it is trustworthy and was not the result of inducement or coercion;
6. The statement is relevant to the issues at trial; and
7. The statement is backed up by other evidence connecting the defendant with the serious felony.⁵⁹

2.12. Physical injury statements

Another exception to the Evidence Code 1200 EC hearsay rule exists for certain statements that narrate, describe or explain a physical injury, or threat of a physical injury, to the speaker.⁶⁰

For these hearsay statements to be admitted, all of the following have to be true:

1. The speaker is unavailable as a witness,
2. The statement was made at or near the time that the injury or threat occurred—and no more than five (5) years before the criminal charges involved in this trial were filed,
3. The statement was made under circumstances that indicate its trustworthiness, and
4. The statement was made in writing, was electronically recorded, or was made to a health care provider or law enforcement professional.⁶¹

Example: Peter is on trial for Penal Code 242 PC battery. He is accused of beating Eduardo.

It turns out that Eduardo is an illegal immigrant from Guatemala. Before Peter’s trial begins, Eduardo is deported to Guatemala. No one can locate him, and he can’t testify at Peter’s trial.

But the prosecution introduces the testimony of a doctor who treated Eduardo when he showed up at the emergency room with broken ribs. The doctor testifies that Eduardo told him that he had been beaten and described a man who looks a lot like Peter.

This is hearsay evidence because Eduardo’s statement was made out of court—but it is admissible under this exception to the hearsay rule.

2.13. Elder abuse statements

Finally, Evidence Code 1380 provides a special hearsay exception that applies only to Penal Code 368 PC elder abuse cases.⁶²

This exception applies to out-of-court statements by the victims of elder abuse that have been videotaped by law enforcement personnel. For the exception to apply, the speaker has to have been 65 or older, or a “dependent adult,” at the time of the alleged abuse—and needs to be unavailable to testify because s/he is either dead or disabled by the effects of aging.⁶³

Also, there needs to be additional evidence that backs up the videotaped statement by the elder abuse victim.⁶⁴

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