Chapter 3 - §1. Overview

• Jurisdiction: United States

§1. Overview

§1.1. Burden to prove exception. When a hearsay objection is raised, the burden to establish an exception is on the proponent of the hearsay statement. See People v. Demetrulias (2006) 39 Cal.4th 1, 26-27.

§1.2. Requirement of declarant's unavailability. Many hearsay exceptions apply only if the declarant (the person who made the out-of-court statement) is unavailable as a witness when the out-of-court statement is offered into evidence.

1. When declarant is considered unavailable. A declarant is considered unavailable as a witness when any of the following is true:

(1) The declarant is prohibited from testifying on the ground of privilege. Evid. C. §240(a)(1). To be found unavailable on this ground, the declarant must not only intend to assert a privilege but also be entitled to assert it. People v. Seijas (2005) 36 Cal.4th 291, 303; see, e.g., People v. Silveria (2020) 10 Cal.5th 195, 263 (D was unavailable as a witness at joint penalty retrial when he invoked privilege against self-incrimination despite testifying at the first penalty phase trial); People v. Masters (2016) 62 Cal.4th 1019, 1056 (witness was unavailable when he successfully invoked privilege against self-incrimination). See "Privileges," ch. 4-C, §1 et seq.

(2) The declarant is disqualified from testifying in the case. Evid. C. §240(a)(2); People v. Liddicoat (1st Dist.1981) 120 Cal.App.3d 512, 514.

(3) The declarant is unable to testify at the hearing due to death or a present physical or mental infirmity. Evid. C. §240(a)(3); see, e.g., People v. Alcala (1992) 4 Cal.4th 742, 778 (witness who testified that she was totally unable to recollect relevant events and who was diagnosed as suffering from post-traumatic stress was suffering from mental infirmity). A witness may be found to be suffering from a mental infirmity when she refuses to testify due to a well-founded fear for her own safety and that of her family. See People v. Rojas (1975) 15 Cal.3d 540, 550-51 (using dictionary definition of infirmity as "a defect of personality or weakness of will"). If the physical or mental trauma to the witness is a consequence of the crime and caused such harm to the witness that she cannot testify without suffering substantial trauma, the condition must be established by expert testimony. Evid. C. §240(c); e.g., People v. Stritzinger (1983) 34 Cal.3d 505, 516-17 (mother's declaration that her witness-daughter was hospitalized due to emotional difficulties and hallucinations was insufficient to establish unavailability). The expert testimony can be provided by a physician, surgeon, psychiatrist, licensed psychologist, clinical social worker engaged in applied psychotherapy of a nonmedical nature, or marriage and family therapist. See Evid. C. §§240(c), 1010(b), (c), (e); In re Daniela G. (1st Dist.2018) 23 Cal.App.5th 1083, 1091.

(4) The court is unable to secure the declarant's attendance at a hearing by its own process. Evid. C. §240(a)(4). See "When reasonable diligence to secure declarant's attendance required," ch. 3-B, §1.2.2.

(5) The proponent of the declarant's testimony has exercised reasonable diligence but is unable to secure the declarant's attendance at a hearing through the court's process. Evid. C. §240(a)(5). See "When reasonable diligence to secure declarant's attendance required," ch. 3-B, §1.2.2.

(6) The declarant is persistent in refusing to testify about the subject matter of the declarant's statement despite being found in contempt for refusing to testify. Evid. C. §240(a)(6). Before finding the declarant unavailable, the court should take reasonable steps to induce the witness to testify unless it is obvious that they will not work. E.g., People v. Sul (5th Dist.1981) 122 Cal.App.3d 355, 365-367 (before finding declarant unavailable, court should have appointed counsel or incarcerated witness to see if he would recant); see, e.g., People v. Francis (5th Dist.1988) 200 Cal. App.3d 579, 587 (preliminary-hearing testimony was read into record when court found witnesses unavailable after unsuccessful efforts to persuade them to testify).

Federal Comparison The criteria for establishing the unavailability of a witness under the FREs are very similar to the criteria in California. See FRE 804(a)(1) (privilege), (a)(2) (persistent refusal), (a)(4) (inability), (a)(5) (absence with inability to procure attendance). But the FREs do not list disqualification as a basis for unavailability, and they expressly designate a witness as unavailable when the declarant "testifies to not remembering the subject matter." FRE 804(a)(3).

2. When reasonable diligence to secure declarant's attendance required. For the declarant to be found unavailable under Evid. C. §240(a)(4) (court is unable to secure attendance by its own process) and Evid. C. §240(a)(5) (proponent is unable to secure attendance through court's process), the proponent must establish that it exercised reasonable or due diligence (or made a good-faith effort) in trying to secure the declarant's attendance. See Evid. C. §240(a)(5) (reasonable diligence); People v. Herrera (2010) 49 Cal.4th 613, 622-23 (although §240(a)(4) does not mention reasonable diligence, unavailability in constitutional sense requires determination that prosecution made good-faith effort to secure appearance); People v. Cromer (2001) 24 Cal.4th 889, 898 (reasonable diligence often referred to as due diligence). This duty of reasonable diligence applies to both locating an absent declarant and preventing a present declarant from becoming absent. People v. Louis (1986) 42 Cal.3d 969, 991, disapproved on other grounds, People v. Mickey (1991) 54 Cal.3d 612. Whether the proponent exercised reasonable diligence is a fact question to be determined by the court according to the circumstances in each case. People v. Cummings (1993) 4 Cal.4th 1233, 1296, overruled on other grounds, People v. Merritt (2017) 2 Cal.5th 819. This standard does not require all possible efforts, just reasonable diligence under the circumstances known to the proponent. See People v. Sánchez (2016) 63 Cal.4th 411, 442 (proponent must do what is reasonable under circumstances, not everything suggested in hindsight); People v. Diaz (2d Dist.2002) 95 Cal.App.4th 695, 706 ("prescient perfection" not required). "Due diligence" is not capable of a mechanical definition, but it "connotes persevering application, untiring efforts in good earnest, efforts of a substantial character." Cromer, 24 Cal.4th at 904.

Factors that a court should consider in determining whether there was reasonable diligence include the types of actions taken to locate or prevent the disappearance of the declarant (e.g., were leads of declarant's whereabouts pursued), the timeliness of those actions (e.g., when was the search conducted for the declarant), and the importance of the offered testimony. See People v. Wilson (2021) 11 Cal.5th 259, 291; People v. Thomas (2011) 51 Cal.4th 449, 500; see, e.g., Sánchez, 63 Cal.4th at 442 (although witness positively identified D as perpetrator of very serious crimes, he was one of many witnesses and thus would not have given critical testimony; "there is a limit to what one can expect the prosecution to do to procure the attendance of a noncritical witness"); People v. Windfield (4th Dist.2021) 59 Cal.App.5th 496, 512-13 (prosecution employed due diligence when there was no good cause witness...