Chapter 3 - §18. Exception—Contemporaneous statement

• Jurisdiction: United States

§18. Exception—Contemporaneous statement

A declarant's contemporaneous statement is admissible as an exception to the hearsay rule. Evid. C. §1241.

§18.1. Overview. A contemporaneous declaration is a statement that a declarant made while engaged in some conduct and that is offered in court to explain the conduct or make it understandable. See 7 Cal. Law Revision Comm'n Rep. (1965) p. 1233. There is no requirement that the declarant be unavailable as a witness for this exception to apply. See Evid. C. §1241. In older opinions, such declarations were often termed "verbal acts." See 1 Witkin, California Evidence (5th ed.), Hearsay §184. Interestingly, very few modern California criminal cases discuss this exception. See, e.g., People v. Lazanis (2d Dist.1989) 209 Cal.App.3d 49, 58 (concluding without discussion that police radio call about car apparently fleeing scene of burglary was admissible under Evid. C. §1241); People v. Marchialette (2d Dist.1975) 45 Cal. App.3d 974, 980 (concluding without much discussion that testimony about words overheard on telephone narrating shooting while it was in progress was admissible under Evid. C. §1241).

§18.2. Requirements for exception. For a contemporaneous statement to be admissible as a hearsay exception, the following criteria must be met:

1. Statement offered to explain declarant's conduct. The statement must be offered "to explain, qualify, or make understandable" some uncertain or vague conduct by the declarant. See People v. Lazanis (2d Dist.1989) 209 Cal.App.3d 49, 58. The conduct should be "equivocal or ambiguous," because if it were susceptible to only one interpretation, no explanation would be necessary. See 7 Cal. Law Revision Comm'n Rep. (1965) p. 1233; 1 Witkin, California Evidence (5th ed.), Hearsay §184.

2. Statement made during conduct. The statement must have been made while the declarant was engaged in the conduct sought to be explained. See People v. Marchialette (2d Dist.1975) 45 Cal.App.3d 974, 980. The timing of the statement is significant. If it was uttered after the declarant's conduct was concluded, it will likely be considered inadmissible hearsay. See Evid. C. §1241(b).

Federal Comparison For the admissibility of a contemporaneous

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