Chapter 3 - §4. Proceedings permitting hearsay evidence

• Jurisdiction: United States

§4. Proceedings permitting hearsay evidence

Generally, hearsay evidence is inadmissible unless an exception to the hearsay rule applies. Alexander v. Community Hosp. of Long Beach (2d Dist.2020) 46 Cal.App.5th 238, 260; see Evid. C. §1200(b). But some criminal proceedings allow hearsay statements to be received into evidence even though no specific hearsay exception applies. See People v. Hall (2d Dist.2019) 39 Cal.App.5th 831, 837 (hearsay rule does not apply in all evidentiary proceedings).

§4.1. Preliminary examination under Pen. C. §872. Under certain circumstances, hearsay statements can be admitted at a preliminary examination for the purpose of supporting a probable-cause finding to hold a defendant for trial. Pen. C. §872(b). Proposition 115 amended Pen. C. §872(b) and created a "limited" hearsay exception allowing a properly qualified investigating officer to relate out-of-court statements by crime victims or witnesses. See Walker v. Superior Ct. (2021) 12 Cal.5th 177, 197. To have a hearsay statement admitted at a preliminary examination under Pen. C. §872, the following requirements must be met: (1) the statement must be introduced by a law-enforcement officer as defined by Pen. C. §872(c), and (2) the officer must have personal knowledge of either the crime or the circumstances under which the out-of-court statement was made. See Pen. C. §872(b); Whitman v. Superior Ct. (1991) 54 Cal.3d 1063, 1072-73. A hearsay statement can also be introduced at a preliminary examination under Pen. C. §872 by an honorably retired law-enforcement officer if the statement was made to the officer when he was on active duty. Pen. C. §872(b). Under Pen. C. §872(c), a law-enforcement officer is defined as any officer or agent employed by a federal, state, or local government agency (1) who has five years of experience or has completed a training course certified by the Commission on Peace Officer Standards and Training (POST) that includes training in the investigation and reporting of cases and testifying at preliminary hearings and (2) whose primary responsibility is the enforcement of any law, the detection and apprehension of persons who have violated any law, or the investigation and preparation for prosecution of cases involving violation of laws.

Federal Comparison Under the FREs, the rules against the admission of hearsay evidence do not apply to a preliminary examination in a criminal case. See FRE 1101(d)(3).

§4.2. Grand-jury proceeding. Hearsay statements can be admitted at a grand-jury proceeding for the purpose of supporting an indictment. Pen. C. §939.6(c). As with a preliminary examination under Pen. C. §872, a hearsay statement at a grand-jury proceeding must be introduced by a law-enforcement officer who has five years of experience or has completed a training course certified by the Commission on POST that includes training in the investigation and reporting of cases and testifying at preliminary hearings. Pen. C. §939.6(c). Unlike the rule for preliminary examinations, the grand-jury rule makes no provision for the testimony of retired...