"FROM THE CLASSROOM" by Ray Hill, Professor Emeritus, Santa Rosa Junior College
Ray Hill is a retired Police Lieutenant and Professor Emeritus at Santa Rosa Junior College. He has taught in the POST Basic Academy and Advanced Officer Training for 45 years.

“The Hearsay Evidence Rule and Domestic Violence Investigations”

   It was in the1990s when P.O.S.T. produced Legal Update programs that could be taped off-air. I remember one program, narrated by DeVallis Rutledge, formally of the Orange County and Los Angeles County District Attorney Offices, on the value of hearsay evidence testimony in domestic violence cases. Over the years I have incorporated this information into my teaching in the Associate Degree Program, the Basic Police Academy, and in Advanced Officer Training at Santa Rosa Junior College.

   As a law enforcement First Responder on the scene of a domestic violence case, there are a number of priority considerations: Officer safety, victim EMS care, establishing the corpus of the crime, following your agency’s protocol procedures for TROs and victim’s services, etc.

However, a domestic violence investigation is “fertile ground” for admissible hearsay testimony.

Note: See 800 E.C. – Opinion Evidence Rule. You are able to offer an opinion on traumatic injury (victim’s appearance and demeanor) for the purpose of establishing your probable cause to arrest for a felony that had occurred outside your presence).

   Evidence consists of testimony, writings, material objects, or other things presented to the senses offered to prove the existence or non-existence of a fact (140 E.C.). Admissible hearsay is a form of testimony. Evidence of a statement made other than by the witness while testifying offered to prove the truth of a matter stated (1200 E.C.). Literally, this is an "out-of-court" statement offered for proof in court. Generally, hearsay is not admissible because there is no opportunity to judge the competency or credibility of the original declarant, there is no guarantee of truthfulness because the original declarant is not under oath or affirmation, and there is no opportunity to cross-examine the declarant to clarify facts or to impeach testimony.

   However, the hearsay rule is known for its many recognized exceptions. Simply put – admissible hearsay (1201 E.C.). You, as the officer or deputy, will be able to testify later in court to what a victim, witness, or suspect told you. The credibility or believability of hearsay evidence is up to the jury to determine and can still be subject to impeachment.

   So let’s follow Devallis’ lead and examine the common hearsay exceptions that can apply in a domestic violence investigation:

Admissions and Confessions (1220 E.C.) - An admission is an inculpatory statement made by the defendant which acknowledges a fact of relevant evidence in the case. A confession is an inculpatory statement by the defendant that acknowledges criminal guilt. As long as an admission or confession is legally obtained, you get to tell the trier of fact what the “bad guy” told you.

Declaration Against Penal Interest (1230 E.C.) - A statement by the declarant that exposes him/her to criminal or civil liability, or would subject one to risk of hatred, ridicule, or social disgrace in the community.  This could be the defendant’s expression of ill will towards a victim made before, during, or after a domestic violence incident inferring motive, malice, or intent.

Adoptive or Tacit Admission (1221 E.C.) – This occurs when another party accuses a person of criminal activity, however that person remains silent or fails to deny the accusation. He/she "tacitly acknowledges" the truth of the statement because ordinarily an innocent person would deny or object to the accusation if it were false. So, if in your presence, the victim accuses the suspect of striking her, and the suspect fails to deny this accusation, record this in your investigative report for later testimony.

Authorized Agent (1222 E.C.) – This exception comes into play during a language situation where a “scene translator” is authorized by the speaker for interpretation. The translator speaks for the victim, witness, or suspect in any of the hearsay areas covered in this article.

Spontaneous Statement (1240 E.C.) – A spontaneous statement is an excited utterance made by a victim or witness ("blurted out" after an event likely to arouse the emotions of a reasonable person), made close in time after the occurrence of the event (while the declarant is still "under the influence and stress" of the event and without the opportunity for reflection, i.e., the statement "comes from the heart"), and describes what the declarant saw or otherwise perceived. When documenting a spontaneous statement, it is important not only to record what was said, but how it was said. This includes the declarant's emotional or physical state, i.e., crying, hysterical, upset, trembling, fearful, in pain.

Note: Again See 800 E.C. - Opinion Evidence Rule – You can render an opinion on Personal Appearance and Demeanor (“State of Emotion”).

Statements of a Declarant's Mental or Physical State (1250 E.C.) - These include a complaint or description of pain, a response to pain such as screaming, groaning, or crying, a statement of bodily health, or an expression of fear by a crime victim.

Dying Declaration (1242 E.C.) - Evidence of a statement made by a dying person about the cause and circumstances of his/her death. The declarant/victim must be under a sense of impending death ("in extremis"). This fact can be established by a victim’s statements (expressing concern about dying, concern about the mortal nature of a wound or serious bleeding, or asking for a doctor or family member because of fear of dying) or by statements made by a doctor, nurse, paramedic, police officer, or bystander to a victim communicating the serious nature of the wound and possibility of death.  The statement concerns the victim’s knowledge of the cause and circumstances of the act(s) leading up to death, and the victim dies. In a homicide trial, you get to tell the trier of fact what the victim told you.

  What if the victim survives or was not under an impending sense of death at the time of the utterance? You may still have a Spontaneous Statement (1240 E.C.) or the statement can be repeated under Prior Statements of Witnesses.

Prior Statements of Witnesses - Once a witness testifies, a person who received or overheard a prior statement can be called to repeat that statement when:

   A Prior Statement is inconsistent with the present testimony (1235 E.C.). A victim gave you Statement #1 at the scene but testifies inconsistently in court. You may testify to Statement #1 in order to introduce the content of that statement and to impeach the inconsistent testimony.

   A Prior Statement can also be used to corroborate or rehabilitate a consistent statement (1236 E.C.) Example: A victim is unable to remember the full content of a prior statement given to a police officer. Her credibility is questioned by defense counsel. The officer who took the original statement may testify to what the witness previously said in order to "fill in the blanks" and rehabilitate testimony Another example - A victim gives "Statement A" to an officer. At trial, she testifies to the same facts. The officer is called to the witness stand and also testifies to "Statement A" for corroboration purposes. The objective is to show the statement has not changed from crime scene to courtroom and should be credible.

Past Recollection Recorded (1237 E.C.) – Recorded notes from a victim incorporated into your investigative report or a written statement made by a victim or witness can be introduced as evidence. At the time of the writing or recording, the facts must have been fresh in the victim’s or witnesses’ memory, the writing was authored by the witness or recorded under his/her direction, and there is a need to introduce the writing for corroboration, rehabilitation, or impeachment.

Prior Identification (1238 E.C.) - The victim identifies the suspect as the perpetrator at the scene. She later states she cannot remember what happened or denies the suspect was the perpetrator. You get to tell the trier of fact that the victim in fact ID’d the suspect as the “perp”.

Former Testimony (1291 E.C.) - Former testimony introduced at a subsequent court hearing involving the same legal action is admissible. The original testimony was given under oath or affirmation, there was an opportunity for discovery and cross-examination, there is an official transcript of the testimony, and the original witness is unavailable to testify at the present court action due to death, injury, sickness, incapacity, unable to locate for subpoena, or refusal to appear in court.

Business Records are kept in the normal course of business by a private industry, company, or occupation (1270 E.C.). Examples would be hospital records, medical records, X-rays, and EMS reports. Official Records are kept in the normal course of events by a public agency (1280 E.C.). Examples would be DOJ Criminal History Information, DOJ Bureau of Forensic Services reports, "911" phone tapes, and body worn camera recordings. Business and Official Records are forms of writings (250 E.C.).

   The content of a Business or Official Record can be admitted into evidence without the testimony of the original author or preparer. In lieu, a co-worker, supervisor, or custodian of records may authenticate the record and testify to its mode of preparation and content. The record must be made in the normal course of business or public transaction, made at or near the time of the event, and the source of information and method of preparation indicate the record is trustworthy.

Hearsay Evidence at Preliminary Hearings (872(b) P.C.)  - At a preliminary hearing, you should be prepared to testify to all potential testimonial evidence gathered in the case. What the victim told you, what a witness told you, what another officer told you, what a paramedic told you, what an examining ER doctor told you, etc. The law permits "first level hearsay" only.

   In the case of an expert witness, such as a doctor or forensic expert, be sure to record his/her education, experience, training, number of examinations performed, etc. This foundation permits the magistrate to rely on the witness background and experience in making a judgment in the case.

   So hearsay testimony is alive and well in a D/V case. Consider these areas in the same manner as you would a photograph of injuries, an instrumentality used, contraband seized, fingerprints, or any other physical evidence.

Appreciate Your Service & Stay Safe!

RH