From Witkins on Evidence
[§ 4] Statement of Rule.

The hearsay rule, set forth in Ev.C. 1200, is in two parts: First, "hearsay evidence" is defined as "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." (Ev.C. 1200(a).) Second, an exclusionary rule is stated: "Except as provided by law, hearsay evidence is inadmissible." (Ev.C. 1200(b).)

The Federal Rules of Evidence are similar: " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." (F.R. Evid., Rule 801(c); see 4 Mueller & Kirkpatrick, Federal Evidence 2d, §369; 29 Am.Jur.2d (1994 ed.), Evidence §661.) "Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." (F.R. Evid., Rule 802; see 4 Mueller & Kirkpatrick, Federal Evidence 2d, §431; 29 Am.Jur.2d (1994 ed.), Evidence §659.)

These succinct provisions involve several important concepts:

(1) The rule excludes hearsay statements only when they are offered to prove the truth of the matter stated. (See infra, §5.)

(2) The rule excludes only statements made outside of court. The principal justification for exclusion of hearsay is that the statement is not made on the stand by a witness subject to cross-examination. (See supra, §1.) The definition makes it clear that hearsay consists of "extra-judicial" or out-of-court statements. California cases invoking the hearsay rule to exclude testimony of a witness whose supposed knowledge is based solely on hearsay are, under the Evidence Code, inaccurate in analysis, though sound in result. The correct objection is that the witness lacks personal knowledge, hence, is not qualified to testify on the matter. (See 2 Cal. Evidence (4th), Witnesses, §47.) Similarly, where a witness testifies to an opinion that lacks a proper basis because it is founded on unreliable hearsay, the objection is a violation of the opinion rule. (See 1 Cal. Evidence (4th), Opinion Evidence, §31.)

(3) The phrase "except as provided by law" refers to the numerous exceptions to the rule declared by statute or judicial decision. (See supra, §2; infra, §51 et seq.)

1 Witkin Cal. Evid. Hearsay § 5

[§ 5] Must Be Offered To Prove Truth.

The rule excludes hearsay statements only when they are offered for the same purpose as testimony of a witness on the stand and therefore depend for probative value on the credibility of the declarant. (See Unif. Rule 801 (13B (Part 1B) U.L.A. (Master Ed.), p. 97); Model C., Rule 501; People v. Radley (1945) 68 C.A.2d 607, 609, 157 P.2d 426 [quoting Wigmore]; Rogers v. Whitson (1964) 228 C.A.2d 662, 675, 39 C.R. 849, citing the text; Marshall v. Marshall (1965) 232 C.A.2d 232, 254, 42 C.R. 686, citing the text; Am-Cal Inv. Co. v. Sharlyn Estates (1967) 255 C.A.2d 526, 540, 63 C.R. 518, infra, §31; People v. Ireland (1969) 70 C.2d 522, 529, 75 C.R. 188, 450 P.2d 580, infra, §201, citing the text; People v. Sundlee (1977) 70 C.A.3d 477, 482, 138 C.R. 834, infra, §16; 6 Wigmore (Chadbourn Rev.) §1766; 2 McCormick 5th, §246; 1 Jefferson, California Evidence Benchbook 3d, §1.9 et seq.; 2 U.C.L.A. L. Rev. 48; 1956 A.S. 526; 29 Am.Jur.2d (1994 ed.), Evidence §661 et seq.)

The importance of this qualification is that out-of-court statements not offered to prove the truth of the matter stated are not regarded as hearsay. No special exception to the hearsay rule need be invoked for their admission; they are not within the hearsay rule at all. (See 6 Wigmore (Chadbourn Rev.) §1766 [giving example of statement, "I am the Emperor of Africa," used not to prove assertion is true or false but to prove that declarant is insane]; People v. Radley, supra; People v. Dalton (1959) 172 C.A.2d 15, 20, 341 P.2d 793, infra, §35, quoting the text; First Western Bank & Trust Co. v. Omizzolo (1959) 176 C.A.2d 555, 563, 1 C.R. 758, citing the text; People v. Young (1964) 224 C.A.2d 420, 424, 36 C.R. 672 [driving while drunk; tape recordings of conversations with defendant at time, showing manner of speech, relevant on issue of intoxication]; Am-Cal Inv. Co. v. Sharlyn Estates, supra, citing the text; Younger v. State Bar (1974) 12 C.3d 274, 286, 113 C.R. 829, 522 P.2d 5, citing the text [attorney was charged with soliciting employment through cappers and runners; testimony that prior to dialing attorney's telephone number, C (an alleged runner) had said that attorney was in his office was not hearsay because it was offered to prove C's knowledge that attorney was there]; People v. Duran (1976) 16 C.3d 282, 295, footnote 14, 127 C.R. 618, 545 P.2d 1322, infra, §45 [defendant had fled from stabbing scene, wished to bolster his state of mind testimony by introducing evidence of warnings from third persons, and was improperly prohibited from presenting that nonhearsay evidence]; infra, §31 et seq.)

SUPPLEMENT: [This section is current through the latest supplement] 
See 13A U.L.A. (Master Ed.), p. 163 [Unif. Rule 801]; 30 West L.A. L. Rev. 135 [distinguishing between hearsay and nonhearsay].Statements not offered to prove truth of matter stated: See People v. Archer (2000) 82 C.A.4th 1380, 1391, 99 C.R.2d 230 [in murder trial in which prosecution witness testified as to his telephone conversation with defendant in which defendant indicated he had killed victim, trial judge erred in excluding, as hearsay, testimony of another witness who was present during conversation; testimony was not offered to prove that defendant was not involved with murder, but rather to impeach testimony of first witness as to what defendant had said].

[§ 6] Multiple Hearsay.

(1) Statutory Rule. May an admissible hearsay statement be used to prove another admissible hearsay statement? Former California statutes and case law gave no indication whether "double hearsay" or "hearsay upon hearsay" should be received. Ev.C. 1201 expressly authorizes its admission:

"A statement within the scope of an exception to the hearsay rule is not inadmissible on the ground that the evidence of such statement is hearsay evidence if such hearsay evidence consists of one or more statements each of which meets the requirements of an exception to the hearsay rule."

The Law Revision Commission Comment gives this illustration: A reporter's transcript of the testimony at a previous trial may be received under Ev.C. 1290 (infra, §257) to prove that a party made a statement amounting to an admission receivable under Ev.C. 1220 (infra, §90). "Thus, under Section 1201, the evidence of the admission contained in the transcript is admissible because each of the hearsay statements involved is within an exception to the hearsay rule." (See People v. Collup (1946) 27 C.2d 829, 834, 167 P.2d 714, which, as the Comment points out, tacitly approved this practice; People v. Lew (1968) 68 C.2d 774, 778, 69 C.R. 102, 441 P.2d 942; In re George G. (1977) 68 C.A.3d 146, 155, 137 C.R. 201; People v. Reed (1996) 13 C.4th 217, 224, 225, 52 C.R.2d 106, 914 P.2d 184 [certified transcript of preliminary hearing containing testimony by unavailable witnesses was properly admitted]; 2 McCormick 5th, §324.1; on use of multiple hearsay in preliminary examination, see Whitman v. Superior Court (1991) 54 C.3d 1063, 2 C.R.2d 160, 820 P.2d 262, 4 Cal. Crim. Law (3d), Pretrial Proceedings, §143.)

(2) Prior Inconsistent Statements. In People v. Zapien (1993) 4 C.4th 929, 17 C.R.2d 122, 846 P.2d 704, a capital murder case, the trial judge admitted evidence embodying statements by defendant's niece that defendant had come to her house the day of the murder with bloody hands and clothing and had told her that he had committed the killing. At trial, the niece denied having told her sister about these events, the sister denied having told her friend, and the friend, who, after being told, went to the police, was unable to recall part of what she had earlier said the sister told her. The trial court admitted the evidence under the exception for prior inconsistent statements (Ev.C. 1235, infra, §156). Held, the evidence was properly admitted. "We are unaware of any published decision addressing the precise question whether multiple hearsay is admissible where each hearsay level constitutes a prior inconsistent statement. But none of the decisions addressing similar questions suggests that such evidence is inadmissible." (4 C.4th 952.)

(a) Defendant contended that the multiple hearsay should have been excluded because each declarant denied having made the alleged prior inconsistent statement. However, "[t]his concern, that an alleged prior inconsistent statement, which the declarant denied having made, may have been fabricated, applies equally to single hearsay and to multiple hearsay." (4 C.4th 953, 954.)

(b) Defendant asserted that if this type of hearsay is admissible, a single person may by his own testimony introduce statements inconsistent with statements of any number of prior declarants, each of whom denies ever making the statements. To forestall this occurrence, defendant urged the court to establish a "bright-line" rule that a prior inconsistent statement may be used only to contradict a single prior declarant. However, "[i]f such a rule is desirable, it must be established by the Legislature." (4 C.4th 954.)

(3) Federal Rule. F.R. Evid., Rule 805 is similar to Ev.C. 1201: "Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules." (See 4 Mueller & Kirkpatrick, Federal Evidence 2d, §§508, 509; 29 Am.Jur.2d (1994 ed.), Evidence §704.)

SUPPLEMENT: [This section is current through the latest supplement] 
(1) Statutory Rule. See Correa v. Superior Court (2002) 27 C.4th 444, 448, 117 C.R.2d 27, 40 P.3d 739, Supp., infra, §125 [translation of witnesses' statements to investigating officers did not constitute extra layer of hearsay; rather, translation by unbiased and adequately skilled translator simply serves as "language conduit"].

West's Key Number Digest, Criminal Law k.419(13)

[§ 7] Assertive Conduct.

Acts such as nodding or shaking the head in answer to a question, pointing to an object or person for identification, or using sign language to convey a thought are equivalent to verbal statements, and are equally subject to the hearsay rule when an attempt is made to prove them by testimony of a witness.

This is made clear by the definition of "statement" to include "non-verbal conduct of a person intended by him as a substitute for oral or written verbal expression." (Ev.C. 225, supra, §2; see In re Cheryl H. (1984) 153 C.A.3d 1098, 1126, 200 C.R. 789, infra, §47; 2 McCormick 5th, §250; 5 Wigmore (Chadbourn Rev.) §1362; 14 Stanf. L. Rev. 682; 25 West L.A. L. Rev. 59, 117 [giving examples of assertive and nonassertive conduct]; on nonassertive conduct as outside hearsay rule, see infra, §46.)

F.R. Evid., Rule 801(a) is similar: "Statement" includes "nonverbal conduct of a person, if it is intended by the person as an assertion." (See 4 Mueller & Kirkpatrick, Federal Evidence 2d, §374; 29 Am.Jur.2d (1994 ed.), Evidence §662.)

[§ 8] Other Exclusionary Rules and Impeachment.

(1) Other Exclusionary Rules. The hearsay rule is a rule of exclusion (supra, §4), but its exceptions are not rules of admission. All of the sections of the Evidence Code specifying hearsay exceptions provide that the particular statement "is not made inadmissible by the hearsay rule." In other words, a statement within a hearsay exception satisfies the hearsay rule, but it may be objectionable under other exclusionary rules, such as the opinion rule, the Secondary Evidence Rule, or a claim of privilege. (See Law Rev. Com. Comments on Ev.C. 240, 1200; and Ev.C., Division 10; 5 Wigmore (Chadbourn Rev.) §1424.)

Thus, a hearsay statement within an exception may be challenged, in the same manner as testimony on the stand, by the opinion rule; and to the extent that it embodies inadmissible conclusions of the declarant, it may be excluded. (See People v. Lanagan (1889) 81 C. 142, 144, 22 P. 482; People v. Taylor (1881) 59 C. 640, 645; McClaflin v. Bayshore Equipment Rental Co. (1969) 274 C.A.2d 446, 455, 79 C.R. 337, infra, §14 [conclusionary recital rendered coroner's record inadmissible]; 14 So. Cal. L. Rev. 99, 107; infra, §193; for an argument to the contrary, see 1 McCormick 5th, §18.) Admissions, however, are not subject to the opinion rule. (See infra, §95.)

Special exclusionary rules also apply to confessions and admissions of the defendant in a criminal case. (See infra, §§52 et seq., 136 et seq.)

(2) Impeachment. A hearsay declarant may be called to the stand and examined as if under cross-examination by the adverse party (see 3 Cal. Evidence (4th), Presentation at Trial, §210), and, whether called or not, the declarant may be impeached on the same grounds as a witness (see 3 Cal. Evidence (4th), Presentation at Trial, §357).

SUPPLEMENT: [This section is current through the latest supplement] 
West's Key Number Digest, Criminal Law k.419(2.10)


[§ 9] Analysis of Hearsay Problem.

Bearing in mind the rules and distinctions set forth in the preceding sections, there are five principal questions to ask in a practical approach to the admissibility and sufficiency of a relevant statement made out of court:

(1) Is it hearsay subject to the exclusionary rule; i.e., is it offered to prove the truth of the matter stated (hearsay) or offered for some other purpose (nonhearsay)? (See supra, §5; infra, §31 et seq.)

(2) If hearsay, is it within an exception; i.e., if it is offered to prove the truth of the matter stated and is therefore subject to the exclusionary rule, is it within one of the exceptions to the rule? (See infra, §51 et seq.)

(3) If it is within an exception to the hearsay rule, is it nevertheless subject to any other exclusionary rule? (See supra, §8.)

(4) If it is within an exception to the hearsay rule and not subject to any other exclusionary rule, may the declarant be impeached for incompetency, lack of knowledge, bias or interest, inconsistent statement, or on any other ground tending to weaken his credibility? (See 3 Cal. Evidence (4th), Presentation at Trial, §357.)

(5) If it is inadmissible hearsay, was it nevertheless admitted without proper objection, so as to become evidence in the case? (See 3 Cal. Evidence (4th), Presentation at Trial, §394; see 22 Southwestern U. L. Rev. 1039 [analytical approach to relevance and hearsay].)

[§ 10] In General.

(1) Informal Statements. Declarations in the interest of the declarant, such as statements made by a grantor after parting with title and in disparagement of it, are ordinarily inadmissible. (See Kershaw v. Madsen (1923) 62 C.A. 11, 15, 216 P. 55; Rulofson v. Billings (1903) 140 C. 452, 457, 74 P. 35; Barcroft v. Livacich (1939) 35 C.A.2d 710, 718, 96 P.2d 951; Carlston v. Shenson (1941) 47 C.A.2d 52, 56, 117 P.2d 408 [self-serving declaration of party in collateral transaction]; Wagner v. Worrell (1946) 76 C.A.2d 172, 181, 172 P.2d 751 [self-serving declarations of decedent in letter written before his death]; 29A Am.Jur.2d (1994 ed.), Evidence §794.)

(2) Criminal Defendant's Statements. A confession or incriminating admission may be introduced by the prosecution only under the exceptions to the hearsay rule based on the reliability of such serious statements against interest. If the defendant seeks to offer his own prior statement on the theory that it contains some inculpatory facts, but with the real object of putting before the jury other self-serving matters in the statement, it will be excluded. Otherwise, the defendant would be giving the equivalent of his testimony to the jury without submitting to cross-examination. ( People v. Williams (1957) 151 C.A.2d 173, 187, 311 P.2d 117; see People v. Swain (1962) 200 C.A.2d 344, 351, 19 C.R. 403, infra, §203; People v. Williamson (1977) 71 C.A.3d 206, 213, 139 C.R. 222.)

In People v. Clay (1984) 153 C.A.3d 433, 200 C.R. 269, defendant H, charged with the rape of Margaret T, did not testify at trial. His counsel sought to introduce evidence that, immediately after the crime, he had made a statement to codefendant V which the jury could have interpreted to implicate V rather than H as the rapist ("man, you sick, doing that old woman that way"). H contended that this statement should have been received as nonhearsay circumstantial evidence of innocence, because it showed that he was revolted by acts of rape and forcible oral copulation. Held, exclusion was proper. The possible probative value was outweighed by its prejudicial impact. It would have made relevant and admissible H's convictions for rape and sodomy of Paula H, committed 6 hours before the assault on Margaret T. (153 C.A.3d 456, 457.)

(3) Statements in Presence of Adverse Party. A statement made in the presence of the adverse party is not necessarily admissible. The only justification for receiving it is that the adverse party's conduct may be proved either (a) as circumstantial evidence--the hearsay rule inapplicable (infra, §36 et seq.), or (b) as an implied or adoptive admission (infra, §102 et seq.). (See People v. White (1941) 44 C.A.2d 183, 186, 112 P.2d 60; People v. Bob (1946) 29 C.2d 321, 325, 175 P.2d 12; 1957 A.S. 544.)

(4) Distinctions. The fact that a statement is self-serving does not preclude its introduction under an appropriate hearsay exception, e.g., a declaration of intent (infra, §212 et seq.), a spontaneous exclamation (infra, §173 et seq.), or an implied admission (infra, §106 et seq.). And when a witness has been impeached by some kinds of attack on his or her credibility, a prior consistent statement is admissible in rehabilitation. (See infra, §161.)

SUPPLEMENT: [This section is current through the latest supplement] 
West's Key Number Digest, Criminal Law k.413 et seq.; Evidence k.271 et seq.


statements not within the rule

[§ 31] General Principle.

"There is a well-established exception or departure from the hearsay rule applying to cases in which the very fact in controversy is whether certain things were said or done and not as to whether these things were true or false, and in these cases the words or acts are admissible not as hearsay but as original evidence." ( People v. Henry (1948) 86 C.A.2d 785, 789, 195 P.2d 478, infra, §35; see People v. Rosson (1962) 202 C.A.2d 480, 486, 487, 20 C.R. 833, infra, §45; Russell v. Geis (1967) 251 C.A.2d 560, 571, 59 C.R. 569, quoting the text; Weathers v. Kaiser Foundation Hosp. (1971) 5 C.3d 98, 109, 95 C.R. 516, 485 P.2d 1132, citing the text; People v. Freeman (1971) 20 C.A.3d 488, 492, 97 C.R. 717, citing the text; People v. Patton (1976) 63 C.A.3d 211, 219, 133 C.R. 533, infra, §35, citing the text; Stewart v. Estate of Bohnert (1980) 101 C.A.3d 978, 990, 162 C.R. 126, citing the text; Simon v. Steelman (1990) 224 C.A.3d 1002, 1006, footnote 3, 274 C.R. 218; Anderson v. United States (1974) 417 U.S. 211, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20, 28.)

In these situations, the words themselves, written or oral, are "operative facts," and an issue in the case is whether they were uttered or written. (See 2 McCormick 5th, §249; 6 Wigmore (Chadbourn Rev.) §1770; 29 Am.Jur.2d (1994 ed.), Evidence §665; 2 U.C.L.A. L. Rev. 48; 19 Cal. L. Rev. 246; infra, §32 et seq.)

This rule is, of course, inapplicable where the issue does involve truth. Thus, in Am-Cal Inv. Co. v. Sharlyn Estates (1967) 255 C.A.2d 526, 540, 63 C.R. 518, plaintiff purchaser sued for specific performance of a land contract. To show that he had a legal commitment of funds with which to pay, he called a loan broker to testify that he had received a letter of commitment from Authorized Investors, a lending institution. The letter was never produced. Held, citing the text, the testimony was inadmissible hearsay. The issue was not simply whether an offer of a loan had been made, but rather the truth of the statements therein, i.e., that the lender had the ability to lend and was willing to lend the money for this land. (255 C.A.2d 541.)

SUPPLEMENT: [This section is current through the latest supplement] 
West's Key Number Digest, Criminal Law k.419(2); Evidence k.267-

[§ 36] In General.

Frequently, an utterance may justify an inference concerning a fact in issue, regardless of the truth or falsity of the utterance itself. It is admitted as circumstantial evidence of that independent fact. The distinction between these two uses of the evidence is not always readily apparent. In People v. Williams (1992) 3 C.A.4th 1535, 5 C.R.2d 372, the court held that a fishing license and two checks bearing defendant's name, found by police in an apartment and offered by defendant to establish his standing to contest the propriety of the search, were improperly excluded as hearsay. The court first described Jefferson's analysis of a similar situation: A utility bill is relevant to establish that defendant is the possessor of the premises only by accepting as true the implied statement of the utility company that defendant, as the person named on the utility bill, is the possessor or occupant; therefore, it is hearsay. But the court rejected this view: "[T]he fishing license and two checks at issue here are more likely to be found in the residence of the person named on those documents than in the residence of any other person. Accordingly, regardless of the truth of any express or implied statement contained in those documents, they are circumstantial evidence that a person with the same name as the defendant resided in the apartment from which they were seized. Therefore, when introduced for the purpose of showing that residency, they are admissible nonhearsay evidence." (3 C.A.4th 1542, 1543.)

[§ 37] Inference as to Belief, Intent, or Motive.

If an utterance, regardless of its truth or falsity, justifies an inference concerning the declarant's mental state (e.g., belief, intent, motive), it may be admissible as circumstantial evidence of that mental state. (See Skelly v. Richman (1970) 10 C.A.3d 844, 858, 89 C.R. 556 [quoting Wigmore: "The Hearsay Rule makes no opposition, because the utterance is not used for the sake of inducing belief in any assertion it may contain. The assertion, if in form there is one, is to be disregarded, and the indirect inference alone regarded"]; Estate of Stevenson (1992) 11 C.A.4th 852, 863, 14 C.R.2d 250, citing the text; 2 McCormick 5th, §§250, 294; 6 Wigmore (Chadbourn Rev.) §§1715, 1790; 29 Am.Jur.2d (1994 ed.), Evidence §667; 1962 A.S. 344.)

There has been much discussion of the application of this theory to public opinion polls or surveys, e.g., in trademark and unfair competition cases. (See 1 McCormick 5th, §208; 66 Harv L. Rev. 498, 501; 98 A.L.R. Fed 20; 18 Proof of Facts 2d 305; 29 Am.Jur.2d (1994 ed.), Evidence §683; 1962 A.S. 341; 1963 A.S. 296.)

SUPPLEMENT: [This section is current through the latest supplement] 
See Colarossi v. Coty US (2002) 97 C.A.4th 1142, 1150, 119 C.R.2d 131, citing the text [in wrongful termination action alleging that plaintiff was discharged for cooperating in sexual harassment investigation, trial judge erred in excluding statement of another employee that target of investigation (employer's director of merchandising) threatened to get revenge on those who participated in it; statement was not hearsay, as it showed target's mental state, i.e., that she felt wronged and harbored ill will toward those she held responsible].

West's Key Number Digest, Criminal Law k.415(3), 419(2.20); Evidence k.268, 317(3)

[§ 39] Criminal Cases.

(1) Preliminary Distinction. Obviously, a person's express declaration of belief or intent (e.g., "I hate X"; "I am going to kill X"), offered to prove the truth of the matter stated, is hearsay. It is admissible only under the exception allowing declarations of the declarant's state of mind (infra, §198 et seq.). If, however, the statements are not express declarations of belief, intent, or other state of mind, but are nevertheless of such a nature that an inference of the declarant's state of mind may be drawn therefrom, the hearsay rule does not apply at all. (See 6 Wigmore (Chadbourn Rev.) §1715.)

(2) Statements Subject to Multiple Classification. Even where statements are express declarations of a mental state and therefore hearsay, they may be received for a distinct, nonhearsay purpose. Thus, statements of a defendant before or after the commission of an alleged criminal act, admitting the act and disclosing knowledge of its wrongfulness, could be both (a) an admission, within the hearsay exception, and (b) circumstantial evidence of a rational mental state, to rebut the defense of insanity. (See People v. Wolff (1964) 61 C.2d 795, 810, 40 C.R. 271, 394 P.2d 959.) And statements of the owner of a vehicle to law enforcement officers giving consent to a search may be admitted as words of authorization, in the same way that words of offer and acceptance are admitted to prove the formation of a contract (see supra, §36). ( People v. Nelson (1985) 166 C.A.3d 1209, 1215, 212 C.R. 799, pointing out alternative analysis of People v. Donnell (1975) 52 C.A.3d 762, 772, 125 C.R. 310, where statement of consent was found admissible under state of mind exception.) A similar possibility of multiple classification exists in connection with the complaint of the victim in a rape case. (See infra, §167.)

(3) Illustrations.

(a) Guilty knowledge. In People v. Tahl (1967) 65 C.2d 719, 739, 56 C.R. 318, 423 P.2d 246, defendant was charged with the murder of two persons. Less than 2 hours after the crime, he was with a woman, and they heard a radio announcement of the killing of two persons. She said, "I wonder who that was," and he replied, "That was Vic and his wife." Held, admissible to show his knowledge of the identity of the victims before any member of the public was so informed.

In People v. Putty (1967) 251 C.A.2d 991, 996, 59 C.R. 881, defendant was charged with receiving stolen goods. His statements to a prospective buyer that the goods were "cool" after 7 months was admissible, not to prove that they were stolen (fully established by other evidence), but on the issue of his knowledge that they were.

(b) Intention to form conspiracy. In People v. Sanders (1995) 11 C.4th 475, 517, 518, 46 C.R.2d 751, 905 P.2d 420, a witness' testimony that a codefendant asked him if he wanted to make money by robbing a restaurant was properly admitted for the nonhearsay purpose of establishing the codefendant's intention to form a conspiracy to rob the restaurant.

(c) Victim's fear of strangers. In People v. Arguello (1967) 65 C.2d 768, 773, 56 C.R. 274, 423 P.2d 202, the prosecution was for murder of an elderly widow by defendant, her handyman. The prosecution called a next-door neighbor of the victim to testify to the victim's statement that she did not allow strangers in the house. Held, citing the text, this was admissible to show that she was fearful of strangers, relevant to the theory that the murderer was not a stranger to her.

[§ 40] In General.

A statement by the declarant may be admitted if it tends to show the mental state or attitude of the person who heard it or read it. (See People v. Marsh (1962) 58 C.2d 732, 737, 26 C.R. 300, 376 P.2d 300; People v. Reeder (1978) 82 C.A.3d 543, 550, 147 C.R. 275; Stewart v. Estate of Bohnert (1980) 101 C.A.3d 978, 990, 162 C.R. 126, citing the text; People v. Bolden (1996) 44 C.A.4th 707, 715, 52 C.R.2d 485, citing the text [in arson prosecution, testimony of defendant's girlfriend that she conveyed her godmother's message to defendant not to come around her house anymore was not hearsay, as it was offered to show that defendant had motive (i.e., anger) to set fire to house]; 1 Jefferson, California Evidence Benchbook 3d, §1.28 et seq.; 2 McCormick 5th, §249; 6Wigmore (Chadbourn Rev.) §1789.) This rule applies only where the recipient's reaction to the statement is relevant; if that reaction does not tend to prove any issue in the case, it is excluded as irrelevant. ( People v. Scalzi (1981) 126 C.A.3d 901, 906, 907, 179 C.R. 61.)

Typical issues on which these statements are commonly offered are knowledge (infra, §41), belief (infra, §§42, 43), and good faith (infra, §§44, 45).

[§ 47] Uniform Rules and Evidence Code.

The Evidence Code takes the same position as the Uniform Rules of Evidence in making nonassertive conduct admissible. This is accomplished by limiting the definition of "statement" to verbal expressions, or conduct intended as a substitute. (Ev.C. 225, supra, §2.) Thus, nonassertive conduct is not a "statement" within the hearsay rule (Ev.C. 1200, supra, §4). The Law Revision Commission Comment to Ev.C. 1200 justifies the choice of this view as follows:

"Under the Evidence Code, nonassertive conduct is not regarded as hearsay for two reasons. First, one of the principal reasons for the hearsay rule--to exclude declarations where the veracity of the declarant cannot be tested by cross-examination--does not apply because such conduct, being nonassertive, does not involve the veracity of the declarant. Second, there is frequently a guarantee of the trustworthiness of the inference to be drawn from such nonassertive conduct because the actor has based his actions on the correctness of his belief, i.e., his actions speak louder than words.

"Of course, if the probative value of evidence of nonassertive conduct is outweighed by the probability that such evidence will be unduly prejudicial, confuse the issues, mislead the jury, or consume too much time, the judge may exclude the evidence under Section 352." (See 5 Wigmore (Chadbourn Rev.) §1362; 1 Jefferson, California Evidence Benchbook 3d, §1.49; 25 West L.A. L. Rev. 59, 117.)

In People v. Clark (1970) 6 C.A.3d 658, 668, 86 C.R. 106, the court approved the admission of testimony that defendant's wife fainted in reaction to a question put to her by defendant. "[B]ecause it was nonassertive conduct it was not objectionable hearsay." (See People v. Warner (1969) 270 C.A.2d 900, 907, 76 C.R. 160 [citing Ev.C. 1200 and bookmaking cases, infra, §48]; People v. Snow (1987) 44 C.3d 216, 227, 242 C.R. 477, 746 P.2d 452 [citing Clark].)

In re Cheryl H. (1984) 153 C.A.3d 1098, 200 C.R. 789, involved a juvenile court proceeding to declare a 3-year-old girl a dependent child on findings that she had been sexually molested by her father. Dr. P, the court-appointed psychiatrist, testified to conduct of Cheryl during play therapy typical of that exhibited by victims of child molestation. If this conduct was intended by Cheryl as a substitute for verbal expression, it was inadmissible (Ev.C. 225; see supra, §2). But it was not. Her actions were sometimes observed while she was playing alone and sometimes after Dr. P asked her a direct question. "A child playing with dolls and posing them in sexual positions is not trying to substitute her conduct for words to the effect that she has been molested. This conclusion is especially applicable when the child is playing by herself." (153 C.A.3d 1127.)

The evidence was relevant: (a) "When a three-year-old child puts a male doll on top of a female doll or orally copulates a male doll, it can be inferred that the child has been exposed to inappropriate sexual contact." (b) The acts of holding a female doll close to her and rejecting the male doll, and of reverting to a disassociated state when the subject of molestation was broached permit a similar inference. (c) Cheryl's recoil at the mention of her father was likewise nonassertive conduct. An adult might deliberately recoil as a gesture substituting for speech, but the child's recoil was involuntary and not intended as a statement. It was admissible as evidence that her father had molested her, and also as circumstantial proof that she was afraid of him. (153 C.A.3d 1127, 1128.)