(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/personal injury case and its proceedings.)
1. Officer Smith’s opinion was based exclusively on one unreliable hearsay witness: Petra White.
What Petra White told Officer Smith at the scene of the accident was quintessential hearsay not subject to any legally recognized exception:
Q. As best you recall, what did Ms. White tell you?
A. [Smith] She said she was on the northeast corner of Fourth and Elm, waiting for the light to turn green so she could continue southbound. She said that she saw a lady bolt from the east curb toward the west in a diagonal direction, I guess, if you will. Then the bus hit her, and then she had flown out of her shoes and she landed in front of the bus.
Q. When she indicated this diagonal direction, did she indicate whether or not this woman bolted in a diagonal direction toward the north or toward the south?
A. [Smith] Toward the south.
Q. So, away from the intersection?
A. [Smith] Correct. (Smith 4/28/08 RT15:9-23)
2. The content of the above testimony is pure hearsay, that is: an out of court statement offered to prove the truth of the matter asserted.
Rationale for Excluding Hearsay-Trustworthiness: The hearsay rule is predicated upon the essential trustworthiness or reliability of evidence. [People v. Ayala (2000) 23 C4th 225, 268,- The general rule that hearsay evidence is inadmissible because it is inherently unreliable is of venerable common law pedigree.] Unlike in-court testimony based on a witness’ firsthand knowledge, an out-of-court statement is not subject to cross-examination to test the declarant’s perception, memory and veracity when the statement was made. Lacking the be refit of cross to probe the declarant’s perception, memory and veracity, hearsay evidence is inherently unreliable as substantive proof. Buchanan v. Nye (1954) 128 CA2d 582, 585, — essence of hearsay rule is requirement that testimonial assertions shall be subjected to the test of cross-examination.]
While Ev.C. § 1200(b) empowers courts to develop new hearsay exceptions, courts may exercise that authority only where there is a substantial need for the hearsay evidence; and the class of hearsay evidence possesses an intrinsic reliability that enables it to surmount the usual objections. [In re Cindy L. (1997) 17 C4th 15, 27-28, 69 CR2d 803, 811] (See Part 9 of 13.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.