Sunday, August 21, 2016

Lies Aren't Offered for Their Truth

Janice H. v. 696 N. Robertson, LLC, No. B256913A (D2d3, upon reh'g, Jul. 14, 2016).

Plaintiff was sexually assaulted in the bathroom of a bar she was patronizing by one of the bar’s employees. She sued both the bar and the employee/assailant. The assailant was interviewed by the cops, on videotape. In the interview, the assailant told an implausible story denying the assault, wherein his stories shifted. He claimed she propositioned him and followed him into the stall but he never touched her. When confronted with the fact that his DNA was found on plaintiffs dress, he changed his story. Now he was drunk and didn’t remember much, but just might have masturbated on her. 

Plaintiff wanted to put the tape into evidence but the bar and the employee objected on hearsay grounds. The trial court let it in. In a very short analysis without citation to any authority other than Evidence Code § 1200’s statement of the hearsay rule, the court affirms. The tape wasn’t offered for the truth of what the employee said. It was offered to show that the alleged assailant was lying about the incident, which showed consciousness of guilt. So it wasn’t hearsay.


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