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Name: People v. Tatum
Case #: B155958
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 04/29/2003
Subsequent History: None

A hearsay videotaped statement by the 82-year-old victim of elder abuse (Pen. Code, sec. 368) , who was deceased by the time of trial, was admissible under Evidence Code section 1380. That statute requires a showing the circumstances indicate the trustworthiness of the statement, and that was done here. There was no showing that the victim had a reason to lie about the attack on him, and falsely accusing defendant would have been against the victim’s self-interest, since defendant was the caretaker of the victim and the victim’s wife, and a false accusation would have left them without care. Nor were the statements unreliable simply because the victim displayed some confusion and forgetfulness (such as thinking Kennedy was the President and an inability to pick out defendant, whom he had known for 15 years, from a six photo lineup). The witness had the ability to perceive and recollect sufficiently to make his statements reliable. Finally, the admission of hearsay that is trustworthy and contains sufficient indicia of reliability violates neither due process or the confrontation clause.