Admissions by silence

In order for the hearsay evidence to be admissible,it must have been shown clearly that (the
party] heard and understood the statement.1 There must also be evidence of some type of
reaction to the statement. (Ibid.) It is clear that the doctrine does not apply if the party is in
such physical or mental condition that a reply could not reasonably be expected from him.2
If you find that following the [accident] [incident] involved in this case that a party
(1) [failed or refused to reply] [or] [made an evasive answer] to a statement concerning such
party's conduct in relation to the [accident] [incident] ;
(2) heard and understood the statement;
(3) had a reasonable opportunity to reply;
(4) was in such physical and mental condition that a reasonable person in such condition
could be expected to reply; and
(5) the statement was made under such circumstances that it would normally call for an
answer, you may, but are not required to, infer that the party adopted the statement or
believed it to be true.
If you do not find each of the five circumstances to [be true] [exist] you must disregard any
evidence of the party's silence or evasive answer.

Fisch v. Los Angeles Metropolitan Transit Authority (1963) 219 Cal.App.2d 537, 540, 33
Cal.Rptr.298.
2
Souther, supr, 191 Cal.App.2d at p.104.