HEARSAY EXCEPTIONS THAT ARE LESS RELIABLE: RULE 804: DECLARATIONS BY PERSONS WHO ARE NOW UNAVAILABLE Prof. Janicke 2012

THOUGHT TO BE WEAKER RULES DRAFTERS (AND COMMON LAW) DEVELOPED A SET OF HEARSAY EXCEPTIONS THAT COULD BE USED ONLY WHEN THE DECLARANT IS UNAVAILABLE AT TRIAL A COMPROMISE BETWEEN OUTRIGHT EXCLUSION AND OUTRIGHT ADMISSIBILITY 2012

MEANING OF “UNAVAILABLE” WITHOUT ANY CONNIVANCE BY PROPONENT, DECLARANT IS: NOT FINDABLE REFUSES TO ATTEND REFUSES TO ANSWER EVEN WHEN DIRECTED BY COURT HAS A LOSS OF MEMORY IS DEAD IS INCAPACITATED MENTALLY OR PHYSICALLY 2012

PROBLEMS/CASES 4L 2012

FORMER TESTIMONY AT A HEARING OR DEPOSITION IN THIS OR ANOTHER CASE NOW-OPPONENT MUST HAVE HAD OPPORTUNITY AND MOTIVE TO CROSS-EXAMINE DIRECTLY, or THROUGH A PARTY WITH SIMILAR INTEREST (CIVIL CASES ONLY) 2012

SOME THINGS THAT WON’T QUALIFY AFFIDAVITS [NOT A HEARING OR DEPOSITION; NO CHANCE TO CROSS-EXAMINE] GRAND JURY TESTIMONY [NO CHANCE TO CROSS-EXAMINE] 2012

SOME THINGS THAT WILL QUALIFY NON-PARTY TESTIMONY AT EARLIER TRIAL OF THIS CASE NON-PARTY TESTIMONY AT A DEPOSITION IN THIS OR ANOTHER CASE (WHERE OPPONENT WAS PARTY) NON-PARTY TESTIMONY AT A PRELIMINARY INJUNCTION HEARING IN THIS CASE 2012

A PARTY’S TESTIMONY DOESN’T NEED THIS EXCEPTION NOTE – A PARTY’S TESTIMONY DOESN’T NEED THIS EXCEPTION IF OFFERED BY THE ADVERSE PARTY, CAN BE OFFERED FREELY, REGARDLESS OF PRIOR OATH OR CROSS-EXAM IF IT IS HER OWN FORMER TESTIMONY, THE PROPONENT PARTY IS “AVAILABLE” -- CAN TESTIFY LIVE AGAIN 2012

DYING DECLARATIONS BASIS: NO ONE WOULD FALSIFY WHILE SOON TO MEET HIS MAKER REQUIREMENTS: HOMICIDE OR CIVIL CASE DECLARANT THOUGHT HE WAS DYING IMMINENTLY (NOT “GOING TO BE SHOT” SOME VAGUE FUTURE TIME) STATEMENT WAS RE. CAUSE OF THE IMPENDING DEATH (i.e., WHODUNIT) 2012

VICTIM’S RECOVERY DOESN’T MAKE A DYING DECLARATION INADMISSIBLE BUT THE VICTIM-DECLARANT HAS TO BE “UNAVAILABLE” AT TRIAL 2012

EXAMPLE IN A HOMICIDE CASE: “JACK DID IT!!” IN A WRONGFUL DEATH ACTION: “BOB SHOT ME IN SELF-DEFENSE” IN A WRONGFUL DEATH ACTION: “I NEVER SHOULD HAVE EATEN THOSE OYSTERS” 2012

THIRD PARTY ADMISSIONS STATEMENT THAT WAS AGAINST INTEREST PECUNIARY PENAL MADE BY A NON-PARTY MOST ARE OFFERED BY DEFENDANTS, CIVIL AND CRIMINAL, THROUGH WITNESSES OFFERED TO DEFLECT BLAME 2012

EXAMPLES OF NON-PARTY ADMISSIONS OFFERED BY D, THROUGH WITNESSES: TESTIMONY: “NONPARTY X SAID: ‘OUR TECHNICIAN WIRED IT WRONG’” NONPARTY X CO’S DOCUMENT RECALLING X’S AUTOS FOR DEFECTIVE FUEL LINES TESTIMONY: “NONPARTY X SAID: ‘SORRY WE BLEW UP YOUR HOUSE’” 2012

RESTRICTION ON NON-PARTY ADMISSIONS WHEN OFFERED TO EXCULPATE A CRIMINAL ACCUSED: MUST HAVE CORROBORATING CIRCUMSTANCES THAT “CLEARLY INDICATE ITS TRUSTWORTHINESS” MOST CASES HOLD THEM INADMISSIBLE BASED ON A GENERAL MISTRUST OF THE CRIMINAL COMMUNITY 2012

PROBLEMS/CASES 4M 2012

OUT OF COURT STATEMENT RE. FAMILY HISTORY EXAMPLE: TESTIMONY THAT “MY MOTHER TOLD ME I WAS HARRY’S SON” EXAMPLE: TESTIMONY THAT “HIS FATHER TOLD ME HE WAS BORN IN THE NAVAL HOSPITAL AT NEWPORT” NOTE: RECALL THAT DECLARANT (MOTHER, FATHER) MUST BE UNAVAILABLE 2012

DECLARATIONS BY PERSONS WHO HAVE SINCE BEEN “RUBBED OUT” IF THE REMOVER IS A PARTY, THESE ARE NOW ADMISSIBLE AGAINST HIM EXAMPLES: EARLIER AFFIDAVIT EARLIER GRAND JURY TESTIMONY EARLIER ORAL REMARK EARLIER LETTER 2012

DECLARANTS ARE IMPEACHABLE THEY ARE TREATED JUST LIKE WITNESSES TO PREVENT ABUSIVE USE OF EXCEPTIONS SAME RULES OF IMPEACHMENT 2012

THE “CATCHALL”: RULE 807 FOR THE “ALMOST” SITUATIONS FOR THE UNPREPARED LAWYER WHO DOESN’T KNOW HOW TO REFUTE A HEARSAY OBJECTION FOR THE JUDGE WHO WANTS TO BE BULLETPROOF ON APPEAL 2012

REQUIREMENTS: EVIDENCE OF A “MATERIAL FACT” ??? MORE PROBATIVE THAN ANYTHING ELSE REASONABLY AVAILABLE A HAVEN FOR THE UNPREPARED IN THE INTERESTS OF JUSTICE ADVANCE NOTICE REQUIRED 2012

COURT EFFECTIVELY REWRITES THE HEARSAY EXCEPTIONS USUALLY SEEN IN CIVIL CASES 2012

PROBLEMS/CASES Weaver 2012

A PROBLEM WITH SIXTH AMENDMENT CONFRONTATION CLAUSE, WHEN HEARSAY EXCEPTIONS ARE USED BY PROSECUTORS CRAWFORD v. WASHINGTON “TESTIMONIAL” TYPE HEARSAY MUST BE KEPT OUT OF CRIMINAL PROSECUTIONS, DESPITE RULES 803, 804 2012

PROBLEMS/CASES Crawford Exercise #13 2012