CHAPTER 4, PARTS D-H RULE 804: OUT-OF-COURT DECLARATIONS BY PERSONS WHO ARE NOW “UNAVAILABLE” Prof. Janicke 2019

THOUGHT TO BE WEAKER (HENCE UNAVAILABILITY REQUIREMENT) 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 2019 Hearsay Exceptions -- Declarant Unavailable

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 2019 Hearsay Exceptions -- Declarant Unavailable

Hearsay Exceptions -- Declarant Unavailable PROBLEMS/CASES BARBER 4-O 2019 Hearsay Exceptions -- Declarant Unavailable

Hearsay Exceptions -- Declarant Unavailable 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) 2019 Hearsay Exceptions -- Declarant Unavailable

SOME THINGS THAT WON’T QUALIFY AFFIDAVITS THESE ARE NOT A HEARING OR DEPOSITION; NO CHANCE TO CROSS-EXAMINE GRAND JURY TESTIMONY NO CHANCE TO CROSS-EXAMINE! 2019 Hearsay Exceptions -- Declarant Unavailable

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 NOW-OPPONENT WAS PARTY) NON-PARTY TESTIMONY AT A PRELIMINARY INJUNCTION HEARING IN THIS CASE (OPPOSING PARTY OBVIOUSLY WAS PRESENT) 2019 Hearsay Exceptions -- Declarant Unavailable

Hearsay Exceptions -- Declarant Unavailable NOTE – AN OPPOSING PARTY’S TESTIMONY DOESN’T NEED THIS EXCEPTION IF OFFERED BY THE ADVERSE PARTY, IS AN ADMISSION; IT IS NOT HEARSAY AT ALL; IT COMES IN E.G.: PLAINTIFF OFFERS DEFENDANT’S TESTIMONY; DEFENDANT OFFERS PLAINTIFF’S TESTIMONY 2019 Hearsay Exceptions -- Declarant Unavailable

Hearsay Exceptions -- Declarant Unavailable DYING DECLARATIONS SUPPOSED RELIABILITY 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” AT SOME VAGUE FUTURE TIME) STATEMENT WAS RE. CAUSE OF THE IMPENDING DEATH (i.e., WHODUNIT) 2019 Hearsay Exceptions -- Declarant Unavailable

EXAMPLES (GIVEN THE PROPER FOUNDATION FACTS) 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” 2019 Hearsay Exceptions -- Declarant Unavailable

MOSTLY AN UN-NEEDED EXCEPTION THESE SHOULD OFTEN COME IN AS EXCITED UTTERANCES PER R.803 NO SHOWING OF UNAVAILABILITY WOULD BE NEEDED 2019 Hearsay Exceptions -- Declarant Unavailable

THIRD-PARTY STATEMENTS OF GUILT/FAULT STATEMENT THAT WAS AGAINST DECLARANT’S INTEREST PECUNIARY PENAL MADE BY A NON-PARTY 2019 Hearsay Exceptions -- Declarant Unavailable

Hearsay Exceptions -- Declarant Unavailable MOST ARE OFFERED BY DEFENDANTS, CIVIL AND CRIMINAL, THROUGH WITNESSES TO DEFLECT BLAME 2019 Hearsay Exceptions -- Declarant Unavailable

Hearsay Exceptions -- Declarant Unavailable EXAMPLES OF NON-PARTY CONCESSIONS OFFERED BY D, THROUGH WITNESSES OR DOCUMENTS: TESTIMONY: “NONPARTY X SAID TO ME: ‘OUR TECHNICIAN WIRED IT WRONG’” DOCUMENT: NONPARTY X Co.’s LETTER RECALLING X’S AUTOS FOR DEFECTIVE FUEL LINES TESTIMONY: “NONPARTY X SAID: ‘SORRY WE BLEW UP YOUR HOUSE’” 2019 Hearsay Exceptions -- Declarant Unavailable

BIG RESTRICTION ON NON-PARTY CONCESSIONS WHEN OFFERED BY D TO EXCULPATE D IN CRIMINAL CASE: MUST HAVE CORROBORATING CIRCUMSTANCES THAT “CLEARLY INDICATE ITS TRUSTWORTHINESS” MOST CASES HAVE HELD SUCH STATEMENTS INADMISSIBLE!! BASED ON A GENERAL MISTRUST OF THE CRIMINAL COMMUNITY 2019 Hearsay Exceptions -- Declarant Unavailable

Hearsay Exceptions -- Declarant Unavailable PROBLEMS/CASES 4P 2019 Hearsay Exceptions -- Declarant Unavailable

OUT-OF-COURT STATEMENT RE. FAMILY HISTORY EXAMPLE: TESTIMONY THAT “MY MOTHER TOLD ME I WAS HARRY’S SON” EXAMPLE: TESTIMONY THAT “HER FATHER TOLD ME JEAN WAS BORN IN THE NAVAL HOSPITAL AT NEWPORT” NOTE: RECALL THAT DECLARANT (MOTHER, FATHER) MUST BE UNAVAILABLE 2019 Hearsay Exceptions -- Declarant Unavailable

RETURNING TO THE QUESTION: “HOW OLD ARE YOU” A: “I DON’T KNOW” Q: DID ANYONE TELL YOU? A: YES, MY MOTHER [NOW SHOWN TO BE UNAVAILABLE] Q: WHAT DID SHE TELL YOU? A: THAT I WAS BORN IN 1991 2019 Hearsay Exceptions -- Declarant Unavailable

DECLARATIONS BY PERSONS WHO HAVE SINCE BEEN “RUBBED OUT” IF THE REMOVER IS A PARTY, THESE ARE NOW ADMISSIBLE AGAINST HIM EXAMPLES: EARLIER 3rd PARTY’S AFFIDAVIT EARLIER 3rd PARTY’S GRAND JURY TESTIMONY EARLIER 3rd PARTY’S ORAL REMARK EARLIER 3rd PARTY LETTER 2019 Hearsay Exceptions -- Declarant Unavailable

ADMISSIBLE HEARSAY DECLARANTS ARE IMPEACHABLE THEY ARE TREATED JUST LIKE WITNESSES TO PREVENT ABUSIVE USE OF EXCEPTIONS SAME RULES OF IMPEACHMENT 2019 Hearsay Exceptions -- Declarant Unavailable

Hearsay Exceptions -- Declarant Unavailable THE “CATCHALL”: RULE 807 FOR THE “ALMOST” SITUATIONS FOR THE UNPREPARED LAWYER WHO DOESN’T KNOW HOW TO OVERCOME A SUSTAINED HEARSAY OBJECTION FOR THE JUDGE WHO WANTS TO BE BULLETPROOF ON APPEAL 2019 Hearsay Exceptions -- Declarant Unavailable

Hearsay Exceptions -- Declarant Unavailable 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 2019 Hearsay Exceptions -- Declarant Unavailable

Hearsay Exceptions -- Declarant Unavailable COURT EFFECTIVELY REWRITES THE HEARSAY EXCEPTIONS USUALLY SEEN IN CIVIL CASES [THE BANE OF MY EXISTENCE; THE JUDGE USUALLY SMILES] 2019 Hearsay Exceptions -- Declarant Unavailable

Hearsay Exceptions -- Declarant Unavailable PROBLEMS/CASES Weaver 2019 Hearsay Exceptions -- Declarant Unavailable

Hearsay Exceptions -- Declarant Unavailable A PROBLEM WITH SIXTH AMENDMENT CONFRONTATION CLAUSE, WHEN HEARSAY EXCEPTIONS ARE USED BY PROSECUTORS “TESTIMONIAL” TYPE HEARSAY MUST BE KEPT OUT OF CRIMINAL PROSECUTIONS, DESPITE RULES 803, 804 CRAWFORD v. WASHINGTON >> 2019 Hearsay Exceptions -- Declarant Unavailable

Hearsay Exceptions -- Declarant Unavailable MEANING OF “TESTIMONIAL”: HELPING AUTHORITIES WITH AN INVESTIGATION 2019 Hearsay Exceptions -- Declarant Unavailable

Hearsay Exceptions -- Declarant Unavailable PROBLEMS/CASES Crawford [A TESTIMONIAL STATEMENT] Davis [A NON-TESTIMONIAL STATEMENT] 2019 Hearsay Exceptions -- Declarant Unavailable