CHAPTER 4, PART 3 OF 3 RULE 804: OUT-OF-COURT DECLARATIONS BY PERSONS WHO ARE NOW UNAVAILABLE Prof. Janicke 2015

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 Hearsay Exceptions -- Declarant Unavailable 2

2015 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 Hearsay Exceptions -- Declarant Unavailable 3

PROBLEMS/CASES BARBER 4L 2015Hearsay Exceptions -- Declarant Unavailable 4

2015 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) Hearsay Exceptions -- Declarant Unavailable 5

2015 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] Hearsay Exceptions -- Declarant Unavailable 6

2015 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 Hearsay Exceptions -- Declarant Unavailable 7

2015 NOTE – AN OPPOSING 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 OPPORTUNITY Hearsay Exceptions -- Declarant Unavailable 8

2015 DYING DECLARATIONS SUPPOSED 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) Hearsay Exceptions -- Declarant Unavailable 9

2015 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” Hearsay Exceptions -- Declarant Unavailable 10

2015 THIRD-PARTY STATEMENTS OF GUILT/FAULT STATEMENT THAT WAS AGAINST DECLARANT’S INTEREST –PECUNIARY –PENAL MADE BY A NON-PARTY MOST ARE OFFERED BY DEFENDANTS, CIVIL AND CRIMINAL, THROUGH WITNESSES –TO DEFLECT BLAME Hearsay Exceptions -- Declarant Unavailable 11

2015 EXAMPLES OF NON-PARTY CONCESSIONS OFFERED BY D, THROUGH WITNESSES: TESTIMONY: “NONPARTY X SAID TO ME: ‘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’” Hearsay Exceptions -- Declarant Unavailable 12

2015 RESTRICTION ON NON- PARTY CONCESSIONS 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 Hearsay Exceptions -- Declarant Unavailable 13

PROBLEMS/CASES 4M 2015Hearsay Exceptions -- Declarant Unavailable 14

2015 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 Hearsay Exceptions -- Declarant Unavailable 15

2015 DECLARATIONS BY PERSONS WHO HAVE SINCE BEEN “RUBBED OUT” IF THE REMOVER IS A PARTY, THESE ARE NOW ADMISSIBLE AGAINST HIM EXAMPLES: –EARLIER 3 rd PARTY’S AFFIDAVIT –EARLIER 3 rd PARTY’S GRAND JURY TESTIMONY –EARLIER 3 rd PARTY’S ORAL REMARK –EARLIER 3 rd PARTY LETTER Hearsay Exceptions -- Declarant Unavailable 16

2015 ADMISSIBLE HEARSAY DECLARANTS ARE IMPEACHABLE THEY ARE TREATED JUST LIKE WITNESSES TO PREVENT ABUSIVE USE OF EXCEPTIONS SAME RULES OF IMPEACHMENT Hearsay Exceptions -- Declarant Unavailable 17

2015 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 Hearsay Exceptions -- Declarant Unavailable 18

2015 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 Hearsay Exceptions -- Declarant Unavailable 19

2015 COURT EFFECTIVELY REWRITES THE HEARSAY EXCEPTIONS USUALLY SEEN IN CIVIL CASES [THE BANE OF MY EXISTENCE; THE JUDGE USUALLY SMILES] Hearsay Exceptions -- Declarant Unavailable 20

PROBLEMS/CASES Weaver 2015Hearsay Exceptions -- Declarant Unavailable 21

2015 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 Hearsay Exceptions -- Declarant Unavailable 22

PROBLEMS/CASES Crawford Davis 2015Hearsay Exceptions -- Declarant Unavailable 23