HEARSAY EXCEPTIONS THAT ARE LESS RELIABLE: RULE 804: DECLARATIONS BY PERSONS WHO ARE NOW UNAVAILABLE Prof. Janicke 2011

2 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

20113 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

20114 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)

20115 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]

20116 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

20117 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

20118 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)

20119 VICTIM’S RECOVERY DOESN’T MAKE A DYING DECLARATION INADMISSIBLE BUT THE VICTIM-DECLARANT HAS TO BE “UNAVAILABLE” AT TRIAL

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”

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

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’”

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

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

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

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

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

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

COURT EFFECTIVELY REWRITES THE HEARSAY EXCEPTIONS USUALLY SEEN IN CIVIL CASES

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