CHAPTER 4, PART 3 OF 3 RULE 804: DECLARATIONS BY PERSONS WHO ARE NOW UNAVAILABLE Prof. Janicke 2014

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

2014 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

PROBLEMS/CASES 4L 2014

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)

2014 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]

2014 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

2014 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

2014 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)

2014 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”

2014 THIRD-PARTY CONCESSIONS 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

2014 EXAMPLES OF NON-PARTY CONCESSIONS 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’”

2014 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

PROBLEMS/CASES 4M 2014

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

2014 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

2014 ADMISSIBLE HEARSAY DECLARANTS ARE IMPEACHABLE THEY ARE TREATED JUST LIKE WITNESSES TO PREVENT ABUSIVE USE OF EXCEPTIONS SAME RULES OF IMPEACHMENT

2014 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

2014 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

2014 COURT EFFECTIVELY REWRITES THE HEARSAY EXCEPTIONS USUALLY SEEN IN CIVIL CASES [THE BANE OF MY EXISTENCE; THE JUDGE USUALLY SMILES]

PROBLEMS/CASES Weaver 2014

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

PROBLEMS/CASES Crawford 2014