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

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
2012

3. 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

4. PROBLEMS/CASES 4L
2012

5. 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

6. 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

7. 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

8. 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

9. 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

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

11. 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

12. 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

13. 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

14. 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

15. PROBLEMS/CASES 4M
2012

16. 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

17. 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

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

19. 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

20. 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

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

22. PROBLEMS/CASES
Weaver
2012

23. 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

24. PROBLEMS/CASES
Crawford
Exercise #13
2012