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

2. Hearsay Exceptions -- Declarant Unavailable
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
2015
Hearsay Exceptions -- Declarant Unavailable

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
2015
Hearsay Exceptions -- Declarant Unavailable

4. Hearsay Exceptions -- Declarant Unavailable
PROBLEMS/CASES
BARBER
4-O
2015
Hearsay Exceptions -- Declarant Unavailable

5. 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)
2015
Hearsay Exceptions -- Declarant Unavailable

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]
2015
Hearsay Exceptions -- Declarant Unavailable

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
2015
Hearsay Exceptions -- Declarant Unavailable

8. Hearsay Exceptions -- Declarant Unavailable
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
2015
Hearsay Exceptions -- Declarant Unavailable

9. Hearsay Exceptions -- Declarant Unavailable
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)
2015
Hearsay Exceptions -- Declarant Unavailable

10. 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”
2015
Hearsay Exceptions -- Declarant Unavailable

11. 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
2015
Hearsay Exceptions -- Declarant Unavailable

12. 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’”
2015
Hearsay Exceptions -- Declarant Unavailable

13. 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
2015
Hearsay Exceptions -- Declarant Unavailable

14. Hearsay Exceptions -- Declarant Unavailable
PROBLEMS/CASES 4P
2015
Hearsay Exceptions -- Declarant Unavailable

15. 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
2015
Hearsay Exceptions -- Declarant Unavailable

16. 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
2015
Hearsay Exceptions -- Declarant Unavailable

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

18. 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
2015
Hearsay Exceptions -- Declarant Unavailable

19. 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
2015
Hearsay Exceptions -- Declarant Unavailable

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

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

22. Hearsay Exceptions -- Declarant Unavailable
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
2015
Hearsay Exceptions -- Declarant Unavailable

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