1. CHAPTER 4, PARTS D-H RULE 804: OUT-OF-COURT DECLARATIONS BY PERSONS WHO ARE NOW “UNAVAILABLE”
Prof. Janicke
2019

2. THOUGHT TO BE WEAKER (HENCE UNAVAILABILITY REQUIREMENT)
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
2019
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
2019
Hearsay Exceptions -- Declarant Unavailable

4. Hearsay Exceptions -- Declarant Unavailable
PROBLEMS/CASES
BARBER
4-O
2019
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)
2019
Hearsay Exceptions -- Declarant Unavailable

6. SOME THINGS THAT WON’T QUALIFY
AFFIDAVITS
THESE ARE NOT A HEARING OR DEPOSITION; NO CHANCE TO CROSS-EXAMINE
GRAND JURY TESTIMONY
NO CHANCE TO CROSS-EXAMINE!
2019
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 NOW-OPPONENT WAS PARTY)
NON-PARTY TESTIMONY AT A PRELIMINARY INJUNCTION HEARING IN THIS CASE (OPPOSING PARTY OBVIOUSLY WAS PRESENT)
2019
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, IS AN ADMISSION; IT IS NOT HEARSAY AT ALL; IT COMES IN
E.G.: PLAINTIFF OFFERS DEFENDANT’S TESTIMONY; DEFENDANT OFFERS PLAINTIFF’S TESTIMONY
2019
Hearsay Exceptions -- Declarant Unavailable

9. Hearsay Exceptions -- Declarant Unavailable
DYING DECLARATIONS
SUPPOSED RELIABILITY 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” AT SOME VAGUE FUTURE TIME)
STATEMENT WAS RE. CAUSE OF THE IMPENDING DEATH (i.e., WHODUNIT)
2019
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”
2019
Hearsay Exceptions -- Declarant Unavailable

11. MOSTLY AN UN-NEEDED EXCEPTION
THESE SHOULD OFTEN COME IN AS EXCITED UTTERANCES PER R.803
NO SHOWING OF UNAVAILABILITY WOULD BE NEEDED
2019
Hearsay Exceptions -- Declarant Unavailable

12. THIRD-PARTY STATEMENTS OF GUILT/FAULT
STATEMENT THAT WAS AGAINST DECLARANT’S INTEREST
PECUNIARY
PENAL
MADE BY A NON-PARTY
2019
Hearsay Exceptions -- Declarant Unavailable

13. Hearsay Exceptions -- Declarant Unavailable
MOST ARE OFFERED BY DEFENDANTS, CIVIL AND CRIMINAL, THROUGH WITNESSES
TO DEFLECT BLAME
2019
Hearsay Exceptions -- Declarant Unavailable

14. Hearsay Exceptions -- Declarant Unavailable
EXAMPLES OF NON-PARTY CONCESSIONS OFFERED BY D, THROUGH WITNESSES OR DOCUMENTS:
TESTIMONY: “NONPARTY X SAID TO ME: ‘OUR TECHNICIAN WIRED IT WRONG’”
DOCUMENT: NONPARTY X Co.’s LETTER RECALLING X’S AUTOS FOR DEFECTIVE FUEL LINES
TESTIMONY: “NONPARTY X SAID: ‘SORRY WE BLEW UP YOUR HOUSE’”
2019
Hearsay Exceptions -- Declarant Unavailable

15. BIG RESTRICTION ON NON-PARTY CONCESSIONS
WHEN OFFERED BY D TO EXCULPATE D IN CRIMINAL CASE:
MUST HAVE CORROBORATING CIRCUMSTANCES THAT “CLEARLY INDICATE ITS TRUSTWORTHINESS”
MOST CASES HAVE HELD SUCH STATEMENTS INADMISSIBLE!!
BASED ON A GENERAL MISTRUST OF THE CRIMINAL COMMUNITY
2019
Hearsay Exceptions -- Declarant Unavailable

16. Hearsay Exceptions -- Declarant Unavailable
PROBLEMS/CASES 4P
2019
Hearsay Exceptions -- Declarant Unavailable

17. 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
2019
Hearsay Exceptions -- Declarant Unavailable

18. RETURNING TO THE QUESTION: “HOW OLD ARE YOU”
A: “I DON’T KNOW”
Q: DID ANYONE TELL YOU?
A: YES, MY MOTHER [NOW SHOWN TO BE UNAVAILABLE]
Q: WHAT DID SHE TELL YOU?
A: THAT I WAS BORN IN 1991
2019
Hearsay Exceptions -- Declarant Unavailable

19. 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
2019
Hearsay Exceptions -- Declarant Unavailable

20. ADMISSIBLE HEARSAY DECLARANTS ARE IMPEACHABLE
THEY ARE TREATED JUST LIKE WITNESSES
TO PREVENT ABUSIVE USE OF EXCEPTIONS
SAME RULES OF IMPEACHMENT
2019
Hearsay Exceptions -- Declarant Unavailable

21. 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
2019
Hearsay Exceptions -- Declarant Unavailable

22. 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
2019
Hearsay Exceptions -- Declarant Unavailable

23. Hearsay Exceptions -- Declarant Unavailable
COURT EFFECTIVELY REWRITES THE HEARSAY EXCEPTIONS
USUALLY SEEN IN CIVIL CASES
[THE BANE OF MY EXISTENCE; THE JUDGE USUALLY SMILES]
2019
Hearsay Exceptions -- Declarant Unavailable

24. Hearsay Exceptions -- Declarant Unavailable
PROBLEMS/CASES
Weaver
2019
Hearsay Exceptions -- Declarant Unavailable

25. Hearsay Exceptions -- Declarant Unavailable
A PROBLEM WITH SIXTH AMENDMENT CONFRONTATION CLAUSE, WHEN HEARSAY EXCEPTIONS ARE USED BY PROSECUTORS
“TESTIMONIAL” TYPE HEARSAY MUST BE KEPT OUT OF CRIMINAL PROSECUTIONS, DESPITE RULES 803, CRAWFORD v. WASHINGTON >>
2019
Hearsay Exceptions -- Declarant Unavailable

26. Hearsay Exceptions -- Declarant Unavailable
MEANING OF “TESTIMONIAL”: HELPING AUTHORITIES WITH AN INVESTIGATION
2019
Hearsay Exceptions -- Declarant Unavailable

27. Hearsay Exceptions -- Declarant Unavailable
PROBLEMS/CASES
Crawford [A TESTIMONIAL STATEMENT]
Davis [A NON-TESTIMONIAL STATEMENT]
2019
Hearsay Exceptions -- Declarant Unavailable