8: Hearsay exceptions—declarant unavailable Flashcards
Unavailability as a witness
A declarant is unavailable as a witness if she:
(1) Claims privilege;
(2) Refuses to testify;
(3) Lacks memory of the statement;
(4) Is unable to testify—e.g., due to death, infirmity, or physical or mental disability; or
(5) Is absent and is unable to be subpoenaed.
Former testimony
The hearsay exception applies for prior testimony that was given by an unavailable witness under oath at a prior hearing or deposition.
The prior testimony is admissible in a subsequent trial if the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony by direct or cross-examination at the prior trial, deposition, or hearing.
Dying declaration
The exception is available if:
(1) The case is a civil case or a homicide case;
(2) The statement was made when the individual believed she is dying and that death was imminent; and
(3) The statement relates to the cause or circumstances of death.
The declarant does not actually have to die, but if she does not, she must be unavailable in some way.
Statement against interest
The exception is available if, at the time it was made:
- the statement was against the declarant’s pecuniary, proprietary, civil, or penal interest,
- such that a reasonable person would not have made the statement unless it were true.
Statement of personal or family history
A statement concerning the unavailable declarant’s own birth, adoption, marriage, divorce, legitimacy, familial relationship, or other similar fact of personal or family history is not excluded as hearsay.
Statement against interest: corroborating evidence
Corroborating evidence indicating the trustworthiness of the statement is required if:
- The statement would subject the declarant to criminal liability;
- The statement tends to exonerate the defendant and would subject a declarant to criminal liability.
