804 Exceptions Flashcards
Clark Kellogg was a worker at AB helping to off-load the ammonia. He was severely burned over 80 % of his body and inhaled much of the ammonia gas after the blast. He died in the emergency room at St. Louis University Hospital after making statements to medical staff. What must the government do to prove that he is unavailable for purposes of FRE 804?
Death certificate, nurse or doctor who was present when he died, medical records
Albert Spear is called to testify for the government about his sale of potassium permanganate to the defendants. He invokes his Fifth Amendment Privilege and refuses. Is this sufficient proof to allow the judge to declare him unavailable?
Hearing to see if this self incriminates the witness; present evidence about to assertion and reason why answering these questions will get him in trouble; don’t have generalized ability to say no; prove basic elements of the privilege
The government then immunizes Spear to obtain his testimony. Spear states that he still will not testify. Out of the presence of the jury, the judge questions Spear about his refusal and Spear states that he fears for his life and would prefer jail time to talking against the defendants. The defendants object that Spear is not unavailable pursuant to FRE 804. How should the judge rule and why?
No fifth amendment here because not self incriminating
The judge orders Spear to return on the next day for his decision on what to do with Spear. Spear flees and disappears. Is this all the government needs to show to have the judge find that Spear is unavailable?
Government has to show they tried to find the declarant and bring him to the hearing but was unable to do so
William Hunt has told the plaintiffs in the civil action that he will appear for them at trial as he does not like the fact that AB ignored his warnings. He is called by the lead plaintiff’s lawyer the week before trial and told on what day and time to appear to testify. Hunt does not appear. Plaintiffs present these facts to the judge and ask that Hunt be declared unavailable. AB objects. How should the judge rule and why?
Have to issue a subpoena to get them to appear; unless you look for them you have not established enough effort
On the day he is to appear, Hunt calls the lead plaintiff’s lawyer and explains that he went on a cruise days before trial. His cruise included time off the coast of East Africa where his ship was taken by Somolian pirates. While a ransom was quickly paid, he missed his flight home and will not be able to get another in time to testify. Plaintiffs present these facts to the judge and ask that Hunt be declared unavailable. AB objects. How should the judge rule and why?
Under subpoena; still available because let him go on vacation; tell witness cant leave the area because under subpoena; keep to the judge’s schedule
The government has subpoenaed Viola Reinke, defendant Gerald Garnosio’s sixth grade English teacher to say that she can identify the handwriting in the demand letters to AB as coming from defendant Garnosio. Reinke refuses to appear at trial, citing threats she received from Garnosio’s family if she testified. The government asks the judge to hold Reinke unavailable and the defendant’s object. How should the judge rule and why?
804(b)(6) Wrongdoing exception; conspiracy to threaten her; give judge preponderance of evidence that he organized it
One of the visitors to AB on the day of the blast was Horton Pfalung, a citizen of South Africa. He was interviewed by the police and gave a deposition about what he saw. He returned to South Africa before he could be served with a subpoena to testify in trial. Plaintiffs now wish to have Pfalung declared unavailable. AB objects. How should the judge rule and why?
Reasonable attempt to subpoena him; out of reach
Clark Kellogg was a worker at AB helping to off-load the ammonia. He was severely burned over 80 % of his body and inhaled much of the ammonia gas after the blast. EMS rushed him to St. Louis University Hospital. Along the way, although the EMS personnel kept telling Kellogg he would be fine, Kellogg told them he was sure he was dying and described a man he saw running from the tank cars just before the explosion. The government wishes to have the EMS personnel testify about Kellogg’s statements. Defendants object. How should the judge rule and why?
Not a homicide case, we don’t care
If Kellogg lived, but was physically unable to testify, would your answer to Problem 9 change?
Still not a homicide
AB calls the EMS personnel to testify in the civil case about Kellogg’s statement to show the criminal defendants (whom AB have joined in the civil action) involvement in the blast. The criminal defendants object. How should the judge rule and why?
Does civil fact have different standard? Different limitation? No. Civil case, wide open. Is it a dying declaration? Honestly believes he is dying; in criminal cases limit dying declaration to homicide cases
The criminal defendants learn that Clark Kellogg is a member of the Order of Nine Angels, a religious group which worships Satan. Among the beliefs of the Order is that Satan and not God is the Supreme Being and that Satan does not require honesty of his disciples. The criminal defendants challenge the use of the dying declaration exception as to Kellogg in the civil case because he did not have any fear of dying with a lie being his last words. How should the judge rule and why?
Don’t worry about proving underlying rationale of the exception
The judge has ruled that Horton Pfalung is unavailable and the plaintiffs now offer the statement he made to the police. AB objects. How should the judge rule and why?
Not against his interests and not under oath which is a requirement so 804(b)(1) exception does not apply – they won’t let it in
Is your answer different when the plaintiffs offer Pfalung’s deposition? What facts must the plaintiffs show to make Pfalung’s deposition admissible?
Deposition was given under oath; Also consider if AB and another party with similar interest had opportunity to cross
The judge has ruled that Albert Spear is unavailable, and the government wishes to introduce his statements about selling potassium permanganate to the defendants. The defendants object. How should the judge rule and why?
The judge must decide if the statement subjects spear to civil or criminal liability, if his statement is against his interest in that the interest is such that no reasonable person in his position would have made the statement unless believing it to be true and if in making the statements minimizes his guilt, and if the statement can be corroborated
