Class 20: Introduction to Hearsay Exceptions Requiring Unavailability; Former Testimony and Dying Declarations - Mar. 21

Question 1

Are there any exceptions to the hearsay rule that require that the out-of-court declarant be unavailable to testify in order for the exception to apply? (Q)

Answer 1

Yes. There are four exceptions to the hearsay rule that require that the out-of-court declarant be unavailable to testify in order for the exception to apply:

former testimony,

dying declarations,

statements against interest, and

statements of personal history.

Question 2

When is a declarant considered to be unavailable as a witness? (Q/Russo)

Answer 2

A declarant is considered to be unavailable as a witness if the witness is:

(1) Exempted from testifying as a result of a privilege (804(a)(1)),

(2) Continuously refuses to testify despite a court order to do so (804(a)(2)),

(3) Testifies to a lack of memory about the subject matter (804(a)(3)),

(4) Is dead or has a long-term physical or mental illness (804(a)(4)), or

(5) Is absent and cannot be located by subpoena or other reasonable means despite a diligent search (804(a)(5))

Question 3

Under what circumstances is a declarant who is physically capable of coming to court considered unavailable as a witness? (Q)

Answer 3

A declarant who is physically capable of coming to court is considered unavailable as a witness if the declarant:

(1) Is exempt from testifying because the court rules that a privilege applies (804(a)(1)),

(2) Refuses to testify about the subject matter despite a court order (804(a)(2)),

(3) Testifies to not remembering the subject matter of the statement, or is simply absent from the trial or hearing (804(a)(3)).

Question 4

Under what circumstances is a declarant who is not physically capable of coming to court considered unavailable as a witness? (Q)

Answer 4

A declarant who is not physically capable of coming to court is considered unavailable as a witness if the declarant: (1) has died or (2) cannot be present or testify because of a then-existing infirmity, physical illness, or mental illness (804(a)(4)).

The proponent of the statement cannot wrongfully cause the declarant’s unavailability to prevent the declarant from attending or testifying. If the proponent does wrongfully procure the declarant’s absence, the proponent cannot take advantage of any of the unavailable declarant hearsay exceptions. (FRE 804(b)(6))

Question 5

Under what circumstances is a declarant’s former testimony from the current or a separate proceeding admissible hearsay? (Q/Russo)

Answer 5

A declarant’s former testimony from the current or a separate proceeding is admissible hearsay if:

(1) The declarant is unavailable;

(2) The prior testimony was given at a trial, hearing, or lawful deposition (under oath); and

(3) The former testimony is being offered against a party (criminal cases) or party whose “predecessor in interest” (civil cases only NEVER IN A CRIMINAL CASE) had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination, person needs to be able to confront

(FRE 804(b)(1))

Question 6

What is the dying-declaration exception to the rule against hearsay? (Q)

Answer 6

The dying-declaration exception to the rule against hearsay makes admissible an unavailable declarant’s statement made under the belief that his own death was imminent, if the statement concerns the cause or circumstances of the declarant’s impending death.

Question 7

Under what circumstances is a statement under the belief of imminent death, also called a dying declaration, admissible despite the hearsay bar? (Q/Russo)

Answer 7

A statement under the belief of imminent death, also called a dying declaration, is admissible despite the hearsay bar if:

(1) The declarant is unavailable,

(2) The statement is offered in a criminal homicide case or in a civil case,

(3) The statement is made while the declarant believes his or her death is imminent, and

(4) The statement is made about the cause or circumstances of the declarant’s death.

(FRE 804(b)(2))

Question 8

Does a declarant actually have to die for the dying-declaration exception to the rule against hearsay? (Q)

Answer 8

No. The declarant does not actually have to die for the statement to be admissible, so long as the declarant made the statement under a subjective belief in his impending death. The declarant must also have firsthand knowledge of the cause or circumstances of his death for this exception to apply. (FRE 804(b)(2))

Question 9

What FRE covers the dying-declaration exception to the rule against hearsay? (LII)

Answer 9

FRE 804(b)(2)

Question 10

What FRE covers the former testimony exception to the rule against hearsay? (LII)

Answer 10

FRE 804(b)(1)

Question 11

What does the proponent of the statement have to do if the declarant is simply absent? (Q)

Answer 11

If the declarant is simply absent, the proponent of the statement must use reasonable means to either bring the declarant to court or secure the declarant’s testimony through other means.

Question 12

What does FRE 804 govern? (LII)

Answer 12

FRE 804 governs hearsay exceptions; declarant unavailable.

Question 13

What does FRE 804(a) govern? (LII)

Answer 13

FRE 804(a) governs the criteria for unavailability.

Question 14

What does FRE 804(b) govern? (LII)

Answer 14

FRE 804(b) governs the hearsay exceptions when the declarant is unavailable.

Question 15

What does FRE 804(b)(1) govern? (LII)

Answer 15

FRE 804(b)(1) governs the former testimony hearsay exception.

Question 16

What does FRE 804(b)(2) govern? (LII)

Answer 16

FRE 804(b)(2) governs the statement under the belief of imminent death (dying declaration) hearsay exception.