Evidence - Hearsay Part 3

Question 1

Hearsay Exceptions - Introduction

Answer 1

If a statement is admissible under an exception, it’s still “hearsay”. But we’re allowing it to come in because the exception makes it a bit more reliable. These are different from the nonhearsay exclusions.

There are over 2 dozen exceptions.

Question 2

804 Exceptions “Unavailability”

Answer 2

Declarant must be unavailable. If the declarant IS available, these exceptions won’t apply.

Unavailability = 1) death or serious illness; 2) privilege (like 5A or spousal privilege); 3) lack of memory; 4) refusal to testify; 5) absence from trial or hearing despite attempt to procure their attendance (often when proponent tries and fails to nail them down).

1) Former Testimony
2) Statements Against Interest
3) Dying Declarations

Question 3

804 Former Testimony Exception

Answer 3

The former testimony of a now unavailable declarant given at a former trial, deposition, or hearing, is admissible against a party who at that time had an opportunity and similar motive to develop the declarant’s testimony by direct, cross, or redirect examination.

Looking for similar 1) opportunity and 2) motive to develop the testimony. Especially when the former testimony is from a different case. The parties don’t have to be identical. But the party against whom the testimony is now being offered must have been a party in the previous case. In other words, they must have had a previous opportunity to contest it (via cross X). The testimony must have been essentially the same. Must be about the same issue (and motive to develop or counteract that testimony). It can be a different cause of action though. Remember, the declarant still MUST be unavailable now.

Question 4

Statement Against Interest

Answer 4

An unavailable declarant’s statement is an exception to the hearsay rule if it was so contrary to their interest when made that a reasonable person would only have said it if they believed it to be true.

Against interest = financial, proprietary, or would subject them to criminal liability. We left out repercussions like social ridicule. Statements ONLY against social interests don’t qualify as being “against interest”.

Statements must have been against the declarant’s interest at the moment they were made. If it’s only against interest in retrospect, that doesn’t count.

In CRIMINAL CASES, statements that subject the D to criminal liability must be corroborated. Regardless of who is trying to offer it. Usually comes up when a D points to some unavailable declarant and says that they did it (it’s just too convenient for someone unavailable to take the fall for D). Hence, the corroboration requirement.

Question 5

Dying Declaration

Answer 5

Rule: A statement by an unavailable declarant made by them when they believed their death was imminent and surrounding the cause or circumstances of their death is admissible in a homicide prosecution or civil case.

First big restriction: on criminal side, only works on homicide cases. But for civil, it’s available in ANY case.

Policy: dying declaration is reliable because no one wants to die with a lie being the last thing they ever say.

Note: the declarant MUST believe they would die. If they think they’re gonna make it, then the dying declaration will still be barred as hearsay and not qualify for the exception. You need someone thinking “GG go next”.

THEY DON’T ACTUALLY HAVE TO DIE.

A failed dying declaration might still count as an excited utterance.