Hearsay 3: Exceptions 804

Question 1

When is a witness considered unavilable 804)a)?

Answer 1

• PRISM
  
  • Privilege
    
    • asserting a pivilege, i.e. - 5th amend
  • Refusal
    
    • to testify despite a ct order
  • Incapacity/Incapability
    
    • due to death or mentally infirmed
  • Subpoena
    
    • out of reach of jurisdiction/fail to respond
  • Memory
    
    • witness just not remember

Question 2

Who has the burden to prove the declarant is unavilable?

Answer 2

• the proponent of the testimony bears the burden
• has to do more than just a simple look or send a subpoena

Question 3

In what areas are statements admitted when the declarant is unavilable?

Answer 3

1. Former Testimony
2. Statement Under Belief of Impending Death/Dying Declaration
3. Statements Against Interest
4. Statements of Personal or Family History
5. Forfeiture by Wrongdoing

Question 4

What is the rule for admissibility of former testimony 804(b)(1)?

Answer 4

• may be admiited for truth if
  
  • declarant made statement under oath
  • given by a witness in the same or different but related proceeding or in a deposition
  • the former action must involve the same subject matter
  • pty against whom the evidence is being offered must have had an oppty or similar motive to cross or direct
• grand jury testimony, nto admissible, they are secretive

Question 5

Example of former testimony

Answer 5

EXAMPLE: In the first case, a plaintiff (whistle blower) sues his former employer for wrongful termination. The employer deposes the plaintiff who states, “The defendant covered up structural defects” in its jet engines. In the second case, whistleblower has fled the country, and a new plaintiff (a pilot) sues the same defendant (whistleblower’s former employer) for products liability when a defective engine malfunctioned. The pilot wants to offer the whistle blower’s deposition testimony in the pilot’s case.

Question 6

What is the rule for dying declarations804(b)(2)?

Answer 6

• a statement made by a declarant
• while believing that his death was imminent
• concerning the cause or circumstances of what he believes to be his impending death
• for criminal case - it must be a homicide
• does not matter matter cause of action for civil
• death does not need to have occurred - some states are different

Question 7

What is the rule for statements against interest 804(b)(3)?

Answer 7

• personal knowledge is required
• REQUIREMENTS
  
  • Unavailable
  • Non-pty
  • must be against interest when made
• Types of interests:
  
  • pecuniary - money
  • propritary - property
  • penal - jail
• 4th requirement is corrobation if it is self-serving

Question 8

Example of statements against interest

Answer 8

EXAMPLE: Statement against pecuniary interest: “I owe you $10,000.”

EXAMPLE: Statement against propriety interest: “I don’t even own Frommacre, I moved in here when the previous owner died.”

EXAMPLE: Statement against penal interest: “We just pulled off the heist of the century.”

EXAMPLE: Defendant is on trial for bank robbery, but the bank’s video camera appears to show X committed the crime. X is called to testify but asserts his Fifth Amendment privilege and refuses to testify. Defendant then calls Witness to testify X told him that he did in fact commit the crime. Witness’s testimony will be admissible as a declaration against X’s penal interest. The element of corroboration is provided by the bank’s video camera.

Question 9

What is the rule for statements of personal or family history 804(b)(4)?

Answer 9

• (a)Statement concerning the declarant’s own relationship by blood, adoption, or marriage or other similar fact of personal or family history. Very specific exception.

EXAMPLE: A father, separated from his daughter since she was 7, sees her on the street and says, “There is my girl, I will never lose you again.” He dies the next day and the daughter wants to use his statement as proof of paternity in a will contest.

Question 10

What is the rule for forfeiture by wrongdoing 804(b)(5)?

Answer 10

• A statement offered against a party who has engaged in wrongdoing that was intended to procure the unavailability of the declarant as a witness will be admissible (even if it would usually be barred by the hearsay rule).

EXAMPLE: Eyewitness gives statement to police. Accused then causes witness to disappear; witness’s statement will be admissible.

Question 11

What is the confromtational clause issue for hearsay?

Answer 11

• Applies to:
  
  • 6th amendment, in criminal cases where the defendant is unavailable
  • testimonial hearsay statements inadmissible
  • UNLESS defendant has an oppty to cross the declarant

Question 12

What may testimonial evidence and what does it include?

Answer 12

• Testimonial evidence
  
  • where the primary purpose of the police interrogation is to prove past events
• INCLUDES:
  
  • public records used against D
  • statements made during police interrogation
  • collecting information from an informant
  • preliminary hearing testimony

Question 13

What does non-testimonial evidence include?

Question 14

What do you cure hearsay that is testimonial?

Answer 14

• Defendant must be given an oppty

Question 16

What is the rule for hearsay within hearsay 804?

Question 18

What is the residual exception 807?