Hearsay Exceptions

Question 1

There are five exceptions to the hearsay rule that apply only if the declarant is unavailable as a witness. What are they?

Answer 1

That Wandering Declarant Isn’t Here.

1. former testimony, T
2. statement offered against a party that wrongfully caused the declarant’s unavailability. W

Note: A declarant is not deemed unavailable if the unavailability is due to the procurement or wrongdoing of the proponent of the statement in order to prevent the declarant from testifying at or attending the trial.

3. dying declaration, D
4. statement against interest, I
5. statement of personal or family history, H.

Question 2

What are 5 reasons why a declarant might be deemed unavailable?

Question 3

Testimony by a presently unavailable witness that was previously given (under oath) as a witness at a trial, hearing, or lawful deposition is NOT excluded as hearsay under what circumstance?

Answer 3

If:

a) the testimony was given at treal, hearing, or deposition in current case or different proceeding that involved similar parties and issues, AND
b) the party against whom the testimony is being offered (or their predecessor-in-interest) had an opportunity and similar motive to develop the testimony by direct examination, redirect examination, or cross-examination .

This exception applies whether the testimony was given during the current proceeding or during a different one, but the witness who gave the testimony must now be unavailable.

Grand jury testimony generally does not fall within the former testimony exception, but it may be admissible nonhearsay evidence as a prior inconsistent statement.

Question 4

Under what circumstances does a statement qualify as a “dying declaration”?

Answer 4

i) The declarant believes that (she is dying and) her death is imminent; and
ii) The statement pertains to the cause or circumstances of the death she believes to be imminent.

NOTE: The declarant need not have actually died.

Question 5

The “dying-declaration” exception to the hearsay rule applies in what types of cases?

Answer 5

Only in homicide prosecutions and civil cases.

Question 6

Under the “statement against interest” exception to the hearsay rule, a statement made by a declarant who is unavailable to testify is not excluded as hearsay if the statement has what characteristics?

Answer 6

1) Was against the declarant’s interest at the time it was made; and
a) against pecuniary interest,
b) against proprietary interest,
c) invalidated the declarant’s claim against someone, or
d) exposed the declarant to civil or criminal liability
2) Would not have been made by a reasonable person unless he believed it to be true.

Question 7

Is a statement that would subject the declarant to criminal liability admissible under the statement-against-interest exception to the hearsay rule?

Answer 7

Yes, but only if corroborating circumstances clearly indicate the trustworthiness of the statement.

Question 8

Is a statement of personal or family history excluded as hearsay?

Answer 8

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 (i.e. are admissible under this exception).

Question 9

Is a statement offered against a party that wrongfully caused the declarant’s unavailability excluded as hearsay?

Answer 9

No. Formerly known as the “forfeiture against wrongdoing” exception, such a statement is not excluded as hearsay. Under this exception, the wrongful party forfeits the right to object to the admission of the declarant’s statement as hearsay, and the door is open to use anything the declarant said against the party.

Question 10

For purposes of the forfeiture-by-misconduct/wrongfully-caused-unavailability exception to the hearsay rule, what counts as “wrongdoing”?

Answer 10

The wrongdoing, which need not be criminal, may be accomplished by a deliberate act or by acquiescing to another’s act, but must be done with the intent of preventing the witness from testifying.

Question 11

For what hearsay exceptions is the availability of the declarant irrelevant?

Answer 11

Presence Or Absence Matters Little, Justified Because Evidence Is Clearly Reliable

1. Public records
2. Religious organizations’ records
3. Ancient statements
4. Medical treatment or diagnosis
5. Learned treatises, periodicals, pamphlets
6. Judgment of prior conviction
7. Business records
8. Excited utterance
9. Present sense impression
10. Condition at the time (physical, mental or emotional)
11. Recorded recollection