Hearsay Exceptions: 803, 804

Question 1

What are the differences between R.801 and R.803?

Answer 1

1) Declarant’s presence in court
+ R.801 exemptions apply to situations where the maker of the out-of-court statement is present in court either as a witness or a party
+ R.803 admits out-of-court assertions from declarants whose presence in court is immaterial
2) Live witness testimony generally preferred under R.801
3) R.803 is useful for “problem witnesses” whose live appearance may be damaging

Question 2

How does Rule 104 interplay with R.803?

Answer 2

R.104(a): Party offering hearsay assertion into evidence under R.803 exceptions has the burden of convincing a judge by a preponderance of the evidence that the required foundational elements exist

Question 3

True or false: Just because the foundational elements are met under R.104(a), hearsay statements may be barred for other reasons (ex: Confrontation Clause, R.403, vague or speculative)

Answer 3

True

Question 4

True or false: R.803 exceptions often have trustworthiness built into the rule

Answer 4

True, even though judges cannot evaluate credibility when deciding whether to allow R.803 exceptions

Question 5

True or false: Admissibility of a hearsay exception depends on whether it satisfies the catch-all foundational requirements of the exception rule.

Answer 5

False. Admissibility of a hearsay exception depends on whether it satisfies the foundational requirements of the exception rule. Each 803 exception has its own foundation.

Question 6

What does Rule 803(1) say?

Answer 6

R.803 Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

+ The declarant made a statement while or immediately after perceiving an event or condition
+ The statement describes or explains the event or condition

Question 7

What does R.803(2) say?

Answer 7

R.803 Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

+ The declarant made a statement relating to a startling event or condition
+ The declarant was under the stress of excitement caused by the event or condition at the time the declarant made the statement

Question 8

What are the requirements for R.803(1)?

Answer 8

Requirements for R.803(1) (all must be met)
+ Personal knowledge – not just R.803(1) and (2), but most R.803 exceptions
+ Trustworthiness
+ Made while or immediately after perceiving event/condition
+ Statement has to describe or explain

+ No particular effect required

Question 9

What are the requirements for R.803(2)? What doesn’t it require?

Answer 9

Requirements for R.803(2) (all must be met)
+ Firsthand knowledge
+ Startling event or condition, enough to cause stress or excitement
+ Objective and subjective parts to contemporaneous statements
Subjective – declarant has to be personally startled
Objective – event must be one that most reasonable people find unusual and startling

+ Doesn’t have to describe the event or condition
+ Utterance does not have to be spontaneous

Question 10

What does R.803(3) say?

Answer 10

R.803 Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(3) Then-Existing Mental, Emotional, or Physical Condition.
A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)

BUT NOT including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

Question 11

What are the foundational elements for Rule 803(3) – Then Existing Mental, Emotional, or Physical Condition? Requirements?

Answer 11

+ A statement identifies a declarant’s concurrently existing state of mind, emotion, sensation, or physical condition

+ The offeror of the statement seeks to prove the fact that produced the state of mind only if it is relevant to issues surrounding the declarant’s will

Requires:
+ Declarant’s then-existing state of mind/emotional/sensory or physical condition
+ Relevant – truth of the matter asserted

Question 12

True or false: Under Rule 803(3) Exception, a hearsay statement that claims that a declarant is going to meet someone can be used to prove that the person went somewhere.

Answer 12

True. AND you can use it to prove that they went there and the other person was there as well

Question 13

What is the difference between the non-hearsay purpose of declarant’s state of mind and Rule 803(3) Then-Existing State of Mind?

Answer 13

1) Has to be relevant to be used in R. 803(3) for truth of the matter asserted
2) When offered as circumstantial evidence of state of mind, an assertion skirts the hearsay rule
3) Factfinders must rely on accuracy of out of court statements to conclude that those feelings and beliefs existed
4) R.803 – belief that “assertions of state of mind” are likely to be trustworthy. Condition or belief exists simultaneously with the statement
5) Non-hearsay assertions of fact v. R.803 assertions of a declarant’s “inner world”

Question 14

D pleads self-defense to a charge of murdering P. To support the defense, D calls a witness to testify that the day before D shot P, D told the witness “I’m really afraid of P. He always carries a gun and he threatened to kill me.” Would this be allowed under R.803(3)?

Answer 14

“I’m really afraid of P” is admissible for its truth under R.803(3)
“P always carries a gun and threatened to kill me” not admissible under R.803, but under a non-hearsay circumstantial evidence of D’s state of mind in fear of P

Question 15

D was involved in a traffic accident and told a friend a few days after the accident, “I had the green light.” D’s lawyer offers the statement to D’s friend into evidence to prove that D had the green light. Would this be allowed under R.803(3)?

Answer 15

Objection: Hearsay

Response: The statement made by D to her friend was really an assertion of D’s then-existing state of mind. What D was really saying to her friend was, “My presently existing belief is that the light in my direction was green.” The assertion reflected D’s contemporaneous inner belief as to the light’s color and is therefore admissible under R.803(3) state of mind exception.

Ruling: Sustained. R.803(3) has a limitation which ensures that state of mind hearsay statements are admitted only to prove a declarant’s state of mind, not to prove a fact about the outside world that gave rise to D’s state of mind. D’s state of mind is itself a fact of consequence.

Question 16

Is the following statement admissible under a R.803(3) hearsay exception: “I’m really angry that the stockbroker didn’t tell me that a big lawsuit was about to be filed against the company she recommended that I invest in”

Answer 16

“I’m really angry” – admissible under R.803(3) for “inner world” thoughts said out loud

“the stockbroker didn’t tell me that a big lawsuit was about to be filed against the company she recommended that I invest in” – Inadmissible as an assertion about the outside world giving rise to the state of mind.

BUT a judge might admit it into evidence not for its truth, but limited purpose of providing context and meaning to the above statement that is allowed

Question 17

True or false: R.803(3) expressly mentions trustworthiness

Answer 17

False. R.803(3) does not explicitly mention trustworthiness
+ Some federal court judges read an element of trustworthiness into the exception
+ Judge may exclude an assertion that otherwise satisfies R.803(3) because of a declarant’s apparent contemporaneous motive to fabricate

Question 18

D is charged with murder. D’s counsel seeks to admit into evidence the statement D made to a friend, “I’ll be going out of town for a few days.”

Is this admissible for the truth of the matter asserted under a hearsay exception?

Answer 18

The judge may believe that the statement was part of D’s attempt to set up a phony alibi and exclude the statement

“Too self-serving” or “D had an obvious motive to fabricate” or “lack of probative value” – This is in conflict with the reading of R.803(d), so a valid objection would be “lack of trustworthiness”

Question 19

D is charged with killing Larry in the parking lot of Sambo’s North restaurant. D’s defense is an alibi.

True or false: To prove that Angelo was in the parking lot, the prosecution could offer evidence from Larry’s best friend Bonnie that, “on the morning he died, Larry told me me that D was going to be in the Sambo’s North parking lot later in the day.

Answer 19

False, we are only concerned with the declarant’s state of mind under R.803(3)

Question 20

D is charged with killing Larry in the parking lot of Sambo’s North restaurant.

True or false: To prove that Larry was in the parking lot, the prosecution could offer evidence from Angelo’s friend Carla that “On the morning that D was arrested, D told me that Larry was going to be in the Sambo’s North parking lot.”

Answer 20

True, but not under R.803(d), but under R.801(d)(2)(A) party opponent

Question 21

What does R.803(4) say?

Answer 21

R.803 Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness

(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Question 22

What are the requirements for R.804 – Statement Made for Medical Diagnosis?

Answer 22

1) Declarant makes a statement for the purpose of obtaining medical treatment or seeking diagnosis
2) The information in the statement is reasonably pertinent to diagnosis or treatment
3) The statement concerns the declarant’s medical history, past or present symptoms, pain or sensations, or the inception or general character of the cause of external source of the declarant’s medical condition

Question 23

P sues D for personal injuries growing out of an auto accident. P is in physical therapy for many weeks following the accident. P’s treating physician testifies to a conversion had with P about three months after the accident. “She said her right arm was still very sore and she couldn’t lift it above her shoulder. She also mentioned that her right wrist had been sore for a long time, but now it was feeling better.”

Is this allowed?

Answer 23

Objection: Hearsay
Response: Statements made by P to her physician under R.803(4) hearsay exception to prove the extent and duration of injuries allegedly caused by the accident, and to support any expert opinions regarding P’s prognosis.
Ruling: Overruled. Admissible under R.803(4) and partially under R.803(3)

Question 24

Do statements made to physicians for the purposes of treatment hold the same weight of trustworthiness as statements made for the purposes of diagnosis rather than treatment?

Answer 24

It’s likely that statements made to a physician for treatment are trustworthy. BUT statements made for purposes of diagnosis rather than treatment do not have the same assumed trustworthiness.

Ex: P in a personal injury case describing physical condition to a forensic medical expert retained to testify at P’s trial to the extent of P’s injuries – motivated to exaggerate

R.803(4) extends common law “medical hearsay” exception to include statements made for purposes of “diagnosis or treatment”

Question 25

True or false: Under R.803(4) Statements Made for Medical Diagnosis or Treatment, the statements must be made to a medical doctor.

Answer 25

False. Hearsay statements made for medical purposes need not be made to a doctor – any type of medical personnel will suffice (PA, nurse, PT)

So long as the judge concludes that such a statement was “reasonably pertinent to diagnosis or treatment”

Question 26

What is the one-way rule under R.803(4)?

Answer 26

One-way rule: admissible only if patient makes statement to medical professional. DOES NOT make admissible statements from medical personnel to patient.

Question 27

What does R.803(5) say?

Answer 27

R.803 Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness

(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory;
and
(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Question 28

What does R.803(5) – Past Recollection Recorded require?

Answer 28

1) Declarant has personal knowledge of the matter
2) Declarant has insufficient recollection to testify about the matter fully and accurately
Requires a declarant testify if a hearsay statement is to be admitted
+ The declarant made a memorandum or record concerning the matter or adopted a memorandum or record prepared by someone else
+ The matter was fresh in the declarant’s memory at the time the memorandum or record was made or adopted
+ The declarant testifies that the memorandum or record is accurate
+ The offering party (ONLY THE ADVERSE PARTY) can read the contents of an admissible memorandum or record to a judge or jury

3) Statement admitted must have been made soon after the event to which the statement refers
“When the matter was fresh” (vs. R.803(1) during the event or “immediately thereafter”)
4) Additional trustworthiness requirement → declarant has to testify that the written statement was correct at the time the declarant made it

Question 29

What is an example of of R.803(5) Past Recollection Recorded?

Answer 29

Witness: “I wanted to at least get the license plate number”
Attorney: “Do you now recall the car’s license plate number?”
Witness: “Not really. I remember it started with the letter “N” and that’s about all I really remember now.
The recorded recollection exception does not require that a witness be entirely devoid of memory.
All that’s required is that the witness have “insufficient recollection… to testify fully and accurately”
Attorney: “What did you do next?”
Witness: “I kept whispering the license plate number to myself. As I did that, I pulled an envelope and a pen out of my jacket pocket and wrote down the license plate number. “
Attorney: “How long did you take to write down the license plate number?”
Witness: “It couldn’t have been more than a minute”
**
Attorney: “Is this the envelope?”
Witness: “Yes.”
Attorney: “How do you recognize it?”
Witness: “Well, it’s my handwriting. I also recognize the envelope because it has my dentists’ return address on it.”
Attorney: “Did you write down accurately the license plate number of the car you saw at the time you saw it?”
Witness: “I did.”

Question 30

What are the differences between R.803(5) – Past Recollection Recorded and R.612 Writing Used to Refresh a Witness’s Memory?

Answer 30

R. 612: Two ways to refresh a forgetful witness’ recollection

1) Writing to Refresh, show the witness a document that refers to forgotten info. Enables the witness to recall, the the attorney re-asks the questions
2) Leading questions

R. 803(5): When a witness genuinely lacks present recall
Foundational req’s met → offering party reads a document’s contents into evidence
Written memorandum or record itself not received in evidence UNLESS offered by the adversary

Question 31

A and C happen to be walking past a store just after a robbery took place. Prosecution seeks to have A testify that he saw D jump into a waiting car, which immediately sped down the street and around the corner. A ran after the car and chased it around the corner to the next block, but lost sight after that. A had a look at the license plate and told C after walking back what the license plate read. A is unable to recall anything other than that license plate started with the letter “M.” Prosecution then seeks to have C testify that he didn’t see the car’s license plate but that he took a pen and tissue out of his jacket pocket and accurately wrote down the info that A gave him. There’s a tissue with the words “Me Not” on it.

1) Is this admissible?
2) What if there was no tissue, but C has an excellent memory?

Answer 31

1) This would require both A and C to lay the proper foundational elements
2) No record, so this is not coming in under 803(5)

Question 32

What does R.803(6) say?

Answer 32

R.803 Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if

Question 33

What are the requirements for R.803(6) – Records of a Regularly Conducted Activity?

Answer 33

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

Question 34

True or false: Under R.803(6), Records of a Regularly Conducted Activity are an “all or nothing” piece of evidence?

Answer 34

False. Bits and pieces can be admitted or blocked. Don’t take the entire thing at first glance

Question 35

True or false. Records of a Regularly Conducted Activity can contain double hearsay?

Answer 35

True. If so, they would not be permitted. Look to see if they are admissible/pertinent under a different exception.

Question 36

True or false. R.803(6) is a very broad exception

Answer 36

True. Allows businesses to prove facts by introducing their records into evidence – paper and electronic documents. Fairly broad scope of what “counts” as a business record
+ Opinions or diagnoses OK
+ Reports pertaining to events or conditions OK
+ Internal investigations? “Any business by installing a regular system for recording and preserving its version of accidents for which it was potentially liable could qualify those reports… for use essentially in the court, not in the business.”

Some argue that all business records are produced partly to protect an entity should a dispute arise

Question 37

True or false: Business records inadmissible if the source or method of preparation seems to indicate a lack of trustworthiness

Answer 37

True, a provision of 803(6)(E). Entities that do not establish and follow regular and reliable procedures often do not survive long enough to become parties to anything other than bankruptcy proceedings.

Question 38

P sues ABC Corp. for damages for breach of contract, alleging that ABC breached a written agreement to deliver 10,000 computers to P by May 1. ABC claims that the computers were delivered to P’s place of business as set forth in the agreement on April 30.

What sort of foundation would ABC Corp’s attorney need to lay in order to meet the R.803(6) exception for a custodian of the company to testify?

Answer 38

+ Duties of the custodian
+ Procedures for establishing procedures, including when ABC ships goods and when those goods have been received by customer
+ How records are kept (paper, electronic, both)
+ Where records are stored

Question 39

P sues her employer for injuries suffered when, allegedly, a winch was not maintained properly. P is taken to the emergency room. At trial, P offers to enter records of her emergency room treatment into evidence as a business record. The ER doctor’s notes include the statement, “Patient stated that she was hurt when the winch failed to operate properly.”

Would this be allowed?

Answer 39

Hospital records qualify as a business record under R.803(6), (7)
BUT this would not likely be admissible because P is not part of the hospital entity and not under a business duty to be accurate
This is also “double hearsay”
Whether or not the winch was operating properly is not reasonably pertinent to treatment

Question 40

P sues her employer for injuries suffered when, allegedly, a winch was not maintained properly. P is taken to the emergency room. P’s employer offers the records of her ER visit into evidence as a business record, including ER doc’s notes that read, “P stated that she was hurt when she was unable to hold onto the rope and a beer bottle with the same hand.”

Would this be allowed?

Answer 40

If the report qualifies as a business record, it would be admissible
ER doc had a business duty to accurately what P said how she was hurt
P’s statement is a party admission under R.801(d)(2)(A) if offered into evidence against P by her employer

Question 41

What does R.803(8) say?

Answer 41

R.803 Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness

(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

Question 42

What are the requirements for R.803(8)?

Answer 42

Records, reports, statements, or data compilations in any form are those of a public office or agency

CAN come in on matter observed while under a legal duty to report
BUT NOT criminal cases where a matter was observed by law enforcement
CAN come in on civil case
CAN come in in a criminal case against the government via factual findings from a legally authorized investigation

Generally less burdensome/onerous than private entities’ business records

Question 43

A sues her neighbor B, alleging that B built a fence on her property. To prove that A owns the land on which B built the fence, P subpoenas her Title Deed from the Office of the County Recorder. The Recorder mails a copy of P’s Title Deed to the court in which P has filed the case. The Deed bears a County Recorder’s purple stamp, and a statement by an employee of the County Recorder’s office certifying that the document is a copy of the original Deed on file in the County Recorder’s office.

Is this admissible or does P need to call a sponsoring witness?

Answer 43

Public record does not require sponsoring witness

This is admissible, as the document has been certified and authenticated

Question 44

Can the government offer reports related to “matters observed by police officers and law enforcement personnel” under R.803(8)?

Answer 44

No.
+ Cannot be used against Ds in a criminal case.
+ Does not authorize admission of reports that police officers typically prepare in the course of criminal investigations
+ Applies to factual findings resulting from authorized investigations in criminal cases (does not apply to civil cases, where such records are admissible)
+ CAN be used in criminal cases if offered by D against the government

Question 44

Can the government offer reports related to “matters observed by police officers and law enforcement personnel” under R.803(8)?

Answer 44

No.
+ Cannot be used against Ds in a criminal case.
+ Does not authorize admission of reports that police officers typically prepare in the course of criminal investigations
– Factual findings from reports are OK
– Opinions from fact finding investigations – NOT OK

+ Applies to factual findings resulting from authorized investigations in criminal cases (does not apply to civil cases, where such records are admissible)
+ CAN be used in criminal cases if offered by D against the government

Question 45

Parent of a child who was inoculated against measles sues the manufacturer of the drug, alleging that it caused the child’s autism. The manufacturer offers into evidence a report from the NIH (gov agency), which concludes that the drug cannot cause autism. Is this admissible?

Answer 45

Opinions based on facts from the report are admissible – this can likely be introduced

Question 46

True or false: In addition to foundational requirements under the rule, party seeking to offer declarant’s hearsay assertion into evidence under R.804 must also prove that the declarant is unavailable to testify at trial

Answer 46

True.

Question 47

What does R.804(a)(1) say?

Answer 47

R.804 Exceptions to the Rule Against Hearsay – When Declarant is Unavailable as a Witness
Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant

R.804(a)(1) Is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies

+ It’s possible that a declarant will testify in person on some matters and be “unavailable” with regards to the subject matter of the prior statement

+ Judge decides that by answering certain questions, a witness might provide information that could be used against him in a criminal prosecution. Judge upholds the witness’s claim of privilege with respect to all questions regarding the subject matter of the crime

Question 48

What does R.804(a)(2) say?

Answer 48

R.804 Exceptions to the Rule Against Hearsay – When Declarant is Unavailable as a Witness
Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant.

R.804(a)(2) A declarant who improperly yet persistently refuses a judge’s order to testify concerning the subject matter of the declarant’s prior statement is unavailable

+ Declarant’s refusal to testify is improper –> “I refuse to answer it or any other questions about…”
+ Often results in judge holding the witness in contempt of court and taken to jail

Question 49

What does R.804(a)(3) say?

Answer 49

R.804 Exceptions to the Rule Against Hearsay – When Declarant is Unavailable as a Witness
Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant

R.804(a)(3) Declarant who is unable to remember the subject matter of declarant’s prior statement is unavailable

+ Does not matter if the failure to recollect is real or feigned – essentially a refusal to testify
+ Witness does not remember, even after a memory refresh by showing him the report regarding the hearsay statement at issue

Question 50

What does R.804(a)(4) say?

Answer 50

R.804 Exceptions to the Rule Against Hearsay – When Declarant is Unavailable as a Witness
Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant

R.804(a)(4) A deceased declarant is unavailable. Declarant is equally unavailable if a physical or mental infirmity prevents declarant from attending the trial or testifying

+ Party can offer a death certificate to establish unavailability – foundation not required
+ Physical and mental infirmities usually require foundational testimony as to the extent of the infirmity from medical experts or others with a knowledge of declarant’s condition
+ Allows judge to rule on the extent of unavailability or mere limitations

Ex: Witness had an allergic reaction to newly prescribed medication and will recover in a few days – not unavailable
Ex: Witness is in a coma – unavailable

Question 51

What does R.804(a)(5) say?

Answer 51

R.804 Exceptions to the Rule Against Hearsay – When Declarant is Unavailable as a Witness
Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant

R.804(a)(5) Declarant is unavailable if declarant “is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance or testimony… by process or reasonable means”

(1) Demonstrating a witness is beyond a court’s subpoena’s power and refused to attend trial voluntarily
(2) Demonstrate that the efforts to locate a declarant have been futile
Must offer evidence of genuine and timely effort to locate and subpoena the declarant

+ Deposition testimony > unsworn hearsay
If a party has an opportunity to depose but chooses not to depose a declarant who is unavailable at trial, a judge might rule that the party has not shown an inability to procure the declarant’s testimony

Question 52

Ex husband (P) sues an escrow company (D) for wrongfully paying all proceeds from the sale of the family home to his ex-wife. To prove the house was community property and that he was entitled to half the sale proceeds, P sought to enter his ex-wife’s hearsay statement into evidence. To prove that his ex-wife was unavailable, P demonstrated the following foundational evidence.

+ P hadn’t seen or spoken to his ex-wife in over three years
+ Two years before trial, P sent his ex–wife a letter at the address where he was told she was living. The letter was returned as undeliverable and it turned out a creditor of his ex-wife had foreclosed on the house
+ A number of the ex-wife’s creditors had contacted P’s attorney, asking for information about her whereabouts
+ P was unable to find a listing for his ex-wife in any local phone directory
+ P submitted an affidavit by his ex wife’s former attorney stating that the attorney did not know of her whereabouts

Was this sufficient under R.804(5)?

Answer 52

The court ruled that this was insufficient foundational showing – not sufficient “persevering and untiring efforts” to secure her attendance.

Question 53

What would be a showing of reasonable effort to locate a hearsay declarant via R.804(5)?

Answer 53

What would be a showing of reasonable effort to locate a hearsay declarant?

+ Checking hospital records and DMV records
+ Contacting utility companies and Social Security/welfare agencies
+ Contacting declarant’s last known employer
+ Hire a professional investigator – have the investigator serves as a foundational witness to testify to the efforts made to locate a declarant whose attendance they have been unable to procure

Question 54

Is a declarant available if the hearsay statement’s proponent “procured or wrongfully caused the declarant’s unavailability as a witness with the goal of preventing the witness from attending or testifying?

Answer 54

No. R.104
R.104 → Burden is on party wishing to show that the opposing party prevented declarant from attending or testifying (knowingly procured unavailability)

Question 55

What are the R.804 Exceptions?

Answer 55

R.804 Exceptions to the Rule Against Hearsay – When Declarant is Unavailable as a Witness
The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness

(b) (1) Former Testimony
(b) (2) Dying Declarations
(b) (3) Statements Against Interest
(b) (6) Forfeiture by Wrongdoing

Question 56

What are the requirements for R.804(b)(1)?

Answer 56

R.804(b)(1) Former Testimony. Testimony that
(A) Was given as a witness at trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) Is now offered against a party who had – or in a civil case, whose predecessor in interest had– an opportunity and similar motive to develop it by direct, cross, or redirect examination

1) Declarant is unavailable as a witness
2) Declarant has previously testified under oath in a hearing or deposition in the same or different case
3) The party against whom the testimony is offered (criminal) or a predecessor in interest (civil)
+ Previously offered testimony; or
+ Previously had the opportunity to cross-examine the declarant
4) The party against whom the former testimony is offered has the same motive as when the party either offered it previously or had an opportunity to cross-examine the declarant

Question 57

P sues D for injuries that P sustained during a fall in D’s store. P calls a witness to testify of the slippery condition of the floor where P fell. P wins, but the judgment is reversed on appeal and a new trial is ordered. If the witness is unavailable for retrial, can the original testimony from the first trial be used?

Answer 57

Yes under R.804(b)(1) testimony from the original trial qualifies as “former testimony”

Question 58

P sues a bus company (D) for injuries sustained when one of its buses struck a lamppost. At trial, D calls a bystander witness to testify on its behalf, but the bystander instead testifies that the bus was speeding at the time it struck the lamppost. Another passenger, P2, sues D for the injuries sustained in the same accident. The bystander is unavailable by the time P2’s case goes to trial. Can P2 offer the bystander’s testimony from P’s trial?

Answer 58

Yes, under R.804(b)(1) because D offered the bystander’s testimony in P’s trial. D had an opportunity to elicit testimony from the bystander witness during the first trial. D also had a similar motive for questioning the bystander in both cases.

In other words, D had a chance to impeach the bystander at trial with P to show that bystander was not credible and show evidence that D’s driver was careful.

Admissible as former testimony in the case.

Question 59

P sues a bus company (D) for injuries sustained when one of its buses struck a lamppost. During pretrial discovery, P deposed the bystander witness. At the deposition, the bystander testifies that the bus was speeding at the time it struck the lamppost. P and D settle the case prior to trial. P2 sues D for injuries in the same accident. The bystander is unavailable by the time P2’s case goes to trial. Can P2 enter bystander’s deposition testimony from P’s case?

Answer 59

Yes, because D had opportunity to attend the deposition and question the bystander.
Under R.804(b)(1), it’s irrelevant that D did not take advantage of the opportunity
D’s motive in both cases was similar

Question 60

What does R.804(b)(2) say? What does it require?

Answer 60

R. 804(b)(2) Dying Declarations. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances

1) Declarant is unavailable as a witness
2) Declarant need not be deceased
3) Statement is offered in either homicide prosecution or civil proceeding
4) Inadmissible in non-homicide criminal cases
5) Declarant believed that death was imminent at the time the statement was made

Question 61

True or false: R.804(b)(2) conflicts with the Confrontation Claus

Answer 61

False. Not an issue with the Confrontation Clause

Question 62

A badly wounded P tells someone in the hospital, “D shot met” at a time where P thought that death was imminent. P survived but at a civil trial against D for damages, cannot remember that D was the person who shot her. P is unavailable within the means of R.804(a)(3). Is her statement likely to be admitted as a dying declaration?

Answer 62

Yes, likely because P subjectively believed she was dying. P’s injuries were substantial. P didn’t have to die. This is a civil proceeding.

Question 63

What does R.804(b)(3) say?

Answer 63

R.804 Exceptions to the Rule Against Hearsay – When Declarant is Unavailable as a Witness
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness

R.804(b)(3) Statements Against Interest. A statement that
(A) Reasonable person in the declarant’s position would have made only if the person believed it be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; AND

(B) Is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability

Question 64

What are the foundational elements of R.804(b)(3 – Statement Against INterest)?

Answer 64

1) Declarant is unavailable as a witness

2) The statement was contrary to the defendant’s interest; or
Tended to subject the declarant to civil or criminal liability; or
Tended to render invalid a claim by the declarant against another

3) If a statement against a penal interest is offered by either the prosecution or the defense in a criminal case, the offering party must also offer evidence of corroborating circumstances that clearly indicate that the statement is trustworthy

Question 65

What determines admissibility of a declarant’s statement against interest?

Answer 65

Admissibility of a declaration against interest depends on

1) Surrounding circumstances
2) What the declarant knew (or didn’t know)
3) When the declarant knew it.

Question 66

D is charged with participating in a robbery of a bank on October 9. D seeks to offer evidence that an unavailable declarant said, “I single-handedly robbed the bank on October 9. D had nothing to do with it.” D seeks to offer this statement into evidence. What happens next?

Answer 66

Judge would have to decide whether the portion of the statement exculpating D was against the declarant’s interest.