Hearsay Exceptions (Declarant Must Be Unavailable)

Question 1

Hearsay Exceptions (Declarant Must Be Unavailable)

Answer 1

1. Former Testimony (given as a witness at another hearing or in a deposition)
2. Dying Declaration (statement made by Declarant while believing that his death was imminent offered in a prosecution for homicide or in a civil proceeding)
3. Statement Against Interest (contrary to the declarant’s (a) penal, (b) pecuniary, or (c) proprietary interest)
4. Statement of Pedigree (such as those concerning the declarant’s birth, adoption, marriage, divorce, legitimacy or ancestry)
5. Forfeiture by Misconduct

Question 2

Analysis

Answer 2

(1) Is witness unavailable?

(2) Does statement fall within one of the 5 exceptions?

Question 3

Unavailability

Answer 3

Unavailability required: Means the witness who made the statement is not available to testify in court.

Ways to be unavailable:

(1) Privilege from testifying
(2) Refusal to testify despite court order
(3) Lack of memory (Genuine – like head injury)
(4) Death; or then existing physical or mental illness

(5) Absent from attending and unavailable by court process
- Witness is out of the country, or maybe the state
- Way to still subpoena witness in another state or country

(6) Procurement by wrongdoing
- If you purposely kill the witness to prevent the witness from testifying

Question 4

Unavailability (1): Privilege from testifying

Answer 4

Criminal cases: Witness may invoke 5th amendment and not have to testify on witness stand. However, witness must actually take the stand and take the 5th on the record.

Question 5

Unavailability (2): Refusal to testify despite court order

Answer 5

Must threaten with contempt process (unless it is a sexual assault victim)

Question 6

Unavailability (3): Lack of memory

Answer 6

Due to length of time, physical or mental impairment

Question 7

Unavailability (4): Death; or then existing physical or mental illness

Answer 7

Mental illness may qualify. Psychological unavailability.

Children cases – would be severely harmful for child to get on witness stand and relate what happened.

Question 8

Unavailability (5): Absent from attending and unavailable by court process

Answer 8

Out of jxn. Absent from attending court hearing and cannot force attendance by court process.

Interstate compacts and Federal Rules allow for some service of process - Must show you at least tried to secure witness.

Question 9

Unavailability (6): Procurement by wrongdoing

Answer 9

What if a party arranges for unavailability? (mob)

• If it can be shown that the party arranged for the witness’ unavailability, then that party forfeits his right to object under hearsay
• But if D murdered W, unless the murder itself was to keep the W from testifying, this does not count
• Domestic violence case, murder wife to keep her from testifying in domestic violence case -motive needs to be to keep someone from testifying

Question 10

People v. Giles

Answer 10

• If you murdered the witness – cannot then say well they procured the witness’ unavailability - the charge is murder
• If procurement by unavailability (do something to keep person from testifying) – everything comes in, exceptions don’t matter

Question 11

Who decides unavailability?

Answer 11

Court determines if someone is unavailable for purposes of statement’s admissibility (not the jury)

Question 12

Barber v. Page

Answer 12

Codefendant was in prison in another state. Why is he unavailable? Never tried to get the witness – go try to get him – not actually unavailable. Need to at least show that you tried to bring the witness into court.

Question 13

Exception (1) Former Testimony

Answer 13

General Rule: If a declarant is currently unavailable, you may admit any prior testimony at another hearing regarding the same subject matter

Elements:
(1) Declarant unavailable

(2) Declarant gave statement in different hearing or proceeding: trial, PH, or deposition.
Grand jury does not count b/c not subject to cross-examination.

a. Proceeding defined
i. Declarant was under oath; or
ii. Official inquiry conducted in a manner authorized by law whether judicial, administrative, legislative, investigative, or inquisitorial

(3) Party against whom the prior testimony is now offered (or, in civil case, that party’s
predecessor in interest) must have had an opportunity to cross-examine the declarant in the prior proceeding or deposition

a. If a civil case, there was a party that was a predecessor in interest who had an opportunity and similar motive to develop direct, cross, or redirect. Even though current parties are different – good enough.
b. In criminal – need to have same defendant

(4) Parties are same or actions were similar – meaning party against whom the prior testimony is now offered must have had a similar motive to develop the testimony in the prior proceeding by direct cross or redirect examination
- Same issues? Same stakes? Same parties (or close enough)?

Question 14

Reformist View (Adopted by Advisory Committee)

Answer 14

Different parties okay (ex. one student, one school for asbestos problem, then another student at another school for asbestos problem – both buildings had same contractor) so long as earlier party had the same motive to examine the witness as the later party

Question 15

Exception (2): Dying Declarations

Answer 15

General Rule: Your dying words can come in, if you think you are dying, and you talk about what caused your impending death.

Elements:
(1) Declarant must be unavailable (but need not have actually died);

(2) Action is a prosecution for homicide case or civil case (if criminal, has to be murder, not assault/kidnapping);

(3) Declarant believed death was imminent;
- Can prove by circumstantial evidence

(4) Statement was about cause or circumstances of impending death;

Question 16

Who decides if victim’s belief of imminent death is real?

Answer 16

Judge determines by preponderance of the evidence if the victim was under a belief death was imminent before allowing in such evidence

Question 17

Exception (3): Declaration Against Interest

Answer 17

General Rule: In a situation where a person who is not on trial, and not in court, has made a statement which implicates himself in the subject matter of the trial, this statement will be admissible.

(Defendant trying to put in statement from some outside person who admitted the crime)

Elements:

• Declarant unavailable;
• Declarant made a statement which exposes himself to civil or criminal liability;
• They confess to a crime (not the person on trial)
• A reasonable person in the declarant’s position would not have made such a statement unless the person believed it to be true; (Usually don’t incriminate self unless meant it)
• No motive to falsify; and
• Corroboration needed if criminal case

Samples of corroborations (not tested) – just look at these things:

• Did declarant have motive to lie?
• Character of declarant?
• Witnesses to statement?
• Timing of statement?
• Spontaneous statement?

Has to be declaration AGAINST your OWN interest, not FOR SOMEBODY else’s interest

Question 18

What are the key differences between the hearsay exception for statements against interest and statements of a party opponent

Answer 18

Statements of party opponent - sitting in the chair. For the exception, person is not a party.

Question 19

Exception (5): Forfeiture by Wrongdoing

Answer 19

General Rule: A statement offered against a party will be admissible if that party has engaged or acquiesced in wrongdoing, and that wrongdoing procured the unavailability of a witness.

Elements:
(1) Unavailability

(2) Actus reus: A party wrongfully caused or acquiesced in wrongfully causing the declarants unavailability as a witness (killed, paid off, etc.)
(3) Mens rea: Party did so intending that result
(4) Causation: A party thus caused the unavailability of declarant