Hearsay Exceptions - Rule 804

Question 1

Rule 804

Answer 1

• different category of exceptions - “when the declarant is unavailable as a witness”

Question 2

Rule 804 - Criteria for Being Unavailable

Answer 2

1) privilege applies
2) declarant refuses to testify
3) declarant testifies to not remembering [and cannot be refreshed]
4) dead, or physically or mentally infirm
5) cannot be compelled to appear at trial or (for some exceptions) for deposition (something to do with distance)

Question 3

Rule 804 - Unavailability Caveat

Answer 3

• you can’t invoke Rule 804 if proponent of the hearsay procured/caused declarant’s unavailability to present live testimony
• need to have made unavailable for the specific purpose of keeping witness from testifying - trial judge decides this under Rule 104(a) preponderance of the evidence standard

Question 4

Rule 804 and 5th Amendment

Answer 4

• you can’t render yourself unavailable by claiming 5th Amendment as a criminal defendant, since you have the ability to call yourself (reference to privilege applies to others invoking their privileges, not you)

Question 5

Rule 804(b)(1)

Answer 5

Former Testimony

Testimony that:
A) was given as a witness at a 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

Question 6

Rule 804(b)(1) - Cross-Examination

Answer 6

• only need to have had opportunity to cross-examine the prior witness - if you had the opportunity but didn’t cross-examine, you don’t get to object to the evidence coming in

Question 7

Rule 804(b)(1) - Parties at Prior Trial/Proceeding

Answer 7

• party offering the testimony does not need to have been represented at the earlier proceeding (may have been effectively represented by someone with similar interests)
• claims in the first case and the current case do not need to be the same, just sufficiently similar on the issue for which you now want to offer the testimony in the current trial, such that the opposing party would have had the means and motive to cross-examine
• similar motive - be sure to evaluate whether the motive is close enough that the testimony could have been developed

Question 8

Rule 804(b)(1) - Civil vs. Criminal

Answer 8

• if the second proceeding is a criminal one, criminal defendant must have personally had the opportunity to cross-examine at the prior proceeding (Confrontation Clause issue)
• if the current trial is civil, it’s enough for the defendant OR predecessor in interest to have had motive and opportunity to cross
• can also apply if you called the witness you’re now opposing at the prior trial, as long as you had opportunity to redirect

Question 9

Rule 804(b)(1) - Predecessor in Interest

Answer 9

Competing interpretations:
1) sufficient if party in the prior proceeding had a like motive
2) common law concept of privity

Question 10

Volland-Golden v. City of Chicago

Answer 10

• witness passed away after criminal trial and before civil lawsuit against City of Chicago
• his testimony could be used - state as the prosecution had similar motive (trying to show defendant was at fault/resisting arrest) and therefore results of their unsuccessful cross could be introduced and used against Chicago

Question 11

Solerno

Answer 11

• witnesses called at grand jury + start giving testimony helfpful to the defendant
• called at trial and invoke their fifth amendment privilege not to testify -> defendant wants to use their grand jury testimony
• court says no - prosecution’s motive cross-examining at grand jury very different from motive at trial (threshold much lower - prosecution didn’t need to fully develop because wouldn’t be necessary in order to get an indictment

Question 12

Rule 804(b)(2)

Answer 12

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
• declarant does not have to have died
• note: NOT admissible outside the homicide/civil case context

Question 13

Dying Declarations - Three Elements

Answer 13

1) Types of cases where admitted - only homicide or civil
2) declarant must believe that death is imminent
3) must be about the cause or circumstances of the death

Question 14

Dying Declarations and Personal Knowledge

Answer 14

• although the rule does not explicitly require it, courts have held that the dying declarant must have had personal knowledge of what is said in the statement
• statement itself can indicate, or circumstances (ex: if shot in back vs. shot in chest)

Question 15

Dying Declarations and Death

Answer 15

• don’t need to have ultimately died - could be fine now, just unavailable
• note that couldn’t come in at a criminal trial though if fine now, because then wouldn’t be homicide

Question 16

Dying Declaration and Crawford

Answer 16

• no Confrontation Clause issue with dying declarations - either responding to an ongoing emergency, or common law exception incorporated into 6th Amendment

Question 17

Rule 804(b)(3)

Answer 17

Statement Against Interest

A statement that:
A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when mad, it was so contrary to the declarant’s proprietary and 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 18

Statement Against Interest - Evaluation

Answer 18

• judge evaluates under a reasonable person standard under Rule 104(a)
• only looks at contents of statement, no need to go into mind of declarant

Question 19

US v. Duran

Answer 19

• apology to Duran for stealing boxing belts comes in as evidence under 804(b)(3) (think this was a civil case of some sort over who owns the belts)

Question 20

US v. Jackson

Answer 20

-criminal defendant wanted to use plea allocution of a different criminal defendant as statement against interest -> had said he committed the crime, but Jackson didn’t supervise him -> court said couldn’t use because it wasn’t against the part where co-conspirator said Jackson didn’t supervise him wasn’t against co-conspirator’s interests

Question 21

Insider Knowledge Theory

Answer 21

• you can argue a statement revealing details of a crime is against the speakers interests because it reveals their own inside knowledge of a crime

Question 22

Suicide and Dying Declarations

Answer 22

• majority of jurisdictions say suicide notes do not qualify as dying declarations

Question 23

Rule 804(b)(6)

Answer 23

Forfeiture for Wrongdoing

• a statement offered against a party that wrongfully caused - or acquiesced in wrongfully causing - the declarant’s unavailability as a witness, and did so intending that result
• you can offer declarant’s out-of-court statement against a party that wrongfully caused or acquiesced in the declarant’s unavailability
• you need to show the other party did what they did intending to make the declarant unavailable

Question 24

Giles v. California

Answer 24

• in order to lose your Confrontation Clause right through forfeiture for wrongdoing, you need to have specifically intended to make the declarant unavailable through your wrongdoing
• trial judge gets to decide the purpose under the 104(a) standard

Question 25

Rule 807(a)

Answer 25

Residual Hearsay Exception

Two conditions:
- statement is supported by sufficient guarantees of trustworthiness - after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement
-needs to be more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts

Question 26

Rule 807(b)

Answer 26

• notice component of the residual hearsay exception - need to give notice to the opponent of the intent to offer the statement
• supposed to provide in writing prior to trial or hearing, although can provide during when good cause excuses lack of notice

Question 27

807 and Confrontation Clause

Answer 27

• Confrontation Clause concerns still apply for any hearsay that comes in under 807

Question 28

US v. Slatten

Answer 28

• security co criminally prosecuted for open-firing on crowd -> q of who shot first
• State Department investigated and talked to a co-defendant who was given a form of immunity (his statements couldn’t be used against him, although he could still be prosecuted) -> co-def said he shot first -> Slatten wants to introduce this statement to show that he himself did not shoot first, but trial court denied
• appeals court says should’ve allowed under 807 - immunity makes it trustworthy, and there was corroborating evidence to indicate the co-defendant had shot first
• BUT court also said 807 extremely narrow and should only be used in exceptional circumstances

Question 29

Rule 806

Answer 29

Impeaching Hearsay
- method of impeachment - how to attack credibility of declarant if hearsay statement in evidence
- can be used for any out-of-court statement from the exemptions (except 801d2A and B) or 803, 804, and 807
- can use prior inconsistent statements
- addressed purely to the credibility of the declarant who made the out-of-court statement - ONLY comes in for impeachment, not for the truth