Hearsay Exceptions - Unavailable

Question 1

Dying Declaration

Answer 1

For this exception to apply, the declarant must be unavailable.

A declarant is considered unavailable if the are dead, incapacitated, refuse to testify despite court orders, are unable to remember, or the party wishing to offer their testimony is unable to procure it.

A dying declaration (1) must relate to the cause or circumstances surrounding the declarant’s death and (2) must be made while the declarant believed his death was imminent.

Question 2

Statement Against Interest

Answer 2

For this exception to apply, the declarant must be unavailable.

Define unavailability.

To qualify as a statement against interest, the statement must have

(1) been against the declarant’s pecuniary, penal, or proprietary interest at the time made, such that a reasonable person would only have made it if she believed it were true

(2) the declarant must have had personal knowledge of the facts

(3) the declarant must have been aware that the statement was against her interest and she must have had no motive to misrepresent when she made the statement

Question 3

Former Testimony

Answer 3

For this exception to apply, the declarant must be unavailable.

Define unavailability.

Made under oath at a prior trial or proceeding

The party against whom the testimony is being offered must have been a party to the prior proceeding and had an opportunity to cross examine the witness and similar motive as the current trial to do so