Hearsay Exceptions (Unavailable W) Flashcards
exceptions requiring declarant’s (DL’s) unavailibity
- Former testimony exception
- statements against interest
- dying declarations
- statements of personal or family history
- statements offered against party procuring declarant’s unavailability
unavailable declarant
Declarant is unavailable if either:
1. privilege exempts from testimony (eg 5th amendment)
2. refuses to testify despite a court order
3. lack of memory
4. death or **physical/mental sickness **prevents appearance
5. absent: beyond reach of court’s subpoena power and unable to procure attendance or testimony
NOT because of forefeiture by wrongdoing
former testimony
former testimony is admissible if:
1. DL is currently unavailable
2. DL’s prior testimony was given under oath; and
3. Party against whom testimony is now offered was either:
* party in previous action & cross-examined with similar motive
* civil only: a predessor in interest of party & cross-examined with similar motive
NOT grand jury testimony because D could not be present
predecessor of interest
parties in privity
statement against interest
statement is admissible if:
1. DL is unavailable
2. statement was contrary to DL’s pecuniary, proprietary, or penal interest when made
3. a reasonable person would not have made the statement unless he believed it to be true
4. Criminal only: corroborating circumstances clearly indicating the trustworthiness of the statement
Does NOT have to be party in proceeding
dying declarations
ONLY CIVIL AND HOMICIDE CASES: admissible if:
1. DL is unavailable
2. made under **belief of impending death
3. regarding the cause or circumstances **surrounding the belief of an impending death
DEATH of DL is NOT required
If not dying declaration, try excited utterance
forfeiture by wrongdoing
statements against party are admissible if party wrongfully caused (or asquiesced in wrongfully causing) the DL’s unavailability as a witness and intended that result
