Hearsay Exemption -unavailable declarant

Question 1

Hearsay is can be allowed

Answer 1

either because of necessity (i.e., the declarant is unavailable) or because the statements are inherently trustworthy, in which case the declarant’s availability is immaterial.

Question 2

what are the 6 exemptions?

Answer 2

1. Unavailable Declarant witness
2. former testimony,
3. dying declaration,
4. statement against interest,
5. statement of personal or family history, and 6. statement offered against a party that wrongfully caused the declarant’s unavailability.

Question 3

When is a witness deemed Unavailable?

Answer 3

IF:

1. they are exempt on the grounds of privilege;
2. they Refuses to testify despite a court order to do so;
3. They Lack memory of the subject matter of the statement; -legally unavailable
4. they are unable to testify due to death, infirmity, or physical or mental disability; or
5. they are absent and cannot be subpoenaed or otherwise made to be present.

Question 4

When is a declarant deemed unavailable?

Answer 4

When/If the unavailability is due to the procurement or wrongdoing of the proponent of the statement in order to prevent the declarant from testifying at or attending the trial. Fed. R. Evid. 804(a).

Question 5

FORMER TESTIMONY?

Answer 5

Testimony that was given as a witness at a trial, hearing, or lawful deposition is not excluded as hearsay if the party against whom the testimony is being offered (or, in a civil case, a party’s predecessor-in-interest) had an opportunity and similar motive to develop the testimony by direct examination, redirect examination, or cross-examination. This exception applies whether the testimony was given during the current proceeding or during a different one, but the witness who gave the testimony must now be unavailable. Fed. R. Evid. 804(b)(1).

Question 6

Does a former testimony apply to statements made in grand jury testimony?

Answer 6

NO!!!!
Grand jury testimony generally does not fall within the former testimony exception,

but it may be admissible nonhearsay evidence as a prior inconsistent statement.

Question 7

DYING DECLARATION

Answer 7

Statements made

1. The declarant believed that his death was imminent; and
2. The statement pertains to the cause or circumstances of the death he believed to be imminent

Question 8

Does the witness have to have died for the Dying declaration exception?

Answer 8

NO!!! although the declarant must be unavailable, the declarant does not have to actually have died in order for the statement to avoid exclusion as hearsay.

Question 9

In what cases does the Dying Declaration apply to?

Answer 9

only in homicide prosecutions and civil cases. 804

not attempted murder cases!!!

Question 10

STATEMENTS AGAINST INTEREST?

Answer 10

1Is a statement that the unavailable declarant witness made
1. which was against his interest at the time he made it and

2. would not have been made by a reasonable person unless he believe it to be true.
3. and the statement was against his propriety or pecuniary interest (so the statement have invalidated the declarant’s claim against someone, or have exposed the declarant to civil or criminal liability.

A statement that would subject the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Fed. R. Evid. 804(b)(3).

Question 11

what is the difference between an opposing party statement and a statement against interest

Answer 11

a statement against interest may be made by a non-party, the declarant must be unavailable and the statement must have been against the declarant’s interest at the time of it was made.

an opposing party’s statement on the other hand must have been made by a party, and the statement need not have been against the party’s interest when it was made

Question 12

Statement of personal or familial history

Answer 12

A statement concerning the unavailable declarant’s own birth, adoption, marriage, divorce, legitimacy, familial relationship, or other similar fact of personal or family history is not excluded as hearsay.

Question 13

Statements against Party that caused Declarant’s unavailability – forefeiture against wrong doer”

Answer 13

statement offered against a party that wrongfully caused the declarant’s unavailability is not excluded as hearsay. Under this exception, the wrongful party forfeits the right to object to the admission of the declarant’s statement as hearsay. The wrongdoing, which need not be criminal, may be accomplished by a deliberate act or by acquiescing to another’s act, but must be done with the intent of preventing the witness from testifying. This exception applies to all parties, including the government. Fed. R. Evid. 804(b)(6).

Confrontation Clause requires the defendant to have acted with the particular purpose of making the witness unavailable. The mere fact that the declarant is unavailable due to the defendant’s act (e.g., murder of the witness) is not sufficient to establish such a purpose when the defendant is on trial for the act that made the witness unavailable.