Short & Happy Guide Chapter 7: Hearsay Exceptions (Weak Exceptions)

Question 1

Exceptions under FRE 804 apply only if the declarant is __________. The person who made the out of court statement will NOT be available to testify in court.

Answer 1

unavailable

Question 2

Consider these exceptions only if no “strong” exceptions under 803 apply.

What FRE?

Answer 2

804

Question 3

FRE 804(a) defines _________ and restricts the applicability of this definition to five specific circumstances.

Answer 3

unavailability

Question 4

When analyzing a particular exception under 804, you may only apply the exception if under the rule the person making the out-of-court statement is unavailable. But unavailability must be determined by the definitions in the rule itself.

What FRE?

Answer 4

804(a)

Question 5

FRE 804. Hearsay Exceptions: Declarant Unavailable
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
1. ?
2.
3.
4.
5.
(A)
(B)

But this subdivision (a) does not apply if the statements proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

Answer 5

1. Is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;

Question 6

FRE 804. Hearsay Exceptions: Declarant Unavailable
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
1.
2. ?
3.
4.
5.
(A)
(B)

But this subdivision (a) does not apply if the statements proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

Answer 6

2. refuses to testify about the subject matter despite a court order to do so;

Question 7

FRE 804. Hearsay Exceptions: Declarant Unavailable
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
1.
2.
3. ?
4.
5.
(A)
(B)

But this subdivision (a) does not apply if the statements proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

Answer 7

3. testifies to not remembering the subject matter;

Question 8

FRE 804. Hearsay Exceptions: Declarant Unavailable
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
1.
2.
3.
4. ?
5.
(A)
(B)

But this subdivision (a) does not apply if the statements proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

Answer 8

4. cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

Question 9

FRE 804. Hearsay Exceptions: Declarant Unavailable
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
1.
2.
3.
4.
5. ?
(A)
(B)

But this subdivision (a) does not apply if the statements proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

Answer 9

5. is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:

Question 10

FRE 804. Hearsay Exceptions: Declarant Unavailable
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
1.
2.
3.
4.
5.
(A) ?
(B)

But this subdivision (a) does not apply if the statements proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

Answer 10

(A) the declarant’s attendance, in the case of a hearsay exception under FRE 804(b)(1) or (6); or

Question 11

FRE 804. Hearsay Exceptions: Declarant Unavailable
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
1.
2.
3.
4.
5.
(A)
(B) ?

But this subdivision (a) does not apply if the statements proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

Answer 11

(B) the declarant’s attendance or testimony, in the case of a hearsay exception under FRE 804(b)(2), (3), or (4).

Question 12

FRE 804(a)(1): A ________ _______.

Answer 12

Privilege Applies

Question 13

A Privilege Applies. FRE 804(a)(1)

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(1) Is _______ from testifying about the ______ _______ of the declarant’s statement because the court rules that a privilege applies.

Answer 13

exempted

subject matter

Question 14

____________ does NOT necessarily mean physical __________.

Answer 14

unavailability

unavailability

Question 15

For example, if a reporter refused to testify because his testimony is protected by privilege, and the court ruled that a privilege odes, in fact, apply, then the reported would be treated as ______ under the definition. FRE 804(a)(1).

Answer 15

unavailable

Question 16

Most common privileges:
1. ?
2.
3.
4.
5.
6.
7.
8.
9.

Answer 16

1. Accountant- Client

Question 17

Most common privileges:
1.
2. ?
3.
4.
5.
6.
7.
8.
9.

Answer 17

2. Attorney- Client

Question 18

Most common privileges:
1.
2.
3. ?
4.
5.
6.
7.
8.
9.

Answer 18

3. Clergy- Penitent

Question 19

Most common privileges:
1.
2.
3.
4. ?
5.
6.
7.
8.
9.

Answer 19

4. Governmental

Question 20

Most common privileges:
1.
2.
3.
4.
5. ?
6.
7.
8.
9.

Answer 20

5. Journalist

Question 21

Most common privileges:
1.
2.
3.
4.
5.
6. ?
7.
8.
9.

Answer 21

6. Physician- Patient

Question 22

Most common privileges:
1.
2.
3.
4.
5.
6.
7. ?
8.
9.

Answer 22

7. Psychotherapist/ Social Worker

Question 23

Most common privileges:
1.
2.
3.
4.
5.
6.
7.
8. ?
9.

Answer 23

8. Self-Incrimination

Question 24

Most common privileges:
1.
2.
3.
4.
5.
6.
7.
8.
9. ?

Answer 24

9. Spousal Privileges (Persons legally married)

Question 25

The invocation of any ________ (that is sustained by a court) would qualify the witness as being unavailable under FRE 804(a)(1).

Answer 25

privilege

Question 26

FRE 804(a)(2)

Answer 26

Refusal to Testify

Question 27

Refusal to Testify

What FRE?

Answer 27

804(a)(2)

Question 28

Refusal to Testify. FRE 804(a)(2)

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(2) Refuses to testify about the _____ _____ despite a _______ ________ to do so.

Answer 28

subject matter

court order

Question 29

If a declarant refuses to testify about the subject matter of the statement, then the witness would be considered “unavailable” under FRE 804(a)(2). However, the necessary prerequisite is that the judge must have ________ the witness to _______.

Answer 29

ordered

testify

Question 30

The inference of this rule is that the _____ is the ______. Without that, the court could not be in a position to order the witness to testify. FRE 804(a)(2).

Answer 30

declarant is the witness

Question 31

Also, do not be misled into thinking that the witness must blatantly refuse to testify for the exception to apply. The definition only requires that the witness _______ to testify about the subject matter. FRE 804(a)(2).

Answer 31

refuse

Question 32

Bad Memory

What FRE?

Answer 32

FRE 804(a)(3)

Question 33

FRE 804(a)(3)

Answer 33

Bad Memory

Question 34

FRE 804(a)(3). Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(3) testifies to not __________ the subject matter.

Answer 34

remembering

Question 35

The critical requirement of this exception is that the declarant not remember the ______ _______ of the statement. If the declarant cannot remember actually _______ the statements, the requirement of the exception is NOT met. FRE 804(a)(3).

Answer 35

subject matter

making

Question 36

FRE 804(a)(4)

Answer 36

Death or Illness

Question 37

Death or Illness

What FRE?

Answer 37

FRE 804(a)(4)

Question 38

FRE 804(a)(4).
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(4) cannot be present to testify at the trial or hearing because of _______ or a then-existing infirmity, _______ illness, or _____ illness.

Answer 38

death

physical

mental

Question 39

To meet this definition of unavailability, the declarant must be unable to be ________ present at the hearing. However, the basis for the lack of presence must be because of death, infirmity, or physical or mental illness.

A word of caution, however; a judge will usually require some form of proof that compost with the definition of unavailability (i.e., a note from physician).

Answer 39

physically

Question 40

FRE 804(a)(5)

Answer 40

Absent from Trial

Question 41

Absent from Trial

What FRE?

Answer 41

FRE 804(a)(5)

Question 42

FRE 804(a)(5). Absent from Trial.

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(5) Is ______ from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:

(A) the declarant’s attendance, in the case of a hearsay exception under FRE 804(b)(1) or (6) or

(B) the declarant’s attendance or testimony, in the case of a hearsay exception under FRE 804(b)(2), (3), or (4).

Answer 42

absent

Question 43

FRE 804(a)(5) requires the declarant to be absent from the trial. However, unlike the previous definition, this one requires there being an inability to require the declarant to be physically present such as through a _____. If the witness, for example, refused to testify voluntarily and was outside the ______ range of the court, then the witness might be considered unavailable.

Answer 43

subpoena

subpoena

Question 44

FRE 804(a)(5). If the declarant could not be ________, then the declarant would be “unavailable: in cases with the following hearsay exceptions: FRE 804(b)(1) The Former Testimony Exception or FRE 804(b)(6) The exception for a Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability.

Answer 44

subpoenaed

Question 45

If the declarant could not be _______, and the proponent offering the witness could not otherwise procure the declarant’s attendance or testimony, then the declarant would be “unavailable” with the following hearsay exception:

FRE 804(b)(2): Statement Under the Belief of Imminent Death

FRE 804(b)(3): Statement Against Interest or

FRE 804(b)(4): Statement of Personal or Family History

Answer 45

subpoenaed

Question 46

In a 2008 case, the proponent of a statement argued that he could not procure the attendance of some prisoners who were incarcerated more than 100 miles away; instead, he tried to submit the depositions of the prisoners. The court did not permit him to use the depositions because the proponent should have tried to comply with the bureaucratic red tape sooner for the prisoners to be present. The court found that the prisoners were not unavailable as defined by the rule.

What FRE does this refer to?

Answer 46

FRE 804(a)(5) Absent From Trial

Question 47

When the proponent of the testimony caused the unavailability of the witness, then the rule provides that this subdivision 804(a) does not apply if the statement’s proponent _______ or _______ caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

Answer 47

procured

wrongfully