Short & Happy Guide Chapter 7: Hearsay Exceptions (Weak Exceptions) Flashcards
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.
unavailable
Consider these exceptions only if no “strong” exceptions under 803 apply.
What FRE?
804
FRE 804(a) defines _________ and restricts the applicability of this definition to five specific circumstances.
unavailability
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?
804(a)
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.
- Is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
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.
- refuses to testify about the subject matter despite a court order to do so;
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.
- testifies to not remembering the subject matter;
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.
- cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
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.
- is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:
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.
(A) the declarant’s attendance, in the case of a hearsay exception under FRE 804(b)(1) or (6); or
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.
(B) the declarant’s attendance or testimony, in the case of a hearsay exception under FRE 804(b)(2), (3), or (4).
FRE 804(a)(1): A ________ _______.
Privilege Applies
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.
exempted
subject matter
____________ does NOT necessarily mean physical __________.
unavailability
unavailability
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).
unavailable
Most common privileges:
1. ?
2.
3.
4.
5.
6.
7.
8.
9.
- Accountant- Client
Most common privileges:
1.
2. ?
3.
4.
5.
6.
7.
8.
9.
- Attorney- Client
Most common privileges:
1.
2.
3. ?
4.
5.
6.
7.
8.
9.
- Clergy- Penitent
Most common privileges:
1.
2.
3.
4. ?
5.
6.
7.
8.
9.
- Governmental
Most common privileges:
1.
2.
3.
4.
5. ?
6.
7.
8.
9.
- Journalist
Most common privileges:
1.
2.
3.
4.
5.
6. ?
7.
8.
9.
- Physician- Patient
Most common privileges:
1.
2.
3.
4.
5.
6.
7. ?
8.
9.
- Psychotherapist/ Social Worker
Most common privileges:
1.
2.
3.
4.
5.
6.
7.
8. ?
9.
- Self-Incrimination
Most common privileges:
1.
2.
3.
4.
5.
6.
7.
8.
9. ?
- Spousal Privileges (Persons legally married)
The invocation of any ________ (that is sustained by a court) would qualify the witness as being unavailable under FRE 804(a)(1).
privilege
FRE 804(a)(2)
Refusal to Testify
Refusal to Testify
What FRE?
804(a)(2)
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.
subject matter
court order
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 _______.
ordered
testify
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).
declarant is the witness
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).
refuse
Bad Memory
What FRE?
FRE 804(a)(3)
FRE 804(a)(3)
Bad Memory
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.
remembering
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).
subject matter
making
FRE 804(a)(4)
Death or Illness
Death or Illness
What FRE?
FRE 804(a)(4)
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.
death
physical
mental
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).
physically
FRE 804(a)(5)
Absent from Trial
Absent from Trial
What FRE?
FRE 804(a)(5)
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).
absent
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.
subpoena
subpoena
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.
subpoenaed
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
subpoenaed
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?
FRE 804(a)(5) Absent From Trial
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.
procured
wrongfully
