VII: Hearsay exceptions

Question 1

Hearsay exceptions when declarant is unavailable as a witness

Answer 1

1. Unavailable declarant: unless unavailable due to procurement/wrongdoing of proponent in order to prevent the declarant from testifying at or attending trial
2. Former testimony: given as a witness is not hearsay if party against whom its given had an opportunity and similar motive to develop testimony
3. Dying declaration: declarant believes her death is imminent and statement pertains to cause/circumstances of death. Applies only in homicide and civil cases.
   NC: applies in all cases and declarant must actually die.
4. Statement against interest: was against declarant’s proprietary/pecuniary interest at time made and reasonable person would not have made the statement unless it was true
5. Statement of personal/family history: birth, adoption, marriage, divorce or other similar fact of personal or family history.
   NC: extended to statements regarding facts regarding the death of someoen to whom declarant was related by blood, adoption, or marriage, or with whose family the declarant was so intimately associated that the declarant’s info is likely to be accurate.
6. Statement against party that caused declarant’s unavailability: statement offered against party that wrongfully caused declarant’s unavailability is not excluded.
   NC: Not a recognized exception in NC

Question 2

Hearsay exceptions when declarant’s availability is immaterial

Answer 2

1. Present sense impression
2. Excited utterance
3. Statement of mental, emotional or physical condition
4. Statement made for medical dx/tx
   NC: statements made to physician who is consulted only for the purpose of testifyng at trial are not admissible for substantive purposes. They may be admissible as a basis for expert’s opinion.
   Only statements made by the pt qualify for the medicla dx or tx exception, except for statements made by the parent or caretaker of a minor or incompetent pt.
5. Recorded recollection
6. Business records
7. Public records
8. Learned treatises
9. Judgment of previous conviction: final judgment must be enterd after trial or guilty plea; conviction was for crime punishable by death or imprisonment for more than 1 year, evidence offered to prove any fact essential to sustain judgment.

Question 3

Residual exception

Answer 3

“catch all” exception for statement that is not otherwise covered by the FRE as a hearsay exception.