1. A Study of the Hearsay Rule General Sessions Judge
“A Tale of a Tale”
A Study of the Hearsay Rule
And Its Exceptions
Dwight E. Stokes
General Sessions Judge

2. The Hearsay Rule
McCormick – “Ask the man on the street what he knows about the law of evidence. Usually the only doctrine he will be able to mention is the one called by the old English word -- ‘hearsay.’”
Wigmore -- “That most characteristic rule of the Anglo-American Law of Evidence --- the greatest contribution to the world’s legal system next to the jury trial.”

3. Colledge’s Trial
Counsel for the prosecution labels hearsay coming from the witness’s mouth:
“A TALE OF A TALE.”
Burger King - “Home of the Whopper” (1957)

4. LORD COKE
Denounces “the strange conceit that one may be an accuser by hearsay”

5. McCormick on Evidence
Factors upon which credibility of testimony depends:
1) Perception : Did the witness perceive accurately?
2) Memory : Has the witness retained accurate impression of what he/she perceived?
3) Narration: Is the language of the witness such as to convey the impression correctly?

6. Conditions under which citizens should be required to testify:
1) OATH - Special obligation for truth
- Ceremonial oath
- Danger of punishment
2) PERSONAL PRESENCE AT TRIAL
- Observe Demeanor
- Solemnity of occasion
- Exposure to public disgrace
3) CROSS-EXAMINATION
- Security for correctness (“the truth”)
- Protection of completeness (“whole truth”)
- Not false (“nothing but the truth”)

7. “SO HELP ME GOD”
A special obligation to tell the truth – invoking the pleasure or displeasure of the divine
Some courts utilize this aspect of the oath and others do not – but it adds a layer of solemnity for many people in court

8. A person who relates a hearsay is not obliged:
1) To enter into any particulars
2) To answer any questions
3) To solve any difficulties
4) To reconcile any contradictions
5) To explain any obscurities
6) To remove any ambiguities

9. FOX NEWS Major source of news reporting by FOX: “Some people say……….”
“We report. You decide(on our hearsay)”

10. “A person who relates a hearsay”
“Entrenches himself in the simple assertion that he was told so, and leaves the burden entirely on his dead or absent author”
McCormick on Evidence

11. Cross - Examination
“THE MOST EFFICACIOUS TEST WHICH THE LAW HAS EVER DEVISED FOR THE DISCOVERY OF THE TRUTH”
Judge Nisbet in McCleskey v. Leadbetter
1 GA 551 (1846)

12. “The truth of the matter asserted”
Facts: W, a witness, states that D, a declarant, reported that X was driving a stolen car at 75 mph at a given time and place.
1) If for truth about X, it is inadmissible hearsay;
2) If to show D speaks English, or
3) To show D was conscious at the time, or
4) To reflect a slanderous statement by D—
for situations in 2,3,4 – admissible testimony as is not for truth of X’s conduct

13. TN Rule of Evidence 801
“Statement” – (1) An oral or written assertion or (2) non-verbal conduct of a person if it is intended by the person as an assertion
“Declarant”– a person who makes a statement
“Hearsay” – a statement, other than one made by a declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted

14. TRE RULE 802
“Hearsay” is NOT admissible except as provided by Tennessee Rules of Evidence or otherwise by law
RULE 803 : EXCEPTIONS to Hearsay Rule

15. Hearsay Exception #1 Prior Statement of Identification by Witness
Four elements to allow witness to testify:
1) That a declarant made an ID of a person
2) That the ID was made after declarant perceived the person
3) That declarant testified at trial
4) That declarant was subject to cross-exam

16. State v. Billy Tate (2013)
Facts: Det. Early was investigating burglary. After some investigation, Det. Early detained the defendant. At a stop at Vaughn Repair about evidence, a witness (Dunson) told Det. Early he saw the suspect. He said, “That’s the MF right there.”
Held: Under Rule 803(1.1) both Det. Early and Dunson can testify at trial regarding the ID by Dunson because Dunson was present and testified, subject to cross-examination.

17. State v. Stout (Tenn. 2001)
Facts : Witness Jordan was a participant in crime with defendant (D). Jordan testified and ID’ed D as killer. Witness (Woodall) testified that Jordan told her day after crime that D killed victim. D objected to Woodall’s testimony of Jordan ID’ing D as murderer on basis of hearsay. Held: Rule 803 (1.1) applies to allow both Jordan and Woodall to testify of Jordan’s prior identification of D as killer. This is true due to safeguard of rule subjecting Jordan to cross –examination about her identification of D as killer.

18. Supreme Court in Stout says:
“Case law and custom notwithstanding, the rule (803(1.1)) itself does not limit its application to prior identifications from photographs, line-ups, or similar procedures. It simply states that there must be an identification of a person ‘made after perceiving the person.’ …
“We interpret this language to mean what it says: that the person who made the ID must have personally perceived the person identified.”

19. State v. Stout – Rule 803 (1.1)
The Supreme Court concluded that presence of the declarant at trial and the cross-examination of the declarant are the safeguards always in place under the rule “regardless of whether the identification is based on a photo display, line-up, or simply a statement made to another person, as in this case.”

20. Hearsay Exception #2: Rule 803 (1.2) Admission By a Party Opponent
A statement offered against a party that is:
The party’s own statement
A statement a party has adopted as own
A statement by person authorized to speak
A statement by agent or servant within scope of agency or employment then in existence
5) A statement by a co-conspirator of a party
6) A statement by a person in privity of estate

21. Admission by party opponent
1) An admission expressed by a party opponent in the form of an opinion is admissible under Rule 803 (1.2)
2) The statements which come in under this rule are not conclusive and can be rebutted by the party against whom the statement has been admitted into proof.

22. Example of Use of Rule 803 (1.2)
State v. Davis (Tenn.Cr.App )
Facts: The defendant had cash seized from him in a drug case under forfeiture statute.
The defendant filed civil action claiming an interest in the cash and seeking a judgment.
Held: The defendant’s claim of ownership in the seized cash was deemed an admission against interest of a party opponent as the information was conveniently supplied by the defendant.

23. Exception #3: Excited Utterance
Requirements of Rule 803 (2):
Startling event or condition that suspends normal, reflective thought process of declarant
Statement must relate to startling event
3. Declarant must make statement while under stress or excitement from the event / condition

24. State v. Franklin (Tenn. 2010)
Facts: Woman runs out of cleaners shouting, “That man just robbed me.” Witness runs to exiting vehicle and writes down license tag. License tag (of defendant) was admitted into evidence incriminating defendant. Held: The statement – written down license tag number -- is admissible as witness was acting under excitement of startling event (screaming woman crying for help due to robbery)

25. Rule 803 (2) : Excited utterance
Conclusions of TN Supreme Court:
1. The license tag written down was hearsay.
2. Under Crawford, the license tag was non-
testimonial as its primary purpose was to help during an emergency and not for purposes of prosecution.
3. The statement is admissible under “excited utterance” exception to hearsay rule.

26. “Ultimate Test” of excited utterance rule as stated in Franklin
“Whether a statement meets the excited utterance standard” -- “spontaneity and logical relation to the main event,” and
“Where an act or declaration springs out of the transaction while the parties are still laboring under the excitement or strain of the circumstances and at a time so near it as to preclude the idea of deliberation and fabrication.”

27. Key Cases : Excited Utterance Rule
1) State v. Stout (Tenn. 2001) – No abuse of discretion when statement made 12 hours after startling event as victim clearly upset
2) State v. Anderson (Tenn. Cr. App 2008)– defendant’s 911 call should have been admitted as excited utterance; State v. Smith (Tenn. Cr. App ) -- victim’s 911 call properly admitted as excited utterance)

28. Factors in Excited Utterance Cases
Relevant Factors in excited utterance cases:
1) Time interval from startling event to statement;
2) Nature and seriousness of event;
3) Appearance, behavior and circumstances of declarant, including age, physical and mental
condition;
4) Content of the statement itself (stress)

29. Analysis of Hearsay Admissibility Under Crawford / Maclin
Key Cases:
1) Crawford v. Washington
541 U.S. 36 (U.S.S.Ct. 2004)
2) State v. Maclin
183 S.W. 3d (Tenn. 2006)

30. Crawford / Maclin Analysis
Issue: Is the hearsay evidence which is being offered into evidence against the accused admissible under the Confrontation Clause of the U.S. Constitution (6th amendment) and under the Tennessee Constitution, Article I, Section 9?
Rule: Testimonial statements may not be offered into evidence unless two requirements are satisfied:
(1) Declarant/witness must be unavailable;
(2) Defendant must have had prior opportunity to cross-examine the declarant/witness.

31. Crawford / Maclin Analysis
THRESHOLD QUESTION : Whether the challenged statement (hearsay evidence) is testimonial or non-testimonial?
Tennessee adopts case-by-case approach to determine whether statement is testimonial or non-testimonial evaluating the circumstances of each case.

32. State v. Maclin Factors of case-by-case approach
1) Whether declarant was victim or observer;
2) Whether contact was initiated by declarant or by law enforcement officials;
3) Degree of formality attending circumstances in which statement was made;
4) Whether statement was given in response to questioning, whether questioning was structured, and scope of such questioning;

33. State v. Maclin Factors of Case-by-case approach
5) Whether statement was recorded (either in writing or by electronic means);
6) Declarant’s purpose in making statement;
7) Officer’s purpose in speaking with declarant;
8) Whether objective declarant under circumstances would believe that statement would be used at trial.
The list is not exhaustive and other factors may be considered.

34. State v. Maclin Conclusion
(1) If testimonial, the statement is inadmissible unless (a) witness is unavailable and
(b) defendant had prior opportunity for cross-examination;
(2) If non-testimonial, then pursuant to Ohio v. Roberts, 448 U.S. 56 (1980), an out of court statement by unavailable witness is admissible if it falls within firmly rooted exception to hearsay rule or contains such particularized guarantees of trustworthiness that adversarial testing of statement through cross-examination would add little to whether or not evidence is reliable.

35. Exception # 4 : “Then Existing State of Mind” – Components of Exception:
1) Statement of declarant
2) As to declarant’s then existing state of mind
(intent, plan, motive, mental feeling, etc.)
3) Is admissible to prove the mental state at issue or subsequent conduct consistent with that mental state);
4) As long as the issue is relevant;
5) But only applies to declarant’s conduct

36. State v. Trusty (Tenn. Cr. App. 2010)
Facts: Witnesses were allowed to testify about deceased victim’s fear of defendant, victim’s break-up with D, steps she took to avoid D, and her plans to drive a vehicle unknown to D
Held: “Given proof of the on-again, off again nature” of relationship, proof was relevant to show victim’s state of mind, including her likelihood or not to meet with the defendant

37. State v. Danny Owens (Tenn. Cr. App. 3/24/14)
Facts: Witnesses were allowed to testify about victim’s (wife of defendant) statements regarding husband’s infidelity, plan to confront him around time of death and her excitement about son’s upcoming marriage
Held: Evidence admissible to show victim’s state of mind to confront D to show D’s motive to kill; also her excitement regarding son’s wedding rebutted idea she committed suicide

38. Exception # 5 : Statements for Medical Diagnosis and Treatment
1) Statement by declarant for purpose of medical diagnosis or treatment;
2) Describing medical history
3) Must address the inception or general character of the cause or source of problem;
4) Must be reasonably pertinent to diagnosis and treatment

39. Medical Diagnosis and Treatment
1) Exception to hearsay rule is predicated on perception that statements for diagnosis are deemed to be reliable and trustworthy;
2) Declarant’s motive of improving health increases likelihood of trustworthiness;
3) Declarant is self-interested in telling the truth

40. Medical diagnosis exception: problematic with child victims
State v. Gordon (Tenn. 1997)
Facts: Child victim taken to hospital but not able to be examined till next day when child gave history of problem (sex assault) to child psychologist, including history of sex attack
Held: Issues are more problematic due to child possibly not perceiving need for truthfulness in medical setting. Factors indicated truthfulness as child cried out in pain, child in pain when mom bathed her, child ID’ed defendant as cause of injury; exam was timely under circumstances

41. Medical Treatment and Diagnosis: When child is the declarant
Cases look to “totality of the circumstances” :
1) timing and content of statement;
2) presence or absence of improper influences;
3) any leading or suggestive questioning;
4) any other factor affecting trustworthiness of statement

42. Exception #6 – Recorded Recollection Requirements:
1) A memorandum or record
2) About a matter the witness once had knowledge of
3) Witness now has insufficient recollection to testify fully and accurately
4) Statement was made or adopted by witness
5) When fresh in the witness’s memory
6) Record accurately reflects the witness’s knowledge

43. Mitchell v. Archibald (Tenn.Ct.App. 1998)
Facts: Mitchell was riding a bicycle when he was struck by a dump truck being driven by Archibald. Gardner was a witness to the accident and gave a recorded statement (audio) when the facts were fresh on his mind. When the time for trial came, Gardner was unable to testify because of a brain aneurysm and surgery which affected his memory.
Issue: Can Gardner’s audio statement be used in evidence over Archibald’s hearsay objection?

44. Mitchell v. Archibald
Held: Yes – the statement may be admitted as substantive evidence as contrasted with refreshing a witness’s recollection under Rule Why?
1) Record was in form of audio
2) Gardner had firsthand knowledge
3) Gardner was unable to testify accurately
4) Gardner remembered giving the statement
5) While it was fresh on his mind
6) When he gave statement he had full memory

45. Exception # 7 : Business Records Requirements for exception:
1) Document must be made at or near time of event recorded;
2) Based on first hand knowledge of events;
3) Must be under business duty to record info;
4) Business must have regular practice of making such documents;
5) Manner document is prepared must not indicate lack of trustworthiness
Arias v. Duvo Standard Products
303 S.W.3d 256 (Tenn. 2010)

46. State v. Harlan (Tenn.Cr.App. 2013)
Facts: Defendant was charged with felony theft from Kohl’s. Loss prevention officers prepared list of stolen items which were admitted into evidence under business records exception to hearsay rule.
Held: List was properly admitted into evidence pursuant to testimony of two records custodians. Both were familiar with record keeping system; it was their regular practice to record list of stolen items immediately after a theft and it was their duty to so record. There was no evidence of lack of trustworthiness in the method or procedures used.

47. State v. Bradford (Tenn.Cr.App.2014)
Facts: In case involving bomb threat, records custodian was called to testify regarding “call records,” typically used for billing purposes.
Issue: “The critical inquiry is whether the record itself is created in the regular course of business at or near the time of the reported event.”
Held: Admissible as it was created in regular course of business, pursuant to duty to so record,
for a legitimate business activity (billing).

48. LVNV Funding v. Mastaw (Tenn.Ct.App.2012)
Facts: In this collection case, the affidavits of purported records custodian were prepared specifically for purposes of the litigation-- to trace the debt and establish LVNV ownership.
Held: The exhibits were inadmissible under business records exception due to fact they were not prepared in normal course of regularly conducted business activity, which undermines trustworthiness required for rule.

49. Exception # 8: Public Records and Reports
1) Records, reports, statements, or data compilations in any form;
2) Of public offices and agencies;
3) About activities of the office or agency or matters observed pursuant to duty imposed by law;
4) As to which matters there was a duty to report;
5) Unless source or method indicate lack of trustworthiness;
6) And excluding matters observed by police and other law enforcement personnel.

50. State v. Sisk (Tenn.Cr.App. 1999)
Issue: Whether a certified copy of the defendant’s driving record as maintained by TN Department of Safety is admissible to prove that defendant was driving on revoked license?
Held: Yes –“Such a driving record is admissible as substantive evidence under the public records hearsay exception to hearsay rule.” Authenticating witness is unnecessary, and evidence may be admitted anytime by simply offering the document as an exhibit.

51. State v. Parker (Tenn.Cr.App. 2004)
Facts: In DUI and driving on revoked cases against defendant, the state was allowed to introduce into evidence an affidavit of Kenneth Birdwell, records custodian for TDOT, stating that defendant’s license privileges were revoked on 3/9/98.
Held: The bare affidavit of Birdwell was not the driving record of the defendant and was clear hearsay. It was a statement what the records would show and was prepared exclusively for use in litigation. It was not prepared pursuant to duty as the statute does not require agents of TDOT to prepare affidavits.

52. Exception #9 : Records of Vital Statistics
1) Records or data compilations,
2) In any form of births, fetal deaths, deaths, marriages or divorces;
3) If the report was made to a public office;
4) Pursuant to requirements of law.

53. Exception # 10: Marriage, Baptismal and Similar Certificates
1) Statements of fact contained in a certificate
2) That the maker performed a marriage or other ceremony authorized by rules of the religious organization or by law to perform the act certified;
3) Purporting to have been issued at the time of the act or within a reasonable time thereafter.

54. Exception # 11 : Family Records
1) Statements of fact concerning personal or family history; 2) Contained in family Bibles, genealogies, engravings on rings, inscriptions on family portraits, engravings on burial urns, crypts, tombstones, or the like Why?: It may be the only evidence available. The proof is not conclusive and may be rebutted.

55. Exception #12: Records of documents affecting an interest in property
1) Record of a document purporting to establish or affect an interest in property;
2) As proof of the contents of the original recorded document and its execution and delivery by each person by whom it purports to have been executed;
3) If the record is a record of public office; and
4) An applicable statute authorizes the recording of documents of that kind in that office.

56. Exception # 13: Statements in ancient documents affecting an interest in property
1) If a document -- be it deed, security agreement or other instrument;
2) Affects a property interest, and
3) If it is 30 years old and authentic;
4) The trier of fact may take as true statements within the document.

57. Exception # 14: Market reports and Commercial Publications
Allowable under rule:
1) Market quotations, tabulations, lists, directories, or other published compilations,
2) Generally used and relied upon by the public or by persons in particular occupations.

58. Tire Shredders, Inc. v. ERM-North Central, Inc. (Tenn.Ct.App. 1999)
Facts: The defendants argued trial court erred in excluding certain trade journals from entry into evidence. Held: Trade journals qualify as published compilations and are admissible as exception to hearsay rule if found to be relevant to trial issues.

59. Exception # 15: Reputation Concerning Personal or Family History
1) Reputation among members of a person’s family- (a) by blood;
(b) by adoption;
© by marriage;
2) Or among associates;
3) Or in the community

60. Rule 803 (19)- Reputation Concerning Personal or Family History
The Advisory Commission states that this rule “admits reputation to prove pedigree,” which has been the common law in Tennessee.
State v. Taylor (Tenn. 2007)
Facts: Officer testified that a third person (Tori Renfro) told him that the defendant was a cousin of Lewis, which implied some significant facts for purposes of the case.
Held: The testimony was wrongfully admitted as officer was only given statement by one person and officer did not know defendant’s reputation for familial relationships in the community. No foundation.

61. Exception # 16: Reputation Concerning Ancient Boundaries
Elements concerning hearsay exception:
1) Reputation in a community;
2) Arising before the controversy;
3) And existing 30 years;
4) As to boundaries or customs affecting lands in the community.

62. Sweeney v. Koehler (Tenn.Ct.App. 2010)
Facts: Sweeney contended that trial court had erroneously admitted evidence regarding an oral agreement between predecessors in title to purportedly establish a common boundary line between adjoining properties.
Held: Rule 803(20) allows declarations of former owners which took place during ownership and especially when accompanied with possession. It is not necessary that the former owner testify but only third parties who heard the declarations.

63. Exception # 17: Reputation as to Character
Donald F. Paine:
“What is my reputation? It is what people say behind my back. Their collective gossip forms my repute as scholar or dunce, workaholic or sloth, beer aficionado or beer swiller.
“If the gossipers (elevated by evidence nomenclature to the status of declarants) must be telling the truth for my reputation to be relevant, then I guess we have a hearsay problem. But even if the gossipmongers are lying, my reputation remains the same and there is no hearsay problem. Despite this conundrum, the Rules of Evidence treat reputation as hearsay.”

64. The Wisdom of Donald Paine
“Please observe that one’s reputation can be formed in a community (the olden common law neighborhood) or among associates. Your author knows few folks at his Inskip apartment complex, and few know the recluse. I have no community reputation. But I am known by my ‘associates’ at the Law College and at several Knoxville restaurants.”

65. The Wisdom of Donald F. Paine
“Let us close with the words of Shakespeare’s notorious liar Iago, speaking to Othello shortly before Desdemona’s murder:
Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash;
‘tis something, nothing;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.

66. Donald F. Paine We are poor indeed without you in our midst.
We miss you and thank you for years of humor and wisdom in Tennessee Institute seminars, for wisdom at our judicial conferences, and for always being available for a phone call or a quick cite to a case, law review article or some morsel of law just perfect for what we needed – post-haste.
Thank you, Don -- rest in peace, friend ……

67. Exception # 18: Judgment of Previous Conviction
(1) Evidence of a final judgment adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year (effectively a felony conviction)
(2) To prove any fact essential to sustain the judgment,
(3) But not including, when offered by the prosecution in a criminal case for purposes other than impeachment, judgments against persons other than the accused.

68. State v. Scarbrough (Tenn. 2005)
In Scarbrough, the Tennessee Supreme Court, in allowing the state to introduce the defendant’s previous burglary conviction in a trial for felony murder, said:
“Allowing the prosecution to use a final conviction as evidence in the trial is consistent with 803 (22), as well as with the reality that the conviction is final and may have probative value. Because the conviction is simply evidence , however, and is not entitled to preclusive effect under collateral estoppel, the defendant may contest the conviction by introducing contrary evidence and argument.”

69. Exception # 19: Judgment as to Personal or Family History or Boundaries
1)The judgment must pertain to matters of personal or family history or boundaries;
2) The matters must be essential to the judgment;
3) Res judicata and collateral estoppel do not take the matter out of the realm of proof.

70. Exception #20 : Children’s Statements
1) If circumstances indicate trustworthiness,
2) Statements about abuse or neglect,
3) Made by a child alleged to be the victim of physical, sexual, etc., abuse or neglect,
4) Offered in a civil action involving issues of D & N, severe child abuse, termination of parental rights, custody or shared parenting.
5) Declarants of age 13 or older at time of hearing must testify unless unavailable.

71. Tennessee Dept. of Human Services v. Purcell (Tenn.Ct.App. 1997)
Facts: Case involved termination of parental rights. Hearsay statements of children under 13 pertained to potential sex abuse.
Held: Pursuant to Rule 803 (25), such statements were found to be admissible as circumstances indicated trustworthiness, and the statements were corroborated by other proof. The proof established severe child abuse and wanton disregard for the welfare of children.

72. Issue: Video of Forensic Interview in cases of child sex victim
State v. McKaughan (Tenn.Cr.App. 2014)
Facts: Trial court allowed into evidence a video of forensic interview of child sex abuse victim pursuant to T.C.A
Held: Court of Criminal Appeals found statute allowing introduction of such hearsay statements of children was not in conflict with 803(25), which, even though it applies only to civil cases, does not say anything foreclosing possibility of introduction of such evidence in criminal case.

73. State v. McKaughan
Held: The Court of Criminal Appeals stated that the statute (TCA ) was not contrary to TN case law, nor was it a violation of the “separation of powers” clause of the Tennessee Constitution. The court said that the statute leaves the ultimate decision of admissibility with the trial court which can determine trustworthiness of declarations of the child declarant.

74. State v. Davis (Tenn.Cr.App. 2014)
Facts: Child victim of sex crime testified at trial, and also forensic interview of child was allowed into evidence pursuant to TCA
Held: The right of the defendant to confrontation of witnesses is not violated by the statute’s allowing video of forensic interview because the statute requires (1) that the child testify at trial, (2) be subject to cross-examination; (3) that the trial court must be convinced of particularized guarantees of trustworthiness about the video, and (4) the trial court is vested with discretion to make its own conclusions based on all the factors.

75. Exception # 21 : Prior Inconsistent Statement of a Testifying Witness
1) the declarant must testify at trial and be subject to cross-examination about statement.
2) the statement must be audio or video, a written statement signed by witness, or a statement given under oath.
3) the judge must conduct a hearing outside presence of jury to determine by preponderance of evidence that the prior statement was made under circumstances indicating trustworthiness.

76. State v. Zaloba (Tenn.Cr.App. 2012)
Facts: The defendant sought to introduce video statement of child victim in which the victim denied that the defendant had sexually abused him in an apartment. The trial court denied the request.
Held: The trial court erred in not allowing the video into evidence. The Court of Criminal Appeals found that the prior inconsistent statement should have been admitted into evidence, including instruction that it was substantive evidence and not just impeachment evidence.

77. Hearsay exceptions when declarant is “unavailable”
“Unavailability” includes the following:
(1) When declarant is exempted from testifying due to “privilege”;
(2) When declarant refuses to testify despite an order of the court to do so;
(3) When declarant demonstrates lack of memory of the subject matter;
(4) Unable to testify due to death or infirmity;
(5) Absent and proponent is unable to procure declarant’s attendance by process;
(6) For depositions in civil action, and witness is at a greater distance then 100 miles from hearing.

78. Hearsay exceptions when declarant is unavailable
The following are not excluded by hearsay rule when declarant is “unavailable”:
1) Former testimony – when testimony was given and party had opportunity to cross- examine with a similar motive;
2) Statement under belief of impending death;
3) Statement against interest – so contrary to declarant’s best interests that statement would not be made if not believed to be true;
4) Statement of personal or family history;
5) Forfeiture by wrongdoing – procuring the unavailability of a witness by wrong conduct

79. Dwight E. Stokes
General Sessions Judge
125 Court Ave. Suite 109W
Sevierville,TN