1. HEARSAY EXCEPTIONS THAT ARE LESS RELIABLE: RULE 804: DECLARATIONS BY PERSONS WHO ARE NOW UNAVAILABLE
Prof. Janicke
2010

2. THOUGHT TO BE WEAKER
RULES DRAFTERS (AND COMMON LAW) DEVELOPED A SET OF HEARSAY EXCEPTIONS THAT COULD BE USED ONLY WHEN THE DECLARANT IS UNAVAILABLE AT TRIAL
A COMPROMISE BETWEEN OUTRIGHT EXCLUSION AND OUTRIGHT ADMISSIBILITY
2010

3. MEANING OF “UNAVAILABLE”
WITHOUT ANY CONNIVANCE BY PROPONENT, DECLARANT IS:
NOT FINDABLE
REFUSES TO ATTEND
REFUSES TO ANSWER EVEN WHEN DIRECTED BY COURT
HAS A LOSS OF MEMORY
IS DEAD
IS INCAPACITATED MENTALLY OR PHYSICALLY
2010

4. FORMER TESTIMONY AT A HEARING OR DEPOSITION IN THIS OR ANOTHER CASE
NOW-OPPONENT MUST HAVE HAD OPPORTUNITY AND MOTIVE TO CROSS-EXAMINE
DIRECTLY, or
THROUGH A PARTY WITH SIMILAR INTEREST (CIVIL CASES ONLY)
2010

5. SOME THINGS THAT WON’T QUALIFY
AFFIDAVITS [NOT A HEARING OR DEPOSITION; NO CHANCE TO CROSS-EXAMINE]
GRAND JURY TESTIMONY [NO CHANCE TO CROSS-EXAMINE]
2010

6. SOME THINGS THAT WILL QUALIFY
NON-PARTY TESTIMONY AT EARLIER TRIAL OF THIS CASE
NON-PARTY TESTIMONY AT A DEPOSITION IN THIS OR ANOTHER CASE (WHERE OPPONENT WAS PARTY)
NON-PARTY TESTIMONY AT A PRELIMINARY INJUNCTION HEARING IN THIS CASE
2010

7. PARTY’S TESTIMONY DOESN’T NEED THIS EXCEPTION
AGAIN RECALL –
PARTY’S TESTIMONY DOESN’T NEED THIS EXCEPTION
IF OFFERED BY THE ADVERSE PARTY, CAN BE OFFERED FREELY, REGARDLESS OF PRIOR OATH OR CROSS-EXAM
IF IT IS HER OWN FORMER TESTIMONY, PARTY NORMALLY DOESN’T NEED TO USE IT – CAN TESTIFY LIVE AGAIN
2010

8. DYING DECLARATIONS
BASIS: NO ONE WOULD FALSIFY WHILE SOON TO MEET HIS MAKER
REQUIREMENTS:
HOMICIDE OR CIVIL CASE
DECLARANT THOUGHT HE WAS DYING
STATEMENT WAS RE. CAUSE OF DEATH
2010

9. VICTIM’S RECOVERY DOESN’T MAKE A DYING DECLARATION INADMISSIBLE
BUT THE VICTIM-DECLARANT HAS TO BE “UNAVAILABLE” AT TRIAL
2010

10. EXAMPLE IN A HOMICIDE CASE: “JACK DID IT!!”
IN A WRONGFUL DEATH ACTION: “BOB SHOT ME IN SELF-DEFENSE”
IN A WRONGFUL DEATH ACTION: “I NEVER SHOULD HAVE EATEN THOSE OYSTERS”
2010

11. THIRD PARTY ADMISSIONS
STATEMENT THAT WAS AGAINST INTEREST
PECUNIARY
PENAL
MADE BY A NON-PARTY
MOST ARE OFFERED BY DEFENDANTS, CIVIL AND CRIMINAL, THROUGH WITNESSES
OFFERED TO DEFLECT BLAME
2010

12. EXAMPLES OF THIRD-PARTY ADMISSIONS OFFERED BY D, THROUGH WITNESSES:
TESTIMONY: “X SAID: ‘OUR TECHNICIAN WIRED IT WRONG’”
X CO’S DOCUMENT RECALLING X’S AUTOS FOR DEFECTIVE FUEL LINES
TESTIMONY: “X SAID: ‘SORRY WE BLEW UP YOUR HOUSE’”
2010

13. RESTRICTION ON THIRD-PARTY ADMISSIONS
WHEN OFFERED TO EXCULPATE A CRIMINAL ACCUSED:
MUST HAVE CORROBORATING CIRCUMSTANCES THAT “CLEARLY INDICATE ITS TRUSTWORTHINESS”
MOST CASES HOLD THEM INADMISSIBLE
BASED ON A GENERAL MISTRUST OF THE CRIMINAL COMMUNITY
2010

14. OUT OF COURT STATEMENT RE. FAMILY HISTORY
EXAMPLE: TESTIMONY THAT “MY MOTHER TOLD ME I WAS HARRY’S SON”
EXAMPLE: TESTIMONY THAT “HIS FATHER TOLD ME HE WAS BORN IN THE NAVAL HOSPITAL AT NEWPORT”
NOTE: RECALL THAT DECLARANT (MOTHER, FATHER) MUST BE UNAVAILABLE
2010

15. DECLARATIONS BY PERSONS WHO HAVE SINCE BEEN “RUBBED OUT”
IF THE REMOVER IS A PARTY, THESE ARE NOW ADMISSIBLE AGAINST HIM
EXAMPLES:
EARLIER AFFIDAVIT
EARLIER GRAND JURY TESTIMONY
EARLIER ORAL REMARK
EARLIER LETTER
2010

16. DECLARANTS ARE IMPEACHABLE
THEY ARE TREATED JUST LIKE WITNESSES
TO PREVENT ABUSIVE USE OF EXCEPTIONS
SAME RULES OF IMPEACHMENT
2010

17. THE “CATCHALL”: RULE 807 FOR THE “ALMOST” SITUATIONS
FOR THE UNPREPARED LAWYER WHO DOESN’T KNOW HOW TO REFUTE A HEARSAY OBJECTION
FOR THE JUDGE WHO WANTS TO BE BULLETPROOF ON APPEAL
2010

18. REQUIREMENTS: EVIDENCE OF A “MATERIAL FACT”
???
MORE PROBATIVE THAN ANYTHING ELSE REASONABLY AVAILABLE
A HAVEN FOR THE UNPREPARED
IN THE INTERESTS OF JUSTICE
ADVANCE NOTICE REQUIRED
2010

19. COURT EFFECTIVELY REWRITES THE HEARSAY EXCEPTIONS
A PROBLEM WITH SIXTH AMENDMENT CONFRONTATION CLAUSE, WHEN USED AGAINST A CRIMINAL D
NOT AN EXCEPTION KNOWN AT 1791
NOT “FIRMLY ROOTED”
USUALLY SEEN IN CIVIL CASES
2010