1. Hearsay Exceptions Declarant Unavailable

2. Unlike FRE 803, FRE 804 provides exceptions where the Declarant Must be Unavailable to testify.

3. What do we mean by unavailability? Unavailability does not necessarily mean physical necessity. Unnecessary due to privilege. Unnecessary due to Fifth Amendment concerns. Amnesia (real or not) Mental Illness

4. FRE 804(b)(1) Former Testimony: Was given as a witness in a trial, hearing or deposition. Is now offered against a party who had an opportunity to confront the witness whether on cross, direct, or redirect.

5. FRE 804(b)(2) Statement under Belief of Imminent Death – Limited to Homicide or Civil Case – Believing his death is imminent – A statement about that death.

6. Example The defendant is charged with the murder of the victim. The prosecutor introduced testimony of a police officer that the victim told a priest, administering the last rites, “I was stabbed by Christian. Since I am dying, tell him I will meet him in hell.”

7. FRE 804(b)3 Statement Against Interest: The nature of the statement is contrary to the defendant’s proprietary or pecuniary interest. Exposes the declarant to civil or criminal liability. Supported by corroborating evidence that ensures trustworthiness.

8. Example Pamela sued Hoop for damages for the death of Pamela’s husband Logan, resulting from an automobile collision. At trial, Hoop calls Logan’s doctor to testify that the day before his death, Logan, in great pain, said, “It was my own fault; there’s nobody to blame but me.”

9. Question Sabol and Derkin were charged with burglary of a warehouse. They were tried separately. At Sabol’s trial, Derkin testified that he saw Sabol commit the burglary. While Derkin is still subject to recall as a witness, Sabol calls Derkin’s cellmate, Walton, to testify that Derkin said, “I broke into the warehouse alone because Sabol was too drunk to help.” This evidence of Derkin’s statement is : – A. admissible as a declaration against penal interest. – B. admissible as a prior inconsistent statement. – C. inadmissible, because it is hearsay not within any exception. – D. inadmissible, because the statement is not clearly corroborated.

10. 804(b)(4) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, or similar fact of personal family history is admissible hearsay when the declarant is unavailable to testify