Hearsay exceptions that are less reliable rule 804 declarations by persons who are now unavailable
This presentation is the property of its rightful owner.
Sponsored Links
1 / 24

Prof. Janicke 2012 PowerPoint PPT Presentation


  • 81 Views
  • Uploaded on
  • Presentation posted in: General

HEARSAY EXCEPTIONS THAT ARE LESS RELIABLE: RULE 804: DECLARATIONS BY PERSONS WHO ARE NOW UNAVAILABLE. Prof. Janicke 2012. 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

Download Presentation

Prof. Janicke 2012

An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -

Presentation Transcript


Hearsay exceptions that are less reliable rule 804 declarations by persons who are now unavailable

HEARSAY EXCEPTIONS THAT ARE LESS RELIABLE:RULE 804: DECLARATIONS BY PERSONS WHO ARE NOW UNAVAILABLE

Prof. Janicke

2012


Thought to be weaker

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


Meaning of unavailable

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


Problems cases

PROBLEMS/CASES

  • 4L


Former testimony

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)


Some things that won t qualify

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]


Some things that will qualify

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


Prof janicke 2012

  • NOTE –

    A 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, THE PROPONENT PARTY IS “AVAILABLE” -- CAN TESTIFY LIVE AGAIN


Dying declarations

DYING DECLARATIONS

  • BASIS: NO ONE WOULD FALSIFY WHILE SOON TO MEET HIS MAKER

  • REQUIREMENTS:

    • HOMICIDE OR CIVIL CASE

    • DECLARANT THOUGHT HE WAS DYING IMMINENTLY (NOT “GOING TO BE SHOT” SOME VAGUE FUTURE TIME)

    • STATEMENT WAS RE. CAUSE OF THE IMPENDING DEATH (i.e., WHODUNIT)


Prof janicke 2012

  • VICTIM’S RECOVERY DOESN’T MAKE A DYING DECLARATION INADMISSIBLE

  • BUT THE VICTIM-DECLARANT HAS TO BE “UNAVAILABLE” AT TRIAL


Example

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”


Third party admissions

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


Examples of non party admissions offered by d through witnesses

EXAMPLES OF NON-PARTY ADMISSIONS OFFERED BY D, THROUGH WITNESSES:

  • TESTIMONY: “NONPARTY X SAID: ‘OUR TECHNICIAN WIRED IT WRONG’”

  • NONPARTY X CO’S DOCUMENT RECALLING X’S AUTOS FOR DEFECTIVE FUEL LINES

  • TESTIMONY: “NONPARTY X SAID: ‘SORRY WE BLEW UP YOUR HOUSE’”


Restriction on non party admissions

RESTRICTION ON NON-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


Problems cases1

PROBLEMS/CASES

  • 4M


Out of court statement re family history

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


Declarations by persons who have since been rubbed out

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


Declarants are impeachable

DECLARANTS ARE IMPEACHABLE

  • THEY ARE TREATED JUST LIKE WITNESSES

  • TO PREVENT ABUSIVE USE OF EXCEPTIONS

  • SAME RULES OF IMPEACHMENT


The catchall rule 807

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


Requirements

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


Prof janicke 2012

  • COURT EFFECTIVELY REWRITES THE HEARSAY EXCEPTIONS

  • USUALLY SEEN IN CIVIL CASES


Problems cases2

PROBLEMS/CASES

  • Weaver


A problem with sixth amendment confrontation clause when hearsay exceptions are used by prosecutors

A PROBLEM WITH SIXTH AMENDMENT CONFRONTATION CLAUSE, WHEN HEARSAY EXCEPTIONS ARE USED BY PROSECUTORS

  • CRAWFORD v. WASHINGTON

    • “TESTIMONIAL” TYPE HEARSAY MUST BE KEPT OUT OF CRIMINAL PROSECUTIONS, DESPITE RULES 803, 804


Problems cases3

PROBLEMS/CASES

  • Crawford

  • Exercise #13


  • Login