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

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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
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
slide8
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)
slide10
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
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
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
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