Prof. Janicke 2010

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

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

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)

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]

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

7. 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

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

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

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”

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

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’”

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

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

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

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

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

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

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