CHAPTER 4, PART 3 OF 3 RULE 804: OUT-OF-COURT DECLARATIONS BY PERSONS WHO ARE NOW UNAVAILABLE

1. CHAPTER 4, PART 3 OF 3RULE 804: OUT-OF-COURT DECLARATIONS BY PERSONS WHO ARE NOW UNAVAILABLE Prof. Janicke 2015

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 Hearsay Exceptions -- Declarant Unavailable

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 Hearsay Exceptions -- Declarant Unavailable

4. PROBLEMS/CASES • BARBER • 4-O Hearsay Exceptions -- Declarant Unavailable

5. 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) Hearsay Exceptions -- Declarant Unavailable

6. 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] Hearsay Exceptions -- Declarant Unavailable

7. 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 Hearsay Exceptions -- Declarant Unavailable

8. NOTE – AN OPPOSING 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 OPPORTUNITY Hearsay Exceptions -- Declarant Unavailable

9. DYING DECLARATIONS • SUPPOSED 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) Hearsay Exceptions -- Declarant Unavailable

10. EXAMPLES(GIVEN THE PROPER FOUNDATION FACTS) • 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” Hearsay Exceptions -- Declarant Unavailable

11. THIRD-PARTY STATEMENTS OF GUILT/FAULT • STATEMENT THAT WAS AGAINST DECLARANT’S INTEREST • PECUNIARY • PENAL • MADE BY A NON-PARTY • MOST ARE OFFERED BY DEFENDANTS, CIVIL AND CRIMINAL, THROUGH WITNESSES • TO DEFLECT BLAME Hearsay Exceptions -- Declarant Unavailable

12. EXAMPLES OF NON-PARTY CONCESSIONS OFFERED BY D, THROUGH WITNESSES: • TESTIMONY: “NONPARTY X SAID TO ME: ‘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’” Hearsay Exceptions -- Declarant Unavailable

13. RESTRICTION ON NON-PARTY CONCESSIONS • 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 Hearsay Exceptions -- Declarant Unavailable

14. PROBLEMS/CASES • 4P Hearsay Exceptions -- Declarant Unavailable

15. OUT-OF-COURT STATEMENT RE. FAMILY HISTORY • EXAMPLE: TESTIMONY THAT “MY MOTHER TOLD ME I WAS HARRY’S SON” • EXAMPLE: TESTIMONY THAT “HER FATHER TOLD ME JEAN WAS BORN IN THE NAVAL HOSPITAL AT NEWPORT” • NOTE: RECALL THAT DECLARANT (MOTHER, FATHER) MUST BE UNAVAILABLE Hearsay Exceptions -- Declarant Unavailable

16. DECLARATIONS BY PERSONS WHO HAVE SINCE BEEN “RUBBED OUT” • IF THE REMOVER IS A PARTY, THESE ARE NOW ADMISSIBLE AGAINSTHIM • EXAMPLES: • EARLIER 3rd PARTY’S AFFIDAVIT • EARLIER 3rd PARTY’S GRAND JURY TESTIMONY • EARLIER 3rd PARTY’S ORAL REMARK • EARLIER 3rd PARTY LETTER Hearsay Exceptions -- Declarant Unavailable

17. ADMISSIBLE HEARSAY DECLARANTS ARE IMPEACHABLE • THEY ARE TREATED JUST LIKE WITNESSES • TO PREVENT ABUSIVE USE OF EXCEPTIONS • SAME RULES OF IMPEACHMENT Hearsay Exceptions -- Declarant Unavailable

18. THE “CATCHALL”: RULE 807 • FOR THE “ALMOST” SITUATIONS • FOR THE UNPREPARED LAWYER WHO DOESN’T KNOW HOW TO OVERCOME A SUSTAINED HEARSAY OBJECTION • FOR THE JUDGE WHO WANTS TO BE BULLETPROOF ON APPEAL Hearsay Exceptions -- Declarant Unavailable

19. 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 Hearsay Exceptions -- Declarant Unavailable

20. COURT EFFECTIVELY REWRITES THE HEARSAY EXCEPTIONS • USUALLY SEEN IN CIVIL CASES • [THE BANE OF MY EXISTENCE; THE JUDGE USUALLY SMILES] Hearsay Exceptions -- Declarant Unavailable

21. PROBLEMS/CASES • Weaver Hearsay Exceptions -- Declarant Unavailable

22. 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 Hearsay Exceptions -- Declarant Unavailable

23. PROBLEMS/CASES • Crawford • Davis Hearsay Exceptions -- Declarant Unavailable