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

CHAPTER 4, PART 3 OF 3

RULE 804: OUT-OF-COURT

DECLARATIONS BY PERSONS WHO ARE NOW UNAVAILABLE

Prof. Janicke

2015

2015

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

2

2015

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


3

PROBLEMS/CASES

• BARBER

• 4L

2015 Hearsay Exceptions -- Declarant Unavailable

4

2015

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

2015

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

2015

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

2015

• 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


8

2015

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)


9

2015

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”


10

2015

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


11

2015

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’”


12

2015

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


13

PROBLEMS/CASES

• 4M


14

2015

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


15

2015

DECLARATIONS BY PERSONS WHO HAVE SINCE BEEN

“RUBBED OUT”

• IF THE REMOVER IS A PARTY, THESE ARE NOW ADMISSIBLE AGAINST HIM

• EXAMPLES:– EARLIER 3rd PARTY’S AFFIDAVIT– EARLIER 3rd PARTY’S GRAND JURY

TESTIMONY– EARLIER 3rd PARTY’S ORAL REMARK– EARLIER 3rd PARTY LETTER


16

2015

ADMISSIBLE HEARSAY DECLARANTS ARE IMPEACHABLE

• THEY ARE TREATED JUST LIKE WITNESSES

• TO PREVENT ABUSIVE USE OF EXCEPTIONS

• SAME RULES OF IMPEACHMENT


17

2015

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


18

2015

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

2015

• COURT EFFECTIVELY REWRITES THE HEARSAY EXCEPTIONS

• USUALLY SEEN IN CIVIL CASES

• [THE BANE OF MY EXISTENCE; THE JUDGE USUALLY SMILES]


20

PROBLEMS/CASES

• Weaver


21

2015

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


22

PROBLEMS/CASES

• Crawford

• Davis


23

Documents

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