Hearsay Exceptions: Class 13

Question 1

Twin rationales for hearsay exceptions:

1. heightened ____; 2. ____ ____.

Answer 1

1. heightened [reliability];

2. [heightened need]

Question 2

804 exceptions are even more ____ than other hearsay – if ____ is unavailable, jury has a much greater ____ for the statements b/c there may be ____ ____ ____ to obtain the ____.

804 exceptions are even more ____ than other hearsay, as well

Answer 2

804 exceptions are even more [needed] than other hearsay – if [declarant] is unavailable, jury has a much greater [need] for the statements b/c there may be [no other way] to obtain the [information].

804 exceptions are even more [reliable] than other hearsay as well

Question 3

804(a) Criteria for Being Unavailable: A declarant is considered to be unavailable as a witness if the declarant:
(1) is ____ from testifying about the ____ ____ of the declarant’s statement because the court ____ that a ____ applies;
(2) ____ to ____ about the ____ ____ despite a ____ ____ to do so;
(3) testifies to ____ ____ the ____ ____;
(4) cannot be present or ____ at the trial or haring because of ____ or a then-existing ____, physical ____, or ____ ____; or
(5) is ____ ____ the trial or hearing and the statement’s ____ has not been able, by ____ or other ____ ____, to procure:
(A) the declarant’s ____, in the case of a ____ ____ undr Rule 804(b)() or (); or
(B) the declarant’s ____ or ____ under Rule 804(b)(), (), or (_).

But this subdivision (a) does not ____ if the statement’s ____ procured or wrongfully ____ the declarant’s ____ as a witness in order to ____ the declarant from ____ or ____.

Answer 3

(a) “unavailable as a witness” if declarant:
(1) is [exempted] from testifying about the [subject matter] of the declarant’s statement because the court [rules] that a [privilege] applies;
(2) [refuses] to [testify] about the [subject matter] despite a [court order] to do so;
(3) testifies to [not remembering] the [subject matter];
(4) cannot be present or [testify] at the trial or haring because of [death] or a then-existing [infirmity], physical [illness], or [mental illness]; or
(5) is [absent from] the trial or hearing and the statement’s [proponent] has not been able, by [process] or other [reasonable means], to procure:
(A) the declarant’s [attendance], in the case of a [hearsay exception] undr Rule 804(b)(1) or (6); or
(B) the declarant’s [attendance] or [testimony] under Rule 804(b)(2), (3), or (4).

But this subdivision (a) does not [apply] if the statement’s [proponent] procured or wrongfully [caused] the declarant’s [unavailability] as a witness in order to [prevent] the declarant from [attending] or [testifying].

Question 4

804(b)(1)-(3)
804(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:
(A) was given as a witness at a ____, hearing, or ____ ____, whether given ____ the current proceeding or a ___ ____; and
(B) is now offered ____ a party who had – or, in a ___ case, whose ____ in interest had – an opportunity and ____ ____ to develop it by direct, ____, or ____ ____.
(2) Statement under the Belief of Imminent Death. In a prosecution for ____ or in a ___ case, a statement that the declarant, while ____ the declarant’s ____ to be ____, made about its ____ or circumstances.
(3) Statement Against Interest. A statement that:
(A) a ____ person in the declarant’s ____ would have made only if the person ____ ____ ____ ___ true because, when made, it was so ____ to the declarant’s ____ or ____ interest or had so great a ____ to ____ the declarant’s ____ against someone else or to ____ the declarant to civil or ____ liability; and
(B) is supported by ____ ____ that clearly indicate its ____, if it is offered in a ____ case as one that ____ to ____ the declarant to ____ liability.

Answer 4

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:
(A) was given as a witness at a [trial, hearing, or [lawful deposition], whether given [during] the current proceeding or a [different one]; and
(B) is now offered [against] a party who had – or, in a [civil] case, whose [predecessor] in interest had – an opportunity and [similar motive] to develop it by direct, [cross], or [redirect examination].
(2) Statement under the Belief of Imminent Death. In a prosecution for [homicide] or in a [civil] case, a statement that the declarant, while [believing] the declarant’s [death] to be [imminent], made about its [cause] or circumstances.
(3) Statement Against Interest. A statement that:
(A) a [reasonable] person in the declarant’s [position] would have made only if the person [believed it to be] true because, when made, it was so [contrary] to the declarant’s [proprietary] or [pecuniary] interest or had so great a [tendency] to [invalidate] the declarant’s [claim] against someone else or to [expose] the declarant to civil or [criminal] liability; and
(B) is supported by [corroborating circumstances] that clearly indicate its [trustworthiness], if it is offered in a [criminal] case as one that [exposes] the declarant to [criminal] liability.

Question 5

804(a)(1): ____ _____ shields a person from testifying.

Typically, declarant must ____ the ____ to assert ____, except if it is a defendant’s under the ____ ____.

Answer 5

804(a)(1): [Evidentiary Privilege] shields a person from testifying. E.g., 5th Amendment, attorney-client, spousal, doctor-patient, clergy-communicant, Executive (i.e. Presidential).

Typically, declarant must [take] the [stand] to assert [privilege], except if it is a defendant’s under the [5th Amendment].

Question 6

804(a)(2):

Rationale: If a witness ____ to ____, the ____ should not be penalized.

Declarant must ____ the ____ to establish ____ to ____.

Answer 6

804(a)(2): Refusal to Testify

Rationale: If a witness [refuses] to [testify], the [proponent] should not be penalized.

Declarant must [take] the [stand] to establish [refusal] to [testify].

Question 7

804(a)(3): Unavailable b/c lack of memory: True or False:

1. Actual memory loss is required to be unavailable under 804(a)(3).
2. The memory loss must not be feigned; if feigned, not “unavailable.”
3. Lack of memory must be of the relevant subject matter and it must be absolute. Lack of memory merely of the details is not sufficient.
4. Declarant need not take the stand to establish.

Answer 7

804(a)(3): Lack of Memory:

1. False. Actual memory loss is NOT REQUIRED:
2. False. Memory loss CAN be real or feigned.
3. True. Lack of memory must be of the relevant subject matter and it must be absolute. Lack of memory merely of the details is not sufficient.
4. False. Declarant MUST take the stand to establish a lack of memory.

Question 8

804(a)(4): Death or Illness:

1. What four types of states of bodily/physical health/vitality?
2. Must be sufficiently ____ that (1) the declarant cannot ____ to ____, and (2) there is little likelihood of ____ within a reasonable ____.
3. Must the witness take the stand to establish this kind of “unavailability”?

Answer 8

804(a)(4): Death or Illness:

1. What four types of states of bodily/physical health/vitality?
   - 1.) death, 2.) infirmity, 3.) physical illness, or 4.) mental illness.
2. Must be sufficiently ____ that (1) the declarant cannot ____ to ____, and (2) there is little likelihood of ____ within a reasonable ____.
3. Must the witness take the stand to establish this kind of “unavailability”?
   - No. Documentary evidence is usually required, though. E.g., death certificate, doctor’s affidavit, etc.