Declarant Unavailable

Question 1

804 is about ___

Answer 1

declarant unavailable

Question 2

Policy behind 804

Answer 2

some testimony over non

Question 3

804(a) criteria for being unavailable

Answer 3

• exempted because privilege
• refuses to testify despite court order
• testifies to not remembering
• ## dead or illness (mental or physical)

Question 4

804(b) exceptions not excluded if unavailable

Answer 4

• former testimony
• statement under belief of imminent death
• statement against interest
• statement of personal/family history
• statement offered against party that wrongfully caused declarant unavailability

Question 5

804(b)(6) requires that the

Answer 5

party wrongfully caused witness not to appear AND intended that result

Question 6

Volland’s 1983 action against Chicago bc traffic stop without reasonable suspicion, after City dismissed crim charges that Volland committed traffic violation. Volland died of natural cases.

Answer 6

Admit, past testimony from crim case allowed in this civil trial (same incident/issue)

Question 7

Suppression hearing where determine whether D’s Miranda rights violated during arrest for meth. DEA agent who took D’s statement testifies. If agent dies, can you introduce agent’s statement at trial?

Answer 7

Inadmit, doesn’t meet 804(b)(1) bc defense not ample time to cross

Question 8

Morgan and Crewing collide in drunk car accident. Civil trial first, then criminal admit?

Answer 8

Inadmit, doesn’t meet similar motive because civil burden of proof more lenient

Question 9

Jones tried in state crim court for killing two civil rights workers in 1962; acquitted by all white jury. In 2023, fed gov wants to retry Jones on fed crime charges in fed court. Admit original testimony?

Answer 9

Inadmit. Jones probably lack of motive to defend in 1960s Alabama

Question 10

Anthony Weiner confides in wife that he has been texting underage girls and fallen in love with Tiffany. Week later
1) Tiffany found dead and Weiner’s wife Huma charged with murder

Answer 10

Admit, not hearsay, admitted for effect on listener

Question 11

Anthony Weiner confides in wife that he has been texting underage girls and fallen in love with Tiffany. Week later
2) Tiffany found dead and Weiner charged

Answer 11

Admit, hearsay bc admitting to show in love with Tiffany, party opponent 801(d)(2)(A)

Question 12

Anthony Weiner confides in wife that he has been texting underage girls and fallen in love with Tiffany. Week later
3) Weiner found dead and Tiffany charged

Answer 12

Admit, declarant unavailable and statement against proprietary/pecuniary interest 804(b)(3)

Question 13

Police officer said “I was wearing condom” in recording post-rape

Answer 13

• party opponent only allows against officer
• co-consp doesn’t work against others after crime ended
• 804(b)(3) allows against all co-Ds because against penal interest

Question 14

Harris arrested for cocaine in truck; told officer he was delivering cocaine to dropoff for Williamson. Later refused to testify against W. Statement about W admissible against W?

Answer 14

Inadmit, only self-inculpatory statements, not surrounding statements

Question 15

Officer goes to Robert’s home to apprehend about robbed truck; Robert says to mom who answers door “It was Magnolia’s idea” Robert unavailable to testify under 5A. Admit against Robert?

Answer 15

yes party opponent direct admission

Question 16

Officer goes to Robert’s home to apprehend about robbed truck; Robert says to mom who answers door “It was Magnolia’s idea” Robert unavailable to testify under 5A. Admit against Magnolia?

Answer 16

if co-consp then redacted statement of just Robert inculpatory part

Question 17

804(b)(2) is about __

Answer 17

dying declarations

Question 18

Hepburn finds dead man who wrote “Dyle” into carpet while dying

Answer 18

Admit, scrawl admissible under 804(b)(2)

Question 19

Tupac: That MF biggie smalls just shot me. As soon as I get up I’m going to kill him”

Answer 19

Inadmit, doesn’t believe death is imminent

Question 20

Madoff shanked in jail. Last words, my wife and son involved in Ponzi scheme

Answer 20

Inadmit, must be about cause/circumstances of death

Question 21

Brookman commits suicide and leaves note, implicating self and co-consp

Answer 21

Inadmit, about cause or circumstance

Question 22

Wife victim had convo w/ nurse when feeling sick, asked her to test liquor for poison bc suspects husband poisoning her.

Answer 22

Inadmit, no indication actually thought at death’s door, also 602 issue

Question 23

Wife victim had convo w/ nurse when feeling sick, asked her to test liquor for poison bc suspects husband poisoning her. What is 602 issue?

Answer 23

just wife opinion/musing not based on personal knowledge

Question 24

Wife victim had convo w/ nurse when feeling sick, asked her to test liquor for poison bc suspects husband poisoning her. Med examiner who originally testified dead upon retrial

Answer 24

admit under 804(b)(1) former testimony

Question 25

Wife victim had convo w/ nurse when feeling sick, asked her to test liquor for poison bc suspects husband poisoning her. Shepard in room with wife but said nothing

Answer 25

801(d)(2)(b) adoptive admission

Question 26

Spitzer married, using sex workers. Withdrawing in sus manner. Indicted for violation of Mann Act -- willful structuring with intent. Brothel records, bank records, CC records Admit?

Answer 26

Admit, 803(6) bank records

Question 27

Spitzer married, using sex workers. Withdrawing in sus manner. Indicted for violation of Mann Act -- willful structuring with intent CLE instructor testimony that S attended course on restructuring

Answer 27

Admit, not hearsay, effect on listener show S on notice

Question 28

Spitzer married, using sex workers. Withdrawing in sus manner. Indicted for violation of Mann Act -- willful structuring with intent Escort testimony that S told her his name was McLovin

Answer 28

Admit, not hearsay bc not offered for truth Even if hearsay, party opponent

Question 29

Spitzer married, using sex workers. Withdrawing in sus manner. Indicted for violation of Mann Act -- willful structuring with intent One of escorts say S likes to be spanked/doesn't use condom

Answer 29

Inadmit 401 irrelevant, 403 prejudicial

Question 30

Spitzer married, using sex workers. Withdrawing in sus manner. Indicted for violation of Mann Act -- willful structuring with intent Several years ago, S hired escort in Thailand

Answer 30

Inadmit, 404(b) other act evidence

Question 31

Spitzer married, using sex workers. Withdrawing in sus manner. Indicted for violation of Mann Act -- willful structuring with intent Bank teller bad with dates. How to refresh?

Answer 31

Refresh with writing, 612

Question 32

Spitzer married, using sex workers. Withdrawing in sus manner. Indicted for violation of Mann Act -- willful structuring with intent Bank teller: S asked if could take money out in diff name, I told him it would violate restructuring law

Answer 32

Admit - S party opponent Or effect on listener

Question 33

Spitzer married, using sex workers. Withdrawing in sus manner. Indicted for violation of Mann Act -- willful structuring with intent Can D cross Escort #1 about book deal

Answer 33

Admit, 608 bias

Question 34

Spitzer married, using sex workers. Withdrawing in sus manner. Indicted for violation of Mann Act -- willful structuring with intent On redirect, prosecution introduces prior statements he made to friend about sex work w S to show true

Answer 34

Admit, 801(d)(1)(B)(ii) prior consistent statements to rebut/rehab

Question 35

Spitzer married, using sex workers. Withdrawing in sus manner. Indicted for violation of Mann Act -- willful structuring with intent Escort #2 prior felony conviction for theft, recent misdemeanor for false ID, prostitution

Answer 35

Admit prior felony 609(a)(1)(A) Admit false ID because crime related to dishonesty 609(a)(2)

Question 36

Spitzer married, using sex workers. Withdrawing in sus manner. Indicted for violation of Mann Act -- willful structuring with intent Plea negotiations, S offered to plea

Answer 36

Inadmit under 410(a)(4)

Question 37

Spitzer married, using sex workers. Withdrawing in sus manner. Indicted for violation of Mann Act -- willful structuring with intent Dr said treated S for STD and S said got STD from escort

Answer 37

Admit under party opponent and medical diagnosis 803(4), if STD too prejudicial stipulate that slept with escort

Question 38

Spitzer married, using sex workers. Withdrawing in sus manner. Indicted for violation of Mann Act -- willful structuring with intent Escort #3 testifies that #1 and #2 are lying bitches

Answer 38

Admit 608(a) reputation for untruthfulness

Question 39

Spitzer married, using sex workers. Withdrawing in sus manner. Indicted for violation of Mann Act -- willful structuring with intent Escort #3 testifies that #1 and #2 are lying bitches How to rebut Escort #3 character evidence?

Answer 39

602, they don't know each other enough

Question 40

Spitzer married, using sex workers. Withdrawing in sus manner. Indicted for violation of Mann Act -- willful structuring with intent Clinton testifies that S is truthful. Cross about Lewinsky affair

Answer 40

Admit, 608(a) allows character witness for truth and 608(b)(1) allows specific instances on cross if focus on untruthfulness

Question 41

Spitzer married, using sex workers. Withdrawing in sus manner. Indicted for violation of Mann Act -- willful structuring with intent W testifies "S told me he was being framed, all a conspiracy"

Answer 41

Inadmit hearsay, not party opp because not offered by opponent