hearsay exceptions

Question 1

what are the two categories of hearsay exceptions?

Answer 1

Exceptions for when declarant unavailable

Exceptions that exist whether or not declarant unavailable

Question 2

what are the 5 possible grounds for unavailability

Answer 2

(1) declarant is unable to testify due to death or physical or mental illness

(2) declarant is exempt from testifying due to privilege

(3) declarant refuses to testify concerning the statement despite court order

(4) declarant testifies that they do not remember the subject matter

(5) declarant is absent and the proponent is unable to procure their attendance or testimony by process or other reasonable means [generally does not include declarant who testified in deposition instead of at trial]

“absent” = beyond reach of court’s subpoena

Question 3

what is the exception to the grounds for unavailability? [i.e. when is a declarant not “unavailable” even if they fit into the grounds for unavailability?]

Answer 3

if proponent procured or wrongfully caused declarant’s unavailability in order to prevent them from attending or testifying
[Ex: intimidating them or killing them]

Question 4

what is a hearsay exception?

Answer 4

a statement that IS hearsay but is nevertheless admissible because it is considered to be especially necessary or reliable

Question 5

to what extent is a declarant who gives testimony by deposition considered “absent?”

Answer 5

A declaring who testifies by deposition instead of attending trial is generally considered an “available” witness.

The declarant is “absent” only concerning
(1) the former testimony exception, and
(2) the forfeiture by wrongdoing exception

Question 6

What are the five exceptions to the hearsay rules when declarant is unavailable? [804(b)]

Answer 6

(1) Former testimony

The testimony was given under oath at a trial, hearing, or deposition, in the same case or in a different case [NOT grand jury testimony]

AND

the party against whom the testimony is now being offered, or in a civil case, the party’s predecessor in interest, had an opportunity and similar motive to develop the declarant’s testimony at the prior proceeding by direct, cross, or redirect

[i.e. they must have been a party in the former action and the former action must have involved same subject matter]
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(2) Dying declarations / Statement under the belief of imminent death

In a homicide prosecution or in any civil case, a statement made by a now-unavailable declarant is admissible if:

(a) the declarant believed their death was imminent [they need not actually die]

and

(b) the statement concerned the cause or circumstances of what the declarant believed to be their impending death, as long as the statement is based on the declarant’s perceptions and firsthand knowledge of what happened [no speculation or opinion]
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(3) Statement against interest
“statement” = single remark against interest, not entire extraneous conversation

“against interest” = against that person’s pecuniary, proprietary, or penal interest* when made, such that a reasonable person in the declarant’s position would have made it only if they believed it to be true

*in a criminal case, statements against penal interest that tend to expose declarant to criminal liability must be corroborated

Declarant must have had personal knowledge of the facts and been aware that the statement was against their interest when they made it
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(4) Statement of personal or family history [births, marriages, divorces, relationship, genealogical status, etc.]

Admissible provided that
(a) the declarant is a member of the family in question or intimately associated with it

and

(b) the statements are based on the declarant’s personal knowledge of the facts or they knowledge of family reputation
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(5) Statement offered against a party that wrongfully caused declarant’s unavailability, if party’s motivation was to prevent declarant from testifying

Question 7

what is a predecessor in interest for the purposes of the “former testimony” exception to 804

Answer 7

a person in a privity relationship with the party [grantor-grantee, testator-executor, joint tenants]

Question 8

to what extent are statements against penal interest admissible under the 804 exception?

Answer 8

in a criminal case, statements against penal interest (expose declarant to criminal liability) must be corroborated

Question 9

what were the requirements of the traditional rule on dying declarations

Answer 9

the declarant had to have ultimately died of her injury

could not be admissible in civil cases