CHAPTER 4 PARTS DH RULE 804 OUTOFCOURT DECLARATIONS

CHAPTER 4, PARTS D-H RULE 804: OUT-OF-COURT DECLARATIONS BY PERSONS WHO ARE NOW “UNAVAILABLE” Prof. Janicke 2019

THOUGHT TO BE WEAKER (HENCE UNAVAILABILITY REQUIREMENT) • 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 2019 Hearsay Exceptions -- Declarant Unavailable 2

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 2019 Hearsay Exceptions -- Declarant Unavailable 3

PROBLEMS/CASES • BARBER • 4 -O 2019 Hearsay Exceptions -- Declarant Unavailable 4

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) 2019 Hearsay Exceptions -- Declarant Unavailable 5

SOME THINGS THAT WON’T QUALIFY • AFFIDAVITS – THESE ARE NOT A HEARING OR DEPOSITION; NO CHANCE TO CROSSEXAMINE • GRAND JURY TESTIMONY – NO CHANCE TO CROSS-EXAMINE! 2019 Hearsay Exceptions -- Declarant Unavailable 6

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 NOW-OPPONENT WAS PARTY) • NON-PARTY TESTIMONY AT A PRELIMINARY INJUNCTION HEARING IN THIS CASE (OPPOSING PARTY OBVIOUSLY WAS PRESENT) 2019 Hearsay Exceptions -- Declarant Unavailable 7

• NOTE – AN OPPOSING PARTY’S TESTIMONY DOESN’T NEED THIS EXCEPTION – IF OFFERED BY THE ADVERSE PARTY, IS AN ADMISSION; IT IS NOT HEARSAY AT ALL; IT COMES IN • E. G. : PLAINTIFF OFFERS DEFENDANT’S TESTIMONY; DEFENDANT OFFERS PLAINTIFF’S TESTIMONY 2019 Hearsay Exceptions -- Declarant Unavailable 8

DYING DECLARATIONS • SUPPOSED RELIABILITY BASIS: NO ONE WOULD FALSIFY WHILE SOON TO MEET HIS MAKER • REQUIREMENTS: 2019 – HOMICIDE OR CIVIL CASE – DECLARANT THOUGHT HE WAS DYING IMMINENTLY (NOT “GOING TO BE SHOT” AT SOME VAGUE FUTURE TIME) – STATEMENT WAS RE. CAUSE OF THE IMPENDING DEATH (i. e. , WHODUNIT) Hearsay Exceptions -- Declarant Unavailable 9

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” 2019 Hearsay Exceptions -- Declarant Unavailable 10

MOSTLY AN UN-NEEDED EXCEPTION • THESE SHOULD OFTEN COME IN AS EXCITED UTTERANCES PER R. 803 • NO SHOWING OF UNAVAILABILITY WOULD BE NEEDED 2019 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 2019 Hearsay Exceptions -- Declarant Unavailable 12

• MOST ARE OFFERED BY DEFENDANTS, CIVIL AND CRIMINAL, THROUGH WITNESSES – TO DEFLECT BLAME 2019 Hearsay Exceptions -- Declarant Unavailable 13

EXAMPLES OF NON-PARTY CONCESSIONS OFFERED BY D, THROUGH WITNESSES OR DOCUMENTS: • TESTIMONY: “NONPARTY X SAID TO ME: ‘OUR TECHNICIAN WIRED IT WRONG’” • DOCUMENT: NONPARTY X Co. ’s LETTER RECALLING X’S AUTOS FOR DEFECTIVE FUEL LINES • TESTIMONY: “NONPARTY X SAID: ‘SORRY WE BLEW UP YOUR HOUSE’” 2019 Hearsay Exceptions -- Declarant Unavailable 14

BIG RESTRICTION ON NONPARTY CONCESSIONS • WHEN OFFERED BY D TO EXCULPATE D IN CRIMINAL CASE: – MUST HAVE CORROBORATING CIRCUMSTANCES THAT “CLEARLY INDICATE ITS TRUSTWORTHINESS” – MOST CASES HAVE HELD SUCH STATEMENTS INADMISSIBLE!! • BASED ON A GENERAL MISTRUST OF THE CRIMINAL COMMUNITY 2019 Hearsay Exceptions -- Declarant Unavailable 15

PROBLEMS/CASES • 4 P 2019 Hearsay Exceptions -- Declarant Unavailable 16

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 2019 Hearsay Exceptions -- Declarant Unavailable 17

RETURNING TO THE QUESTION: “HOW OLD ARE YOU” • A: “I DON’T KNOW” • Q: DID ANYONE TELL YOU? • A: YES, MY MOTHER [NOW SHOWN TO BE UNAVAILABLE] • Q: WHAT DID SHE TELL YOU? • A: THAT I WAS BORN IN 1991 2019 Hearsay Exceptions -- Declarant Unavailable 18

DECLARATIONS BY PERSONS WHO HAVE SINCE BEEN “RUBBED OUT” • IF THE REMOVER IS A PARTY, THESE ARE NOW ADMISSIBLE AGAINST HIM • EXAMPLES: – EARLIER 3 rd PARTY’S AFFIDAVIT – EARLIER 3 rd PARTY’S GRAND JURY TESTIMONY – EARLIER 3 rd PARTY’S ORAL REMARK rd PARTY 2019 – EARLIER 3 Hearsay Exceptions. LETTER -- Declarant Unavailable 19

ADMISSIBLE HEARSAY DECLARANTS ARE IMPEACHABLE • THEY ARE TREATED JUST LIKE WITNESSES • TO PREVENT ABUSIVE USE OF EXCEPTIONS • SAME RULES OF IMPEACHMENT 2019 Hearsay Exceptions -- Declarant Unavailable 20

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 2019 Hearsay Exceptions -- Declarant Unavailable 21

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 2019 Hearsay Exceptions -- Declarant Unavailable 22

• COURT EFFECTIVELY REWRITES THE HEARSAY EXCEPTIONS • USUALLY SEEN IN CIVIL CASES • [THE BANE OF MY EXISTENCE; THE JUDGE USUALLY SMILES] 2019 Hearsay Exceptions -- Declarant Unavailable 23

PROBLEMS/CASES • Weaver 2019 Hearsay Exceptions -- Declarant Unavailable 24

A PROBLEM WITH SIXTH AMENDMENT CONFRONTATION CLAUSE, WHEN HEARSAY EXCEPTIONS ARE USED BY PROSECUTORS • “TESTIMONIAL” TYPE HEARSAY MUST BE KEPT OUT OF CRIMINAL PROSECUTIONS, DESPITE RULES 803, 804 CRAWFORD v. WASHINGTON >> 2019 Hearsay Exceptions -- Declarant Unavailable 25

• MEANING OF “TESTIMONIAL”: HELPING AUTHORITIES WITH AN INVESTIGATION 2019 Hearsay Exceptions -- Declarant Unavailable 26

PROBLEMS/CASES • Crawford [A TESTIMONIAL STATEMENT] • Davis [A NON-TESTIMONIAL STATEMENT] 2019 Hearsay Exceptions -- Declarant Unavailable 27