Transcript Hearsay Exceptions

Hearsay Exceptions
Declarant Unavailable
• Unlike FRE 803, FRE 804 provides exceptions
where the Declarant Must be Unavailable to
testify.
What do we mean by unavailability?
• Unavailability does not necessarily mean
physical necessity.
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Unnecessary due to privilege.
Unnecessary due to Fifth Amendment concerns.
Amnesia (real or not)
Mental Illness
FRE 804(b)(1)
• Former Testimony:
• Was given as a witness in a trial, hearing or deposition.
• Is now offered against a party who had an opportunity
to confront the witness whether on cross, direct, or
redirect.
FRE 804(b)(2)
• Statement under Belief of Imminent Death
– Limited to Homicide or Civil Case
– Believing his death is imminent
– A statement about that death.
Example
• The defendant is charged with the murder of
the victim. The prosecutor introduced
testimony of a police officer that the victim
told a priest, administering the last rites, “I
was stabbed by Christian. Since I am dying, tell
him I will meet him in hell.”
FRE 804(b)3
• Statement Against Interest:
• The nature of the statement is contrary to the
defendant’s proprietary or pecuniary interest.
• Exposes the declarant to civil or criminal liability.
• Supported by corroborating evidence that ensures
trustworthiness.
Example
• Pamela sued Hoop for damages for the death
of Pamela’s husband Logan, resulting from an
automobile collision. At trial, Hoop calls
Logan’s doctor to testify that the day before
his death, Logan, in great pain, said, “It was
my own fault; there’s nobody to blame but
me.”
Question
• Sabol and Derkin were charged with burglary of a
warehouse. They were tried separately. At Sabol’s trial,
Derkin testified that he saw Sabol commit the burglary.
While Derkin is still subject to recall as a witness, Sabol calls
Derkin’s cellmate, Walton, to testify that Derkin said, “I
broke into the warehouse alone because Sabol was too
drunk to help.” This evidence of Derkin’s statement is :
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A. admissible as a declaration against penal interest.
B. admissible as a prior inconsistent statement.
C. inadmissible, because it is hearsay not within any exception.
D. inadmissible, because the statement is not clearly
corroborated.
804(b)(4)
• A statement concerning the declarant's own
birth, adoption, marriage, divorce, legitimacy,
or similar fact of personal family history is
admissible hearsay when the declarant is
unavailable to testify