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HEARSAY EXCEPTIONS THAT ARE LESS RELIABLE_ RULE 804 ...

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CHAPTER 4,PARTS D-HRULE 804: OUT-OF-COURT DECLARATIONS BY PERSONS WHO ARE NOW “UNAVAILABLE”
Prof. Janicke2019
2019
THOUGHT TO BE WEAKER(HENCE UNAVAILABILITY REQUIREMENT)
RULES DRAFTERS (AND COMMON LAW) DEVELOPED A SET OF HEARSAY EXCEPTIONS THAT COULD BE USEDONLY WHENTHE DECLARANT IS UNAVAILABLE AT TRIALA COMPROMISE BETWEEN OUTRIGHT EXCLUSION AND OUTRIGHT ADMISSIBILITY
2
Hearsay Exceptions -- Declarant Unavailable
2019
MEANING OF “UNAVAILABLE”
WITHOUT ANY CONNIVANCE BY PROPONENT, DECLARANT IS:NOT FINDABLEREFUSES TO ATTENDREFUSES TO ANSWER EVEN WHEN DIRECTED BY COURTHAS A LOSS OF MEMORYIS DEADIS INCAPACITATED MENTALLY OR PHYSICALLY
3
Hearsay Exceptions -- Declarant Unavailable
PROBLEMS/CASES
BARBER4-O
2019
4
Hearsay Exceptions -- Declarant Unavailable
2019
FORMER TESTIMONY
AT A HEARING OR DEPOSITION IN THIS OR ANOTHER CASENOW-OPPONENT MUST HAVE HAD OPPORTUNITY AND MOTIVE TO CROSS-EXAMINEDIRECTLY, orTHROUGH A PARTY WITH SIMILAR INTEREST (CIVIL CASES ONLY)
5
Hearsay Exceptions -- Declarant Unavailable
2019
SOME THINGS THAT WON’T QUALIFY
AFFIDAVITSTHESE ARE NOT A HEARING OR DEPOSITION; NO CHANCE TO CROSS-EXAMINEGRAND JURY TESTIMONYNO CHANCE TO CROSS-EXAMINE!
6
Hearsay Exceptions -- Declarant Unavailable
2019
SOME THINGS THAT WILL QUALIFY
NON-PARTY TESTIMONY AT EARLIER TRIAL OF THIS CASENON-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)
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Hearsay Exceptions -- Declarant Unavailable
2019
NOTE –AN OPPOSINGPARTY’STESTIMONY DOESN’T NEED THIS EXCEPTIONIF OFFERED BY THE ADVERSE PARTY, IS AN ADMISSION; IT IS NOT HEARSAY AT ALL; IT COMES INE.G.: PLAINTIFF OFFERS DEFENDANT’S TESTIMONY; DEFENDANT OFFERS PLAINTIFF’S TESTIMONY
8
Hearsay Exceptions -- Declarant Unavailable
2019
DYING DECLARATIONS
SUPPOSED RELIABILITY BASIS: NO ONE WOULD FALSIFY WHILE SOON TO MEET HIS MAKERREQUIREMENTS:HOMICIDE OR CIVIL CASEDECLARANT 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)
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Hearsay Exceptions -- Declarant Unavailable
2019
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”
10
Hearsay Exceptions -- Declarant Unavailable
MOSTLY AN UN-NEEDED EXCEPTION
THESE SHOULD OFTEN COME IN AS EXCITED UTTERANCESPERR.803NO SHOWING OF UNAVAILABILITY WOULD BE NEEDED
2019
11
Hearsay Exceptions -- Declarant Unavailable
2019
THIRD-PARTY STATEMENTS OF GUILT/FAULT
STATEMENT THAT WAS AGAINST DECLARANT’S INTERESTPECUNIARYPENALMADE BY A NON-PARTY
12
Hearsay Exceptions -- Declarant Unavailable
MOST ARE OFFERED BY DEFENDANTS, CIVIL AND CRIMINAL, THROUGH WITNESSESTODEFLECT BLAME
2019
13
Hearsay Exceptions -- Declarant Unavailable
2019
EXAMPLES OF NON-PARTY CONCESSIONS OFFERED BY D, THROUGH WITNESSES OR DOCUMENTS:
TESTIMONY: “NONPARTY X SAID TO ME: ‘OUR TECHNICIAN WIRED IT WRONG’”DOCUMENT:NONPARTYX Co.’s LETTER RECALLING X’S AUTOS FOR DEFECTIVE FUEL LINESTESTIMONY: “NONPARTY X SAID: ‘SORRY WE BLEW UP YOUR HOUSE’”
14
Hearsay Exceptions -- Declarant Unavailable
2019
BIGRESTRICTION ON NON-PARTY 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 STATEMENTSINADMISSIBLE!!BASED ON A GENERAL MISTRUST OF THE CRIMINAL COMMUNITY
15
Hearsay Exceptions -- Declarant Unavailable
PROBLEMS/CASES
4P
2019
16
Hearsay Exceptions -- Declarant Unavailable
2019
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
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Hearsay Exceptions -- Declarant Unavailable
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 BORNIN 1991
2019
18
Hearsay Exceptions -- Declarant Unavailable
2019
DECLARATIONS BY PERSONS WHO HAVE SINCE BEEN “RUBBED OUT”
IF THE REMOVER IS A PARTY, THESE ARE NOWADMISSIBLE AGAINSTHIMEXAMPLES:EARLIER 3rdPARTY’S AFFIDAVITEARLIER 3rdPARTY’S GRAND JURY TESTIMONYEARLIER 3rdPARTY’S ORAL REMARKEARLIER 3rdPARTY LETTER
19
Hearsay Exceptions -- Declarant Unavailable
2019
ADMISSIBLE HEARSAY DECLARANTS ARE IMPEACHABLE
THEY ARE TREATED JUST LIKE WITNESSESTO PREVENT ABUSIVE USE OF EXCEPTIONSSAME RULES OF IMPEACHMENT
20
Hearsay Exceptions -- Declarant Unavailable
2019
THE “CATCHALL”: RULE 807
FOR THE “ALMOST” SITUATIONSFOR THE UNPREPARED LAWYER WHO DOESN’T KNOW HOW TO OVERCOME A SUSTAINED HEARSAY OBJECTIONFOR THE JUDGE WHO WANTS TO BE BULLETPROOF ON APPEAL
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Hearsay Exceptions -- Declarant Unavailable
2019
REQUIREMENTS:
EVIDENCE OF A “MATERIAL FACT”???MORE PROBATIVE THAN ANYTHING ELSE REASONABLY AVAILABLEA HAVEN FOR THE UNPREPAREDIN THE INTERESTS OF JUSTICEADVANCE NOTICE REQUIRED
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Hearsay Exceptions -- Declarant Unavailable
2019
COURT EFFECTIVELY REWRITES THE HEARSAY EXCEPTIONSUSUALLY SEEN IN CIVIL CASES[THE BANE OF MY EXISTENCE; THE JUDGE USUALLY SMILES]
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Hearsay Exceptions -- Declarant Unavailable
PROBLEMS/CASES
Weaver
2019
24
Hearsay Exceptions -- Declarant Unavailable
2019
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 803,804CRAWFORD v. WASHINGTON >>
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Hearsay Exceptions -- Declarant Unavailable
MEANING OF “TESTIMONIAL”: HELPING AUTHORITIES WITH AN INVESTIGATION
2019
26
Hearsay Exceptions -- Declarant Unavailable
PROBLEMS/CASES
Crawford [A TESTIMONIAL STATEMENT]Davis [A NON-TESTIMONIAL STATEMENT]
2019
27
Hearsay Exceptions -- Declarant Unavailable

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HEARSAY EXCEPTIONS THAT ARE LESS RELIABLE_ RULE 804 ...