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Exception to Hearsay- When Declarant is Unavailable at a Witness F.R.E.…
Exception to Hearsay- When Declarant is Unavailable at a Witness F.R.E. 804
is the declarant unavailable F.R.E. 804(b)(1)
Yes
Is the statement
testimony
that is now
offered against a party
who had --or in a civil case, whose predecessor or interest had -- an
opportunity and similar motive to develop
it by direct, cross, or redirect examination F.R.E. 804(b)(1)(B)
Yes
Admissible
No
Inadmissible
unless another exception to the hearsay rule applies
No
Inadmissible
unless another hearsay exception or exlusion to the hearsay rule applies
Dying Declaration F.R.E. 804(b)(2)
To qualify declarant must ne unavailable (but not necessarily dead)
Did the unavailable declarant believe her death was imminent?
Yes
Does the statement concern the events that led to the declarant's belief that she was dying?
Yes
Is this case a homicide or a civil case?
Yes
The statement is
admissible
for its truth under the dying declaration exception
No
The statement
cannot fit
the dying declaration exception, which does not apply to any crimes but homicide
No
The statement
cannot fit
the dying declaration exception
No
The statement
cannot fit
the dying declaration exception
Statement Against Interest F.R.E. 804(b)(3)
To qualify declarant must be unavailable
Did the unavailable declarant knowingly make a statement so contrary to her financial, property, tort, contract, or penal interests that no one would say such a thing unless it was true?
Yes
Is this a criminal case?
Yes
The statement fits the statement against interest exception, only if there is corroboration of the statement's trustworthiness.
if statement was testimonial, there may be constitutional objection
No
The statement is
admissible
for its truth as a statement against interest
No
The statement
cannot fit
the statement against interest exception
Forfeiture F.R.E. 804(b)(6)
To qualify declarant must be unavailable
did the party against whom the unavailable declarant's statement is offered
intentionally render the declarant unavailable
or acquiesce in the conduct of another to make the declarant unavailable?
Yes
the party has forfeited the right to object to the hearsay. The confrontation right is also forfeited
No
The forfeiture by wrongdoing exception
does not apply
Residual Exception F.R.E. 807
Has every other hearsay exception (803 / 804) been applied without success?
Yes
does the otherwise inadmissible, relevant hearsay evidence:
Offer evidence that is
more probative
on the point for which it is offered than any other evidence that can reasonably be obtained; and
Serve the "
interest of justice
" by its admission
provide "
guarantees of trustworthiness
" that are
"equivalent"
to those of established exceptions
Yes
Did the proponent of the evidence provide the opposing party with notice or demonstrate tp the court that its failure to do so was excusable?
Yes
The hearsay statement is
admissible
for its truth under the residual exception, but the ruling will have no precedential value
No
the out of court statement is
inadmissible hearsay
No
The out of court statement is
not admissible
under the residual exception, and the hearsay evidence
will not
come in
No
there should be at least one way that the out of court statement can be used for its truth with other hearsay exceptions