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Rule 804 Hearsay Exceptions When the Declarant Is Unavailable as a Witness
Rule 804
Hearsay Exceptions When the Declarant Is Unavailable as a Witness
804(a) Criteria for Being Unavailable
(Merritt p. 624)
*does not apply if statement's proponent procured or wrongfully caused declarant's unavailability in order to prevent from attending/testifying
(3)
lack of memory
(4)
death or then-existing physical/mental illness
(2)
refusal
to testify
judge may hold in contempt
(5)
absence
(A) cannot procure declarant's
attendance
, in accordance with Rule 804(b)(1) or (6)
(B) cannot procure declarant's
attendance or testimony
, in accordance with Rule 804(b)(2), (3), or (4)
(1) exempted from testifying b/c court rules that a
privilege applies
804(b)(1) Former Testimony
almost as reliable as firsthand testimony b/c occurred under oath in formal courtroom setting (Merritt p. 631)
(A) testimony given as a witness at trial/hearing/lawful deposition, whether during the current proceeding or a different one; AND
(B) is now offered against a party who had - or in a civil case, whose predecessor in interest had - opportunity and similar motive to develop it by direct, cross-, or redirect examination
Declarant must be
unavailable
. Applies to
any
content of a statement. Must have been given as a witness, which implies under
penalty of perjury
, and made during trial/hearing/deposition at which the current opponent (or in civil case predecessor in interest) had
opportunity and similar motive to develop the testimony
.
compared to
801(d)(1)(A) Prior Inconsistent Statements by Witness
(Merritt p. 639-640)
Declarant must
testify
at current trial/hearing and must be subject to
cross-examination
. Applies to content of statement
inconsistent
with current testimony. Must have been given under
penalty of perjury
, and made at
any prior trial/hearing/proceeding/deposition
.
804(b)(3) Statement Against Interest
assumes reasonable people don't make self-inculpatory statements unless believe them to be true (Merritt p. 649-651)
(A) Reasonable person in declarant's position would have made the statement only if they believed it to be true b/c against declarant's interest in 1 of 3 ways:
invalidates claim against someone else
contrary to proprietary or pecuniary interests
exposes to civil or criminal liability
(B) admissible in criminal case only when corroborating circumstances clearly indicate statement's trustworthiness
(Merritt p. 656) Judge considers 6 factors under 104(a):
Whether declarant pled guilty before making statement or was still exposed to prosecution
Declarant's relationship to accused
Party/parties to whom statement made
Whether declarant repeated statement and did so consistently
Nature and strength of independent evidence relevant to conduct in question
Declarant's motive in making statement and whether had a reason to lie
804(b)(6) Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability
parties more likely to silence truthful witnesses; prevent wrongdoers from benefitting from their misconduct (Merritt p. 659-660)
wrongfully caused - or acquiesced in wrongfully causing - the declarant's unavailability as a witness, and did so intending that result
not necessarily by criminal act, but coercion, undue influence, pressure to silence testimony/impede truth-finding (Merritt p. 661)
804(b)(2) Dying Declarations
assumes dying people speak honestly; no incentive to lie (Merritt p. 643)
In a prosecution for homicide or in a civil case
Declarant must believe their death is imminent (admissible even if declarant does not die, but is still unavailable at trial)
Made about cause or circumstances of declarant's death
(Merritt p. 647) Judge applies 104(a), considering factors such as:
Statements made by medical personnel and others to declarant
Nature and extent of wounds or illness
Statements made by declarant
Length of time between statement and declarant's death
Opinion of medical personnel who treated declarant about declarant's health
Rule 807 Residual Exception
Gives judges flexibility to admit some hearsay outside standard exceptions (Merritt p. 711)
(a) Hearsay may be admissible under some circumstances, even if not covered by exception in Rule 803 or 804
(2) offered as evidence of material fact
(duplicates Rule 402 relevance requirement)
(3) more probative on point for which offered than any other evidence proponent can obtain through reasonable efforts
(1) equivalent circumstantial guarantees of trustworthiness
(to Rule 803 and 804 exceptions)
based on numerous factors (Merritt p. 716-717):
Whether other evidence undermines or contradicts
Whether declarant had incentive to lie
Whether other evidence corroborates statement and is subject to cross-examination
Whether statement was recanted
Declarant's firsthand knowledge of facts
Whether statement made under oath
(4) will best serve purposes of these rules and interests of justice
(reiterates Rule 102)
(b) Proponent must give adverse party
reasonable notice
of intent to offer statement and particulars, incl. declarant's name and address, so fair opportunity to meet it
Rule 806 Attacking & Supporting Declarant's Credibility
Court may admit evidence of
declarant's inconsistent statement/conduct
, regardless of when it occurred or whether declarant had an opportunity to explain/deny it.
If the party against whom the statement was admitted calls declarant as a witness, may examine declarant as if on cross-examination.
When a hearsay statement - or a statement described in Rule 801(d)(2)(C), (D), or (E) has been admitted into evidence, declarant's credibility may be
attacked
or
supported
by any evidence that would be admissible for those purposes if declarant had testified as a witness.
Allows parties to impeach declarants as if they were witnesses
(Article VI rules)
(Merritt p. 722) by introducing evidence such as (Merritt p. 723):
Statements inconsistent with hearsay statements (Rule 613)
Reputation/opinion evidence of declarant's untruthfulness, given by character witness (Rule 608(a))
Bias, prejudice, or interest in case
Any criminal convictions allowed by Rule 609
Lack of declarant's personal knowledge (Rule 602) or capacity to testify truthfully (Rule 603)
Applies only to out-of-court statements offered for truth of matter asserted (Merritt p. 724)
Allows
any
party to impeach a hearsay declarant (mirrors Rule 607)
If declarant's statement admitted under hearsay exception, opposing party may call declarant as witness and cross-examine using leading questions (overrides Rule 611)
Helps parties hurt by admission of hearsay (Merritt p. 728)