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hearsay-rules

Page history last edited by abogado 10 years, 7 months ago

§ 31.01 Overview of Article VIII [405-06]

In the absence of an exception or exemption, Rule 802 bars hearsay evidence.  Rule 802 must be read in conjunction with Rule 801, which defines hearsay.

 

 

Exceptions.  The exceptions are found in three rules.  Rule 803 specifies twenty-three exceptions that apply whether or not the declarant is available.  Rule 804 specifies five exceptions that apply only if the declarant is unavailable.  Rule 807 recognizes a residual or “catch all” exception, under which some hearsay statements may be admitted on an ad hoc basis.

 

 

Exemptions.  In addition to the exceptions, there were two categories of hearsay statements that the drafters wanted to admit into evidence.  However, for theoretical reasons, the drafters choose not to classify them as exceptions.  Instead, these statements were simply defined out of the definition of hearsay in Rule 801(d).  The first category of exemptions (Rule 801(d)(1)) involves prior statements of a witness:  It provides that certain prior inconsistent statements, prior consistent statements, and statements of identification are not hearsay.  The second category (Rule 801(d)(2)) covers admissions of a party-opponent, of which there are five.

 

 

§ 31.02   Rationale for Hearsay Rule [406-07]

 

 

Cross-examination is the key to understanding the hearsay rule.  If an out-of-court statement is offered for its truth, there is generally no cross-examination of the real witness (the declarant) to test that person’s perception, memory, narration, and sincerity.  (The oath and observation of demeanor are ancillary safeguards to cross-examination.)

 

 

§ 31.03    Hearsay Definitions [407-08]

 

 

Hearsay can be defined as an out-of-court statement whose probative value depends on the credibility of the declarant. Such a "declarant-focused" definition highlights the underlying policy of the hearsay rule. There is, however, a competing definition, an "assertion-focused" definition: Hearsay is an out-of-court statement offered for the truth of its assertion. In most cases, the same result is reached under either definition but not always. The Federal Rules adopt the latter definition.

 

 

§ 31.04   Declarant Defined: FRE 801(b) [408]

 

 

Rule 801(b) defines “declarant” as a “person who makes a statement.”  This definition makes clear that the hearsay rule does not apply to devices, such as radar, or to tracking dogs.

 

 

§ 31.05   “Out-of-Court” (extrajudicial) Requirement [408]

 

 

Rule 801(c) defines hearsay as a “statement, other than one made by the declarant while testifying at the trial or hearing.”  Hence, an out-of-court (extrajudicial) statement does not lose its hearsay character simply because the declarant later becomes a witness at trial and testifies about the statement.

 

 

§ 31.06   Statements Offered for Their Truth [409-15]

 

 

If the statement is offered for any purpose other than for its truth, it is not hearsay. This means that the hearsay character of the statement cannot be examined until we know why the proponent is offering the evidence - i.e., its relevancy. In other words, Rule 801 must be read along with Rule 401 (defining relevancy). In addition to Rule 401, Rule 403 plays an important role here.

 

 

Courts and commentators have recognized a number of recurring situations where statements are not offered for their truth. These are discussed below. Note, however, this is not an exhaustive list.

 

 

                        [A]       To Show Effect on Listener

 

 

A statement offered to show its effect on the person who heard the statement is not hearsay - e.g., where the statement is offered to show only knowledge, good faith, or reasonableness.

 

 

                        [B]       Verbal Acts

 

 

Statements that constitute verbal acts or operative acts are not hearsay because they are not offered for their truth.  In other words, the uttering of certain words has independent legal significance under the substantive law – e.g., words of a contract, libel, slander, threats, and the like.  Thus, we only care that these words were said, not that they are true.

 

 

                        [C]       Verbal Parts of Acts

 

 

Verbal parts of acts are closely related to verbal acts. Such statements are offered in evidence only to show that they were made and to explain an otherwise ambiguous act. Most importantly, they must have independent legal significance.

 

 

                        [D]       Prior Inconsistent Statements

 

 

The common law practice admitted prior inconsistent statements only for impeachment. Under this approach, the prior statement is offered to show the inconsistency between the witness's trial testimony and pretrial statements, rather than to show the truth of the assertions contained in the pretrial statement. In general, the Rules of Evidence maintain this distinction. There is, however, an important exception. See Rule 801(d)(1)(A).

 

 

                        [E]       To Circumstantially Prove Declarant’s State of Mind

 

 

A person's mental state is often a material issue. If that person makes a statement that manifests her state of mind, the statement is relevant. Frequently, such statements are hearsay, but fall within the exception for presently existing state of mind. Rule 803(3). In other cases, the statement shows the declarant's state of mind only circumstantially. Under an assertion-oriented definition, the statement is not hearsay.

 

 

§ 31.07   Statement Defined; Implied Assertions: FRE 801(a) [415-20]

 

 

Rule 801(a) defines a “statement” as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.”  Conduct is problematic.  The critical distinction under the Federal Rules is between assertive and nonassertive conduct.

 

 

            [A]       Assertive Conduct

 

 

Sometimes people use conduct to communicate - e.g., nodding the head and pointing a finger. Rule 801(a) treats conduct intended as an assertion (assertive conduct) as hearsay.

 

 

            [B]       Nonassertive Conduct

 

 

Conduct that is not intended by the declarant to be an assertion (“implied assertions”) has divided courts and commentators.  In Wright v. Doe  D’ Tatham, 112 Eng. Rep. 488 (1837), the House of Lords declared such conduct hearsay, a position rejected by the Federal Rules.

 

 

§ 31.08   Constitutional Issues [420]

 

 

The Due Process Clause may require the admissibility of hearsay in limited circumstances.  The leading case is Chambers v. Mississippi, 410 U.S. 284, 302 (1973), in which the Supreme Court held that state evidentiary rules that precluded the admission of critical and reliable evidence denied the defendant due process.  One of the rules in Chambers that made defense evidence inadmissible was the hearsay rule.  According to the Court, “In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.”

 

 

§ 31.09   Procedural Issues [420]

 

 

The trial judge decides the admissibility of hearsay evidence under Rule 104(a).  Bourjaily v. United States, 483 U.S. 171, 175 (1987).  Failure to raise the hearsay objection in a timely manner is a waiver of the objection (Rule 103), and the evidence may be considered by the jury for whatever probative value the jury wishes to give it.

 

 

§ 31.10   Double Hearsay: FRE 805 [421]

 

 

Rule 805 governs the admissibility of multiple hearsay – i.e., hearsay within hearsay.  If both parts of a double hearsay statement fall within an exception, the statement is admissible.

 

 

§ 31.11  Calling Hearsay Declarants: FRE 806 [421-22]

 

 

Rule 806 provides that, if a party against whom a hearsay statement is admitted calls the declarant as a witness, that party may examine the declarant “as if under cross-examination.”

 

 

§ 31.12   Impeachment & Rehabilitation of Declarants: FRE 806 [422-23]

 

 

Rule 806 also governs the impeachment and rehabilitation of hearsay declarants.  In effect, a hearsay declarant is a witness and generally may be impeached in the same manner as trial witnesses.

 

 

§ 31.13   “Res Gestae” [424]

 

 

The Rules of Evidence avoid the use of the term "res gestae," a confusing phrase which encompasses both evidence that is not hearsay and evidence that is hearsay but may fall within several exceptions to the hearsay rule.

Chapter 32

 

 

 

HEARSAY EXEMPTIONS: FRE 801(d)

 

§ 32.01   Introduction [429]

 

 

Rule 801(d) defines two types of statements as nonhearsay. They are: (1) certain prior statements and (2) admissions of a party-opponent.

 

 

§ 32.02   Prior Inconsistent Statements:  FRE 801(d)(1)(A) [429-30]

 

 

There are two types of prior inconsistent statements in the Federal Rules.  Prior inconsistent statements that do not satisfy the requirements of Rule 801 are still admissible but only for impeachment; Rule 613 governs the admissibility of these statements.  Four conditions must be satisfied for admissibility under Rule 801(d)(1)(A):  (1) the declarant must testify, subject to cross-examination, at the current trial; (2) the prior statement must be inconsistent with the witness’s trial testimony; (3) the prior statement must have been given under oath subject to penalty of perjury; and (4) the prior statement must have been made “at a trial, hearing, or other proceeding, or in a deposition.”

 

 

§ 32.03   Prior Consistent Statements:  FRE 801(d)(1)(B) [430-32]

 

 

Prior consistent statements are admissible as substantive evidence if “offered to rebut an express or implied charge of recent fabrication or improper influence or motive.”  As with all exempted prior statements, the witness must be subject to cross-examination at trial.   In Tome v. United States, 513 U.S. 150, 167 (1995), the Supreme Court held that the rule applies only when the statements “were made before the charged recent fabrication or improper influence or motive” – i.e., premotive.

 

 

§ 32.04   Statements of Identification:  FRE 801(d)(1)(C) [432-33]

 

 

A witness's prior statement of identification of a person after perceiving that person is admissible as substantive evidence. An identification made at a lineup, show-up, photographic display, or prior hearing falls within the rule. Because prior identifications are admissible as substantive evidence, the rule applies whether or not the witness makes an identification at trial.

 

 

§ 32.05   Admissions of Party-Opponents: Overview [433-35]

 

 

                        [A]       Rationale

 

 

Rule 801(d)(2) exempts admissions of a party-opponent from the scope of the hearsay rule by defining admissions as nonhearsay.  Under the common law, an admission was characterized as an exception to the hearsay rule.  The Federal Rules do not change this result; admissions are admissible, although under a different theory.  The rule recognizes five types of party admissions: (1) individual admissions, (2) adoptive admissions, (3) authorized admissions, (4) agent admissions, and (5) coconspirator admissions.

 

 

                        [B]       Evidential & Judicial Admissions Distinguished

 

 

Rule 801(d)(2) does not govern the use of judicial admissions, such as admissions in pleadings or in stipulations. Unlike evidential admissions which can be rebutted at trial, a party is bound by its judicial admissions.

 

 

                        [C]       Firsthand Knowledge & Opinion Rules

 

 

Generally, neither the firsthand knowledge rule nor the opinion rule applies to admissions of a party-opponent.

 

 

§ 32.06   Individual Admissions:  FRE 801(d)(2)(A) [435-37]

 

 

Statements, oral or written, of a party, in either an individual or representative capacity, are admissible as substantive evidence if offered against that party. An individual admission is any statement made by a party at any time that is (1) relevant and (2) offered by the opposing party - e.g., guilty pleas, confessions, deposition testimony, or statements to friends.

 

 

"Declarations Against Interest" Distinguished. Party admissions are often confused with the hearsay exception relating to declarations against interest, Rule 804(b)(3).

 

 

§ 32.07   Adoptive Admissions: FRE 801(d)(2)(B) [437-39]

 

 

A statement that a party "adopts" is admissible as substantive evidence if offered against that party - e.g., adoption by use.

 

 

Adoption by Silence.  A party may adopt the statement of a third person by failing to deny or correct under circumstances in which it would be natural to deny or correct the truth of the statement.  It is not sufficient that the statement was merely made in the presence of a party.

 

 

§ 32.08   Authorized Admissions:  FRE 801(d)(2)(C) [439]

 

 

 

Statements made by a person who was authorized by a party to make a statement are admissible as substantive evidence if offered against that party.  The rule governs only statements by agents who have speaking authority – e.g., attorneys, partners, and corporate officers.  In-house statements are included.

 

 

 

§ 32.09   Agent Admissions:  FRE 801(d)(2)(D) [440-43]

 

 

Statements by agents or servants (1) concerning a matter within the scope of their agency or employment and (2) made during the existence of the agency or employment relationship are admissible as substantive evidence if offered against the party.  In-house statements are included.

 

 

Court have held that statements by law enforcement officers are generally not admissible against the prosecution under the rule.  However, statements of an attorney may be admissible against the client as either an authorized admission, because the attorney usually has “speaking authority,” or as an agent admission.

 

 

§ 32.10   Coconspirator Admissions: FRE 801(d)(2)(E) [443-47]

 

 

A conspirator’s statement made during and in furtherance of the conspiracy is admissible as substantive evidence if offered against another conspirator.  Three conditions must be satisfied:  (1) the existence of a conspiracy, including the defendant’s and declarant’s participation, must be shown; (2) the statement must have been made during the course of the conspiracy; and (3) the statement must have been in furtherance of the conspiracy.

 

Chapter 33

 

 

 

HEARSAY EXCEPTIONS: FRE 803

 

§ 33.01   Introduction [451]

 

 

Exceptions to the hearsay rule are found in Rules 803, 804, and 807.  This chapter discusses Rule 803, which specifies twenty-three exceptions that apply whether or not the declarant is available.  Rule 804 specifies five exceptions that apply only if the declarant is unavailable; it is examined in the next chapter.  Rule 807, the residual exception, is considered in chapter 35.  In addition, exemptions to the hearsay rule, which function like exceptions, are explored in chapter 32.

 

 

§ 33.02   Rationale for Hearsay Exceptions [451-52]

 

 

Hearsay exceptions are based on some circumstantial guarantee of trustworthiness that is thought to warrant admissibility notwithstanding the lack of cross-examination, oath, and personal appearance of the declarant.  Recall the hearsay dangers:  perception, memory, narration, and sincerity risks.  Each exception will reduce one or more of these risks.  Most exceptions are also supported by a necessity or practical convenience argument.  The necessity rationale is clearly present in the exceptions specified in Rule 804, because the unavailability of the declarant is required as a condition of admissibility.

 

 

§ 33.03   Firsthand Knowledge & Opinion Rules. [452]

 

 

Several of the exceptions recognized in Rule 803 specifically require firsthand knowledge on the part of the declarant.  For other exceptions, firsthand knowledge is not explicitly required.  Nevertheless, firsthand knowledge is generally a requirement for all exceptions.  The application of the opinion rule to hearsay statements is discussed with Rule 701.  In a nutshell, it makes no sense to apply the opinion rule to out-of-court statements.

 

 

§ 33.04    Present Sense Impressions: FRE 803(1) [452-54]

 

 

Rule 803(1) requires: (1) a statement describing or explaining an event or condition, (2) about which the declarant had firsthand knowledge, and (3) made at the time the declarant was perceiving the event or immediately thereafter.

 

 

§ 33.05   Excited Utterances: FRE 803(2) [454-59]

 

 

Rule 803(2) requires: (1) a startling event; (2) a statement relating to that event; (3) made by a declarant with firsthand knowledge; and (4) made while the declarant was under the stress of the excitement caused by the event.

 

 

§ 33.06   Present Mental Condition: FRE 803(3) [459-64]

 

 

Rule 803(3) can be divided  into three categories:  (1) statements of present state of mind offered to prove that state of mind, (2) statements of present state of mind offered to prove future conduct, and (3) statements reflecting belief about past events.

 

 

                        [A]       Proof of State of Mind that is a Material Fact

 

 

Statements made by an accused may be offered under this exception to show that the accused did not have the requisite mens rea.  In some cases, statements concerning a victim’s fear of the defendant have been admitted.  These decisions are problematic.  The statements do reflect the victims’ state of mind, and thus satisfied Rule 803(3).  However, the victim’s state of mind is rarely a material issue.

 

 

                        [B]       To Prove Future Conduct: Hillmon Doctrine

 

 

Statements of present state of mind are also admissible to prove that the declarant subsequently acted in accordance with that state of mind.  Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892).  For example, a declarant’s statement, “I will revoke my will,” is admissible to prove that the declarant subsequently revoked that will.  A controversial issue is whether the Hillmon rule should extend to joint conduct.

 

 

                        [C]       To Prove Past Conduct, Shepard v. United States

 

 

Rule 803(3) excludes statements of memory or belief to prove the fact remembered or believed except in cases involving the declarant’s will.  In contrast to statements that look forward as in Hillmon, statements that look backwards raise all the hearsay dangers:  perception, memory, narration, and sincerity.  See Shepard v. United States, 290 U.S. 96 (1933).

 

 

 

§ 33.07   Present Physical Condition:  FRE 803(3) [464]

 

 

Rule 803(3) also covers statements of present physical condition in addition to mental condition. The critical requirement is that the statement relate to a present condition and not to past conditions, pains, or symptoms.

 

 

§ 33.08   Medical Treatment-Diagnosis: FRE 803(4) [464-67]

 

 

The reliability of statements made for the purpose of medical treatment rests on the belief that the declarant will not fabricate under these circumstances because the effectiveness of the treatment depends on the accuracy of the statement.  However, Rule 803(4) is not limited to statements made for the purpose of medical treatment.  It also covers statements made for the purpose of diagnosis, i.e., statements made to a physician solely for the purpose of presenting expert testimony at trial.

 

 

§ 33.09   Recorded Recollection: FRE 803(5) [467-69]

 

 

The rule requires that the witness (1) made or adopted a record, (2) based on firsthand knowledge, (3) when the matter recorded was fresh in the witness’s memory, and (4) the record correctly reflects the witness’s knowledge.  Finally, (5) the witness at trial must have insufficient recollection to testify “fully and accurately” about the matter recorded.  Joint (cooperative) records are admissible.  The exception for recorded recollection should be distinguished from the practice of refreshing recollection, which does not involve hearsay evidence and is governed by Rule 612.

 

 

§ 33.10   Business Records Exception: FRE 803(6) [469-75]

 

 

Rule 803(6) requires: (1) a record of an act, event, condition, opinion, or diagnoses, (2) made at or near that time, (3) by, or from information transmitted by, a person with knowledge, (4) which was kept in the course of a regularly conducted business activity, (5) if it was the regular practice to make such record, (6) as shown by the testimony of the custodian or other qualified witness or as provided by Rules 902(11), 902(12), or statute, (7) unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

 

 

                        [A]       Regular Activity; “Routine” Records

 

 

The rule requires that the record be the product of "the regular practice of that business activity." See Shelton v. Consumer Products Safety Comm'n, 277 F.3d 99, 1010(8th Cir. 2002). This typically means that the record is the product of a routine practice.

 

 

                        [B]       Events, Opinions & Diagnoses

 

 

Including "opinions and diagnoses" expanded upon the rule's statutory predecessors. Inevitably, the federal courts have had to draw a line between diagnosis and speculation. An opinion that would not be admissible at trial under Rule 702, which governs expert testimony, should not be admitted only because it was written in a medical record.

 

 

                        [C]       Time Requirement

 

 

Under Rule 803(6), the record must have been "made at or near the time" of the matter recorded. The time requirement is one of the conditions that ensures the reliability of business records.

 

 

                        [D]       Firsthand Knowledge

 

 

The record must have been made (1) by a person with knowledge of the matter recorded or (2) from information transmitted by a person with such knowledge.  This provision does not require that the “person with knowledge” be produced at trial or even identified.

 

 

                        [E]       Business Duty Requirement

 

 

If both the supplier of information and recorder are part of the business, the record is admissible; the supplier is under a business duty to transmit the information and the recorder is under a duty to make the record. However, if the supplier is not under a duty to transmit the information, the record is inadmissible as a business record. This situation presents a double hearsay problem, and admissibility is governed by Rule 805.

 

 

                        [F]       Lack of Trustworthiness Clause

 

 

A record that satisfies the requirements of Rule 803(6) may nevertheless be excluded if “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.”  Litigation records are an example.

 

 

                        [G]       Foundational Requirement for Business Records

 

 

The foundation for the admissibility of business records may be shown by the testimony of the custodian or other qualified witness or as provided by Rules 902(10) and (11), which make business records self-authenticating.  The foundational witness must be sufficiently acquainted with the records management system to establish that the requirements of the exception have been satisfied, but the witness is not required to have firsthand knowledge of the particular entry.

 

 

§ 33.11   Absence of Business Records: FRE 803(7) [475]

 

 

Rule 803(7) recognizes a hearsay exception for absence of a business record.

 

 

§ 33.12   Public Records: FRE 803(8) [475-80]

 

 

Rule 803(8) recognizes three types of public records: (1) those setting forth the activities of the office or agency, (2) those recording matters observed pursuant to a duty imposed by law, and (3) investigative reports. (Other rules also deal with different aspects of public records. Rule 1005, by permitting the use of certified copies, recognizes an exception to the best evidence rule for public records. Authentication of public records is governed by Rules 901(b) and 902. Under the latter rule, many public records are self-authenticating and thus admissible without the need to produce an authenticating witness. All these provisions combine to make admissibility quite easy to achieve.)

 

 

                        [A]       Activities of Agency

 

 

Rule 803(8)(A) provides for the admission of records setting forth the “activities of the office or agency.”  Although division (A) contains no explicit firsthand knowledge requirement, that requirement is applicable.  As with business records, the person making the record need not have firsthand knowledge so long as the official transmitting the information had such knowledge.

 

 

                        [B]       Matters Observed Per Legal Duty

 

 

Rule 803(8)(B) governs records setting forth "matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel." The rule specifically excludes police reports in criminal cases. Most federal courts have adopted a flexible approach, holding that the police records exclusion does not apply to all police records - i.e., routine, nonadversarial matters.

 

 

                        [C]       Investigative Reports

 

 

Rule 803(8)(C) governs investigative or evaluative reports, which are admissible in civil actions and against the prosecution in criminal cases. The underlying theory is that reports, for example, dealing with the causes of mine disasters issued by the Bureau of Mines or airplane crashes issued by the FAA are sufficiently reliable.

 

 

                        [D]       Lack of Trustworthiness Clause

 

 

Public records otherwise admissible under Rule 803(8) may be excluded if the “sources of information or other circumstances indicate lack of trustworthiness.”  This provision is identical to the one found in the business records exception and serves the same purpose.

 

 

                        [E]       Business Records Compared

 

 

Many public records also satisfy the requirements of the business records exception; the opposite, however, is not true.

 

 

§ 33.13   Absence of Public Records: FRE 803(10) [480]

 

 

Rule 803(10) recognizes a hearsay exception for absence of a public record.

 

 

 

§ 33.14   Ancient Documents:  FRE 803(16) [480]

 

 

Rule 803(16) recognizes a hearsay exception for “statements in a document in existence twenty years or more the authenticity of which is established.”  The rule must be read in conjunction with Rule 901(b)(8), which governs the authentication of ancient documents.

 

 

§ 33.15   Market Reports; Commercial Publications: FRE 803(17) [481]

 

 

The rule recognizes a hearsay exception for “market quotations, tabulations, lists, directories, or other published compilations” if they are “generally used and relied upon by the public or by persons in particular occupations.”  The rule goes beyond compilations prepared for professions and trades to include newspaper market reports, telephone directories, and city directories.

 

 

§ 33.16   Learned Treatises: FRE 803(18) [481-82]

 

 

Learned treatises were admissible at common law but only for the impeachment of experts. Rule 803(18) changes this result, making the treatise admissible as substantive evidence. Rule 803(18) permits the authoritativeness of the treatise to be established by another expert or by judicial notice.

 

 

§ 33.17   Judgment of Previous Conviction: FRE 803(22) [482-83]

 

 

Rule 803(22) recognizes a hearsay exception for judgments of previous criminal convictions when offered “to prove any fact essential to sustain the judgment.”

 

 

§ 33.18   Other Exceptions [483-484]

 

 

There are numerous other exceptions in Rule 803.  Many are codifications of the common law that are not as important today.  For example, a number of exceptions deal with pedigree, i.e., births, deaths, legitimacy, marriage, and family relationships.  While these issues are still important today, better recording systems make resort to the family Bible and community reputation rare.  Indeed, Rule 803(9) recognizes a hearsay exception for records vital statistics.  Another group of exceptions deal with real property.

 

HEARSAY EXCEPTIONS, UNAVAILABLE DECLARANT: FRE 804

 

§ 34.01   Introduction [491]

 

 

Rule 804 specifies five hearsay exceptions that require a showing that the declarant is unavailable to testify at trial.  In contrast, the exceptions enumerated in Rule 803 do not depend on the unavailability of the declarant.

 

 

 

§ 34.02   Unavailability [491-94]

 

 

Rule 804(a) contains five conditions of unavailability.  The list is illustrative, not exclusive.  By adopting a uniform rule of unavailability for all the Rule 804(b) exceptions, the rule changes the common law, under which each exception had developed its own conditions of unavailability.

 

 

                        [A]       Claim of Privilege:   FRE 804(a)(1)

 

 

The most common example is a witness who claims the privilege against self-incrimination under the Fifth Amendment.

 

 

                        [B]       Refusal to Testify:   FRE 804(a)(2)

 

 

If the court decides a claim of privilege is invalid but the witness persists in refusing to testify, Rule 804(a)(2) applies and the unavailability requirement is met.  A ruling by the trial judge on the claim of privilege is required.

 

 

                        [C]       Lack of Memory:   FRE 804(a)(3)

 

 

The rule was somewhat controversial because of a concern about fabricated claims of lack of memory. The judge, however, can eye-ball the witness and may choose to disbelieve the declarant's testimony as to the lack of memory.

 

 

                        [D]       Death or Illness:   FRE 804(a)(4)

 

 

A continuance may resolve problems associated with a temporary infirmity.  

 

 

                        [E]       Unable to Procure Testimony:   FRE 804(a)(5)

 

 

The rule governs situations in which the declarant’s present whereabouts are unknown or the declarant is beyond the subpoena power of the court.  In the case of most of the Rule 804 exceptions, the rule requires that the testimony as well as the attendance of the witness be unavailable, which refers to the deposition of the declarant.  This provision does not apply to former testimony because a deposition is a type of former testimony.

 

 

§ 34.03   Former Testimony:   FRE 804(b)(1) [494-500]

 

 

Unlike other hearsay exceptions, former testimony is not based on any trustworthiness guarantee that is considered an adequate substitute for cross-examination. The rule requires only an "opportunity" to examine, not actual examination. Moreover, an opportunity for "direct" or "redirect" examination suffices.

 

 

                        [A]       Type of Proceeding

 

 

Former testimony includes testimony given at a deposition, prior trial, preliminary hearing, or administrative proceeding.

 

 

                        [B]       “Against whom” Requirement

 

 

The rule does not require “identity of parties,” as had some common law cases.  As long as the party against whom the former testimony is offered (or a predecessor in interest) had an opportunity to examine the witness at the former hearing, the rule is satisfied.

 

 

                        [C]       “Predecessor in Interest”

 

 

Although Congress did not define the term "predecessor in interest," the most plausible reading would suggest privity or some of sort of legal relationship. The federal courts, however, have interpreted the phrase "predecessor in interest" expansively - "party having like motive to develop the testimony about the same material facts is … a predecessor in interest to the present party." Lloyd v. American Export Lines, Inc., 580 F.2d 1179, 1187 (3d Cir. 1978).

 

 

                        [D]       Similar Motive Requirement

 

 

There is no explicit requirement for "identity of issues." Nevertheless, this is an aspect of the similar motive requirement if modified to require only a substantial identity of issues.

 

 

                        [E]       Method of Proof

 

 

A transcript of the former proceeding is the typical and preferable method of proof, but neither Rule 804 nor the best evidence rule requires a transcript’s use.  Nevertheless, the trial court has the authority pursuant to Rule 611(a) to require the use of a transcript if available.  Former testimony also may be proved by the testimony of a witness who was present at the time the testimony was given.

 

 

§ 34.04   Dying Declarations:  FRE 804(b)(2) [500-02]

 

 

The exception for dying declarations is based (1) on necessity (i.e., the unavailability of the declarant), and (2) on a circumstantial guarantee of trustworthiness.   The theory being that people would not want to die with a lie upon their lips.  In contrast to the common law, admissibility is not conditioned on the declarant’s death; any of the conditions of unavailability specified in Rule 804(a) is sufficient.

 

 

                        [A]       “Imminent Expectation of Death” Requirement

 

 

This requirement follows from the theory underlying the exception; a declarant who does not believe that death is near may not feel compelled to speak truthfully.

 

 

                        [B]       Subject Matter Requirement

 

 

Only statements concerning the cause or circumstances of what the declarant believed to be his or her impending death are admissible.  This requirement follows from the theory underlying the exception – statements beyond cause and circumstances indicate that the declarant may no longer be acting under an expectation of imminent death.

 

 

                        [C]       Type of Case

 

 

At common law, dying declarations were admissible only in homicide cases.  Under Rule 804, dying declarations are admissible in civil actions as well.  They remain inadmissible in criminal trials other than homicide cases.

 

 

§ 34.05   Statements Against Interest:  FRE 804(b)(3) [502-07]

 

 

Declarations against interest are based (1) on necessity (i.e., the unavailability of the declarant), and (2) a circumstantial guarantee of trustworthiness that eliminates the risk of insincerity.

 

 

                        [A]       “Against Interest” Requirement

 

 

The “against interest” requirement focuses on the declarant’s situation and motives at the time the statement was made.  This is the critical requirement, which follows from the underlying theory of the rule.

 

 

                        [B]       Declarations Against Penal Interests

 

 

At common law, declarations against penal interest were not admissible.  This position rested upon a concern about collusive arrangements between defendants and declarants to fabricate confessions exonerating the defendant.  Nevertheless, the federal drafters rejected the common law position but then added a corroboration requirement as a safeguard against fabricated confessions.

 

 

                                                [1]        Corroboration Requirement

 

 

Rule 804(b)(3) imposes a corroboration rule when declarations of penal interest are offered in criminal cases to exculpate the accused.  The federal cases, however, have applied the corroboration requirement to inculpatory statements.  A proposed amendment would make clear that the corroboration requirement applied to the prosecution, as well as in civil cases.

 

 

                        [C]       Collateral Statements

 

 

The admissibility of collateral statements – those that are not directly against the declarant’s interest – have often proved controversial.  In Williamson v. United States, 512 U.S. 594 (1994), the Supreme Court adopted a strict interpretation of the federal rule:  the non-self-inculpatory portions are not against interest.

 

 

§ 34.06   Forfeiture by Wrongdoing:  FRE 804(b)(6) [507-09]

 

 

In 1997, a new subsection was added to Rule 804(b) for statements offered against a party when the unavailability of the declarant is due to the wrongdoing of the party – e.g., killing a witness.  The rule applies when the party against whom the statement is offered has “engaged or acquiesced in wrongdoing” that procured the unavailability of the declarant as a witness.

 

 

§ 35.01  Introduction [513]

 

 

 

There are reliable hearsay statements that do not fall within any of the exceptions specified in Rules 803 and 804.  The residual exception is a way to recognize this by giving the trial judge ad hoc authority to admit hearsay in a particular case.  The residual exception requires:   (1) the statement have “equivalent circumstantial guarantees of trustworthiness” as the exceptions in Rules 803 and 804; (2) the statement be offered as evidence of a material fact; (3) the statement  be more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; (4) the general purposes of the Federal Rules and the interests of justice be served by admission; and (5) notice be given to the other party. (Two of these requirements are redundant.  Rule 401 requires materiality, and Rule 102, the purpose and construction clause, requires the doing of justice, among other things.)

 

 

 

The courts have rejected the "near miss" theory and have also frequently admitted grand jury testimony. Numerous factors are relevant to determining reliability. Consider first the hearsay dangers - perception, memory, narration, or sincerity problems.

 

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