Hearsay: Exceptions - Declarant Unavailable

Question 1

What are the 5 hearsay exceptions that permit admissibility of hearsay if declarant is unavailable?

Answer 1

1. Former Testimony
2. Statements against Interest
3. Dying Declarations
4. Statements of Personal or Family History
5. Statements Offered Against Party Procuring Declarant’s Unavailability

Question 2

What does it mean for a declarant to be “unavailable”?

FRE (5)?

CA?

Answer 2

FRE –> A declarant is unavailable if:

1. he is EXEMPT from testifying due to privilege
2. **REFUSES to testify despite court order
3. Testifies that he DOES NOT REMEMBER the subject matter
4. is UNABLE to testify due to DEATH, PHYSICAL, or MENTAL ILLNESS
5. is ABSENT (beyond court’s reach) and proponent is unable to procure his attendance by reasonable means

CA —>

1. does not recognize refusal to testify as a grounds for unavailability
2. HOWEVER FEAR of testifying caused by threats of reprisal IS a ground for unavailability

Question 3

What is the rule re: admissibility of “former testimony”?

CA distinction?

Answer 3

Declarant is now unavailable AND:

1. testimony was given UNDER OATH at a TRIAL, HEARING, or DEPOSITION in the same or different case
2. the PARTY AGAINST WHOM the statement is now being offered (or, in a civil case, their predecessor in interest) had the OPPORTUNITY and SIMILAR MOTIVE to develop the declarant’s testimony.

NOTE –> grand jury testimony won’t work hear bc there’s no ability to cross examine

EXAM TIP –> dont get this mixed up w prior inconsistent statement exception

CA distinction –>

1. under federal rule, a predecessor in interest must have been a party in previous case
2. In CA, sufficient if they had interest similar to that of party

Question 4

What is the rule re: admissibility of “statement against interest”?

FRE?

CA?

Answer 4

FRE –> Declarant is NOW unavailable:

1. statement was AGAINST that persons’s pecuniary, proprietary, or penal interest WHEN MADE
2. SUCH that a REASONABLE PERSON in declarant’s position would only make it if were true

NOTE –> declarant must have personal knowledge of the facts

NOTE –> declarant must KNOW statement was against interest at time made

SEE –> special corroboration rule for criminal cases

CA distinction –>

1. includes statements against SOCIAL interest
2. does NOT require corroboration of declarant’s statements in criminal cases

Question 5

What is the special rule re: “statements against interest” in criminal cases?

FRE?

CA?

Answer 5

UNDER FRE –>

in criminal cases, CORROBORATING CIRCUMSTANCES are required indicating reliability of a statement against penal interest

CA –> no corroboration required

Question 6

With regards to the hearsay exception for “statement against interest”, what is the scope of what’s admissible?

Answer 6

statement –> is narrowly read. means single remark.

Example –> I sold the drugs
NOT –> x runs the drug ring

Question 7

What is the rule re: admissibility of “dying declarations”?

FRE?

CA?

Answer 7

FRE –>
Declarant is unavailable, AND:
1. it’s a homicide prosecution, OR any civil action
2. declarant BELIEVED HIS DEATH WAS IMMINENT (he need not actually die)
3. statement concerned CAUSE OR CIRCUMSTANCES of what he believe to be his impending death

NOTE –> must be based on declarant’s perceptions and 1st hand knowledge. Mere speculation is not ok

CA Distinctions –> Same as FRE except:

1. can be ANY case (criminal or civil)
2. declarant must be dead
3. statement must concern what killed him

Question 8

What is the rule re: admissibility of “statements of personal or family history”?

Answer 8

Declarant is now unavailable, AND:

1. statement relates to birth, marriages, divorces, relationships, genealogy etc.
2. declarant is MEMBER of the family or is intimately associated;
3. statements are based on declarant’s PERSONAL knowledge of the facts or her knowledge of the family’s reputation

Question 9

What is the rule re: admissibility of “statements offered against party procuring declarant’s unavailability”?

FRE ?

CA?

Answer 9

FRE –>

1. Declarant is unavailable, AND:
2. statement is now offered against someone who engaged or acquiesced in wrongdoing that INTENTIONALLY PROCURED D’s UNAVAILABILITY

CA –> Same, except judge has discretion to exclude statement if it’s untrustworthy

Question 10

What are the TWO CA declarant unavailable hearsay exceptions that have no federal counterpart?

Answer 10

1. Past Physical condition or state of mind

2. Statement describing infliction or threat of physical injury

Question 11

With regards to CA’s declarant unavailable declarant hearsay exception for “past Physical condition or state of mind” - what is the rule ?

Answer 11

If declarant is unavailable, the following is ADMISSIBLE to prove a condition:

1. declarant’s PAST PHYSICAL or MENTAL condition (including statement of intention)
2. IF condition is an issue in the case

NOTE –> statement need not be made for medical purposes

Question –> does declarant need to be unavailable? I think so.

Question 12

With regards to CA’s declarant unavailable declarant hearsay exception for “past Physical condition or state of mind” - what is the rule ?

Answer 12

If declarant is unavailable, the following is ADMISSIBLE to prove a condition:

1. declarant’s PAST PHYSICAL or MENTAL condition (including statement of intention)
2. IF condition is an issue in the case

NOTE –> statement need not be made for medical purposes

Question –> does declarant need to be unavailable? I think so. But unsure.