Restricted Hearsay Exceptions

Question 1

FRE 804: Restricted Hearsay Exceptions

Answer 1

• These exceptions are limited to circumstances in which the declarant is “unavailable” (e.g., declarant can’t testify due to some reason for which the proponent can’t be blamed).
• 804(a) lays out test for determining whether witness is unavailable.
• 804(b) sets forth number of exceptions that can be invoked if the witness is unavailable.

Question 2

FRE 804(a): Criteria for Being Unavailable

Answer 2

• A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;

(2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter;

(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, or mental illness;

(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4)

• But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

Question 3

FRE 804(b): Exceptions (to “Unavailability”)

Answer 3

• The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
  (1) Former Testimony. Testimony that:
  
  • (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or at a different one; and
  • (B) is now offered against a party who had – or, in a civil case, whose predecessor in interest had – an opportunity to develop it by direct, cross-, or redirect examination.

(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

(3) Statement Against Interest. A statement that:
- (A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
- (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

(4) Statement of Personal or Family History. A statement about:
- (A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or
- (B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.

(6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party that wrongfully caused – or acquiesced in wrongfully causing – the declarant’s unavailability, and did so intending the result.

Question 4

FRE 804: When Is a Declarant Unavailable?

Answer 4

• A declarant is unavailable when:

(1) The Declarant invokes privilege.
- A declarant is unavailable if he “is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege exists.”

(2) The Declarant refuses to testify.
- A declarant is unavailable if she “refuses to testify about the subject matter despite a court order to do so.”
- In order to get a declarant declared unavailable using FRE 804(a)(2) is if they have actually been called to the stand and refuse to testify despite being ordered to by the Court.

(3) The Declarant lacks memory.
- A declarant is unavailable if he “testifies to not remembering the subject matter.”
- Be sure to note that a declarant can be unavailable concerning a portion of the statement at issue, even if the declarant remembers making the entire statement and even if the declarant recalls other portions of the statement.
- Example: If tell you that I’m going to go drinking with you at Max’s on Tuesday.
- I could be unavailable due to lack of memory about (1) the activity, (2) the location, or (3) the day that I’m going to do it.
- If I remember that I told you I’m going to go drinking with you (1) on Tuesday (3), but I forget that I said Max’s, then I would only be unavailable with respect to the part of the statement pertaining to location (2).

(4) The Declarant is dead or has a medical problem.
- A declarant is unavailable if she “cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness.”
- Note that the Court will usually consider rescheduling the trial to accommodate a witness who is temporarily ill. Thus it should be noted that there is a preference for witnesses to come in and testify over allowing a hearsay exception.
- Examples of a physical illness or mental illness that may make a declarant unavailable would be something like a witness who is in coma or afflicted with dementia.

(5) The Declarant is unavoidably absent.
- A declarant is unavailable if he “is absent from the trial or hearing and the statements proponent has not been able, by process or other reasonable means, to procure:
- (A) The declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
- (B) the declarant’s attendance or testimony, in the case of a hearsay exception Rule 804(b)(2), (3), or (4).

Question 5

Special Rules Where Unavailability Is Due to a Party’s Misconduct

Answer 5

• Basic Idea: If your wrongdoing caused a declarant to be unavailable, you can’t offer that declarant’s statements under FRE 804 (as a proponent) and you can’t raise a hearsay objection or Confrontation Clause objection due to FRE 804(b)(6).
• Procurement or Wrongdoing by Proponent of the Statement
  
  • If the party seeking to offer the out-of-court statement wrongfully caused the declarant to be unavailable (e.g., through murder, bribery, intimidation, contrivance of a privilege, or some other scheme or artifice undertaken to prevent the declarant’s testimony), then that party cannot invoke FRE 804 even if the declarant may be “unavailable” within the meaning of FRE 804(a)(1)-(5).
  • Note that the Government’s refusal to grant use immunity to a witness will not ordinarily be considered “procurement or wrongdoing” sufficient to fault the Government for causing the unavailability of the witness.
• Procurement or Wrongdoing by Opponent of the Statement
  
  • If the party opposing the admission of the out-of-court statement wrongfully caused the declarant to be unavailable, then that party has no standing to invoke the hearsay rules or the Confrontation Clause to bar the admission of the declarant’s statements.

Question 6

FRE 804(b)(1): Former Testimony

Answer 6

• Former testimony is testimony that:
  (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or at a different one; and

(B) is now offered against a party who had – or, in a civil case, whose predecessor in interest had – an opportunity to develop it by direct, cross-, or redirect examination.

• Requirements

(1) Unavailability
- In order to invoke FRE 804(b)(1), it is only necessary to show that the declarant is unavailable to testify at the present trial or hearing; it is not necessary to show that the declarant is also unavailable for a deposition in connection with the present action (such a showing is necessary to invoke exceptions under FRE 804(b)(2)-(4) though).
- Why do they only have to be unavailable from the current trial and not also unavailable for a deposition?
- The declarant’s isn’t required to be unable to give testimony, only unable to attend the trial if trying to use a hearsay exception under Rule 804(b)(1) or (6).
- Rule 804(b)(1) applies when you’re trying to get former testimony included.
- Rule 804(b)(6) applies when the opponent wrongfully caused the declarant to be unavailable in the first place.

(2) Prior Hearing/Proceeding
- This requirement is extremely liberal and encompasses any hearing or deposition in the same action and also any hearing or deposition in a different action (regardless of whether it was a judicial or administrative proceeding).

(3) Opportunity and motive to “develop” testimony on prior occasion
- The party against whom the prior testimony is offered must have been able to and must have been similarly motivated to conduct cross-examination of the Declarant in the prior hearing or proceeding.
- In a criminal case, FRE 801(b)(1) will only apply if the party against whom the out-of-court statement is offered was a party to the prior proceeding.
- In a civil case, FRE 804(b)(1) will apply even if the party against whom the out-of-court statement is offered was not a party in the prior case, as long as the party’s “predecessor in interest” was a party.
- The term “predecessor in interest” is sometimes interpreted as requiring privity or community of interest arising from a close formal connection, such as successive ownership of the same property, business, etc.
- In both criminal and civil cases, the issues involved in the prior and present proceedings need not be identical.
- What is important is that the adverse party’s motivation to conduct cross-examination was similar in both of the proceedings.

Question 7

FRE 804(b)(2): Dying Declaration

Answer 7

• Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
• Requirements

(1) Declarant Presently Unavailable
- The declarant must presently be unavailable to testify at trial or hearing in question or to give a deposition.
- Why must they be unable to give a deposition? Because there’s a preference for statements given under oath.
- FRE 804(b)(1) doesn’t require unavailability for deposition, because it was already given under oath.
- FRE 804(b)(6) doesn’t require unavailability for deposition, because if the witness has been convinced not to testify in trial, it’s not likely you’ll be able to get them to (meaningfully) answer a deposition.

(2) Settled expectation of Imminent Death
- The declarant must believe that her death is coming with a matter of minutes, hours, or (in some cases) a matter of a few days.
- The proponent of the dying declaration may prove this “settled expectation” by:
- offering statements made by the dying person concerning her own condition;
- statements made by others to inform the dying of her condition; or
- other evidence of her medical condition.
- It is not crucial for the declarant to actually have died, just that the statement in question was made with an expectation of impending death.

(3) Statement Concerns Cause or Circumstances of Death
- The statement need not precisely describe the reasons for the declarant’s fatal condition; it is sufficient if the statement generally concerns that condition.

(4) Nature of Present Proceedings
- This exception applies to any civil case.
- This exception only applies to criminal cases involving homicide charges, but not to other types of criminal cases.

Question 8

FRE 804(b)(3): Statement Against Interest

Answer 8

• Requirements

(1) Declarant Presently Unavailable
- The declarant must presently be unavailable to testify at the trial or hearing in question, or to give a deposition.
- In the case of a statement against penal interest, the declarant will probably invoke his right against self-incrimination if asked to repeat the statement in court.
- Invoking a privilege (e.g., the Fifth Amendment Right to Remain Silent) would render the declarant unavailable within the meaning of FRE 804(a)(1).

(2) Statement Must Be Against Interest
- The declarant’s statement must not only be against their own interest (an objective standard), but the declarant must also understand that it is against their own interest (a subjective standard).
- Situations in Which Statement May Not Be Against Interest
(A) Post-Arrest Statements to Officers
- Criminal defendants may try to shift blame to other co-defendants in post-arrest statements to police in order to try to fetch a better deal.
- Even ignoring the Confrontation clause issues (e.g., Bruton Rule) that arise from trying to use something like this, there is also the issue that this isn’t a statement against one’s own interest because they’re trying to get a better deal.
(B) Immunized Statements in Proffers
- A criminal defendant speaking to prosecutor and investigating officers in a “proffer” (an immunized out-of-court statement in which the prosecutor decides whether the defendant is truthful and valuable enough to merit a plea agreement with a cooperation provision).
- These statements cannot be used against the defendant at trial and should be excluded, because they were immunized and therefore it was not against penal interest.

(3) Corroboration
- If the statement is offered to exculpate the accused, the statement is not admissible “unless corroborating circumstances clearly indicate the trustworthiness of the statement.”
- This is to prevent things like Wee Bay and Little Chris taking the fall for all the bodies of their respective organizations in The Wire.
- Amendment to 804(b)(3) took effect on December 1, 2024: The court would consider “the totality of the circumstances under which [the statement] was made and any evidence that supports or undermines it.
- Given this is what most courts already do when confronted with something like this, nothing is really changing.

Question 9

FRE 804(b)(4): Statement of Personal or Family History

Answer 9

• A statement about:
  (A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or
  (B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.

Question 10

FRE 804(b)(6): Statement Offered Against Wrongdoer

Answer 10

• Opponent who wrongfully caused - or acquiesced in wrongfully causing - the declarant’s unavailability as a witness, and did so intending that result, can’t object.
• Note
  • FRE 804(b)(1) and FRE 804(b)(6) are the only 804 hearsay exceptions that require the declarant to be unavailable for the trial (i.e., proponent need only attempt to subpoena declarant to present proceeding).
  • FRE 804(b)(2)-(4) require that the declarant be unavailable for trial and for a deposition (i.e., proponent must not only attempt to subpoena declarant, but must also attempt to depose declarant).