Hearsay Exceptions

1
Hearsay Exceptions

• Declarant Unavailable
• Rule 804

2
Unavailable

• Not necessarily absent from the proceeding
• Exempt from testifying because of privilege
• Refuses to testify despite a court order
• Lack of memory
• Absent from the proceeding
• Because of death, illness or infirmity
• Proponent of evidence cannot procure witnesss
  attendance
• Exception Proponent of evidence causes witness
  unavailability by wrongdoing

3
Rule 804 Witness Unavailable

• Former testimony
• Proceeding or deposition
• Opponent or privy had opportunity and motive to
  develop testimony in prior proceeding
• Dying declaration
• Homicide or civil action
• Declarant believed death was imminent
• Concerning cause of death
• Statement against interest
• Pecuniary or proprietary
• Subject declarant to civil or criminal liability
• Personal or family history
• Forfeiture by wrongdoing

4
Former Testimony Additional Hypo

• Doug is a deliveryman for Mangia Pizza. One
  night, his car skids out of control. He hits Pam
  and Quinton.
• Pam sues Doug personally.
• At trial, Doug admits that he was driving the
  truck in the scope of his employment, and that he
  was speeding when he skidded out of control.
• The jury returns a verdict for Pam.
• Later, Quinton sues Mangia Pizza on a respondeat
  superior theory.
• In the meantime, Doug has died.
• Is Dougs testimony from the previous action
  admissible in the subsequent action?

5
Rule 804 Witness Unavailable

• Former testimony
• Proceeding or deposition
• Opponent or privy had opportunity and motive to
  develop testimony in prior proceeding
• Dying declaration
• Homicide or civil action
• Declarant believed death was imminent
• Concerning cause of death
• Statement against interest
• Pecuniary or proprietary
• Subject declarant to civil or criminal liability
• Personal or family history
• Forfeiture by wrongdoing

6
Rule 804 Witness Unavailable

• Former testimony
• Proceeding or deposition
• Opponent or privy had opportunity and motive to
  develop testimony in prior proceeding
• Dying declaration
• Homicide or civil action
• Declarant believed death was imminent
• Concerning cause of death
• Statement against interest
• Pecuniary or proprietary
• Subject declarant to civil or criminal liability
• Personal or family history
• Forfeiture by wrongdoing

7
Compare

• Party Admissions
• Have to be made by the party against whom theyre
  being used.
• Dont have to be against interest when made.
• Declarant can be available.

• Statements Against Interest
• Can be made by anyone, party or not.
• Do have to be against interest when made.
• Declarant must be unavailable.