A Student s Guide to Hearsay REVISED 4th Edition

Transcription

1 A Student s Guide to Hearsay REVISED 4th Edition

2 LexisNexis Law School Publishing Advisory Board William Araiza Professor of Law Brooklyn Law School Lenni B. Benson Professor of Law & Associate Dean for Professional Development New York Law School Raj Bhala Rice Distinguished Professor University of Kansas, School of Law Ruth Colker Distinguished University Professor & Heck-Faust Memorial Chair in Constitutional Law Ohio State University, Moritz College of Law David Gamage Assistant Professor of Law UC Berkeley School of Law Joan Heminway College of Law Distinguished Professor of Law University of Tennessee College of Law Edward Imwinkelried Edward L. Barrett, Jr. Professor of Law UC Davis School of Law David I. C. Thomson LP Professor & Director, Lawyering Process Program University of Denver, Sturm College of Law Melissa Weresh Director of Legal Writing and Professor of Law Drake University Law School

3 A Student s Guide to Hearsay REVISED 4th Edition Clifford S. Fishman Professor of Law The Catholic University of America

4 ISBN: Library of Congress Cataloging-in-Publication Data Fishman, Clifford S. A student s guide to hearsay / Clifford S. Fishman. 4th ed. p. cm. Includes index. ISBN (softbound) 1. Evidence, Hearsay. I. Title. KF8969.F dc Revised 4th edition ISBN This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis and the Knowledge Burst logo are registered trademarks and Michie is a trademark of Reed Elsevier Properties Inc., used under license. Matthew Bender and the Matthew Bender Flame Design are registered trademarks of Matthew Bender Properties Inc. Copyright 2011 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All Rights Reserved. No copyright is claimed in the text of statutes, regulations, and excerpts from court opinions quoted within this work. Permission to copy material exceeding fair use, 17 U.S.C. 107, may be licensed for a fee of 25 per page per copy from the Copyright Clearance Center, 222 Rosewood Drive, Danvers, Mass , telephone (978) NOTE TO USERS To ensure that you are using the latest materials available in this area, please be sure to periodically check the LexisNexis Law School web site for downloadable updates and supplements at Editorial Offices 121 Chanlon Rd., New Providence, NJ (908) Mission St., San Francisco, CA (415) (2011 Pub.748)

5 PREFACE I ve already spent a ridiculous amount of money on a casebook and separate rules pamphlet. There are hornbooks and manuals that cover all of evidence. Why should I buy a book that only deals with hearsay? Good question. Here are my answers: 1. Hearsay is an important subject. It is a major component of your evidence course; it is one of those subjects that every lawyer should understand. 2. Hearsay is one of the most difficult bodies of law you will ever encounter in law school. The basic concept is a tricky one; once you ve mastered that, you have to deal with dozens of technical exceptions, written and unwritten. 3. This book will help you learn it. Let me expand a little on each of these reasons. 1. Hearsay is an important subject. Hearsay pervades everything a lawyer does in a courtroom; it is impossible to try even the simplest case without encountering it. The leading evidence casebooks devote anywhere from percent of their length to the hearsay rule and its exceptions; professors spend an equivalent percentage of classroom time covering the subject. 2. Hearsay is a diffıcult subject. The hearsay rule is simple enough; hearsay is not admissible unless any of the following provides otherwise: a federal statute; these rules; or other rules prescribed by the Supreme Court. The legal profession has struggled for more than a century just to come up with a basic definition of hearsay. Even though hearsay is now defined by statute thank goodness for the Federal Rules of Evidence! there are numerous unwritten exceptions to the definition, as well as eight statutory exceptions to the definition, each of which creates a category of evidence that fits the definition (or appears to), but is classified as non-hearsay. in addition, there are 29 statutory exceptions to the hearsay rule, 1 each of which creates a category of evidence that is hearsay but is nevertheless admissible over a hearsay objection. Each of these statutory exceptions has its own requirements, procedural wrinkles, legislative history, and judicial gloss. To learn this body of law and apply it correctly is a major challenge. Suppose, for example, I want to call W, a witness who will testify, On March 1, X said to me, I m going out with Frank tonight, Under some circumstances, what X said to W is not hearsay; under some circumstances it fits the basic definition of hearsay but is not hearsay because what X said fits within an exception to the hearsay definition; under other circumstances what X said is hearsay but fits within an exception to the hearsay rule; in still other circumstances, it is 1 There are 23 exceptions codified in Fed. R. Evid. 803, five exceptions in Fed. R. Evid. 804, and a residual exception in Fed. R. Evid iii

6 hearsay and does not fit within any exception; and yet in other circumstances, it is hearsay but judges disagree as to whether it fits within an exception to the hearsay rule. Additional complicating factors include constitutional considerations (in particular, the Fifth Amendment privilege against self-incrimination and the Sixth Amendment Confrontation Clause), as well as the concept of multiple hearsay. To repeat the basic point: hearsay is a difficult subject. 3. This book will help you learn it. This book will help you learn hearsay because it breaks down each element of the hearsay definition, and each exception to the definition or to the rule, into its component parts. For example, for each hearsay exception, this book: Outlines the policies underlying the provision Lists and explains the requirements that must be satisfied for the evidence to fit within the exception Explains additional issues that have arisen or are likely to arise Explains how a rule interacts with other rules of evidence Spells out the procedural and tactical considerations that must be understood to appreciate how the rule plays in the courtroom Gives review questions and answers so you can test and apply what you ve learned Has an associated website, studentguidetohearsay-.cfm, which will post updates on major developments in hearsay law. Don t misunderstand: you are not getting a simplified, comic book version of hearsay. This book will help you learn hearsay as you want to learn it, to do well on your final, the bar exam, and in practice. Along the way, I also explain the hearsay significance of: a ham sandwich, Humpty Dumpty, the Greek god of wine, Tim McGraw, dog saliva, IBM s computer and Jeopardy champion Watson, my wife Betty, William Shakespeare, the Chicago Cubs, 1950 s TV shows, peat moss, a squeaky boot, Leondardo DiCaprio, the French Army, the speed of sound, and the way criminals treat their girlfriends. As a bonus, I even tell you a little big about what love means. I ve been teaching evidence for 35 years, to an average of 80 or so students each year. (Before that, I was a prosecutor in New York City for eight years.) The outlines, explanations, and questions in this book have been tested in the classroom. they work for my students; I m confident they will work for you. Clifford S. Fishman The Catholic University of America Washington, D.C iv

7 DEDICATION This book is dedicated, in ascending order of importance, to: 1. The Supreme Court, whose Confrontation Clause decisions, and the Advisory Committee, whose Restyled text of the Federal Rules of Evidence, made this Fourth Edition necessary. 2. My colleagues and friends at the Catholic University of America Law School. 3. My evidence students, who for the past 35 years have helped me learn how to teach, and therefore how to write about, the law of evidence. 4. Betty; Rebecca, Brian, Sam and Yael; and Sarah and Luke. v

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9 TABLE OF CONTENTS Chapter 1 THE HEARSAY RULE AND ITS RATIONALE INTRODUCTION QUESTION TESTIMONIAL INFERENCES RATIONALE BEHIND THE HEARSAY RULE THE HEARSAY RULE THE FEDERAL RULES OF EVIDENCE; LEGISLATIVE HISTORY... 5 Chapter 2 DEFINING AND RECOGNIZING HEARSAY... 7 PART A: INTRODUCTION IN GENERAL THE BASIC DEFINITION OF HEARSAY; DECLARANT A NOTE ON VOCABULARY; COMMON ABBREVIATIONS PART B: OUT-OF-COURT A STATEMENT THAT THE DECLARANT DOES NOT MAKE WHILE TESTIFYING AT THE CURRENT TRIAL OR HEARING QUESTIONS PART C: STATEMENT IN GENERAL INDIVIDUAL DECLARATION OR NARRATION AS A WHOLE ASSERTIVE SPEECH NON-ASSERTIVE SPEECH IMPLIED ASSERTIONS QUESTIONS THE WRITTEN WORD QUESTIONS ASSERTIVE AND NON-ASSERTIVE CONDUCT QUESTIONS PHOTOGRAPHS, FILMS, VIDEOS QUESTIONS SILENCE NON-HUMAN DECLARANTS PART D: OFFER[ED] IN EVIDENCE TO PROVE THE TRUTH OF THE MATTER ASSERTED IN THE STATEMENT Overview vii

10 2.20 INTRODUCTION QUESTIONS RECONSTRUCTING THE TESTIMONY Categories of Non-Hearsay IN GENERAL MENTAL STATE MENTAL STATE AS ELEMENT OF CRIME, CLAIM, OR DEFENSE MENTAL STATE: RELEVANT FACTS INFERABLE FROM SOMEONE S STATE OF MIND MENTAL STATE: DECLARANT S STATE OF MIND QUESTIONS MENTAL STATE: TO SHOW DECLARANT S KNOWLEDGE QUESTION MENTAL STATE: TO SHOW THE EFFECT ON THE HEARER MENTAL STATE, EFFECT ON HEARER: STATEMENTS MADE TO THE DEFENDANT QUESTIONS MENTAL STATE, EFFECT ON HEARER: WHY THE POLICE ACTED MENTAL STATE, EFFECT ON HEARER: CIVIL CASES VERBAL ACTS; OPERATIVE LEGAL FACTS QUESTIONS VERBAL PARTS OF ACTS QUESTIONS RES GESTAE Chapter 3 EXCEPTIONS TO THE HEARSAY DEFINITION, EXCEPTIONS TO THE HEARSAY RULE: AN INTRODUCTION INTRODUCTION EXCEPTIONS TO THE RULE; EXCEPTIONS TO THE DEFINITION [1] Rules 803 and [2] Rule [3] Rule 801(d) APPLYING THE 37 EXCEPTIONS: QUESTIONS BURDEN OF PROOF HEARSAY AND THE GRAND JURY SIXTH AMENDMENT CONFRONTATION CLAUSE viii

11 Chapter 4 EXCEPTIONS TO THE HEARSAY DEFINITION: PRIOR STATEMENTS BY WITNESSES, RULE 801(d)(1) PART A: OVERVIEW IN GENERAL WITNESS; SUBJECT TO CROSS-EXAMINATION MEANINGFUL CROSS-EXAMINATION ; UNITED STATES v. OWENS PROVING THAT THE DECLARANT MADE THE STATEMENT SIXTH AMENDMENT CONFRONTATION CLAUSE PART B: PRIOR INCONSISTENT STATEMENTS SWORN AND UNSWORN PRIOR INCONSISTENT UNSWORN STATEMENTS: RULE QUESTION PRIOR INCONSISTENT SWORN STATEMENTS: RULE 801(d)(1)(A) WITNESS ; SUBJECT TO CROSS-EXAMINATION INCONSISTENT QUESTIONS PROCEEDING PROCEDURE PART C: PRIOR CONSISTENT STATEMENTS TO REBUT CHARGES OF WITNESS MISCONDUCT PRIOR CONSISTENT STATEMENTS GENERALLY QUESTIONS RULE 801(d)(1)(B): TEXT, RATIONALE, AND REQUIREMENTS WITNESS ; SUBJECT TO CROSS-EXAMINATION CONSISTENT ; PRIOR OATH NOT REQUIRED RECENTLY FABRICATED OR PROMPTED BY A RECENT IMPROPER INFLUENCE OR MOTIVE QUESTIONS REBUTTING THE ACCUSATION: RECENT QUESTIONS PROCEDURE AND TACTICS PART D: STATEMENTS OF PRIOR IDENTIFICATION OF A PERSON RULE 801(d)(1)(C) PERCEIVED AND IDENTIFIED DECLARANT TESTIFIES, IS SUBJECT TO CROSS-EXAMINATION PROCEDURE ix

12 Chapter 5 EXCEPTIONS TO THE HEARSAY DEFINITION: OPPOSING PARTY S STATEMENT, RULE 801(d)(2) PART A: OPPOSING PARTY S STATEMENT OVERVIEW OF RULE 801(d)(2) PART B: RULE 801(d)(2)(A): THE PARTY S OWN STATEMENT IN GENERAL QUESTIONS OPPOSING PARTY ( PARTY-OPPONENT ) QUESTIONS DEFINING OPPOSING PARTIES IN CRIMINAL CASES PROVING THE PARTY MADE THE STATEMENT REPRESENTATIVE CAPACITY SIXTH AMENDMENT CONFRONTATION CLAUSE OTHER OBJECTIONS QUESTIONS PART C: RULE 801(d)(2)(B): ADOPTED STATEMENTS IN GENERAL EXPRESSED ADOPTIVE ADMISSIONS IMPLICIT OR TACIT ADMISSIONS CONVERSATIONS AMONG A GROUP CONSTITUTIONAL ISSUES IN CRIMINAL CASES SIXTH AMENDMENT CONFRONTATION CLAUSE QUESTIONS PART D: RULE 801(d)(2)(C): STATEMENTS BY A PARTY S AUTHORIZED SPOKESPERSON IN GENERAL PROVING DECLARANT WAS AN AUTHORIZED SPOKESPERSON QUESTIONS SIXTH AMENDMENT CONFRONTATION CLAUSE PART E: RULE 801(d)(2)(D): STATEMENTS BY A PARTY S AGENT OR EMPLOYEE IN GENERAL AGENT OR EMPLOYEE BURDEN OF PROOF; EVIDENCE TO BE CONSIDERED QUESTIONS STATEMENTS BY GOVERNMENT AGENTS QUESTION SIXTH AMENDMENT CONFRONTATION CLAUSE x

13 PART F: RULE 801(d)(2)(E): STATEMENT BY A PARTY S CO-CONSPIRATOR IN GENERAL PREREQUISITES TO ADMISSIBILITY PROCEDURAL ISSUES EVIDENCE TO BE CONSIDERED; BOOTSTRAPPING ; INDEPENDENT EVIDENCE REQUIREMENT PROSECUTOR S BURDEN OF PROOF ORDER OF PROOF CONDITIONAL ADMISSIBILITY: PROCEDURE SIXTH AMENDMENT CONFRONTATION CLAUSE MISCELLANEOUS CO-CONSPIRATOR STATEMENT ISSUES QUESTIONS Chapter 6 HEARSAY AND THE SIXTH AMENDMENT CONFRONTATION CLAUSE INTRODUCTION DON T BLAME ME! AUTHOR S WEB SITE STATEMENTS OFFERED FOR NON-HEARSAY PURPOSES THE OHIO v. ROBERTS APPROACH TO THE CONFRONTATION CLAUSE CRAWFORD v. WASHINGTON DEFINING TESTIMONIAL : SOLEMN DECLARATION ; THREE FORMULATIONS SUBSEQUENT SUPREME COURT CONFRONTATION CLAUSE DECISIONS A WHOLE LOT OF DICTA STATEMENTS TO NON-GOVERNMENT OFFICIALS TESTIMONIAL STATEMENTS: SATISFYING THE CONFRONTATION CLAUSE NONTESTIMONIAL HEARSAY: DAVIS v. WASHINGTON; WHARTON v. BOCKTING SUMMARY SO FAR: YOUR CONFRONTATION CLAUSE CHECK LIST THE PROVISIONS COVERED THUS FAR [1] Rules 801(d)(1)(A), 801(d)(1)(B), 801(d)(1)(C) [2] Rules 801(d)(2)(A), 801(d)(2)(B) [3] Rule 801(d)(2)(E) [4] Rules 801(d)(2)(C), 801(d)(2)(D) xi

14 Chapter 7 EXCEPTIONS TO THE HEARSAY RULE: PRELIMINARY MATTERS; MULTIPLE HEARSAY; CREDIBILITY AND IMPEACHMENT INTRODUCTION THE REQUIREMENT OF FIRST-HAND KNOWLEDGE HEARSAY WITHIN HEARSAY: FED. R. EVID ASSESSING CREDIBILITY IMPEACHING AND DEFENDING THE HEARSAY DECLARANT: FED. R. EVID ADMISSIBILITY DETERMINED BY OTHER RULES Chapter 8 RULE 803: THE REGARDLESS OF WHETHER THE DECLARANT IS AVAILABLE AS A WITNESS EXCEPTIONS: COMMON ORAL STATEMENTS, RULES 803(1) 803(4) PART A: REGARDLESS OF WHETHER THE DECLARANT IS AVAILABLE AS A WITNESS IN GENERAL PART B: SPONTANEOUS STATEMENTS: RULES 803(1) 803(2) IN GENERAL FIRST-HAND KNOWLEDGE REQUIREMENT TRUSTWORTHINESS OR RELIABILITY OF THE STATEMENT; SELF- SERVING STATEMENTS NATURE OF EVENT OR CONDITION; EFFECT ON DECLARANT SUBJECT MATTER OF THE STATEMENT SPONTANEITY; PASSAGE OF TIME BETWEEN THE EVENT OR CONDITION AND DECLARANT S STATEMENT QUESTIONS SIXTH AMENDMENT CONFRONTATION CLAUSE: CRAWFORD CONFRONTATION CLAUSE: DAVIS v. WASHINGTON: CALLS TO 911; CRIME-SCENE QUESTIONING BY THE POLICE CONFRONTATION CLAUSE QUESTIONING BY THE POLICE: GILES v. CALIFORNIA CONFRONTATION CLAUSE POLICE INTERROGATION: MICHIGAN v. BRYANT FACTS BRYANT PRIMARY PURPOSE ; OBJECTIVE TEST BRYANT EMERGENCY CONFRONTATION CLAUSE: STATEMENTS TO NON-GOVERNMENT OFFICIALS CONFRONTATION CLAUSE: STATEMENTS TO FRIENDS AND NEIGHBORS xii

15 8.17 QUESTIONS YOUNG CHILDREN AS DECLARANTS PART C: THE STATE OF MIND EXCEPTION: RULE 803(3) IN GENERAL STATE OF MIND AS AN ELEMENT OF A CRIME, CAUSE OF ACTION, OR DEFENSE QUESTIONS MENTAL FEELING, PAIN, BODILY HEALTH INTENT AS A BASIS TO INFER DECLARANT S SUBSEQUENT CONDUCT: HILLMON DOCTRINE QUESTIONS SECOND-PARTY HILLMON : DECLARANT S STATEMENT OF INTENT TO DO SOMETHING WITH Z, AS PROOF OF Z S SUBSEQUENT CONDUCT QUESTIONS THEN-EXISTING vs. BACKWARD-LOOKING STATEMENTS; STATEMENT OF MEMORY OR BELIEF QUESTIONS HOMICIDE CASES: VICTIM S FEAR OF DEFENDANT QUESTIONS WILL CASES QUESTIONS SIXTH AMENDMENT CONFRONTATION CLAUSE QUESTIONS PART D: STATEMENTS FOR MEDICAL DIAGNOSIS OR TREATMENT: RULE 803(4) IN GENERAL FIRST-HAND KNOWLEDGE; SECOND-PARTY STATEMENTS FOR MEDICAL DIAGNOSIS OR TREATMENT CHILD AS DECLARANT IN A CHILD ABUSE PROSECUTION PERTINENT ; CAUSE; FAULT INTERPLAY WITH OTHER RULES QUESTIONS SIXTH AMENDMENT CONFRONTATION CLAUSE STATEMENTS TO CHILD ABUSE, DOMESTIC VIOLENCE AND SEXUAL ASSAULT COUNSELORS QUESTIONS xiii

16 Chapter 9 RULE 803: THE REGARDLESS OF WHETHER THE DECLARANT IS AVAILABLE AS A WITNESS EXCEPTIONS: COMMON WRITTEN STATEMENTS RULES 612 & 803(5) 803(10) PART A: INTRODUCTION OVERVIEW PART B: REFRESHING RECOLLECTION, RULE 612; RECORDED RECOLLECTION, RULE 803(5) Refreshing Recollection: Fed. R. Evid. Rule IN GENERAL ANY WRITING MAY BE USED WHILE TESTIFYING ; BEFORE TESTIFYING ; PRIVILEGED WRITINGS THE JENCKS ACT: 18 U.S.C Recorded Recollection: Fed. R. Evid. 803(5) RULE 803(5): RECORDED RECOLLECTION RULE 803(5): REQUIREMENTS AND ISSUES DECLARANT/WITNESS READ, BUT NOT RECEIVED RECORD A STRAIGHTFORWARD EXAMPLE MULTIPLE-PERSON DOCUMENTS QUESTIONS NOW CANNOT RECALL WELL ENOUGH MADE OR ADOPTED ; FRESH IN MEMORY QUESTIONS TIME; ACCURACY; FOUNDATIONAL TESTIMONY SIXTH AMENDMENT CONFRONTATION CLAUSE QUESTIONS PART C: RECORDS OF REGULARLY CONDUCTED ACTIVITY (THE BUSINESS RECORDS EXCEPTION): RULES 803(6) 803(7) IN GENERAL BUSINESS, ORGANIZATION, OCCUPATION, OR CALLING RECORDS OF CRIMINAL ACTIVITY ORIGINAL SOURCE OF INFORMATION QUESTIONS MULTIPLE HEARSAY (1) MAKING THE RECORD: TIME, DUTY, REGULARITY xiv

17 9.27 QUESTIONS KEEPING THE RECORD SUBJECT MATTER AND CONTENTS OF THE RECORD MULTIPLE HEARSAY (2); COMPRESSION QUESTIONS PROCEDURES FOR ADMISSION COMPUTERIZED RECORDS; DATA COMPILATIONS RECORDS CREATED BY MULTIPLE ENTITIES THE TRUSTWORTHINESS CLAUSE THE SIXTH AMENDMENT CONFRONTATION CLAUSE INTERPLAY WITH OTHER RULES FED. R. EVID. 803(7): ABSENCE OF ENTRY IN BUSINESS RECORD. 197 PART D: PUBLIC RECORDS AND REPORTS: RULES 803(8), 803(9) & 803(10) FED. R. EVID. 803(8) PROCEDURE FOR ADMISSION TRUSTWORTHINESS (1) THE THREE SUBSECTIONS OF FED. R. EVID. 803(8)(A) RULE 803(8)(A)(i): ACTIVITIES OF THE OFFICE OR AGENCY RULE 803(8)(A)(ii): MATTERS OBSERVED AND REPORTED PURSUANT TO DUTY RULE 803(8)(A)(ii): LAW ENFORCEMENT EXCLUSIONARY CLAUSE; CONFRONTATION CLAUSE FED. R. EVID. 803(8)(A)(iii): FACTUAL FINDINGS RULE 803(8)(A)(iii): AND THE TRUSTWORTHINESS CLAUSE QUESTIONS (8)(A)(iii) LAW ENFORCEMENT EXCLUSIONARY CLAUSE: ATTEMPTS TO LIMIT ITS SCOPE RULE 803(8)(A)(iii) AND THE CONFRONTATION CLAUSE: MELENDEZ- DIAZ WHO DOES THE PROSECUTOR HAVE TO CALL AS A WITNESS? MUST THE PROSECUTOR CALL THE ANALYST, OR MERELY MAKE HIM AVAILABLE TO THE DEFENSE? RULE 803(8)(A)(iii) AND THE CONFRONTATION CLAUSE: BULLCOMING v. NEW MEXICO QUESTION RULE 803(9): RECORDS OF VITAL STATISTICS RULE 803(10): ABSENCE OF PUBLIC RECORD OR ENTRY xv

18 Chapter 10 RULE 803: THE REGARDLESS OF WHETHER THE DECLARANT IS AVAILABLE AS A WITNESS EXCEPTIONS: MISCELLANEOUS EXCEPTIONS RULES 803(11) 803(23) INTRODUCTION RULE 803(11): RECORDS OF RELIGIOUS ORGANIZATIONS RULE 803(12). MARRIAGE, BAPTISMAL, AND SIMILAR CERTIFICATES RULE 803(13): FAMILY RECORDS RULE 803(14): RECORDS OF DOCUMENTS AFFECTING AN INTEREST IN PROPERTY RULE 803(15): STATEMENTS IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY RULE 803(16): STATEMENTS IN ANCIENT DOCUMENTS RULE 803(17): MARKET REPORTS, COMMERCIAL PUBLICATIONS RULE 803(18): LEARNED TREATISES RULE 803(19): REPUTATION CONCERNING PERSONAL OR FAMILY HISTORY RULE 803(20): REPUTATION CONCERNING BOUNDARIES OR GENERAL HISTORY RULE 803(21): REPUTATION AS TO CHARACTER RULE 803(22): JUDGMENT OF PREVIOUS CONVICTION QUESTIONS RULE 803(23): JUDGMENT AS TO PERSONAL, FAMILY OR GENERAL HISTORY, OR BOUNDARIES Chapter 11 RULE 804: EXCEPTIONS TO THE RULE AGAINST HEARSAY WHEN THE DECLARANT IS UNAVAILABLE AS A WITNESS INTRODUCTION PART A: DEFINING UNAVAILABLE : RULE 804(a) FED. R. EVID. 804(a): DECLARANT UNAVAILABLE RULE 804(a)(1): PRIVILEGE RULE 804(a)(2): REFUSAL TO TESTIFY RULE 804(a)(3): LACK OF MEMORY RULE 804(a)(4): DEATH, ILLNESS, INFIRMITY RULE 804(a)(5): ABSENT FROM THE HEARING PART B: RULE 804(b): THE EXCEPTIONS RULE 804(b): OVERVIEW Former Testimony xvi

19 11.9 RULE 804(b)(1) QUESTIONS SIMILAR MOTIVE OPPORTUNITY QUESTIONS OBJECTIONS QUESTIONS PREDECESSOR IN INTEREST QUESTIONS OTHER RULES AND EXCEPTIONS SIXTH AMENDMENT CONFRONTATION CLAUSE Statement Under Belief of Impending Death ( Dying Declarations ) INTRODUCTION RULE 804(b)(2): STATEMENT UNDER BELIEF OF IMPENDING DEATH SATISFYING THE REQUIREMENTS UNAVAILABILITY ; PROSECUTIONS FOR HOMICIDE SIXTH AMENDMENT CONFRONTATION CLAUSE OTHER HEARSAY EXCEPTIONS QUESTIONS Statements Against Interest RULE 804(b)(3) BELIEVED IT TO BE TRUE USE IN CIVIL LITIGATION; INTERESTS INCLUDED WITHIN THE RULE AGAINST INTEREST ; STATEMENTS THAT ARE BOTH SELF-SERVING AND DIS-SERVING CONTRASTING RULE 804(b)(3) AND RULE 801(d)(2) QUESTIONS DECLARATIONS AGAINST PENAL INTEREST: USE BY DEFENDANT IN CRIMINAL CASES THE TRUSTWORTHINESS REQUIREMENT QUESTIONS DECLARATION AGAINST PENAL INTEREST: USE BY PROSECUTOR AGAINST INTEREST WILLIAMSON: INDIVIDUAL DECLARATION OR NARRATION AS A WHOLE; COLLATERAL STATEMENTS SIXTH AMENDMENT CONFRONTATION CLAUSE xvii

20 11.40 RULE 804(b)(3); RULE 801(d)(2)(E); RULE 803(3) ( SECOND-PARTY HILLMON ) GUARANTEES OF TRUSTWORTHINESS QUESTIONS Statement of Personal or Family History RULE 804(b)(4) RULE 804(b)(4)(A): DECLARANT S OWN PERSONAL HISTORY RULE 804(b)(4)(B): STATEMENT CONCERNING FAMILY HISTORY OF ANOTHER Deleted Rule 804(b)(5) OLD RULE 804(b)(5) Statement Offered Against a Party Who Wrongfully Caused the Declarant s Unavailability RULE 804(b)(6) A DOMESTIC VIOLENCE SCENARIO CAUSED OR ACQUIESCED WRONGFULLY CONFRONTATION CLAUSE: GILES v. CALIFORNIA THE INTENT REQUIREMENT GILES: RATIONALE FOR THE DECISION BURDEN OF PERSUASION; EVIDENCE TO BE CONSIDERED APPLYING RULE 804(b)(6) AND THE CONFRONTATION CLAUSE FORFEITURE DOCTRINE: DOMESTIC VIOLENCE CASES APPLYING RULE 804(b)(6) AND THE FORFEITURE DOCTRINE: AN ORGANIZED CRIME SCENARIO Chapter 12 THE RESIDUAL EXCEPTION : RULE IN GENERAL MATERIAL ; MORE PROBATIVE QUESTIONS CIRCUMSTANTIAL GUARANTEES OF TRUSTWORTHINESS QUESTIONS CONFRONTATION CLAUSE; TRUSTWORTHINESS xviii