F. RESIDUAL EXCEPTION (FRE 807)
1. Intro
The FRE provide a general catch-all exception for hearsay statements not covered by specific exceptions.
2. Requirements
a. Circumstantial guarantees of trustworthiness
In determining whether the statement has “equivalent circumstantial guarantees of trustworthiness”, the court is likely to consider these factors: (1) under oath; (2) how much time lapsed; (3) declarant’s motive for telling truth; (4) first-hand knowledge; (5) written v. oral statement; (6) subsequently recanted statement.
b. Evidence of material fact
The statement must be offered as evidence of a material fact.
c. More probative
The statement must be more probative on the point for which it is offered than any other evidence which is available through reasonable efforts.
d. Interests of justice
Use of the evidence must be consistent with the general purposes of the FRE and the interests of justice.
e. Notice to adversary
The proponent must give notice in advance of trial to the adverse party as to the nature of the statement (including the name and address of the declarant) so that the adversary has an opportunity to prepare to meet it.
Friday, October 26, 2012
Intro to the Federal Rules of Evidence - 72
6. Forfeiture by Wrongdoing (FRE 804(b)(6))
a. Purpose
To remove the incentive of witness-tampering: D’s attempt to intimidate, bribe, or even murder the witness.
b. No reliability requirement
This exception does not require that the out-of-court declaration be reliable in order to be admitted. This makes the exception much easier to use than the residual exception of FRE 807 which requires circumstantial guarantees of trustworthiness.
c. Common scenarios
The out-of-court statements to which FRE 804(b)(6) is often applied include: (1) statements made by W while under police interrogation; (2) statements made by W in a grand jury proceedings or preliminary hearing; (3) statements made by W in W’s own criminal trial, or in a criminal trial of some third person.
a. Purpose
To remove the incentive of witness-tampering: D’s attempt to intimidate, bribe, or even murder the witness.
b. No reliability requirement
This exception does not require that the out-of-court declaration be reliable in order to be admitted. This makes the exception much easier to use than the residual exception of FRE 807 which requires circumstantial guarantees of trustworthiness.
c. Common scenarios
The out-of-court statements to which FRE 804(b)(6) is often applied include: (1) statements made by W while under police interrogation; (2) statements made by W in a grand jury proceedings or preliminary hearing; (3) statements made by W in W’s own criminal trial, or in a criminal trial of some third person.
Intro to the Federal Rules of Evidence - 71
5. Statement of Personal or Family History (FRE 804(b)(4))
a. Rationale
Hearsay statements concerning family history are often necessary to prove the facts of people’s everyday lives. For example, most people rely on the hearsay statements for the knowledge of where they were born, who their relatives are, etc.
b. Requirements
i) Person or relative
The now unavailable declarant must be a member of the family in question or otherwise so intimately associated with the family that they are likely to have accurate information concerning the matters declared (e.g., a family doctor).
ii) Personal knowledge
The declarant’s statements may be based either on her own personal knowledge of the facts involved or on her knowledge of family reputation.
c. Other ways to prove pedigree
Personal and family history may be proven by use of other exceptions to the hearsay rule. For example, it may be proven by: vital statistics (FRE 803(9); records of religious organizations (FRE 803(11)); marriage certificates and other certificates (FRE 803(12)); family records (FRE 803(13)); statements in property documents (FRE 803(15)); reputation (803 (19)); and judgments (FRE 803 (23)). For these exceptions, the declarant’s availability is immaterial.
a. Rationale
Hearsay statements concerning family history are often necessary to prove the facts of people’s everyday lives. For example, most people rely on the hearsay statements for the knowledge of where they were born, who their relatives are, etc.
b. Requirements
i) Person or relative
The now unavailable declarant must be a member of the family in question or otherwise so intimately associated with the family that they are likely to have accurate information concerning the matters declared (e.g., a family doctor).
ii) Personal knowledge
The declarant’s statements may be based either on her own personal knowledge of the facts involved or on her knowledge of family reputation.
c. Other ways to prove pedigree
Personal and family history may be proven by use of other exceptions to the hearsay rule. For example, it may be proven by: vital statistics (FRE 803(9); records of religious organizations (FRE 803(11)); marriage certificates and other certificates (FRE 803(12)); family records (FRE 803(13)); statements in property documents (FRE 803(15)); reputation (803 (19)); and judgments (FRE 803 (23)). For these exceptions, the declarant’s availability is immaterial.
Friday, August 31, 2012
Intro to the Federal Rules of Evidence - 70
4. Statement against interest (FRE 804(b)(3))
a. Justification
It is based on a common sense notion that reasonable person tend not to make statements against his own interest unless they believe them to be true.
b. Requirements
i) Meaning of “against interest”
1) When made
The declaration must have been against the declarant’s interest at the time it was made.
2) Pecuniary interest or property interest
Property rights, debts, and tort liability are included.
3) Penal interest
a) Third party’s self- inculpating statement
Independent corroborating evidence is required for the trustworthiness of the statement.
Here are some of factors to be considered to decide what constitutes adequate corroboration: whether the declarant had an apparent motive to lie; the general character of the declarant; whether more than one person heard the statement; whether the declaration was made spontaneously; the timing of the declaration and the relationship between the declarant and the witness; whether there is other evidence linking the declarant to the crime.
b) Statement inculpating the accused
The prosecution may introduce an out-of-court declaration, made against the declarant’s penal interest, that has the effect of inculpating the accused.
c) Co-defendant’s confession may not be admissible
The confession of a co-defendant implicating himself and the accused may not be admissible because of confrontation problems.
c. Inadmissibility of collateral statements
Statements may consist of declaration- against- interest parts and collateral parts (neutral or self-serving).
Under the principle of single mark, self-inculpatory parts and collateral parts are separated. And self-inculpatory statements are admissible, while collateral statements are not admissible under 804(b)(3).
It is because the fact that a statement is self-inculpatory does make it more reliable; but the fact that a statement is collateral to a self-inculpatory statement says nothing at all about the collateral statement’s reliability. See Williamson v. United States, 512 U.S. 594 (1994).
a. Justification
It is based on a common sense notion that reasonable person tend not to make statements against his own interest unless they believe them to be true.
b. Requirements
i) Meaning of “against interest”
1) When made
The declaration must have been against the declarant’s interest at the time it was made.
2) Pecuniary interest or property interest
Property rights, debts, and tort liability are included.
3) Penal interest
a) Third party’s self- inculpating statement
Independent corroborating evidence is required for the trustworthiness of the statement.
Here are some of factors to be considered to decide what constitutes adequate corroboration: whether the declarant had an apparent motive to lie; the general character of the declarant; whether more than one person heard the statement; whether the declaration was made spontaneously; the timing of the declaration and the relationship between the declarant and the witness; whether there is other evidence linking the declarant to the crime.
b) Statement inculpating the accused
The prosecution may introduce an out-of-court declaration, made against the declarant’s penal interest, that has the effect of inculpating the accused.
c) Co-defendant’s confession may not be admissible
The confession of a co-defendant implicating himself and the accused may not be admissible because of confrontation problems.
c. Inadmissibility of collateral statements
Statements may consist of declaration- against- interest parts and collateral parts (neutral or self-serving).
Under the principle of single mark, self-inculpatory parts and collateral parts are separated. And self-inculpatory statements are admissible, while collateral statements are not admissible under 804(b)(3).
It is because the fact that a statement is self-inculpatory does make it more reliable; but the fact that a statement is collateral to a self-inculpatory statement says nothing at all about the collateral statement’s reliability. See Williamson v. United States, 512 U.S. 594 (1994).
Intro to the Federal Rules of Evidence - 69
3. Statement under belief of impending death (FRE 804(b)(2))
a. Justification
The basis of its trustworthiness is more religious and psychological than it is legal: people would not want to die with a lie upon their lips.
b. Requirements
i) Awareness of imminent death
It is not enough that he knows that he is seriously ill/wounded, or that he will probably die.
1) Actual death not required
It will suffice if the declarant is unavailable for some reason other than death (e.g., disability or forgetfulness).
ii) Homicide cases or civil actions
Dying declarations can be used in civil cases. But regarding criminal cases, they can be used only in homicide cases.
iii) Must relate to circumstances of killing
The statement must be one concerning the cause or circumstances of what the declarant believed to be his impending death.
c. Miscellaneous
i) Usable on accused’s behalf
Dying declarations may be admitted on behalf of the defendant, even though most of the time they are admitted against him.
ii) Personal knowledge
As with other out-of-court declarations, the dying declaration will be admissible only if it appears to come from the declarant’s first-hand knowledge.
a. Justification
The basis of its trustworthiness is more religious and psychological than it is legal: people would not want to die with a lie upon their lips.
b. Requirements
i) Awareness of imminent death
It is not enough that he knows that he is seriously ill/wounded, or that he will probably die.
1) Actual death not required
It will suffice if the declarant is unavailable for some reason other than death (e.g., disability or forgetfulness).
ii) Homicide cases or civil actions
Dying declarations can be used in civil cases. But regarding criminal cases, they can be used only in homicide cases.
iii) Must relate to circumstances of killing
The statement must be one concerning the cause or circumstances of what the declarant believed to be his impending death.
c. Miscellaneous
i) Usable on accused’s behalf
Dying declarations may be admitted on behalf of the defendant, even though most of the time they are admitted against him.
ii) Personal knowledge
As with other out-of-court declarations, the dying declaration will be admissible only if it appears to come from the declarant’s first-hand knowledge.
Friday, July 27, 2012
Intro to the Federal Rules of Evidence - 68
2. Former Testimony (FRE 804(b)(1))
a. Justification
Former testimony has a high degree of trustworthiness, since it was given during formal proceedings and under oath by a witness subject to cross-examination.
b. Requirements
i) The unavailability of the declarant
ii) Testimony made at a hearing or in a deposition during the same or different proceeding
It is interpreted that a “hearing” includes any setting in which sworn testimony by a witness is taken, and a “proceeding” includes any official inquiry conducted in a manner authorized by law whether judicial, administrative, legislative, investigative, or inquisitorial.
This exception covers a prior trial (civil or criminal), a preliminary hearing/ a suppressing hearing in a criminal case. But it does not cover affidavits and statements made to police or other law enforcement officials during investigations.
1) Under oath
Though not specifically stated in FRE 804(b)(1) itself, the term “testimony” implies it.
2) Opportunity for cross-examination
The party against whom the evidence is now offered must have had a reasonable opportunity to cross-examine the declarant at the time of the former testimony.
Thus, the grand jury testimony of an unavailable declarant is not admissible as former testimony against the accused at trial, because grand jury proceedings do not provide the opportunity for cross-examination.
But an actual examination is not required.
iii) Similar motive
It is because if the adverse party had no incentive to cross-examine- for instance, because the issues were different, or the stakes were very different.
Three factors are considered to determine the issue of similar motive: (1) similarity of issues (; (2) similarity of stakes ($200 v. $300,000); and (3) same parties.
iv) Identity of parties
1) Applies only to opponent
The proponent of the former testimony need not have been a party to the earlier proceeding. Only the opponent must have been present.
2) Criminal Cases
The party against whom the former testimony is offered must have been present in the earlier proceeding, without respect to whether that party is the defendant or the prosecutor. (Regarding the defendant, it is related to his Confrontation Clause rights.)
Thus a former testimony may not be offered against a criminal defendant who was not present, even if another person – e.g., a co-defendant- was present at the prior proceeding and had a highly similar motive to cross-examine.
3) Civil Cases
Even if the opponent was not present, the former testimony can be used as long as the present opponent’s “predecessor in interest” must have had an opportunity and similar motive to cross-examine in the earlier proceeding.
A “predecessor in interest” means a person with a like motive to develop the same testimony about the same material facts. Lloyd v. American Export Lines, Inc., 580 F.2d 1179 (3rd. Cir. 1978). That is, it is very broadly interpreted.
A person in privity with a party to the former action includes a person of grantor-grantee, testator-executor, life tenant-remainderman, joint tenants.
a. Justification
Former testimony has a high degree of trustworthiness, since it was given during formal proceedings and under oath by a witness subject to cross-examination.
b. Requirements
i) The unavailability of the declarant
ii) Testimony made at a hearing or in a deposition during the same or different proceeding
It is interpreted that a “hearing” includes any setting in which sworn testimony by a witness is taken, and a “proceeding” includes any official inquiry conducted in a manner authorized by law whether judicial, administrative, legislative, investigative, or inquisitorial.
This exception covers a prior trial (civil or criminal), a preliminary hearing/ a suppressing hearing in a criminal case. But it does not cover affidavits and statements made to police or other law enforcement officials during investigations.
1) Under oath
Though not specifically stated in FRE 804(b)(1) itself, the term “testimony” implies it.
2) Opportunity for cross-examination
The party against whom the evidence is now offered must have had a reasonable opportunity to cross-examine the declarant at the time of the former testimony.
Thus, the grand jury testimony of an unavailable declarant is not admissible as former testimony against the accused at trial, because grand jury proceedings do not provide the opportunity for cross-examination.
But an actual examination is not required.
iii) Similar motive
It is because if the adverse party had no incentive to cross-examine- for instance, because the issues were different, or the stakes were very different.
Three factors are considered to determine the issue of similar motive: (1) similarity of issues (; (2) similarity of stakes ($200 v. $300,000); and (3) same parties.
iv) Identity of parties
1) Applies only to opponent
The proponent of the former testimony need not have been a party to the earlier proceeding. Only the opponent must have been present.
2) Criminal Cases
The party against whom the former testimony is offered must have been present in the earlier proceeding, without respect to whether that party is the defendant or the prosecutor. (Regarding the defendant, it is related to his Confrontation Clause rights.)
Thus a former testimony may not be offered against a criminal defendant who was not present, even if another person – e.g., a co-defendant- was present at the prior proceeding and had a highly similar motive to cross-examine.
3) Civil Cases
Even if the opponent was not present, the former testimony can be used as long as the present opponent’s “predecessor in interest” must have had an opportunity and similar motive to cross-examine in the earlier proceeding.
A “predecessor in interest” means a person with a like motive to develop the same testimony about the same material facts. Lloyd v. American Export Lines, Inc., 580 F.2d 1179 (3rd. Cir. 1978). That is, it is very broadly interpreted.
A person in privity with a party to the former action includes a person of grantor-grantee, testator-executor, life tenant-remainderman, joint tenants.
Intro to the Federal Rules of Evidence - 67
E. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE (FRE 804)
1. Intro
a. Definition of unavailability
FRE 804(b) lists 5 categories: (1) privilege; (2) refusal; (3) lack of memory; (4) inability; (5) absence. But if one of these is due to the proponent’s fault, unavailability is not established.
Regarding “absence,” it is not enough to show that the declarant is beyond the reach of process.
The person offering the out-of-court declaration must show that it was also not possible to procure the witness’s attendance by other means (e.g., persuasion).
For the exceptions given in FRE 804(b)(2), (3), and (4), the person offering the out-of-court declaration in a federal trial must also show that attempts to take the declarant’s deposition were unsuccessful.
b. Constitutional problems
A witness will be deemed sufficiently unavailable not to violate a criminal defendant’s Confrontation Clause rights if the state shows (1) the witness is beyond that state’s own process; and (2) either the state made a good-faith effort to procure the witness’ presence by means other than process, or such efforts would have been very unlikely to succeed.
1. Intro
a. Definition of unavailability
FRE 804(b) lists 5 categories: (1) privilege; (2) refusal; (3) lack of memory; (4) inability; (5) absence. But if one of these is due to the proponent’s fault, unavailability is not established.
Regarding “absence,” it is not enough to show that the declarant is beyond the reach of process.
The person offering the out-of-court declaration must show that it was also not possible to procure the witness’s attendance by other means (e.g., persuasion).
For the exceptions given in FRE 804(b)(2), (3), and (4), the person offering the out-of-court declaration in a federal trial must also show that attempts to take the declarant’s deposition were unsuccessful.
b. Constitutional problems
A witness will be deemed sufficiently unavailable not to violate a criminal defendant’s Confrontation Clause rights if the state shows (1) the witness is beyond that state’s own process; and (2) either the state made a good-faith effort to procure the witness’ presence by means other than process, or such efforts would have been very unlikely to succeed.
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