Hearsay Exceptions Requiring an Unavailable Declarant

What does “declarant unavailable” mean?

The declarant cannot testify because a recognized ground for unavailability applies.

What are the grounds for a declarant’s unavailability?

Death; physical or mental illness; testimonial privilege; refusal to testify despite a court order; lack of memory; or absence despite reasonable efforts to obtain their testimony.

Does a witness’s refusal to testify automatically make them unavailable?

No. The witness must refuse despite a court order to testify.

When does lack of memory make a declarant unavailable?

When the declarant testifies that they cannot remember the subject matter of their statement.

When does a declarant’s absence make them unavailable?

When the proponent cannot obtain the declarant’s attendance or testimony through reasonable means.

Can a party cause a declarant’s absence and then claim the declarant is unavailable?

No, if the party caused the absence to prevent the declarant from testifying.

What hearsay exceptions covered here require an unavailable declarant?

Former testimony; statement against interest; dying declaration; statement of personal or family history; and forfeiture by wrongdoing.

What is the former testimony exception?

Prior testimony given under oath at a trial, hearing, or deposition, offered against a party that had an opportunity and similar motive to examine the declarant.

Must former testimony come from the same case?

No. It may come from the same case or another case.

Must the party actually have cross-examined the declarant for former testimony to qualify?

No. An opportunity to examine the declarant, coupled with a similar motive, is enough.

Why can testimony from an earlier trial still be hearsay?

Because it was made outside the current proceeding and is offered for the truth of what it asserts.

What is a statement against interest?

A statement that, when made, was so contrary to the declarant’s monetary, property, or penal interest that a reasonable person would have made it only if they believed it was true.

When must a statement be against the declarant’s interest?

At the time the declarant made it.

What knowledge must the declarant have for a statement against interest?

Personal knowledge of the facts and awareness that the statement was against their interest when made.

What extra showing is required when a criminal defendant offers another person’s statement against penal interest?

Corroborating circumstances that clearly indicate the statement is trustworthy.

What is a dying declaration under the federal rule?

A statement made while believing death was imminent, about the cause or circumstances of that believed impending death.

In which cases may a dying declaration be admitted under the federal rule?

In a civil case or a homicide prosecution.

Must the declarant actually die for a dying declaration to qualify?

No. The declarant must be unavailable at trial, but may still be alive.

What must a dying declaration be based on?

The declarant’s personal knowledge and perceptions, rather than speculation.

What does the personal or family history exception cover?

Statements about matters such as birth, marriage, divorce, or family relationships made by an unavailable declarant with the required family connection and knowledge.

Who may make a statement of personal or family history under this exception?

A family member or someone intimately associated with the family, relying on personal knowledge or family reputation.

What is forfeiture by wrongdoing?

A party who wrongfully causes a declarant’s unavailability with the purpose of preventing testimony may have the declarant’s statement admitted against that party.

Is causing a declarant’s absence alone enough for forfeiture by wrongdoing?

No. The party must have acted with the purpose of preventing the declarant from testifying.