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Demonstrating HowEvidence Falls UnderHearsay Exceptions

T. Dylan Reeves

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Rule 804. Hearsay ExceptionsDeclarant Unavaila!le

"a#$rounds o% unavaila!ility.

&Unavaila!ility as a witness' includes situations inw(ic( t(e declarant )

"*# is exempted !y ruling o% t(e court on t(e groundo% privilege %rom testi%ying concerning t(e su!+ectmatter o% t(e declarant,s statement or

"-# persists in re%using to testi%y concerning t(esu!+ect matter o% t(e declarant,s statement despite

an order o% t(e court to do so or "# now possesses a lac/ o% memory o% t(e su!+ect

matter o% t(e declarant,s statement or

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Unavaila!ility cont

"4# is una!le to !e present or to testi%y at t(e (earing!ecause o% deat( or t(en existing p(ysical or mental

illness or in1rmity or

"2# is a!sent %rom t(e (earing and t(e proponent o% t(e

statement (as !een una!le to procure t(e declarant,sattendance "or in t(e case o% a (earsay exception under

su!section "!#"-#3 "#3 or "4#3 t(e declarant,s attendanceor testimony# !y process or ot(er reasona!le means.

declarant is not unavaila!le as a witness i% exemption3

re%usal3 lac/ o% memory3 ina!ility3 or a!sence is due tot(e procurement or wrongdoing o% t(e proponent o% a

statement %or t(e purpose o% preventing t(e witness %romattending or testi%ying.

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804(b) Hearsay exceptions.T(e %ollowing are not excluded !y t(e (earsay rule i% t(e declarant is

unavaila!le as a witness5

"*#Former testimony. Testimony o% a witness3 ina %ormer trial or action3 given

"# under oat(3

"6# !e%ore a tri!unal or o7cer (aving !y law t(eaut(ority to ta/e testimony and legally reuiring anopportunity %or cross9 examination3

":# under circumstances a;ording t(e party againstw(om t(e witness was o;ered an opportunity to

test (is or (er credi!ility !y cross9examination3 and "D# in litigation in w(ic( t(e issues and parties

were su!stantially t(e same as in t(e present

cause.

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804"!# cont

"-#

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804"!# cont

"#

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804"!# cont

"4#

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804"!#"4#

>ersonal /nowledge is expressly exempted

$rounds %or unavaila!ility (ere generally5 Exempted %rom testi%ying !ecause o% privilege

?rdered !y +udge to testi%y3 !ut re%uses @ow possesses a lac/ o% memory

Unavaila!le due to deat(3 p(ysical or mentalillness

!sent and una!le to procure attendance !yprocess or ot(er reasona!le means

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80"-# Excited utterance.

Excited utterance. statement relating to astartling event or condition made w(ile t(edeclarant was under t(e stress o% excitementcaused !y t(e event or condition.

E.g.3 o!serving an accident or criminal attac/

Utterance may come !e%ore t(e event itsel%. E.g3&T(at car needs to slow down or will (ave a

wrec/A' Utterance can !e distant in time. E.g.3 victim o%

a criminal attac/ excitedly identi1es (erassailant %rom a p(oto

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80"*# >resent

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80"2# RecordedRecollection

memorandum or record concerning a mattera!out w(ic( a witness once (ad /nowledge!ut now (as insu7cient recollection to ena!le

t(e witness to testi%y %ully and accurately3s(own to (ave !een made or adopted !y t(ewitness w(en t(e matter was %res( in t(ewitness,s memory and to reCect t(at/nowledge correctly. B% admitted3 t(ememorandum or record may !e read intoevidence !ut may not itsel% !e received as anex(i!it unless o;ered !y an adverse party.

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How does recorded recollection

wor/

Under R. *-3 as/ witness i% re%res(es memory%rom document3 t(en it is a present recollectionrevived. Document is not admissi!le3 onlyevidence is witnesses testimony.

B% witness cannot testi%y to an existing/nowledge o% t(e %act3 independent o% t(ememorandum3 t(en it is a past recollectionrecorded.

To !e admissi!le3 witness must testi%y (e /newcontent at or a!out t(e time it was made andcontents were true.

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80"*8# earned Treatises

To t(e extent called to t(e attention o% an expert witnessupon cross9examination or relied upon !y t(e expert

witness in direct examination3 statements contained inpu!lis(ed treatises3 periodicals3 or pamp(lets on a

su!+ect o% (istory3 medicine3 or ot(er science or art3esta!lis(ed as a relia!le aut(ority !y t(e testimony or

admission o% t(e witness or !y ot(er expert testimony or!y +udicial notice. B% admitted3 t(e statements may !e

read into evidence !ut may not !e received as ex(i!its.

Bn some +urisdictions may only s(ow !asis %or opinion. Bnla!ama3 it is su!stantive evidence.

ut(entication may !e an issue !ecause not sel%9proving

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80 "*# Reputation concerningpersonal or %amily (istory.

Reputation among mem!ers o% a person,s %amily !y!lood3 adoption3 or marriage3 or among a person,sassociates3 or in t(e community3 concerning a person,s!irt(3 adoption3 marriage3 divorce3 deat(3 legitimacy3

relations(ip !y !lood3 adoption3 or marriage3 ancestry3or ot(er similar %act o% personal or %amily (istory.

llows %riends3 %amily3 etc. to testi%y a!out !iograp(ical%acts.

Bdea is t(at certain statements are su7ciently

trustwort(y w(en t(e topic is suc( t(at t(e %acts areli/ely to (ave !een inuired a!out and t(at persons(aving personal /nowledge (ave disclosed %acts

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80"-0# Reputation concerning!oundaries or general (istory.

Reputation in a community3 arising!e%ore t(e controversy3 as to!oundaries o% or customs a;ecting

lands in t(e community3 andreputation as to events o% general(istory important to t(e community

or state or nation in w(ic( located.

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80"-0#

Bn t(e case3 de%endant Emmanuel was t(e 1rstindividual prosecuted under t(e Torture ct3 *8 U.

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80"-0#

?n appeal3 one o% several issues concerned t(e admissiono% t(e Department o%

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"-# Ludgment as to personal3 %amily3or general (istory3 or !oundaries.

Ludgments as proo% o% matters o%personal3 %amily3 or general (istory3or !oundaries3 essential to t(e

+udgment3 i% t(e same would !eprova!le !y evidence o% reputation.

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80"-*# Reputation as toc(aracter

Reputation o% a person,s c(aracteramong associates or in t(e community.

Use in con+unction wit( R. 402

Bn all cases in w(ic( evidence o% c(aracter ora trait o% c(aracter o% a person is admissi!le3except under Rule 404"a#"*#3 proo% may !emade !y testimony as to reputation or !y

testimony in t(e %orm o% an opinion. ?n cross9examination3 inuiry is allowa!le intorelevant speci1c instances o% conduct.

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"8# >u!lic records andreports.

Records3 reports3 statements3 or data compilations3 inany %orm3 o% pu!lic o7ces or agencies3 setting %ort(

"# t(e activities o% t(e o7ce or agency3 or

"6# matters o!served pursuant to duty imposed !y law as

to w(ic( matters t(ere was a duty to report3 excluding3(owever3 w(en o;ered against t(e de%endant in criminalcases3 matters o!served !y police o7cers and ot(er lawen%orcement personnel3 or

":# in civil actions and proceedings and against t(e state

or governmental aut(ority in criminal cases3 %actual1ndings resulting %rom an investigation made pursuant toaut(ority granted !y law3 unless t(e sources o% in%ormationor ot(er circumstances indicate lac/ o% trustwort(iness.

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M(y arent police reports

admissi!leN

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80"*#