5g. FRE 804 - Federal Rules PDF

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FRE 804 / Unavailability (Chapter 48) a. FRE 804 establishes five exceptions that require a showing of "unavailability" by the proponent b. FRE 804(a): "Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;" i. If a witness invokes a privilege, and the Court finds privilege shields witness's testimony, witness is unavailable c. "(2) refuses to testify about the subject matter despite a court order to do so;" i. Judge may hold witness in contempt and impose a penalty ii. But witness is still found unavailable so as not to punish party calling witness d. "(3) testifies to not remembering the subject matter;" i. Whether the memory loss is real or feigned, witness is deemed unavailable. ii. Applies to subject matters, not witness. A witness may be available on all other topics, but unavailable on the one topic he doesn't recall. iii. The witness must testify that he has absolutely no recollection of the subject matter, not just of the details. iv. To prevent prejudice, parties often make this showing outside of jury's presence e. "(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness;" i. For death, proponent usually presents death certificate ii. For illness, witness unavailable if he cannot come to court to testify, and there is little likelihood of recovery within a reasonable time. iii. Proponent must present documents or live testimony establishing declarant's condition f. "(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure: (A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or (B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4)." i. Two situations: party cannot find witness after a reasonable search; or witness refuses to come to court and is outside of court's jurisdiction ii. Party must show a good faith genuine effort to procure witness's attendance and document those efforts to present them to court iii. And for three of the five exceptions, party must use reasonable means to take witness's deposition if he will not attend trial ("the deposition preference") 1. Statement under belief of imminent death 2. Statement against interest g. "But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying." i. The wrongdoing caveat: party offering out of court statement cannot have caused unavailability by wrongful means 804/Former Testimony a. Intro i. This is NOT one of the high-use exceptions; the requirements are quite demanding ii. Different from prior statements under FRE 802 where witness required to be on stand for cross (for prior inconsistent or consistent statements, or IDs) b. FRE 804(1) Former Testimony. Testimony that: (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination. c. Four requirements i. Declarant is unavailable ii. Prior statement was given at a trial, hearing, or deposition iii. Opponent [or its predecessor in civil cases] had opportunity to develop testimony iv. Opponent had similar motive to cross-examine d. Difference with prior inconsistent statements i. 804(b)(1) requires unavailability ii. 804(b)(1) requires testimony under oath in proceeding with opportunity and motive to develop testimony e. Example problems i. Insider trading

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US charges Joseph with insider trading. Wife provides some of the evidence against him. She testifies before grand jury. But at trial, she gets cold feet. Claims spousal privilege and refuses to testify. 2. Can we admit the wife’s grand jury testimony under 804(b)(1)? a. Answer: No—there was no chance to cross-examine i. Privilege makes wife unavailable, and the grand jury counts as a “hearing.” ii. But key fact about grand jury: Defendant and attorney not there. No chance to cross-examine 3. Could we admit this statement under 801(d)(1)(A) instead? Consider the elements of that exception: a. Wife is NOT subject to cross examination in current proceeding. So NOT admissible. Same result. 4. Suppose Joseph never married this woman. She’s a girlfriend, not a wife. She testifies before grand jury and gets cold feet. But she has no privilege to invoke. So she gets on stand at trial and says “I forget.” 5. Can the prosecutor introduce her grand jury statement as a prior inconsistent statement? As former testimony? Both? Neither? a. Answer: Just as a prior inconsistent statement. b. The statement is NOT admissible as former testimony under 804(b)(1). Why not? i. Girlfriend is unavailable (memory loss) ii. Former testimony was at a proceeding iii. But Joseph was not present; had no opportunity to develop testimony (Same problem we saw in the first variation of this problem) c. But it IS admissible as a prior inconsistent statement. Why? i. Memory loss is inconsistent with prior detailed statement ii. Prior statement was made under oath at a proceeding iii. Girlfriend IS subject to cross-examination in current proceeding ii. United States v. Zapata 1. Alleged conspiracy to distribute drugs. Prosecutor’s evidence showed Londono was conspiracy leader. Londono pled guilty; refused to testify at Zapata’s trial. Zapata offers statement from Londono’s plea allocution: “I never told Zapata the purpose of our enterprise.” Allocution is in court, under oath, on the record. Judge questions D and satisfies self that D is pleading guilty knowingly, voluntarily, and on proper factual basis. Decides whether plea should be accepted. 2. Is statement from plea allocution admissible as former testimony? a. Prosecutor is present at plea allocation but doesn’t get to cross-examine. Judge asks questions. And, even if the prosecutor asks question, there is no motive to question the D’s references to other people (like the one to Zapata in this case). b. So the answer here is: No, statement from the plea allocution isn’t admissible as former testimony. iii. Drug prosecution 1. Brooks charged with selling cocaine. Police Officer Christie Hoyle testified she bought cocaine from Brooks. Hung jury. Hoyle killed by boyfriend. New trial of Brooks 2. Admit Hoyle’s testimony from first trial? a. Answer: Yes. Brooks had opportunity and same motive to cross-examine. b. Doesn’t matter if he didn’t actually cross-examine. c. This is an example of the limited circumstances under which 804(b)(1) will admit former testimony. iv. Patent case 1. Widget has a patent on a valuable piece of machinery. Widget sues Copy Company for patent infringement. Widget VP gives deposition under oath, related to patent validity. Widget and Copy Company settle. VP dies. Widget sues a different company (Knock Off Company) for infringement. 2. In second trial, Widget wants to use VP’s deposition testimony. Knock Off wants to preclude that. What is Knock Off’s best argument? a. Answer: Copy Co. had different motives. In civil case, cross-examination by predecessor in interest qualifies, as long as predecessor had similar motives. b. Doesn’t matter if other witnesses are available. Question is if THIS one is. Clearly not, since dead. c. Depositions specifically covered by rule.

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Doesn’t matter if party asked any questions in previous hearing or dep. Question is whether they had opportunity. e. There is a good chance that court would admit this testimony. Different companies accused of infringing same patent may have similar interests. v. United States v. Ricketson 1. Ricketson charged with robbing jewelry from elderly widow’s home. Widow too ill to attend court. Government deposed widow in her home, with notice to Ricketson 2. Deposition admissible? a. Answer: Yes. b. Can use depositions in criminal cases. c. Illness is enough to make unavailable. Don’t need death. d. Motives at deposition unlikely to differ from those in court. Especially when notice to D that witness unlikely to attend trial. FRE 804 / Dying Declarations (Chapter 50) a. Intro i. Most colorful of the hearsay exceptions. Favorite of novelists, scriptwriters, and bar examiners. ii. Also has a famous history in the United States: Played a key role in defense of the British soldiers who fired during Boston Massacre. This illustration is Paul Revere’s famous engraving of the Boston Massacre. 1. Massachusetts charged 8 British soldiers with homicide. Witnesses for the prosecution testified that the soldiers were agitators, out to get innocent townspeople. 2. John Adams defended the soldiers, asserting right of all accused criminals to a defense. Adams and his cocounsel, Josiah Quincy, had key evidence for the defense. One of the victims, Patrick Carr, languished for about two weeks. He was treated by a doctor named John Jeffries, whose testimony was [see slide] iii. This was a classic dying declaration: Carr knew his death was imminent and he made a statement relating to the cause of death (soldier was provoked). iv. Court allowed the doctor’s testimony and, based on that evidence, the jury acquitted six defendants and convicted other two of manslaughter rather than murder. b. FRE 804(b)(2) i. “The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.” c. Four requirements i. Declarant is unavailable. Usually dead, but not required ii. Applies only to homicide prosecutions and civil proceedings 1. NOT to most criminal prosecutions iii. Declarant subjectively believed death was imminent. 1. Soon and inevitable. In the shadows of death iv. Statement concerns cause or circumstances of death 1. NOT other matters d. Example problems i. Mamie beating 1. A man beats Mamie brutally. They’re outside on the sidewalk. As Mamie collapses, a neighbor hears her say: “I’m dying—don’t let Roscoe get away with this." Mamie survives, but has amnesia. Doesn’t remember anything about beating. Government prosecutes Roscoe for assault. 2. Can the government introduce neighbor’s testimony about Mamie’s statement? a. Mamie is unavailable because of memory loss. b. Answer: Yes, but only as excited utterance. c. Can’t use dying declaration in assault prosecution—only in homicide or civil case. d. Moral of the example: When you have a dying declarant, consider other exceptions. E.g., excited utterance, statement to obtain medical assistance, state of mind, present sense impression. ii. Three Blinks 1. Cincinnati 2011: David Chandler was shot and lying in hospital bed, paralyzed. Police showed Chandler picture of suspect and told him to blink three times for “yes, that’s him” and twice for “no, not him." Police brought in priest for last rites. Chandler lived 15 more days, then died.

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Defense attorney claimed police brought in priest to try to fit "statement" into exception. Police claimed they really thought Chandler was dying and brought priest as a courtesy. 804 / Statement Against Interest (Chapter 51) a. Four elements i. Declarant unavailable ii. Statement that was against interest iii. At the time made iv. Corroboration for statements against penal interest offered in criminal cases b. "Against interest" i. Just three types 1. Pecuniary or proprietary interest 2. Civil or criminal liability 3. Render invalid a claim ii. Even if fall within one of approved categories, statement must be one that no reasonable person would have made the statement unless it was true c. Examples i. DV situation 1. Sherry comes to the police and says: “My boyfriend is a gangster. I can’t live with him any more and I can’t live with myself if I don’t turn him in. He’ll kill me if he finds out I’ve talked, but here’s what he has done. She gives detailed account of various crimes. None involved her. Sherry then disappears. Prosecutor charges boyfriend with drug dealing and other crimes revealed by Sherry. 2. Can he introduce Sherry’s statements in trial of boyfriend? a. Answer: No. b. Not against her penal interest. She was scared for safety, but that doesn’t count. Nothing incriminating. c. Not an excited utterance: Scared, but not responding to sudden event. Ongoing fear doesn’t work for this exception. d. Not state of mind: That exception would admit the fact that she was scared, but not the reasons for her fear. e. Worried that boyfriend will kill her, but not sufficiently imminent for dying declaration. And not murder prosecution. ii. Another issue with statements against interest: problem arises when criminal defendant offers statement by a third party that exculpates the accused by indicating that someone else committed the crime. 1. If the third party comes to court and confesses to the crime, that’s no problem. 2. The prosecutor can cross-examine this third party, trying to show the jury that she is either confused or protecting the defendant. 3. This doesn’t happen very often because people don’t like to go to jail—even to protect their friends of family members. The witness here may end up in jail either for stealing money or for perjury. 4. But what if the third party doesn’t confess in the courtroom? That’s a more likely scenario: Guilty people tend to avoid courtrooms and testifying under oath. 5. Suppose the woman we saw in the last slide doesn’t come to court; in fact, she has disappeared. 6. But she visited the police station after the defendant was arrested, and told this police officer that she was the person who stole the money. 7. Can the police officer testify about “Marie”’s incriminating statement? a. Marie’s statement occurred outside the courtroom, and it’s offered for the truth of the matter asserted (that she is the one who stole the money). So we need a hearsay exception. b. If Marie has disappeared, then her confession fits the first three requirements to admit a statement against interest. c. But, since this statement is offered to exculpate the accused, the statement must also satisfy this final requirement of corroboration. d. Why? These statements, like other ones that incriminate the declarant, have some credibility. But it can be relatively easy for a friend or family member to offer an unsworn statement claiming responsibility for a crime. If the friend/family member didn’t commit the crime, there will be no other evidence linking them to the crime. They won’t have much fear of prosecution. e. To avoid this problem, the rule requires corroboration. 8. How do we determine corroboration?

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As with other preliminary determinations, judge decides. Most judges want corroboration both of declarant’s trustworthiness and of statement’s truth. iii. Sarah and her brother 1. Sarah and her brother work for family business. Millions stolen from business. Brother charged with crime. Sarah commits suicide and leaves this note. Sarah’s brother is on trial for embezzlement. He wants to introduce note as part of his defense. 2. Can the brother admit the note as a dying declaration? a. Answer: No. b. This a criminal trial, but not for homicide. c. Could also question whether suicide notes are admissible as dying declarations. Writer believed death was imminent, although had control over whether it would happen. Should that matter? Does it make note more or less reliable? Courts split on whether they allow. d. The substance does seem to relate to the cause and circumstances of Sarah’s death: She’s committing suicide because of her crime and the fact that brother falsely accused. 3. Can the brother admit the note as a statement against interest? a. Probably not, although we don’t know of any rulings on this issue. Here are the arguments against admission: i. The statement may not be against interest. She’s about to kill self, so won’t suffer any legal penalties. Remember, the rule doesn’t protect moral or personal interests—not enough that people will think badly of her. ii. This is a criminal trial, and brother is offering note to exculpate himself. So we would need corroboration. b. Does this seem unfair? Think about it this way: If the ONLY evidence that Sarah, rather than brother, committed embezzlement was this note, would you find it reliable? i. Maybe Sarah decided to commit suicide for other reasons and wanted to help her brother. ii. Maybe someone killed Sarah and planted the note. 4. What about state of mind? Here’s the note again. Which parts are admissible as state of mind? a. Probably just “I can no longer live with what I have done…The only way out is to kill myself.” b. In other words, could prove that Sarah was despondent and that she planned to kill herself. But not the reasons for that. iv. The Burglar who saw a murder 1. Tricia broke into Victor’s home to steal his valuable gun collection. While Tricia was in the house, Victor returned with a man Tricia recognized as Paul. While Tricia hid behind a curtain, Victor and Paul argued; Tricia then saw Paul shoot and kill Victor. Shocked, she ran from the house without completing her own intended crime. Several days later, Tricia told her friend William what had happened: She confessed breaking into Victor’s house and witnessing the murder by Paul. The government prosecuted Paul for murder, but Tricia died before trial. Can the prosecutor offer William’s testimony about Tricia’s statement? a. Tricia is unavailable and part of her statement was against interest at the time she made it: She admitted to William that she broke into Victor’s house, intending to steal. b. But was Tricia’s description of the murder against her own interest? She was simply an eyewitness to that crime. This problem requires us to analyze the portions of Tricia’s statement carefully. Will the judge restrict William’s testimony to Tricia’s description of her own crime (which would not be relevant to the homicide prosecution)? i. One view: that Tricia’s entire statement may be against interest because she had no lawful right to be in Victor’s home. By describing a murder in someone else’s house, she implicitly admitted that she was in a place where she had no right to be. ii. Others will argue that once she has admitted to breaking into the house, any further statements about the murder she witnessed do not expose her to any further liability, and should be redacted.

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Even if the statement clears this hurdle, it still needs corroboration, since it is offered in a criminal case and it tends to expose the declarant to criminal liability.

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The Family Trunk. 1. The police found cocaine hidden in a trunk in Alfred’s home. The government charged Alfred with possession of a controlled substance. At trial, Alfred takes the stand and testifies that he hadn’t used the trunk in years and had no idea what it contained. He suggests that his son, Ruben, must have stashed the cocaine in the trunk. Ruben, according to Alfred, has left the country and has no plans to return. 2. Alfred then offers the testimony of a family friend, Linda, who will testify that several months before Alfred’s arrest, Ruben said to her: “I’m having a hard time with my suppliers—it’s hard to find decent cocaine these days.” 3. There is no other evidence that Ruben used or sold cocaine. Is Linda’s testimony admissible? a. First, the prosecutor may question Ruben’s unavailability: Alfred says that he has left the country, but did Alfred try to secure his return? i. Especially since Ruben is Alfred’s son, could Alfred have persuaded him to hide? ii. ...