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Understanding Federal Rule of Evidence 804

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Understanding Federal Rule of Evidence 804

With so many hearsay exceptions, where is a busy litigator to start? This refresher course breaks down Federal Rule of Evidence 804 and its exceptions in a comprehensive and clear manner. Fun pop culture examples are used to reinforce the material after the review. Brush up on these useful hearsay exceptions and be better prepared for your next trial.

Presenters

Veronica Finkelstein
Assistant U.S. Attorney
U.S. Department of Justice in Philadelphia, Pennsylvania

Transcript

- In this presentation, we are going to focus on understanding Federal Rule of Evidence 804, a powerful exception to the rule that excludes hearsay from trial. In this presentation, you will refresh yourself with the concept of hearsay, and in specific, Federal Rule of Evidence 804. We'll review the two requirements of the rule so that you understand the concept of unavailability and you understand the five specific exceptions set forth in Rule 804. Then you'll test your comprehension with a series of fun hypotheticals. Let's get started. What is hearsay? Hearsay has a three part definition. It is an out of court statement that is offered at trial for its truth. Pursuant to Federal Rule of Evidence 802, hearsay is presumptively in admissible, meaning that it does not come in at trial. There are some exceptions to the rule that excludes hearsay. Hearsay can be rendered admissible by a federal statute, Supreme Court rules or a different Federal Rule of Evidence, and in fact, there are numerous hearsay exceptions set forth in other Federal Rules of Evidence. This presentation focuses on only the exceptions set forth in Federal Rule of Evidence 804, but I note that there are numerous exceptions, exceptions set forth in Federal Rule of Evidence 803 and Federal Rules of Evidence 807, just to give you two other examples of rules that provide exceptions to the hearsay rule. Why recognize Rule 804 exceptions? Well, these exceptions are in the rules for good reason. The drafters of the federal rules were concerned about hearsay. Most of the time we'd prefer live testimony. When a witness testifies live in front of a jury, the jury's fact finder can assess all sorts of things about that witness. They can assess the witness' demeanor, whether the witness seems nervous or like the witness is hiding something. When a witness doesn't testify live, but instead that witness's out of court statement is offered, the jury has deprived its opportunity to assess witness credibility, and assessing witness credibility is one of the two primary functions of the jury. So by their very definition, hearsay exceptions are creating a situation where the jury is not going to have the full choice of tools in assessing the credibility of the declarant, the person who made that out of court statement. But the reality is that sometimes live testimony just isn't possible. We need some exceptions to allow evidence in that's important enough that we need it in at trial even in the instance where live testimony is impossible. The reality is that human beings are fragile, they die, they become sick, they're sometimes not able to be controlled, they leave the jurisdiction. And so we need some exceptions that allow statements in when those statements are very reliable, very important, and we think they should be part of a trial even where the witness is not available to testify live. Which brings me to the two requirements in Rule 804. In order for this rule, the exception to hearsay to apply, both of these exceptions must be met. First, there must be proof that the declarant, the person who made the out of court statement is unavailable. And second, there must be an applicable exception to the rule that excludes hearsay. Let's take a look at Federal Rule of Evidence 804 itself. The rule has two parts, beginning with subpart . That's the subpart that addresses and gives us the definition of what it means for a declarant to be unavailable. Rule 804 starts off by listing the criteria for being unavailable. The rule indicates that a declarant is considered to be unavailable as a witness at trial if the declarant meets one of the following definitions. First, the declarant is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies. Second, a declarant can be unavailable because the declarant refuses to testify about that subject matter despite a court order that the declarant has to testify. Third, a declarant can be unavailable if the declarant testifies that the declarant does not remember the subject matter. Fourth, a declarant is unavailable when the declarant cannot be present to testify live at trial or at a hearing because the declarant is dead or is ill either as a result of physical illness or mental illness that impedes the declarant's ability to come to court and testify live. And fifth, the declarant is absent from the trial or hearing and the statement's proponent, the person who wants to put this piece of evidence in has not been able by process or other reasonable means to either get the declarant there live at trial or get the declarant live there at trial or the declarant's testimony. But there is one exception to this definition of unavailability. If the person who wants to put in the out of court hearsay statement wrongfully caused the declarant to be unavailable in an effort to prevent the declarant from coming to trial and testifying live, then even if the other criteria had been met, that declarant would not be considered unavailable under the rules. Let's break that down. What does it mean to be unavailable? There are all different flavors of unavailability and when you're offering a statement under Rule 804, you only need to prove that one of these flavors or types of unavailability meets. The first type is where the declarant refuses to testify because the declarant is claiming privilege. That's the exception that's listed in Rule 804 . The most common example of this is the Fifth Amendment right not to testify and incriminate oneself. If a witness is at trial, physically there, but refuses to testify because the witness does not want to incriminate himself or herself, the witness can take the Fifth, exert this constitutional right and refuse to testify. Where there is a claim of privilege and this of course is only one type of privilege, but where there is a claim of privilege, that declarant is unavailable. Now note that that person is physically in the courtroom. In order to declare that there is a claim of privilege, the witness has to actually be there to assert the privilege generally. And so remember that unavailability does not necessarily mean that the declarant or the witness is physically not in the courtroom, rather it means that the testimony is not available. And so where there's a claim of privilege, that might be a situation where testimony is unavailable. Although Fifth Amendment privilege is a common one, attorney client privilege, marital privilege, all sorts of other privileges can also be the basis of unavailability. This however does not apply to a party who wants to offer his or her own prior statement. You don't get to make a helpful statement that benefits your side of the case before trial and then come to trial and claim a privilege so that you can get that statement in. There is one exception even to this definition of unavailability. The next flavor or type of unavailability is a witness who just refuses to testify and that's the exception set forth in Rule 804 . That often happens when a declarant asserts a privilege but then the court rules that that privilege is invalid and the declarant still refuses to testify. Of course, it could also apply to a declarant who comes to trial and just plain refuses to cooperate with anyone in any way, but it's a lot more common to see this happen where there's been an assertion of a privilege that the court does not accept. In order for this exception to apply, the court though has to declare that the privilege is invalid, so there has to be some action by the court. There does not need to be, however, a finding of contempt, it's enough for the court to rule that the assertion of privilege is inapplicable and direct the witness to answer, and then if the witness does refuse to answer after the court has ruled, then you could use this exception and claim that the witness is unavailable. The third flavor or type of unavailability is where the witness lacks memory under Rule 804 . Now you can't just use this exception because you as the attorney think the witness doesn't have memory. You have to elicit testimony on the record to establish that the witness actually does not have memory and cannot address this subject matter. Again, this is an exception just like the prior to where even though we're talking about a witness who is "unavailable," this person is physically present at trial, that's gonna be necessary generally for you to establish that there's a lack of memory. So don't get hung up on the idea that unavailable means this witness can't physically be present at trial. It's that the testimony you're trying to elicit is unavailable for one reason or another. So how do you establish that a witness has a lack of memory? Well, you question the witness about it and the trial judge has to be convinced that the witness does indeed lack memory. If you convince the judge and the judge agrees that there's a lack of memory, then you can take advantage of this definition of unavailability. If the judge doesn't agree and thinks the witness has memory but is just being shifty, then this subsection doesn't apply and you have to either find another definition of unavailability that applies or work harder to elicit the testimony out of the witness rather than offering the out of court statement for its truth. The fourth definition or type or flavor of unavailability in Rule 804 is death or illness in Rule 804 . Unlike the prior to exceptions, here we generally do not have the witness in the courtroom. Somebody who is dead obviously doesn't come to court to testify, and when we're talking about illness in Rule 804, we're not talking about having a common cold or feeling a little under the weather. We're talking about somebody who is so incapacitated by their illness that it would risk their health or be impossible for them to come and testify at trial. So unlike the prior three unavailability definitions, the death or illness definition in Rule 804 does indicate a situation where the witness would not be physically present in the courtroom. The illness has to be at the time of trial and often illness as an unavailability can be cured through the process of the court offering a continuance and holding the trial at a later date once the witness is recovered from the illness and able to come in at trial. And because our preference is for live testimony where possible, that's often how courts will handle it. Obviously, a continuance can't solve the problem of a witness who's unavailable as a result of death and it can't solve the problem of somebody who has a permanent or chronic illness from which they are unlikely to recover or improve. And so there are situations where this is the basis of unavailability. A note for you that the fact that a witness is ill and that as a result that witness's out of court statement is being offered for its truth might still pose problems down the line. The confrontation clause in criminal cases entitles the defendant to the right to face and question his or her accusers. And where you are using an 804 exception to offer the statement of an unavailable witness, there are sometimes times when that defendant has been deprived of the opportunity to cross-examine. And so even though you may be able to find a definition or flavor of unavailability that fits, it does not necessarily mean that you are through the woods in terms of analyzing whether or not you ought to use this out of court statement, especially in a criminal case where you're on the side of the prosecution. The next type or flavor of unavailability is where the party who wants to offer the out of court statement has been unable to procure the witness or the testimony, and that's set forth in Federal Rule of Evidence 804 . Some examples of when this comes into play are when the declarant's location is unknown. This person has just skipped town and nobody is clear on how to find the declarant, or where the location of the declarant is known but the declarant is beyond the subpoena power of the court and beyond any reasonable method you could use to get the declarant to come to court and testify. Voluntary appearance at trial is not necessarily required, so the fact that you were obligated to pay the declarant a witness fee to come to trial or to pay travel cost and you refuse to do so does not mean that you can then later argue that you were unable to procure the testimony. Generally, you have to follow all legal steps and legal means to try to get the declarant to come to court and testify and only when you've tried all of those methods and they're exhausted and you've still been unsuccessful can you use the exception in Rule 804 . Some of the exceptions that we're gonna talk about, for example, dying declarations and declarations against interest require both the witness and the testimony to be unavailable. So if a deposition can be taken in advance of trial to preserve the testimony before the witness becomes unavailable, you have to to have tried to do that in order to take advantage of this exception. That brings me to an important tool that's important to think about in the context of Rule 804, and that's trial preservation or De Bene Esse depositions. These are depositions that are taken for the sole purpose of preserving a witness's testimony for use at trial. That makes them different than discovery depositions. Oftentimes discovery depositions truly are a process of gathering information. When you take a discovery deposition, you don't necessarily know what the witness is going to say. It might be earlier in the discovery process, you might be still working out what your case theme and theories are, you might still be collecting facts through other means from other witnesses, for example, through interrogatories or requests for production of documents or things. Often discovery depositions do not take a strict cross-examination or direct examination format and certainly are not as organized and focused as your questioning might be when you actually get to trial and you know the issues in the case much better. Trial preservation depositions or De Bene Esse depositions are often taken at the end of the process or when it becomes clear that a witness is necessary for trial but might not be available. Parties can take these depositions in cases that are criminal cases, even though typically depositions are not taken in criminal cases. Parties can take these depositions after discovery has closed, and they generally take them anytime it becomes clear that a witness is going to be unavailable for trial. For example, if you're litigating a case and you learn that one of the witnesses is terminally ill and may not survive long enough to testify at trial, that would be a classic example of where the parties might agree to do a trial preservation, De Bene Esse deposition in order to preserve the testimony. They often are videotaped even though discovery depositions may not be, because again, the anticipation is that this is going to be presented to the fact finder at trial and videos are often much more entertaining, especially in a jury trial than having someone read the cold record of a written transcript. Generally in terms of technique, they follow the format of trial testimony. If you're preserving the testimony of a witness who you would call on direct examination, you're going to question that witness at the trial preservation videotaped deposition the same way you would question that witness if you were live with the witness on the witness stand trial, meaning that a direct, you would generally ask open-ended questions, you would allow the witness to be the focus of the questioning, and if this was a witness who you would probably be calling on cross-examination or an adverse witness at trial, then you would ask leading questions, you would structure the questioning at the trial preservation video deposition as though you were doing a cross-examination at trial. The way that objections are generally handled is that counsel make objections as the deposition is being taken just as though they were at trial, and then what will happen at trial is that once we get to a part of the video where a deposition is made, the objection can then be heard on the record, we can pause the video and the judge can rule on the objection, and oftentimes you can have the videotaped edited in such a way that it can be played and the objections can be handled right in front of the jury without risking showing the jury testimony that the judge rules is inadmissible. But essentially a De Bene Esse deposition or a video preservation trial preservation testimony deposition is a way to take advantage of and to recognize the fact that in order to use Rule 804 's definition of unavailability, you have to show that you tried to procure the testimony. If you noticed one of these depositions and the declarant died before the deposition could be taken, you would be on very firm footing to offer the declarant's out of court statement under the definition of unavailability in Rule 804 because you would've taken every possible means to try to preserve the testimony. How do you prove unavailability? Well, you have to meet one of those 804 definitions or flavors or types of unavailability, that's the first step. You only have to meet one, but one of those definitions of unavailability must be met. If the other side doesn't object to the introduction of hearsay evidence, then you're on solid footing. But if there's an objection to the offering of the hearsay statement, then you, the proponent who's trying to put in that hearsay statement, you have to prove that the declarant is unavailable. Remember, what matters is not whether the witness is physically in or not in the courtroom, many of these unavailability definitions require that the witness be present and even testifying at trial. What matters is whether the testimony is available or unavailable. So if the declarant is in court but pleads the Fifth, statements that this declarant made out of court are statements by an unavailable declarant if the court accepts that assertion of privilege. Now, Rule 804 is illustrative and not exclusive. These are the common ways of proving unavailability, but you can always argue that something else has created unavailability. For example, during the COVID-19 pandemic, the fact that even though witnesses were not so sick that they were physically unable to come in and testify, but they had to quarantine to follow CDC and other government rules, and therefore even if they felt like they were up to it, they were prevented from coming into court to testify, that could be an example of an unavailability, even if it doesn't squarely fit into any of the definitions in rule 804 . Remember though that you can't take advantage of any of these exceptions through your own wrongdoing or through your client's wrongdoing. If the party who's offering the statement caused the declarant to be unavailable through wrongdoing, then none of these definitions apply. You can't offer statements if you wrongfully caused the witness' unavailability in an effort to block testimony at trial. Now let's move on to the exceptions. Unavailability is only the first step. It's a necessary part of the two step process, but it's only the first part. Once you get over that hurdle, if you can prove the declarant is unavailable, you have to next find an exception that applies to the particular hearsay statement at issue, and the exception set forth in Federal Rule of Evidence 804 are exceptions for former testimony, dying declarations, statements against interest, statements of personal or family history and forfeiture by wrongdoing. Let's take a look at Federal Rule of Evidence 804 . We see that the exceptions are listed one by one and each has very specific nitty gritty requirements that you have to meet. This is because many of these exceptions were derived into the Federal Rules from the common law and the body of common law built up around each of these exceptions defining them and defining where the parameters were and the drafters of the Federal Rules accepted in large part a lot of those common law parameters in drafting Federal Rule of Evidence 804 . So the first exception, which is in 804 is an exception for former testimony, and it's not all former testimony but it's testimony that was given as a witness at a trial hearing or lawful deposition either in the instant case or even in a different case and, and this is the sticky part, it's now offered against a party who had, or in a civil case, whose predecessor and interest had an opportunity or similar motive to develop the testimony through direct cross or redirect examination. Former testimony, the exception of Rule 804 is a well accepted common law exception to the hearsay rule. Why do we allow this testimony in? Well, there's very little risk of lack of truthfulness. This testimony is given under oath and there's no worry about the risk of denying cross-examination because the cross-examination could have occurred when the testimony was originally given. The only thing that's really missing with former testimony is for the jury to see the witness live to assess credibility. But even that can be resolved through videotaping where the former testimony was a De Bene Esse deposition, a trial preservation video deposition, and that's why unavailability is still required even with former testimony where there's lots of reasons to think that it's reliable, we still would prefer the live testimony if we could get it. So what type of prior proceeding counts? Well, it could be a trial, a hearing, or a deposition. So let's say that in a criminal case there's a trial, it ends with a hung jury and now we're in the second retrial, that would count. It can be testimony from a preliminary hearing in a criminal case, perhaps testimony from a motion to suppress and a hearing related there too. It can be testimony from argument on a motion in both a civil or a criminal case, and it can be testimony at an administrative proceeding under many circumstances. Again, there will be some questions about whether or not it's under oath, but if you can show that the former testimony meets the requirements of Rule 804 , you can move forward using this exception to the hearsay rule. One thing that is formal and is in court but does not count as former testimony is testimony before the grand jury. This is because it would never meet the second part of the definition of the rule that it's being offered against a party who had or whose predecessor and interest had an opportunity to develop the testimony. Because grand jury is one sided, the defendant isn't involved in the grand jury, only the prosecution, so there's no opportunity for the defense to cross-examine or question the witnesses who testify before the grand jury. Now some courts will allow statements that are made in the grand jury to be used against the prosecution since the prosecution was part of the grand jury and did have an opportunity to question, but generally statements from the grand jury would not be allowed against the defense. In order for this opportunity to cross-examine part of the rule to apply, there doesn't have to actually have been cross-examination, just an opportunity, and we're not really stuck on the technical term cross-examination. What we're really thinking about for Rule 804 is whether there was an opportunity to question, direct examination, redirect examination, that would suffice. There just has to have been an opportunity for the party against whom the out of court statement is now being offered to ask questions of that declarant. There does have to be a similar motive to question during the prior testimony, which means that the issues had to generally be the same. Things to consider are the type of proceedings we're talking about, was one a civil case and one a criminal case? Trial strategy at the time the deposition was taken, was there a completely different theory of the case than now at trial? The potential penalties and financial stakes. If the testimony was given in a case with very little at stake and so likely the defendant was unlikely to even challenge the charge, maybe it was like a traffic citation, some very low dollar value case and now we're in a wrongful death case arriving from the same car accident and the stakes are huge, that's a consideration. And the number of issues and parties. You always wanna be able to prove when you're using Rule 804 as an exception that for all intents and purposes any question that is now gonna be asked by your opponent at trial, they had the ability and the motive to ask that question at the time the out of court statement was taken. Remember that that ability to question had to be by the party against whom the statement is being offered at the current trial. That doesn't necessarily mean the parties in both cases have to be the same. There just had to have been a motive to develop the testimony that was now not going to be possible because the declarant is not testifying live at trial. So imagine a car accident between the defendant and plaintiff, and A and B were both passengers in the defendant's car. At the first trial, eyewitness A testifies and counsel for passenger A cross-examines eyewitness X. By the time the second trial happens with the second passenger, X has died. Well X's former testimony may very likely be admissible against passenger B. A and B were both passengers in the car. The issues in these two cases were the same. A had every motivation to argue that the accident was caused by the party A is suing and B is suing that same party and also had that same motivation to develop that same testimony from X. A's cross-examination of X may be sufficient to have protected B's interest. Now note that this can also include predecessors and interest, for example, when an insurance company steps in on behalf of an insured, but it does not require privity even though I will acknowledge when you look at what Rule 804 actually says, it does seem through the language that the drafters were using like they wanted a privity requirement, but it's not interpreted that way. When Rule 804 applies, you've shown unavailability, you've shown that you meet the definition of former testimony. Generally what's offered is a transcript of that former testimony, either a written transcript or a video transcript if you have it. But that doesn't have to be the method of proof, it's just the most common. So let's say for example, an unavailable witness testified and at the same time as that now unavailable witness testified in a prior trial, a currently available trial witness sat in. You could call the currently available trial witness to repeat the out of court statements that the unavailable declarant made during that prior testimony. It's not the neatest way to do it, a transcript would be a neater way to do it, but there's nothing in Rule 804 that requires that the method of putting in the former testimony be the actual recording of the prior statement under oath. You could call another witness to relay the hearsay statements that were given during the former testimony. Let's move on to the next exception, dying declarations under Rule 804 . Again, remember you first have to show unavailability and once you've shown unavailability, you need one of these specific exceptions to apply. Dying declarations are statements that are given under the belief of imminent death. This is a very narrow rule, you can only use dying declarations in a prosecution for homicide or in a civil case, that's it. And they are statements that the declarant made while believing his or her death to be imminent made about the cause or circumstances that that declarant thought were bringing about the death. Why do we allow dying declarations in? Well, frankly, in part because of necessity. If somebody actually dies, we're not gonna be able to call that witness to testify live at trial. And whether you believe it or not, one of the justifications that we imported into the Federal Rules from the common law is this belief that people do not wanna die and go to heaven with a lie on their lips. So the very last thing they're likely to say is likely to be very reliable and very truthful. Under the common law, the declarant had to actually die. Under the Federal Rules of Evidence, the declarant only needs to think that he or she is dying. Even if he or she lives, those statements that were made could still be dying declarations. There just has to be a belief that the death is imminent, and that belief can be shown through the statement itself. For example, if the statement is, "Oh God, I'm dying," that statement in the statement itself suggests the belief in the imminent upcoming death, or you can prove the belief through extrinsic evidence, the way that the declarant was acting or other things that the declarant said or the circumstances under which the statement was made. The firsthand knowledge rule does apply to dying declarations. So in order for the definition to be met, if the declarant is talking about the cause of the impending death, it has to be something that the declarant actually knows about. It can't be something the declarant is just speculating about. And remember that dying declarations is a very specific narrow exception. It only applies in civil cases and homicide cases. If you're in a criminal case and it's not a homicide case, you cannot use the dying declaration exception to the hearsay rule. The next exception in Rule 804 are statements against interest. These are not excluded by the rule against hearsay. Again, if you can prove an an availability and you can prove that the out of court statement was a statement against interest. What's a statement against interest? It's a statement that a reasonable person in the speaker's position would've only made if that person believed it to be true because when that statement was made, it went totally against the speaker's interest, or it had a really high tendency to make there be negative consequences for the speaker. And that statement has to be supported by corroborating circumstances that indicate its trustworthiness if it's offered in a criminal case, in an effort to expose the declarant to criminal liability. Why do we let statements against interest in? Well, one reason is necessity. Often by the times we get to trial, somebody who confessed early on has changed their mind and doesn't want to stand behind the confession. Also, we tend to think these sorts of statements are pretty inherently trustworthy, that people don't inculpate themselves, expose themselves to liability or culpability criminally unless the things they're saying are actually true. Remember, that the statement had to have been against the declarant's interest at the time it was made. It doesn't matter what the interests are at the time of trial. At the moment these words escaped the declarant's lips, did saying them expose the declarant to some sort of risk? It's a reasonable person's standard. What different people consider to be exposing themselves to risk can differ, and it's always a contextual analysis. Sometimes a statement that in the abstract looks like it would expose someone to liability is actually helpful to the speaker. Take a look at this example. Let's say we have an unavailable declarant at trial and prior to trial, that declarant's said, "I was shoplifting on July 1st, 2015 at 2:00 PM." Just looking at this in the abstract without any context, that seems to be a statement against the declarant's interest, but maybe not. What if the shoplifting was the declarant's alibi for a murder? Well, then that was actually a statement in the declarant's own interest, not against the declarant's interest. So you have to look at the context. What kind of interest are we talking about for statements against interest? Really almost any interest, civil liability counts, penal interest counts, but you have to look at the circumstances. Was there actually an exposure to criminal liability or had the declarant already pled guilty at the time the statement was made? What's the motive to lie? Was the defendant consistently making the statement over and over again corroborating it or was it a one off? Who was the statement made to? Was it made offhand to some random person or to law enforcement? What's the relationship between the declarant and the accused? Is there some bias reason to disbelieve the statement? And what other independent evidence is there out there to corroborate that the statement was true? If the defendant wants to offer a statement against interest, especially where someone else has admitted to committing the crime, excluding these statements can raise serious confrontational clause issues, especially in the case of co-conspirators. The next exception in Rule 804 are statements of personal or family history. These are a lot less controversial and frankly a lot less fun than the other 804 exceptions, but sometimes these are really necessary and useful exceptions. So again, you first have to prove unavailability. Once you've gotten over that hurdle, you then have to prove that the statement you want to offer is about the declarant's own birth adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption or marriage or similar facts about personal or family history. And there's no personal knowledge requirement. Or the statement can be about another person concerning any of those facts as well as death if the declarant was related to the person being spoken about by blood, adoption or marriage or was so closely connected to the person's family that the information is likely to be accurate. Frankly, Rule 804 statements are not challenged all that often, especially when unavailability is quite clear, but they are necessary in some circumstances. One venue where you see these often offered are immigration cases, where someone is trying to prove their family history and has come to the United States and everyone who would know about that family history is outside the jurisdiction of the court in another country, unavailable to come in and testify at trial. And so written statements from these family members who are still in another country are often the way that this family history or relationship is proven. So it's not a particularly exciting exception to the hearsay rule, but it certainly in certain context is a necessary exception to the hearsay rule. The last and maybe most fun exception in 804 is forfeiture by wrongdoing in Rule 804 . The following is not excluded by the rule against hearsay if you can prove unavailability. A statement offered against a party who wrongfully caused or acquiesced in the wrongful causing of the declarant's unavailability as a witness and did so intending that result. So if you were thinking about bumping off a potential trial witness to help your case, think twice, because you'll be creating a situation where that trial witness' out of court statements are admissible under forfeiture by wrongdoing. This is a relatively new addition to Rule 804 . It was added in 1997 and it basically states the rule that if you as a party or one of your representatives cause a declarant to be unavailable, that declarant's out of court statements can be used against you. It also applies to conspiracies, so you can't avoid the application of this rule by paying someone else to threaten a witness or paying someone else to make a witness disappear or kill a witness if you have some involvement or even if you're aware and you acquiesce in what's happening, forfeiture by wrongdoing may apply. There's no subject matter limitation. Let's say for example, the defendant murders a witness to prevent the witness from testifying against him in a tort case. Any of the witnesses statements can be used against the defendant in that tort case or in the subsequent murder case for the killing of the witness. It does not benefit you to make a witness unavailable. When you do so, you open the door to all of that witness' prior statements being offered against you in all sorts of different venues. Remember, that in order to use Rule 804 as an exception to the hearsay rule, you need something that meets the definition of hearsay. It has to be an out of court statement being offered for its truth. Then you have a two part hurdle to overcome. First, you have to prove that the person who made that statement, the declarant, meets one of the definitions of unavailability. If you do that, then you have to find one of the specific exceptions in Rule 804 and you have to prove that one of those exceptions applies to the statement. If you can do all of those things, then you can get the out of court statement in a trial in lieu of the live trial testimony. With that in mind, let's test your knowledge. We're gonna look at a series of scenarios inspired by pop culture. For each scenario ask yourself, is this declarant witness unavailable? If so, what subsection of Rule 804 applies? If the declarant is unavailable, is the offered statement admissible? If so, what Rule 804 exception applies? Ready? Let's get started. Here's scenario one. Max and Leo are being sued by the investors in a failed Broadway production. Max is on the witness stand and is asked, "Did you really think "Springtime for Hitler" was going to be a successful show? Max refuses to answer. Flustered, counsel moves on another question. Later counsel seeks to offer Max's deposition testimony in the same case where he was asked the same question and he answered, "No, I genuinely thought it would be a hit." What do you think? Is the declarant unavailable? Does this meet an exception to hearsay? Max is not unavailable. He refused to testify but counsel never sought the court's intervention, so there was no court order that he testify. If the first part of Rule 804 is not met, that's the end of the analysis, we don't have an unavailable witness so Rule 804 does not apply, this is not how counsel could get the prior out of court statement in. Let's take a look at scenario two. Assume the same facts as the prior scenario, except this time when Max refuses to answer, counsel asks the court to direct Max to answer. The judge orders max to answer the question, he still refuses. The judge shrugs his shoulders and counsel moves on to another question. Now, can counsel offer the deposition testimony? Now Max is unavailable under Federal Rule of Evidence 804 , because the court ordered him to testify. It doesn't matter that the court declined to impose additional consequences such as holding Max in contempt that he was ordered to testify is enough. It's sufficient to trigger application of the rule. So the first part of Rule 804 is met, Max is unavailable. So now we do have to move on to the second part of the analysis and ask ourselves, "Do any of the Rule 804 exceptions apply?" And the answer is yes. This statement given at a deposition is prior sworn testimony and given that it was a deposition in the same case with the same parties apparently about the same issues given the question, it is prior sworn testimony that's sufficient to meet Federal Rule of Evidence 804 . So in scenario two, the out of court statement would be admissible even though it was not admissible in scenario one. Let's look at scenario three. Janet and Brad are getting divorced. Janet tries to subpoena Rocky to testify during the proceedings. She doesn't know his address, so a process server is unable to find Rocky to serve the subpoena. She tries to find Rocky's address through normal channels but she strikes out. She later discovers that Brad encouraged Rocky to enter the witness protection program so Rocky would be unavailable to testify during the divorce proceedings. In lieu of his testimony, Janet calls Dr. Frankenfutter to relay Rocky's statements, what do you think? Is this a proper application of Rule 804? Yes it is, Rocky is unavailable under Federal Rule of Evidence 804 because he's absent from trial and Janet hasn't been able to procure his attendance through process or other reasonable means. And you'll note that she took some steps in this scenario to do so. So we are past the hurdle in Rule 804 , what about one of the exceptions in Rule 804 ? Well, this seems like a statement offered against Brad who wrongfully caused Rocky's unavailability, so it should meet Federal Rule of Evidence 804 . This out of court statement seems like it should come in, it's admissible under Rule 804. Let's look at scenario four. Leonard has anterior grade amnesia resulting in short term memory loss and the inability to form new memories. He's on trial accused of manslaughter after killing his wife by giving her too much insulin. The prosecution asks, "Were you married?" Leonard professes that he cannot remember. The court is convinced, the prosecution seeks to offer a statement Leonard made to a friend predating his amnesia where Leonard admitted to being married, what do you think? Can the prosecution get in this out of court statement? Yes, it probably can. Let's go through the two step analysis. Is Leonard unavailable? Yes, Leonard is unavailable under Federal Rule of Evidence 804 because he cannot remember the subject matter he's being questioned about by the time we get to trial, and the court is convinced that this is true. So now we go on to the second part of Rule 804. Can we find an exception in Rule 804 that applies? And I think we do, this seems like a statement of personal or family history that's sufficient to meet Federal Rule of Evidence 804 , so this out of court statement is also admissible. Moving on to scenario five. Would your analysis be any different if Leonard had not testify at all? Does that limit the prosecution's ability to reliably predict whether or not it will be able to introduce this fact, either through questioning Leonard or by introducing the prior statement under Rule 804? I think it would make a difference. The lack of memory has to be established through the testimony of the witness himself to prove unavailability, which clearly contemplates that he is at trial, able to testify at least somewhat, and subject to cross-examination. Here, Leonard is the defendant in a criminal case, which means the prosecution does not have the power to force him to testify. In fact, he has a constitutional right not to do so, because he has to take the stand for Rule 804 to apply and this is outside the prosecution's control, the prosecution cannot reliably predict in advance of trial whether or not it's going to be able to get this fact in through either questioning Leonard or offering his out of court statement. And so because the prosecution can't reliably predict if it can use Rule 804, it might wanna think about other ways of establishing this fact if Leonard declines not to testify. Let's move on to scenario six. Jeffrey The Dude Lebowski is attacked by nihilists who set The Dude's car on fire with The Dude are his bowling buddies, Walter and Donny. Walter violently fends off the nihilists but dies during the scuffle. Donny dies from a heart attack. Before he dies, he clutches his chest and says, "Those nihilists scared me half to death." The nihilists are prosecuted for arson but they claim mistaken identity, that the prosecution has identified the wrong defendants. The prosecution calls Walter to testify to Donny's statement. What do you think? Is Donny unavailable and does his out of court statement meet one of the exceptions? Well, Donny is unavailable under Federal Rule of Evidence 804 because he has died and this is a dying declaration that otherwise would meet the definition in Federal Rule of evidence 804 except this is not a homicide or a civil case, it's a criminal arson case, so the exception is inapplicable. This piece of evidence would not come in, at least not in this prosecution and not under Rule 804. Let's look at scenario seven. George is being criminally prosecuted for tax fraud. The prosecution calls his wife Luciel as an adverse witness. She's asked about whether she and George communicated about the fraud scheme. She declines to testify based on the marital communications privilege. The judge accepts this assertion of privilege and holds that she need not testify on this topic but that she may and has to in fact testify about other topics. The prosecution argues she's unavailable on this specific topic and seeks to offer her prior statement to her son, George Michael, where she said, "Your father and I discussed it and decided to commit tax fraud, don't tell the IRS." At the time, George Michael had found paperwork that already made him suspect that this fraud was occurring. What do you think? Is this an admissible statement under Rule 804? I think it probably is. Luciel is unavailable on this specific topic because she's asserted a privilege that's been accepted under Federal Rule of Evidence 804 . So that makes Luciel unavailable on the topic of communications between she and her husband even though she might be available to testify at trial about other topics. So now that we're over the first hurdle in Rule 804, we have to find an exception that applies. I think there is an exception that applies, the statement made to George Michael seems like a statement against interest that is corroborated sufficiently to meet Federal Rule of Evidence 804 . So the prosecution can offer this out of court statement for its truth in lieu of calling Luciel to testify about this topic at trial, which she does not have to do because of her assertion of privilege. Let's look at scenario eight. Fleabag starts dating a priest. One day on a date, she confesses an embarrassing story about her godmother to him. Fleabag is later sued and refuses to testify about her conversation with the priest, citing the clergy penitent privilege. The judge disagrees with the assertion of privilege, ruling that the privilege only applies to a person who is seeking spiritual counseling, and Fleabag was not seeking counseling at the time she made the statement to the priest. What do you think? Does this meet an exception that allows the out of court statement to be admissible under Rule 804? No, I think we don't even get through the first part of the analysis. Fleabag is not unavailable because the court has not ruled that a privilege applies and she hasn't refused to testify not withstanding the court's ruling. If we can't get past the first part of Rule 804, and prove one of the many flavors of unavailability, then we don't go any further with the analysis, Rule 804 simply does not apply. Let's take a look at scenario nine. Ted is suing Bill after their band, Wild Stallions, breaks up. Ted is claiming that he has owed half the royalties from the band's songs and he's suing under a breach of contract theory. Bill claims he owns the songs because he wrote them. Bill is on the witness stand. Ted's counsel asks Bill, "What did you and your lawyer discuss about ownership of the songs?" Bill's counsel objects on the basis of relevance and the court sustains the objection. Later, Ted's counsel offers a prior statement by Bill. Bill made this statement moments after Ted stabbed him. The statement was, "First you stabbed me in the back when it came to the royalties and now you've actually stabbed me in the back. As I told my lawyer I wrote these songs and you'll do anything to steal them from me. I can't believe you killed me over some stupid songs. I'm bleeding to death right now." Although the stabbing was quite serious, Bill survived. What do you think? This is kind of a tricky one, does Rule 804 apply here? I think it doesn't, because we don't get past the first of the two considerations, whether or not the declarant is unavailable. Bill is not unavailable in this fact pattern. Although the attorney-client privilege might apply, Bill and his counsel didn't raise this privilege. Instead, his counsel objected on a different basis, namely relevance and although the court sustained that objection, by sustaining that objection, it meant that the court did not rule that a privilege applies. Here we don't have a refusal to testify not withstanding a court order and we don't have a court finding that a privilege applies even though factually there might be a privilege that applies here. Here we have a problem because Bill's counsel didn't object on the basis of privilege, and so as a result, Bill is probably not unavailable. We don't get through the first of the two hurdles and we don't even move on to asking ourselves whether any of the exceptions in Rule 804 applies. Let's look at the final scenario before we do a little underview and review. Would your answer to the prior scenario change if the objection had instead been based on privilege and that objection based on privilege had been sustained? What do you think? Yes, that would change the answer. Then Bill would be unavailable under Federal Rule of Evidence 804 . But that's not the end of the analysis. We still have to go back and ask ourselves whether or not any of the exceptions in Rule 804 apply. So what do you think? Do any of the exceptions in Rule 804 apply? I think one does, this is a civil case. This isn't like the Big Lebowski hypothetical with an nihilist, which was a criminal arson case. This is a civil breach of contract case. Because this is a civil case and because Bill believed his death was imminent, this could be a dying declaration under Federal Rule of Evidence 804 . Now you may be asking yourself, does it matter that Bill didn't actually die? And it doesn't matter under the Federal Rules of Evidence. That's an old common law rule that was not imported into the Federal Rules of Evidence. The declarant doesn't have to actually die in order for the dying declaration exception to apply. Now let's briefly review what we've covered. Rule 804 is an exception to the general rule against hearsay. As a general matter, out of court statements that are offered for their truth at trial are excluded from testimony, they're excluded from evidence, they do not come in. There are some exceptions to the rule against hearsay. In this presentation we talked about just one of those places where exceptions are found, and it's certainly not the only one, that exception is Rule 804. Rule 804 requires you to do a two step analysis. First, you have to prove that the declarant of the statement, the person who made the out of court statement offered for its truth is unavailable at trial. Then if you're able to prove that the declarant is unavailable, you have to find one of the specific exceptions in Rule 804 and prove that the statement that you are offering meets all of the parts and requirements of that specific exception. What do we mean by unavailability? There are two different types of unavailability. Sometimes it means actual absence. A declarant witness who is physically not in the courtroom and in fact cannot be in the courtroom, but that's not the only type of unavailability. There's also a witness who has tight lips who's present at trial but will not testify for one reason or another. They refuse to testify, not withstanding a court order. Their memory is affected to the extent where they can't recall the information, or there's an assertion of a privilege that is accepted by the court that prevents that witness declarant from being questioned about the subject matter at trial. The first part of the analysis is unavailability. If you cannot meet the unavailability part of the analysis in Rule 804 , that's the end of the analysis entirely, Rule 804 does not apply. If you're able to prove declarant unavailability, then you go on to the second part of the analysis in Rule 804 , and Rule 804 gives us several discrete standalone exceptions that apply to an unavailable declarant. Each has different requirements, and in order for you to use Rule 804 to get an out of court statement into evidence at trial, you have to make sure that you follow each of the requirements in whatever Rule 804 exception you are attempting to use. There is an exception for former testimony, but only under certain circumstances and only offered against parties who had a motive and opportunity to develop contrary testimony earlier. There's a statement under the belief of imminent death, but it's limited to homicide or civil cases, and only for statements that are about the cause or circumstances of the apparently imminent death. There's a statement against interest which requires a reasonable person analysis of whether or not this was truly an inculpatory or exculpatory statement at the time it was made and it also requires there be corroborating circumstances that suggests that the statement is trustworthy. There are statements of personal or family history. They're relatively non-controversial, but the rule does list out specific types of statements, and so you have to ensure that if you are using this exception in Rule 804 that you are fitting it into one of those specific types of statements. And then finally, there are statements offered against a party who wrongfully caused the declarant's unavailability and did so intending to prevent that declarant witness from testifying at trial. That brings us to the end of our discussion of understanding Federal Rule of Evidence 804. Thanks for participating.

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