27.4 Unavailability Exceptions, Residual Exception, Multiple Hearsay & Confrontation

27.4 Unavailability Exceptions, Residual Exception, Multiple Hearsay & Confrontation

The Rule 804 exceptions admit statements only when live testimony cannot be obtained. The residual exception and multiple-hearsay rule complete the hearsay framework, and in criminal cases the Confrontation Clause adds a separate constitutional hurdle for testimonial statements.

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The Unavailability Requirement (FRE 804(a))

A declarant is considered unavailable as a witness if the declarant satisfies any branch of the PRISM criteria:

                      ┌──────────────────────────────────────────────┐
                      │       CRITERIA FOR UNAVAILABILITY (PRISM)    │
                      └──────────────────────┬───────────────────────┘
                                             │
       ┌──────────────────┬──────────────────┼──────────────────┬──────────────────┐
       ▼                  ▼                  ▼                  ▼                  ▼
┌──────────────┐   ┌──────────────┐   ┌──────────────┐   ┌──────────────┐   ┌──────────────┐
│ PRIVILEGE    │   │ REFUSAL      │   │ INCAPACITY   │   │ SUBPOENA /   │   │ MEMORY LACK  │
│ Court rules  │   │ Refuses to   │   │ / DEATH      │   │ ABSENCE      │   │ Testifies to │
│ privilege    │   │ testify      │   │ Death or     │   │ Cannot be    │   │ lack of      │
│ exempts      │   │ despite      │   │ physical /   │   │ procured by  │   │ memory of    │
│ testifying   │   │ court order  │   │ mental       │   │ subpoena or  │   │ the subject  │
│ (5th Amend,  │   │ (contempt)   │   │ illness      │   │ reasonable   │   │ matter       │
│  spousal)    │   │              │   │              │   │ means        │   │              │
└──────────────┘   └──────────────┘   └──────────────┘   └──────────────┘   └──────────────┘

1. Privilege: The court rules that an evidentiary privilege exempts the declarant from testifying about the subject matter (e.g., Fifth Amendment self-incrimination, attorney-client privilege, spousal privilege).
2. Refusal: The declarant refuses to testify about the subject matter despite a direct judicial order to do so (and potential contempt citation).
3. Incapacity or Death: The declarant is dead or cannot be present or testify because of a then-existing physical or mental illness or infirmity.
4. Subpoena / Absence: The proponent has not been able, by process or other reasonable means, to procure the declarant's attendance. Under FRE 804(a)(5), for dying declarations, statements against interest, and family history, the proponent must demonstrate an inability to procure either the declarant's attendance or the declarant's deposition testimony.
5. Memory Lack: The declarant testifies to a lack of memory regarding the subject matter of the statement.

Wrongdoing Disqualification: A declarant is NOT unavailable under FRE 804 if the proponent of the statement brought about the declarant's unavailability (e.g., by bribery, intimidation, murder, or spiriting the witness out of the jurisdiction) in order to prevent the declarant from attending or testifying.

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FRE 804(b) Exceptions

1. Former Testimony (FRE 804(b)(1))

Testimony that:

1. Was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
2. 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.

Key Rules and MBE Traps:

• Grand Jury Excluded Against Criminal Defendants: In grand jury proceedings, the target/defendant is not present and has no counsel or opportunity to cross-examine witnesses. Consequently, grand jury testimony can NEVER be admitted against a criminal defendant under FRE 804(b)(1).
• Preliminary Hearings: Testimony from a preliminary hearing in a criminal prosecution can satisfy former testimony against the defendant if the defendant was represented by counsel and had a similar motive to challenge the witness's credibility.
• Predecessor in Interest (Civil Cases Only): In civil actions, the party against whom the testimony is offered does not need to be the identical party from the prior proceeding, provided their predecessor in interest (someone with privity or substantial community of financial/legal interest) had an opportunity and similar motive to examine the witness. This predecessor rule does not apply in criminal cases.

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2. Statement Under the Belief of Imminent Death / Dying Declaration (FRE 804(b)(2))

In a prosecution for homicide or in a civil action, a statement that the declarant, while believing the declarant's death to be imminent, made about the cause or circumstances of what the declarant believed to be impending death.

The Four Elements:

1. Belief of Imminent Death: The declarant must possess a settled, hopeless expectation of impending death ("abandonment of all hope of recovery"). Merely knowing that one has a terminal disease or might die eventually is insufficient.
2. Cause or Circumstances: The statement must strictly concern what caused or led to the imminent death (e.g., "Johnny shot me from behind the bushes"). Extraneous statements ("By the way, Johnny stole my lawnmower last year") do not qualify.
3. Proceeding Scope (CRITICAL MBE LIMIT): Dying declarations are admissible ONLY in:
   • Homicide prosecutions (first-degree murder, manslaughter); and
   • Any civil case (wrongful death, personal injury, contract disputes).
   • Dying declarations are STRICTLY INADMISSIBLE in non-homicide criminal prosecutions (e.g., attempted murder, armed robbery, assault, rape).
4. Declarant Need Not Actually Die: The declarant does not actually have to perish from the injuries. However, the declarant must be unavailable at trial (e.g., in a persistent vegetative state, comatose, or insane).

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3. Statement Against Interest (FRE 804(b)(3))

A statement that a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability.

┌─────────────────────────────────────────┬─────────────────────────────────────────┐
│ Statement Against Interest (FRE 804(b)(3))│ Opposing Party Statement (FRE 801(d)(2))│
├─────────────────────────────────────────┼─────────────────────────────────────────┤
│ Declarant MUST be UNAVAILABLE           │ Availability is completely IMMATERIAL   │
│ Declarant can be ANY third-party person │ Must be offered AGAINST a party         │
│ Must be against interest WHEN MADE      │ Can be entirely self-serving when made  │
│ Requires PERSONAL KNOWLEDGE (FRE 602)   │ Does NOT require personal knowledge     │
│ Penal interest requires CORROBORATION   │ No corroboration requirement            │
└─────────────────────────────────────────┴─────────────────────────────────────────┘

Corroboration Requirement in Criminal Cases:

Under FRE 804(b)(3)(B), if a statement against penal interest is offered in a criminal case—whether offered by the defense to exculpate the accused or by the prosecution to inculpate the accused—it must be supported by corroborating circumstances that clearly indicate its trustworthiness. Under the amendment effective December 1, 2024, the court must consider the totality of the circumstances under which the statement was made and any evidence that supports or undermines it.

Non-Self-Inculpatory Statements (Williamson v. United States):

The exception applies only to statements that are genuinely self-inculpatory. If an accomplice gives a narrative statement admitting minor guilt while pointing the finger at the defendant ("I drove the car, but Dave planned the bank robbery and shot the teller"), the collateral portions implicating Dave are not against the declarant's penal interest and must be severed and excluded.

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4. Statement of Personal or Family History (FRE 804(b)(4))

A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, ancestry, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge of that fact.

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5. Forfeiture by Wrongdoing (FRE 804(b)(6))

A statement offered against a party that wrongfully caused—or acquiesced in wrongfully causing—the declarant's unavailability as a witness, and did so intending that result.

• Specific Intent Required (Giles v. California): The party must have engaged in wrongful conduct with the specific intent of preventing the witness from testifying. Murdering someone in a sudden altercation does not forfeit hearsay objections regarding past statements unless the killing was designed to eliminate the victim as a witness.
• Total Waiver: Forfeiture by wrongdoing waives both hearsay objections under the rules of evidence and constitutional objections under the Sixth Amendment Confrontation Clause.
• Burden of Proof: The trial judge resolves the preliminary question under FRE 104(a) by a preponderance of the evidence.

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The Residual Exception (FRE 807)

A hearsay statement not specifically covered by FRE 803 or 804 is admissible if:

1. The statement has sufficient guarantees of trustworthiness—evaluated by considering the totality of circumstances and any corroborating evidence; and
2. It is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.

• Notice Requirement: The proponent must give an adverse party reasonable notice of the intent to offer the statement—including its substance and the declarant's name—so the party has a fair opportunity to meet it. The notice must be in writing before the trial or hearing, or in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice (FRE 807, as amended in 2019).

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Multiple / Double Hearsay (FRE 805)

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception or exclusion to the rule.

Outer Document / Container                   Inner Utterance / Declarant
┌────────────────────────────────────────┐  ┌─────────────────────────────────────┐
│ Hospital Record (FRE 803(6))           │  │ Patient describes accident          │
│ (Recorded in regular business practice)│  │ (FRE 803(4) Medical Diagnosis)      │
└───────────────────┬────────────────────┘  └──────────────────┬──────────────────┘
                    │                                          │
                    └───────────────────┬──────────────────────┘
                                        │
                                        ▼
                         BOTH LAYERS SATISFY EXCEPTIONS
                             => ADMISSIBLE (FRE 805)

• Common MBE Trap: A police accident report is a public record under FRE 803(8) for the officer's own observations. However, when the report records a statement from a bystander who was not under an official duty, the bystander's statement is an independent hearsay layer. Unless the bystander's statement independently qualifies as an excited utterance (FRE 803(2)) or opposing party statement (FRE 801(d)(2)), the bystander's statement must be redacted.

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FRE 804 Exceptions Comparison Table

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More on the Unavailability Exceptions

• Former testimony offered against the government: Grand jury testimony may be offered by a defendant against the government only if the government had a similar motive to develop the testimony at the grand jury; the government's different role at that stage does not automatically satisfy the requirement (United States v. Salerno, 1992).
• Against interest when made: The statement must have been contrary to the declarant's interest at the time it was made. "I owe my landlord three months' rent" is against pecuniary interest; "I robbed the bank" is against penal interest. Collateral statements shifting blame to others are not against interest (Williamson v. United States, 1994).
• Family history about others (804(b)(4)(B)): A declarant may describe another person's birth, marriage, or relationship if the declarant was related to that person or so intimately associated with the family that the information is likely accurate.
• Impeaching hearsay declarants: The declarant of an admitted hearsay statement may be impeached as if he had testified (FRE 806; see Section 25.1).

Hearsay and the Confrontation Clause Together

Nontestimonial statements are governed only by the hearsay rules (Whorton v. Bockting, 2007). The Supreme Court has noted, without deciding, that dying declarations may be a historical exception to the confrontation right.