Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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D. Exceptions to the Hearsay Rule-- Declarant Unavailable (464)

1. Prior Testimony (465)

Problem - Speaking from the Grave - The Dead Witness (466)

Answer and Analysis:

(1) Objection overruled; admissible. The problem presents a straightforward application of FRE 804(b)(1). The witness is unavailable under FRE 804(a) (4); the witness's testimony was given at another hearing of the same matter, with full identity of parties and subject-matter and full opportunity for cross-examination.

It may be, of course, that in the time between the first and second trials, D has come up with much better ammunition for cross-examining W. D is permitted to attack W 's credibility in the second trial even though W is not there (see FRE 806), although D may find it more awkward to do so than would be the case if W were available for cross-examination.

(2) Objection overruled; admissible. W's testimony, offered by G, was given in a different proceeding, but one which was against D, the same party against whom the testimony is now to be used again. The first proceeding arose out of the same transaction as the second, and D's position in the first proceeding was similar to his position in the second. Thus, D had a similar motive in the first trial to develop the testimony by cross-examination.

This problem is based on Gaines v. Thomas, 241 S.C. 412, 128 S.E.2d 692 (1962) .

(3) Objection overruled; admissible. Although the first proceeding was criminal and the second civil, the testimony was offered against P in both cases and in circumstances which gave P a similar motive and opportunity to cross-examine.

Had the order of the proceedings been reversed, the testimony from the civil proceeding should not be admissible in the criminal proceeding. The defendant's greater stake in the criminal proceeding should be considered to create a more substantial motive to investigate and probe the testimony of the witness.

This problem is based on McIntiff v. Insurance Co. of North America. 248 111. 92, 93 N.E. 369 (1910).

(4) Objection overruled; admissible. Although H may have had a motive and opportunity to cross-examine W which was similar to P's, P is entitled to her own crack at the witness unless H is regarded as her "predecessor in interest." This concern is strongly articulated in the legislative history of FRE 804(b)(1). The House Report states:

"The Committee considered that it is generally unfair to impose upon the party against whom the hearsay evidence is being offered responsibility for the manner in which the witness was previously handled by another party. The sole exception to this, in the Committee's view, is when a party's predecessor in interest in a civil action or proceeding had an opportunity and similar motive to examine the witness." Notwithstanding this legislative history, the courts have been reluctant to adopt a rigid view of the concept "predecessor in interest" and have slid back toward a more flexible concept of similarity in motive and interest. The alternative is to construe FRE 804(b)(1) strictly and to then admit the evidence under FRE 804(b)(5). See 4 Weinstein's Evidence 1804(b)(1)[04].

Although, strictly speaking, H is not P's predecessor in interest, they are related by marriage, and their suits advance similar claims and issues.

Under the approach adopted by FRE 804(b)(1), what factors should a court consider in determining whether a party in a later case is a "predecessor in interest" to a party in former case? Compare In re Master Kev Antitrust Litigation. 72 F.R.D. 108 (D. Conn.), affd per curiam. 551 F.2d 300 (2d Cir. 1976) (the special relationship between government antitrust suits and subsequent private actions justifies allowing the defendant to use testimony elicited from a now unavailable witness at the former government action in the later private action), with In re IBM Peripheral EDP Devices Antitrust Litigation, 444 F. Supp. 110 (N.D. Cal. 1978) (former testimony elicited in previous government and private antitrust cases inadmissible against plaintiff who was not a party in those proceedings because "predecessor in interest" defined by substantive law).

See Bartlett v. Kansas City Public Service Co., 160 S.W.2d 740 (Mo. 1942); Prouly v. Parrow, 115 Vt. 232, 56 A.2d 623 (1948.)

(5)It depends. W's offensive theory in this suit against P might be different from D's defensive contentions in P's suit against D.

The similarity of both the factual and legal issues should count in assessing similarity of motive and interest.

2. Statements Against Interest (467)

Problem - The Fraudulent Transfers (467)

Answer and Analysis:

(1) W 1 Sr. is unavailable. His statement that he owed $5,000 was against his pecuniary interest. No reason appears why W 1 Sr. would have made such a statement unless it were true. Therefore, it is admissible under FRE 804(b)(3) to prove that D was owed $5,000.

(2) Same as above; the statement was against proprietary interest.

Neither of these statements qualifies as a dying declaration; the statements do not concern the cause of death.

Problem - The Speeding Chauffeur (468)

Answer and Analysis:

Inadmissible. B's statement might have been against his interest in so far as it would have been a statement admissible against B in a suit based on a theory of res on eat su~rior for the negligence of his employee. In such a context, the fact that B's statement was not based on personal knowledge would make no difference; the statement would be admissible against B as the statement of a party opponent (FRE 801(d)(2)(A)).

In the context of a suit against D to which B is not a party, B's statement, even though against interest, is inadmissible because B did not perceive the facts to which his statement relates. FRE 602. See 4 Weinstein's Evidence 804(b)(3)[02].

Note on declarations against penal interest - the Tague article (468)

Peter Tague has scrutinized FRE 803(b)(3)'s exception to the hearsay rule for declarations against penal interest and is sharply critical of it. Some of his concerns may be seen by considering the following hypothetical:

Charge: robbery of the Medford National Bank. At D's trial, defense counsel proves A's death and calls W to testify to a conversation between W and A. The prosecutor objects on hearsay grounds. D's offer of proof is that A said to W, "We was having trouble with some punks about the Medford job." W then asked A who "we" was. A replied, "B and me pulled that job." What ruling and why?

This hypothetical raises the following 804(b)(3) issues:

(1) When are statements against a declarant's penal interest? Is it sufficient that the statement co uld be used against the declarant at a subsequent criminal trial? Need the statement be made to a law enforcement officer?

(2) Interpretation of inferential statements. It is pretty clear that the statement is inculpatory to A. But is the statement exculpatory of D? This is important because:

(a) If the statement is inferentially exculpatory of D, what else must D show to have the statement admitted? Students should discuss the standard under 804(b)(3) for declarations against interest that exculpate the accused.

(b) When does admission and exclusion of such a statement raise Confrontation Clause problems?

These issues are discussed in United States v. Barrett, 539 F.2d 244 (1st Cir. 1976), and United States v. Pena, 527 F.2d 1356 (5th Cir. 1976). In Barrett, the case from which the problem was taken, the court held that exculpatory declarations against interest offered under 804(b) (3) must pass a two-prong test:

(a) Are the statements truly against the declarant 's interest?

(b) Are they sufficiently corroborated?

With regard to the first prong, the court said in Barrett that the statement was against the declarant's interest since he was implicating himself in a crime. The court reasoned that the remarks tended to subject the speaker to criminal liability so (to quote the rule) "that a reasonable man in his position would not have made this statement unless he believed it to be true." Liberally construing the rule, the court refused to limit the rule to direct confessions. Thus, a statement is sufficiently against interest if it could be used against the declarant in a subsequent trial.

On the other hand, in Pena, defense counsel offered the statement of an unavailable declarant who had admitted setting up the defendant, against whoni he had a grudge, as a party to a heroin sale. Defense counsel argued the statement was against the declarant's interest because in the same statement declarant admitted keeping the money provided by the government to make the purchase, and, thus counsel argued, the statement implicated the declarant in embezzlement of funds. The court, applying a more stringent standard than the court in Barrett, excluded the testimony. The court emphasized that the statement alone could not convict the declarant at any subsequent trial and noted that there were possible explanations for the declarant's keeping the money other than embezzlement.

Comment, FRE 8041b)l3) and Inculpatory Statements Against Penal Interest, 66 Cal. L. Rev. 1189 (1978), discusses both cases and condemns the federal courts for not arriving at a consistent standard in their interpretation of 804(b)(3).

With regard to the second prong of the test, Barrett holds that a case-by-case approach is necessary to determine whether there is sufficient corroboration for the proffered testimony. This approach gives trial judges great leeway in determining what is sufficient corroboration. The Barrett court added that in cases that lead to reasonable differences, Courts of Appeal are unlikely to reverse a lower court's ruling of what is sufficient corroboration. Accordingly, the Barrett case was remanded to the district court for a ruling on the corroboration requirement.

The Barrett court also argued for a minimum threshold test for determining the sufficiency of the corroboration. Once that threshold has been passed, the evidence is admitted and the jury must balance it with all the other surrounding factors. A different approach was employed in United States v. Lowerv, 401 F.Supp. 604 (D.Md. 1975), affd mem. 532 F.2d 750 (4th Cir.), cert denied, 429 U.S. 919 (1976), where the approach advanced is that the court, rather than the jury, would balance the proffered testimony with all the surrounding factors and determine its credibility.

Finally, the Barrett court reminded judges to be mindful to any due process constitutional issues in excluding exculpatory statements under the new federal rule.

Further questions:

(1) The Barrett decision did not focus on the fact that the declarant's inculpatory statement was made to a friend. Do statements made in these circumstances have sufficient indicia of reliability to justify their admission as a statement against interest, or should such statements be limited to those made to an officer, prosecutor or any other person who could bring the speaker to trial?

(2) Suppose W testifies that A said, "B and me pulled that job." Twenty minutes later, in the same conversation, A added, "D was not involved." Is this second statement admissible under 804(b)(3)? In Barre the court allowed such a statement into evidence, arguing that Congress did not intend to exclude collateral statements. The standard enunciated was that when the inculpatory remark was sufficiently integral to the entire statement, it was a statement against interest. Under this analysis, how closely connected must the statement that is inculpatory to the declarant be to the statement which exculpates the defendant to bring the portion about the defendant under 804(b)(3)?

(3) Suppose A simply said, "D wasn't involved, B was." Is that admissible? Probably not, since A does not implicate himself, it is not contra to his penal interest and is hearsay. However, one could infer from the statement that A knows who was involved only because A was involved, and thus A is implicating himself. Thus, it may be against his penal interest.

(4) If A were unavailable, could W testify for the government at D's trial that A said to W, D and I pulled the job and no one else"? This statement is totally inculpatory to the declarant and the accused. Was 804(b)(3) intended to include such statement offered by the prosecution? In Comment, Federal Rule of Evidence 804(b) (31 and Inculpatory Statements Against Penal Interest, 66 CAL. L. REV. 1189 (1978), it is argued that by deleting from the original draft of the rule a provision that would have specifically barred the prosecutors use of such statements, the Advisory Committee meant to allow the use of inculpatory statements under 804(b)(3). The Comment argues that only statements clearly against the declarant's interest at the time and in the circumstances at which they were made may be admitted into evidence. Statements made to gain the favor of the prosecutor are not "against interest, as defined, and thus should not be admitted under 804(b)(3) . Although no case specifically advocates the use of such a distinction, the Barrett case and U.S. v. Hyde, 574 F2d 856 (5th Cir. 1978), in dictum have agreed that the prosecutor may introduce inculpatory remarks into evidence under 804(b) (3). "804(b)(3) . . . declares such statements admissible in spite of the hearsay rule . . . ." What is the standard for determining whether a co-conspirators statement is made to gain the favor of a prosecutor? Is the Hyde-Barrett interpretation of 804(b)(3) consistent with the limits on the use of a co-conspirator's statements under 801(d)(2)(E)? What Confrontation Clause problems does such an approach raise?

Problem - Thick as Thieves (469)

Answer and Analysis:

(1) This is a clear-cut confession, clearly against Joe's penal interest. It should be admissible, though some courts have considered it a preliminary question to determine whether Joe actually made the statement. This should be a matter for the jury. See the Tague article from which a short excerpt is reproduced at page 468.

(2) This is a confession, evidently made preliminary to committing suicide. It would be argued that the statement was not against penal interest because it was made at a time when the declarant knew that he would never be subjected to criminal penalties.

(3) This statement is an assertion of a legal opinion. It may not be based on personal knowledge, and it is not clearly against Joe's penal interest because D's innocence does not imply Joe's guilt. See Tague at 926.

(4) These statements are not opinions and are apparently based on first-hand knowledge. The question is whether the statements can be taken as a related whole. Professor Tague's conclusion, after analysis, is as follows:

"The admissibility of related statements under rule 804(b)(3) initially should involve the fact question of whether the declarant's implication or exoneration of the defendant is self-serving. That inquiry will force a court to examine the motivation of the declarant in the context in which he made the statement. Thus, if a related statement is not self-serving and is linked to a disserving statement, a court should admit it as long as it meets the other requirements of rule 804(b)(3). Tague, supra at 925.

5) This statement, offered by the prosecution, raises the question whether the against-interest exception of FRE 804(b)(3) is a way around Bruton v. United States (573). Early drafts of FRE 804(b)(3) contained a sentence which would clearly have excluded such confessions from the coverage of the exception. The sentence was dropped because, supposedly, it was not needed. See 4 Weinstein's Evidence 804(b)(3)[03]. But see Tague, supra at 892-897 for a discussion of the so-called Bruton sentence suggesting that the exception could be construed to apply.

3. Dying Declarations (470)

Problem - The Voice from the Grave (479)

Answer and Analysis:

Probably admissible, although as the problem is stated, it is ambiguous whether V believed that her death was imminent. This is a foundational element which the judge must decide (FRE 104(a)). The judge could make this finding based on the circumstantial evidence of V's deteriorating condition, agony, and difficulty in breathing.

The stated theory of the exception for dying declarations is that the declarant will not lie when about to meet his maker. This is nonsense. In this secular age, there is no good reason for thinking that death begets sincerity. Moreover, all the other testimonial capacities (clarity, memory, and perception) are likely to be in terrible -shape. Thus reliability hardly justifies the exception.

For a more plausible rationale for dying declaration, see the theory of hearsay and confrontation in Chapter VI of this casebook

Problem - Dying Declarations (473)

Answer and Analysis:

V's statement is admissible. He believed that he was dying imminently, and his statement concerned the cause of his impending death.

E's statement is inadmissible, at least under FRE 804(b)(2). Although he believed that he was dying imminently, his statement did not concern the cause of his impending death.

Counsel for D could push for admissibility in three ways:

(1) Assert that E's heart attack was a direct result of the trauma and guilt of E's having murdered V, thereby bringing the statement within FRE 804(b)(2) 's requirement that it relate to the cause or circumstances of the declarant 's impending death.

(2) Assert that E' s statement was a statement against interest admissible under FRE 804(b) (3). Counsel would have to show corroborating circumstances clearly indicating the trustworthiness of the statement.

(3) Assert the admissibility of the statement under FRE 804(b)(5), pushed by D's constitutional right to put on a defense. The case for admissibility is particularly strong here because E is known to have been present, and thus is a prime alternative suspect.

Problem - Double Death (473)

Answer and Analysis:

A's statement is inadmissible. It fails to qualify as a dying declaration under FRE 804(b)(2) because it does not concern the cause or circumstances of her own death.

Problem - "Speak-Up, Please" (473)

The point:

It is for the judge to decide if the declarant had a settled expectation of doom; it is for the jury to decide what, if anything, the declarant said.

Answer and Analysis:

Jones should be allowed to testify. Whether V knew she was dying is a foundational element necessary for V's statement to qualify as a dying declaration. The judge should decide whether or not V knew she was dying by a preponderance test under FRE 104(a). Whether or not V actually said "D did it," is a matter for the jury to decide, as long as the evidence on the question is such that reasonable persons could differ.

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