Black-letter propositions
- 01
Unavailability includes privilege, refusal despite order, lack of memory, death or illness, or absence despite reasonable process, unless wrongfully procured by the proponent.
- 02
Former testimony requires opportunity and similar motive to develop; civil predecessor-in-interest rules can apply.
- 03
A dying declaration concerns cause or circumstances of believed impending death and applies in homicide prosecutions and civil cases.
- 04
A statement against interest must be self-adverse when made; criminal exculpatory use requires corroboration.
- 05
Forfeiture by wrongdoing requires conduct intended to make the witness unavailable.
Use this attack sequence under time
Frame the issue
Prove unavailability.
Resolve the next checkpoint
Choose exact exception and timing.
Resolve the next checkpoint
Compare party, predecessor, opportunity, and motive.
Resolve the next checkpoint
Parse truly self-adverse portions.
Finish the conclusion
For forfeiture, prove intent to silence.
Common wrong turns
- Wrongdoing causing absence is not enough for forfeiture without silencing intent.
- Dying declaration does not require actual death at trial.
- A broad narrative is not wholly against interest because one clause is.
Worked example
A defendant threatens a witness specifically so she will not testify, and she disappears.
The defendant forfeits hearsay and confrontation objections to qualifying statements because the conduct was intended to and did cause unavailability.
Practice this topic
When a declarant is unavailable
Rule 804(a) says a declarant is unavailable if the declarant is exempted by a privilege ruling, refuses to testify despite a court order, testifies to not remembering, cannot be present because of death or infirmity, or is absent and the proponent could not procure attendance or testimony by process or other reasonable means. It does not apply if the proponent procured or wrongfully caused the unavailability to prevent testimony.
Rule 804(b) then lists exceptions that apply only when the declarant is unavailable.
The exceptions
Former testimony was given at a trial, hearing or lawful deposition and is offered against a party who had, or in a civil case whose predecessor had, an opportunity and similar motive to develop it. A statement under belief of imminent death, about its cause or circumstances, is limited to homicide prosecutions and civil cases. A statement against interest is one a reasonable person would make only if believing it true, and if it exposes the declarant to criminal liability in a criminal case it needs corroborating circumstances.
Rule 804(b)(6) covers a statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant's unavailability, intending that result.
Two features of Rule 804(b)(1) are easy to miss. The opportunity and similar motive to develop the testimony must belong to the party against whom it is offered or, in a civil case, that party's predecessor in interest. And the testimony may have been given in the current proceeding or in a different one.
Frequently asked questions
How should I analyze former testimony, dying declarations, interest, and forfeiture on the bar exam?+
Prove unavailability. Choose exact exception and timing. Compare party, predecessor, opportunity, and motive. Parse truly self-adverse portions. For forfeiture, prove intent to silence.
When is a declarant unavailable under Rule 804(a)?+
When exempted by a privilege ruling, refusing to testify despite a court order, not remembering, unable to attend due to death or infirmity, or absent despite reasonable efforts to procure attendance or testimony.
What is the former testimony exception?+
Testimony given at a trial, hearing or lawful deposition, offered against a party who had, or in a civil case whose predecessor had, an opportunity and similar motive to develop it.
In what cases can a dying declaration be used?+
In a prosecution for homicide or in a civil case, for a statement made while believing death imminent about its cause or circumstances, under Rule 804(b)(2).
What extra showing applies to statements against penal interest?+
If offered in a criminal case to expose the declarant to criminal liability, corroborating circumstances must clearly indicate trustworthiness, according to Rule 804(b)(3)(B).
What is the forfeiture-by-wrongdoing exception?+
A statement offered against a party that wrongfully caused or acquiesced in wrongfully causing the declarant's unavailability, intending that result, under Rule 804(b)(6).