OVERVIEW

1. The exceptions contained in Rule 804 bear no relation to each other except that they all require proof that the declarant has become unavailable. In that way they are very different from the exceptions we have been studying, none of which depend on the unavailability of the declarant.

2. As with all exceptions, each 804 exception has both a name and a very specific foundation. You must be very careful to distinguish these two. There is an exception called "former testimony," but not all former testimony falls into the exception. There is an exception for "statements against interest," but not all statements against interest fall into the exception. Only those statements that strictly satisfy the conditions specified in the fine print fall into the exceptions. Note that there is NO general exception for hearsay when the declarant has become unavailable.

3. The four traditional exceptions requiring proof of unavailability are:
a) 804(b)(1) -- Former testimony.
b) 804(b)(2) -- Statements made under belief of impending death, known everywhere by its common law name: Dying Declarations.
c) 804(b)(3) -- Statements against interest
d) 804(b)(4) -- Statements of personal or family history
A fifth "exception" was added recently called Forfeiture By Wrongdoing.

4. Only former testimony and statements against interest are important. The other two are relics from frontier days when people were born in log cabins, went prospecting in Colorado, got married in front of itinerant preachers, and died in gunfights at the OK Corral.
a) Dying declarations require proof that the declarant truly believe death was imminent. This was easy 150 years ago when the nearest doctor was a drunk who was a 2-day ride away. This is almost impossible to establish now, when everyone is a 15-minute ride from a modern emergency room where they will save you.
b) Unofficial statements of family history which were important 150 years ago when there were no official records of birth, marriage and death, have become unimportant now that everyone can just go down to the health department and get an official certificate.

5. Recall that your responsibility as lawyer in objecting and responding is to be specific. Therefore, if you are invoking an exception to the hearsay rule as your response to a hearsay objection, you must point out which exception applies, using its name, e.g., "This evidence falls within the exception for former testimony."

6. The name by itself is not specific enough. You must convince the judge that the foundation has been laid, i.e., that all the conditions specified in the text of the Rule have been satisfied. E.g.:
This evidence falls within the former testimony exception. We have shown that the declarant is unavailable by introducing a death certificate. The evidence constitutes testimony given as a witness in a deposition. We are offering it against the defendant. The deposition indicates that the defendant's attorney was present, and thus had an opportunity to examine the witness. The deposition shows that it was taken in connection with this case, so the defendant's motive to examine the witness was similar to his motive at trial today.

7. Rule 804 has a precise definition of unavailability, and you must prove strict compliance with one of the 5 categories in order to establish unavailability. The fact that the declarant is not present is not "unavailability". This is another trap for the unwary and the imprecise. You must establish strict compliance with one of the definitions of unavailability.

8. In addition to unavailability, each exception has its own foundation elements

9. For former testimony:
a) the statement must have been made "as a witness at a hearing or deposition, i.e., under oath at a proceeding that has both direct and cross-examination.
b) Party against whom it is now offered had opportunity to ask questions at that hearing or deposition
c) Party against whom it is now offered had similar motive to develop the testimony, i.e., the issues were the same.

10. For statements against interest:
a) Note the definition of "interest" is limited to pecuniary, proprietary and legal interests.
b) The statement was clearly contrary to speaker's interest when made
c) A reasonable person would not have made it unless true
d) Exculpatory statements in criminal cases require corroborating circumstances clearly indicating trustworthiness

11. In addition, each exception is subject to the Crawford rule in criminal cases. If the underlying hearsay is testimonial (accusatory or establishes a factual element of the crime), then the declarant must be BOTH unavailable AND have been subject to cross-examination on a previous occasion. The former testimony exception will usually satisfy this requirement, but statements against interest usually will not.

12. The "exception" for Forfeiture by Wrongdoing (803[6]) is not actually a hearsay exception at all, but a principle of fairness. If the proponent can prove that a party has engaged in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness (i.e., killed, bribed, or intimidated the witness), then the party has forfeited the right to object to the other side using hearsay statements by the unavailable witness.