Hearsay Exceptions Requiring Unavailability

Compared to the number of hearsay exceptions in which unavailability is not required, the number requiring unavailability is minimal. Yet, there is quite a lot to know about them. Each one is outlined below, and include the important points:

Former Testimony:

Let's assume a witness (let's call him X) is unavailable at trial 2, but was available at a previous trial, hearing or deposition. (For simplicity, let's call that previous trial "trial 1".) If X gave testimony in trial 1, that testimony is admissible in trial 2, provided that X was a party in the former action. Further, the former action must have involved the same subject-matter as the current action. In addition, the testimony that X gave must have been under oath, and X had to have had the opportunity to develop his testimony in the previous action (by direct, cross or re-direct examination).

Statements Against Interest:

Let's assume X is unavailable at trial but X has made a previous statement outside of court that the opposing party wants to admit into evidence. The statement is admissible if the statement that X made was against his pecuniary, proprietary, or penal interest when made. In addition, collateral facts contained in the statement are likewise admissible. Ensure when analyzing this rule, that X had personal knowledge of the facts contained within the statement, and that X was aware that the statement was against his interest when made.

Dying Declarations:

On the MBE, it's important to note that dying declarations only apply to a homicide prosecution, or a civil action. A statement made by a now unavailable witness is admissible if the declarant believed that his death was imminent when the statement was made (the belief is what matters, not the end result), and the statement concerned the cause or circumstance of what he believed to be his impending death.

Statements of Personal or Family History:

Statements by a now unavailable witness are admissible if those statements concern births, marriages, divorces, relationships, genealogical status, etc., provided that the witness is a member of the family in question or intimately associated with the family, and the statements are based on the declarant's personal knowledge of the facts or knowledge of family reputation.

Statements Offered Against Party Procuring Declarant's Unavailability.

The statement of a person (let's call him X) who is now unavailable as a witness, may be offered against a party (let's call him Y) who engaged or acquiesced in wrongdoing that intentionally procured X's unavailability. In other words, if the actions of Y prevent X from attending the trial, Y will not be able to use that to his advantage by claiming previous statements made by X are inadmissible hearsay.