HEARSAY 804–807 Exceptions

804(a)(1)-(5) – Unavailable Witness

If a witness is present at trial, that witness may be exempted from testifying due to a judicially sustained claim of privilege (subsection (1)), or the witness may refuse to testify (subsection (2)). However, if no privilege claim is present, the judge may order the witness to testify. Again, however, the witness may assert his or her Fifth Amendment privilege. Under these circumstances, the witness is still considered “unavailable.”

• U.S. v. Peterson, 100 F.3d 7 (2d Cir. 1996) (a criminal defendant cannot make himself unavailable by invoking the Fifth Amendment so as to introduce his own grand jury testimony under Rule 804(b)(1))

Under subsection (3), the witness may claim that he/she has a lack of memory.

• U.S. v. Davis, 551 F.2d 233 (8th Cir. 1977) (where a prosecution witness denied recalling a statement made by the defendant admitting to other robberies, the witness’s testimony was “unavailable” within the meaning of Rule 804(a)(3), and the prosecutor was properly permitted to read the witness’s testimony at another trial of defendant’s)

Subsection (4) provides that death or physical illness constitutes “unavailability.”

Subsection (5) states that absence may be considered “unavailable,” but there must be a showing of a reasonably diligent attempt to find and procure the attendance of the witness.

• Perricone v. Kansas City Southern Ry. Co., 630 F.2d 317 (5th Cir. 1980) (when the plaintiff simply stated, “we have made a diligent effort to locate (the witness) and have been unable to do so. We don't know where the man is at all,” it was reversible error to admit testimony given by that witness in another personal injury case, under the former testimony hearsay exception of Rule 804(b)(1); immediately after trial, a railroad claims agent found the witness within two hours at work within a mile of courthouse, the witness had established a residence nearby, and an old phone number played a recorded message stating a new phone number)

804(b)(1) – Former Testimony

Rule 804(b)(1) provides an exception for former testimony from an unavailable declarant. For such testimony to be admitted, (1) the declarant must be unavailable, (2) the testimony must have been taken at a hearing or deposition in the same or another proceeding, and (3) the party against whom the testimony is now offered must have had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

• U.S. v. Loggins, 486 F.3d 977 (7th Cir. 2007)
• U.S. v. Fischl, 16 F.3d 927 (8th Cir. 1994) (a co-defendant's testimony at a prior detention hearing was inadmissible against the prosecution under Rule 804(b)(1) because the prosecution did not have a similar motive to develop the testimony through cross-examination)
• U.S. v. Salerno, 505 U.S. 317 (1992) (when the statement at issue was made to a grand jury and is now being offered against government at trial, Rule 804(b)(1) does not contain an implicit limitation permitting the “similar motive” requirement to be waived in the interest of adversarial fairness)

804(b)(2) – Dying Declaration

Rule 804(b)(2) allows certain dying declarations to be admitted over the hearsay rule. In order for a dying declaration to be admitted, (1) the declarant must have believed his death was imminent (regardless if he/she actually died), (2) the statement was based on personal knowledge, and (3) the statement concerns the cause or circumstances of what the declarant believed to be his imminent death. It is important to recognize that NOT all dying declarations are admissible. Only those that meet the three criteria above are admissible.

• U.S. v. Shields, 497 F.3d 789 (8th Cir. 2007) (the nature and extent of the declarant’s injuries must be so severe that he obviously must have felt or known that he could not survive)
• Webb v. Lane, 922 F.2d 390 (7th Cir. 1991) (reasonable to infer declarant knew seriousness of his condition because he was attached to life support with six gunshot wounds)
• U.S. v. Mobley, 421 F.2d 345 (5th Cir. 1970) (court looked at gravity of declarant's wounds in determining his awareness of death)

804(b)(3) – Statement Against Interest

Rule 804(b)(3) states that a statement of fact that goes against the declarant’s interests is admissible over the hearsay bar, provided that the declarant had personal knowledge of the fact and is now unavailable to testify as a witness. The proponent of such evidence must establish that (1) the declarant is unavailable to testify and (2) the statement was against the declarant’s interest.

• U.S. v. Gupta, 747 F.3d 111 (2nd Cir. 2014) (insider trading statements corroborated by events occurring shortly after exchange of information admitted under 804(b)(3))
• U.S. v. Halk, 634 F.3d 482 (8th Cir. 2011) (declarant’s statement that the gun found by police belonged to his son was not a statement against declarant’s own interest)
• United Technologies Corp. v. Mazer, 556 F.3d 1260 (11th Cir. 2009) (statement of officer and part owner of defendant corporation to government concerning a sale involving his company would tend to deplete the financial interests of the company, and hence his wealth, and was therefore to some extent against his pecuniary interest; but he would have been more concerned with the government investigation into him, and the statement helped him in that regard, so on balance the statement was not against his interest)

805 – Multiple Hearsay (Hearsay Within Hearsay)

Rule 805 allows hearsay within hearsay, but only if each portion of the hearsay meets an exception to the hearsay rule.

Often times, hearsay within hearsay involves business records. Where the source of the information in a business record and the recorder of that information are not the same person, the business record will be treated as hearsay (the business record itself) within hearsay (the recorder of that information). However, if the business record was created during the ordinary course of business, then that record may be excused from the hearsay rule altogether under the business record exception, Rule 803(6).

• U.S. v. Kuo, 2011 WL 145471 (E.D.N.Y 2011) (911 recordings fell under the business record exception, but the recordings themselves contained therein were admissible only if statements made by 911 callers fell under another independent hearsay exception)
• Grizzell v. City of Columbus Div. of Police, 461 F.3d 711 (6th Cir. 2006) (both statements were party admissions – the employee’s statement qualified under party admission, since the statement was made within the scope of his agency)
• U.S. v. Taylor, 462 F.3d 1023 (8th Cir. 2006) (police report containing citizen’s report of a missing handgun was properly excluded by district court since it contained double hearsay and did not fall under the government records hearsay exception because police reports are generally excluded except the firsthand observations by an officer)
• U.S. v. Gurr, 471 F.3d 144 (D.C. Cir. 2006), cert. denied, 550 U.S. 919, 127 S. Ct. 2146 (2007) (trial court erred in admitting statements because of double hearsay in report)
• Munley v. Carlson, 125 F. Supp. 2d 1117 (N.D. Ill. 2000) (witness testified that statements made by plaintiff and his friend about supporting claims of police brutality and splitting proceeds of civil suit were admissible where first level was party admission under Rule 801(d)(2)(A) and second level was adoptive admission under Rule 801(d)(2)(B))
• Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir. 1995) (plaintiff testified that her supervisors told her she was being dismissed because general manager did not respect women in positions of authority and wanted a man to replace her; the supervisors’ statements were admissions by agents of party opponent under Rule 801(d)(2)(D) and not hearsay)
• In re Greenwood Air Crash, 924 F. Supp. 1511 (S.D. Ind. 1995) (police report of air crash containing statements by spouses of pilot and passenger about the purpose for flight were admitted as admissions and under the Rule 803(3) “state of mind” exception)
• Armbruster v. Unisys Corp., 32 F.3d 768 (3d Cir. 1994) (an out-of-court statement made by the vice president of the defendant corporation that the company wanted to weed-out older employees was inadmissible double hearsay in an age discrimination case where the identity of the original speaker to the vice president was unknown)
• U.S. v. Sallins, 993 F.2d 344 (3d Cir. 1993) (a record that a 911 call was made was admissible under Rule 803(8), but the actual details of the call were inadmissible as the second level of hearsay)
• Hill v. Rolleri, 615 F.2d 886 (9th Cir. 1980) (a report prepared by an officer investigating the accident in which a car and a tractor-trailer truck collided was possibly incorrectly admitted under the public records hearsay exception because the report contained statements of a witness, thereby making it subject to double hearsay)
• Carden v. Westinghouse Elec. Corp., 850 F.2d 996 (3d Cir. 1988) (a statement by a supervisor to the plaintiff that the company wanted a younger person for a new position was inadmissible double hearsay in an age discrimination case where the identity of the original speaker was unknown)

807 – Residual (“Catch-All”) Exception

Rule 807 is the “catch-all” provision, which grants admissibility of trustworthy statements that are “not specifically covered by” other exceptions in Article XIII of the Federal Rules of Evidence. In order for a piece of evidence to come in under Rule 807, there must be (1) circumstantial guarantees of trustworthiness; (2) materiality; (3) probative value; (4) interests of justice; and (5) notice.

• In re Slatkin, 525 F.3d 805 (9th Cir. 2008) (plea agreement admissible under residual exception)
• U.S. v. Banks, 514 F.3d 769 (8th Cir. 2008) (ATF purchase form obtained from pawn shop that sold gun had circumstantial guarantee of trustworthiness)
• In re Columbia Securities Litigation, 155 F.R.D. 466 (S.D.N.Y. 1994) (articles from Forbes Magazine and Reuters admitted under residual exception)