washington mock trial rules of evidence - YMCA of Greater Seattle

Comment: All the hearsay exceptions under Rule 803 apply whether or not the declarant is“available” to testify in person. But another group of hearsay exceptions set forth underRule 804 require that the declarant must be “unavailable” before the hearsay statement isadmitted. Rule 804(a) defines situations in which a declarant is considered “unavailable.”Physical unavailability such as death or absence from the jurisdiction is not required. Theunavailability requirement is also satisfied if the witness invokes a privilege, or refuses totestify in contempt of court.Comment, 804(b)(1). Rule 804(b)(1) creates a hearsay exception for an unavailableperson’s prior sworn statements.Comment, 804(b)(2). Rule 804(b)(2) is the “dying declaration” hearsay exception. Itcreates a hearsay exception when the victim of a homicide says, “D shot me,” before victimexpires.Comment, 804(b)(3). This rule sets forth the “declaration against interest” hearsayexception. It rests on the notion that a person is unlikely to make a statement that wouldget the person in trouble, unless the statement is true. The last sentence of the ruleplaces a “corroboration” requirement on statements by an unavailable declarant that areoffered to prove the innocence of a criminal defendant. For instance, if D is charged withmurder, and D’s brother Q is dying of cancer, Q might make a false deathbed “confession”to exonerate D. If D wants to admit Q’s “confession” into evidence through a nurse whoheard it, the corroboration requirement would have to be met.Comment, 804(b)(4). Since one typically does not truly have “personal knowledge” of his orher birth, parents’ marriage, ages of older siblings, etc., this rule creates a hearsayexception to allow witnesses to testify facts of family history.Comment, 804(b)(6). The “forfeiture by wrongdoing” exception would include situationswhere a witness by a criminal case is unavailable because the defendant madearrangements for the witness to “sleep with the fishes.” Because defendant’s wrongdoingbrought about the witness’s unavailability, hearsay testimony from other witnesses aboutthe unavailable witness’s statements are admissible against the defendant.Rule 805. HEARSAY WITHIN HEARSAYHearsay included within hearsay is not excluded under the hearsay rule if each part of thecombined statement conforms with an exception to the hearsay rule provided in theserules.Comment: This rule governs so-called double hearsay and multiple hearsay situations.These situations pose challenging analytical problems. Generally the proponent must showthat every link in the chain of statements is admissible. Arguments for admissibility may