Confrontation Clause, Use of Deposition, & Misc. Hearsay Exceptions

Confrontation Clause & Hearsay Exceptions

  1. Application
    1. Need 2 Overcome Confrontation Cl.
      1. Only in crim. cases
      2. Only against D
      3. Applies 2 states & fed
    2. Can Use Hearsay Exceptions in Face of Confront. Cl.
      1. Whenever Sup Ct dec's it's fair & reliable, can use hearsay exception
    3. Ways 2 Overcome Confrontation Cl
      1. Unavailable / avail. W + firmly rooted hearsay exception
      2. Unavailable W + high indicia of reliability
        1. Stmt inherently reliab., not by corroborating evid. by factors of
          1. Lack of motive 2 lie
          2. Spontaneity
          3. Take risk based on accuracy of own perception
          4. Nearness in X 2 event
  2. Unavailability Hearsay Exception
    1. Def. of Unavail.: Can't B Unfair
      1. Try rsbl means 2 get W's in against D
      2. FRE 804)a)5 req's rsbl means 4 civil cases as well as crim.
      3. Phys'ly present but unavail., not viol. confrontation cl.
        1. Valid priv.
        2. W can't remember
        3. W refuses 2 testify
    2. Former Prelim. Hrg
      1. Case by case det. of whether had suff. opp. 2 cross

Sit's 4 Use of Depo

  1. Fed & CA
    1. Against party opponent
    2. Decl 2 far away (former test. + civ pro)
      1. One hundred miles 4 Fed
      2. One fifty miles 4 CA
    3. Unavail. decl. b/c
      1. Absent & beyond subpoena
      2. Subpoenaed but refused 2 come
    4. Int. of justice (not in hearsay exception)
  2. Fed
    1. Unavail. decl. b/c in prison (not in hearsay exception)
  3. CA
    1. Video depo of expert (civ pro)
    2. Unavail decl. by
      1. Priv.
      2. Disqualified

Misc. Hearsay Exceptions

  1. Ancient Doc's
    1. Reqts
      1. In C/L, doc about land / prop. + over 30 yrs old
      2. Now, doc. about any sub. + over 20 yrs. old
  2. Maps & History Bks
    1. Req Impartial Author
  3. Comm'l Lists & Mkt Reports
    1. Relied by People Who Deal In That Field 2 Use Facts In Them
  4. Reputation Evid.
    1. Gen. Gossip 4 Anonymous Hearsay
  5. Learned Treatises
    1. Reqts
      1. Science & art bks written
      2. By impartial author
      3. Used 2 prove facts stated in them

This material is copyrighted by the author. Use of this material for profit is strictly prohibited without a written permission from the author.

3/19/1997

Ms. Haeji Hong

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