§804 Hearsay Exceptions: Declarant Unavailable

• Library: Evidence Restated Deskbook (2021 Ed.)

§804 Hearsay Exceptions: Declarant Unavailable

A. Definition of unavailability. Unless otherwise defined by a specific hearsay exception listed in paragraph B below (see B.2 (requires death of the declarant) and B.5 (requires death or incompetency of the declarant)), "unavailability as a witness" exists whenever the testimony of the witness is unavailable as a practical proposition. It includes, but is not limited to, situations in which the declarant:

1. asserts the privilege against self-incrimination;

2. testifies to an inability to remember the prior statement;

3. is unable to be present or testify because of death, insanity, psychological problems, or physical incapacity;

4. is absent from the hearing, and the party offering the evidence shows a good faith effort, exercising reasonable diligence, to procure the declarant's attendance; or

5. is kept away by the connivance, collusion, or consent of the other party.

B. Hearsay exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

1. Former testimony. Testimony given before a judicial tribunal, either in open court or by deposition, if:

a. the witness was sworn and testified;

b. the party against whom it is offered—or, in a civil case, someone in privity with the party against whom it is offered—was present and had an opportunity and similar motive to develop the testimony by cross-examination; and

c. there is an identity of issues between the issues in the former proceeding and the case on trial.

2. Dying declaration. In a prosecution for homicide, when the death of the declarant is the subject of the charge, a statement made by a declarant while in the belief of impending death, after hope of recovery has been abandoned, concerning the identification of the attacker and the circumstances immediately attending the attack.

3. Declarations against interest:

a. Civil cases. A statement made by someone:

(i) unavailable as a witness to testify;

(ii) relating to a fact against the declarant's pecuniary, proprietary, or penal interest at the time the declaration was made;

(iii) concerning a fact personally cognizable by the declarant; and

(iv) made under circumstances that render it improbable that a motive to falsify exists.

b. Criminal cases. Declarations against interest are generally inadmissible in Missouri criminal proceedings.

c. Exception. Declarations against interest are admissible as a due process right when inadmissibility denies a defendant a fair trial. The exception requires a showing that:

(i) the declarant is unavailable as a witness to testify;

(ii) there are substantial indicia of reliability of the statement:

(a) the statement is self-incriminatory and undeniably against interest;

(b) the statement was made spontaneously to a close acquaintance shortly after the crime; and

(c) the statement is corroborated by other admissible evidence; and

(iii) the statement, if true, would exonerate the defendant.

4. Pedigree. Statements of descent and relationship and the facts of birth, marriage, and death and the times when these events happened if:

(a) made by a member of the family who is unavailable to testify;

(b) there is a circumstantial indication of trustworthiness of the statements; and

(c) they were made before there was any motive to falsify.

5. Statements made by deceased or incompetent persons. In any civil action, when one of the parties to a contract, transaction, occurrence, or cause of action, or that person's agent in the matter, is dead or is shown to be incompetent, and the adverse party or that party's agent testifies with respect thereto, any relevant statements made by the deceased party or agent or by the incompetent before the incompetency.

Notes

A. Definition of unavailability

When unavailability is required for an exception to the hearsay rule, a witness is considered unavailable "whenever the testimony of the witness is unavailable as a practical proposition." Sutter v. Easterly, 189 S.W.2d 284, 289 (Mo. 1945).

Thus, for example, in Elliott v. Mid-Century Insurance Co., 701 S.W.2d 462, 466–67 (Mo. App. W.D. 1985), a trial judge's ruling that a witness for the defense was unavailable was held not to be an abuse of discretion when the witness was under subpoena and present the third day of trial but, on that day, was also under subpoena in a criminal trial in another state for the next day and it was necessary for her to leave to catch a plane, the defense offered to put the witness out of order and to connect up her testimony, and the plaintiff objected to allowing that to be done.

Other examples of unavailability follow:

1. Upon assertion of the privilege against self-incrimination, State v. Holt, 592 S.W.2d 759, 766 (Mo. banc 1980); State ex rel. Chaney v. Franklin, 941 S.W.2d 790, 792 (Mo. App. S.D. 1997); Sutter, 189 S.W.2d at 295.

2. If dead at the time of trial, State v. Fleming, 451 S.W.2d 119, 121 (Mo. 1970); State v. Burns, 112 S.W.3d 451, 453–54 (Mo. App. W.D. 2003) .

3. If shown to be insane at the time of trial, State v. Pierson, 85 S.W.2d 48, 52–54 (Mo. 1935) .

4. By reason of physical incapacity to appear at trial, State v. Williams, 554 S.W.2d 524, 531–35 (Mo. App. S.D. 1977) .

5. By reason of psychological problems, In re S.J., 849 S.W.2d 608, 613 (Mo. App. W.D. 1993) .

6. By reason of an inability to remember the prior statement, Orr v. State Farm Mut. Auto. Ins. Co., 494 S.W.2d 295, 299 (Mo. banc 1973) .

7. By reason of military service, Hayes v. Dalton, 257 S.W.2d 198, 201–02 (Mo. App. E.D. 1953) .

8. Kept away by the connivance, collusion, or consent of the other party, State v. Hester, 801 S.W.2d 695, 696 (Mo. banc 1991) .

9. When absent from the hearing and the party offering the evidence shows a good faith effort, exercising reasonable diligence to procure the declarant's attendance, State v. Sanders, 903 S.W.2d 234, 237 (Mo. App. E.D. 1995); State v. Artis, 215 S.W.3d 327, 335 (Mo. App. S.D. 2007). "Good faith" to procure the attendance of an out-of-state witness may require a showing that there has been an attempt to utilize the uniform law to obtain the presence of the witness from within or without the state in criminal proceedings. See Uniform Law to Secure the Attendance of Witnesses From Within or Without a State in Criminal Proceedings, §§ 491.400–491.450, RSMo 2016; State v. Woods, 336 S.W.3d 473 (Mo. App. E.D. 2011).

10. A "[r]eluctance to testify is not the equivalent of unavailability to testify." Hester, 801 S.W.2d at 697.

A ruling regarding the availability of a witness is within the discretion of the trial court. S.J., 849 S.W.2d at 613; Elliott, 701 S.W.2d at 466; Orr, 494 S.W.2d at 299.

Confrontation Clause—forfeiture by wrongdoing

The Sixth Amendment contemplates that a witness who makes testimonial statements admitted against a defendant will ordinarily be present at trial for cross-examination and if that witness is unavailable, the statements are not admissible unless the defendant had a prior opportunity to cross-examine the declarant. See the discussion under Exception (2) in §803 above on the Confrontation Clause.

An historical exception to the Confrontation Clause that allows the admission of hearsay statements notwithstanding the inability to confront the declarant is the doctrine of "forfeiture by wrongdoing," a common law doctrine that holds that a defendant may not complain about the inability to confront an unavailable witness if the defendant caused the unavailability.

In Giles v. California, 554 U.S. 353 (2008), the Supreme Court recognized this exception but held that the doctrine forfeits the right to confrontation only when:

· the defendant engaged in conduct designed to prevent the witness from testifying; or

· the testimony falls within the dying declaration exception.

Id. at 359–61. See also An exception to the Confrontation Clause? under B.2 Dying declaration below.

B. Hearsay exceptions

1. Former testimony

The exception to the hearsay rule for former testimony applies when the following conditions are met:

· The witness is unavailable to testify at the trial.

· The prior testimony was given before a judicial tribunal, either in open court or by deposition.

· The witness was sworn and testified.

· The party against whom it is offered or, in a civil case, someone in privity with the party against whom it is offered, was present and had an opportunity and similar motive to develop the testimony by cross-examination.

· There is an identity of issues between the former proceeding and the case on trial.

Bartlett v. Kansas City Pub. Serv. Co., 160 S.W.2d 740, 742–43 (Mo. 1942); State v. Aaron, 218 S.W.3d 501, 506 (Mo. App. W.D. 2007); State v. Sumowski, 794 S.W.2d 643, 648 (Mo. banc 1990).

Testimony given before a judicial tribunal

A trial in the Missouri Senate brought against a member charged with having solicited a bribe to determine whether he should be allowed to continue as a member was held to be a judicial trial for purposes of the exception. In so holding, the court wrote:

An act may be judicial, whether or not performed by the judiciary itself, if it is an act in the performance of which it is necessary to consider and pass on evidence and arrive at a determination with respect thereto. In its broad sense it is the nature or quality of an act which determines whether it is judicial, and not the character of the person or instrumentality that may be authorized to perform it.

So regarded, the Senate, while a legislative body, was none the less exercising a judicial function in determining, from the evidence adduced, whether the accused should be allowed to continue as one of its members.

In re Falzone, 220 S.W.2d 765, 771 (Mo. App. E.D. 1949) (citation omitted); see also In re Pate, 119 S.W.2d 11, 14 (Mo. App. S.D...