FAQ - Hearsay Exceptions - Part Two
We discussed the first set of hearsay exceptions last week. The second set of exceptions applies only when the declarant is unavailable for some reason.
Louisiana Code of Evidence Article 804 lays out the exceptions to the hearsay rule when the declarant is “unavailable.” Unavailable has a specific meaning under the hearsay statute. A declarant is “unavailable” when:
he is exempted from testifying because of a ruling by the court on the grounds of privilege;
he persists in refusing to testify despite the court ordering him to do so;
he testifies to a lack of memory of the subject matter of his statement;
he is deceased, or has a then existing physical or mental illness, infirmity, or other sufficient cause that causes him to be unable to be present or to testify; or
he is absent from the hearing and the party wishing to present his statement has been unable to procure his attendance by process (subpoena) or other reasonable means. He is not unavailable if a party wanting to present his statement has procured his absence or caused it by wrong-doing in order to prevent him from testifying.
If a witness is “unavailable” as defined above, then one of the exceptions below may apply. In order for a statement to be admissible hearsay, it must meet both one of the requirements above and one of the exceptions below:
Former testimony - testimony given at a prior hearing, but expert testimony at a prior hearing is not admissible under this rule.
Statement under belief of impending death - “A statement made by a declarant while believing that his death was imminent, concerting the cause or circumstances of what he believed to be his impending death.”
Statement against interest - a statement which was so far against his interest at the time he made it that a reasonable man would not have made the statement unless it were true. A statement by an accused in a criminal proceeding that tends to expose him to criminal liability is not admissible unless other corroborating circumstances clearly indicate that the statement is trustworthy.
Statement of personal or family history
Complaint of sexually assaultive behavior - A statement made by a person under 12 which is an initial complaint of sexually assaultive behavior or an otherwise trustworthy statement of sexually assaultive behavior.
Other exceptions - In a civil case, a statement not specifically covered by another exception if the court has made a determination that it is trustworthy after considering all pertinent circumstances. The party intending to introduce the statement must give written notice to the adverse party and the court that he intends to introduce the statement.
Forfeiture by wrongdoing - A statement offered against a party who has engaged in or acquiesced to wrongdoing that was intended to or did cause the declarant to be unavailable. The party seeking to introduce the statement must establish, by a preponderance of the evidence, that the party against whom the statement is offered, engaged or acquiesced in the wrongdoing.
If a statement contains multiple types of hearsay, each type must meet an exception in order to be admissible.
If you would like to set up a consult to discuss your case, give us a call at (318) 459-9111.