Hearsay exceptions—when the declarant is unavailable as a witness - Next Generation Bar Exam

1. Under Williamson v. United States, how must a court treat the collateral, self-serving portions of a statement against interest?

   It must admit only the individual remarks that are themselves against interest. Non-self-inculpatory portions of a broader narrative are not admissible under the exception.

2. A witness testified at a preliminary hearing, where the defendant cross-examined her. She has since died. On what basis may the prosecution offer her testimony at trial?

   As former testimony under FRE 804(b)(1). The defendant had an opportunity and similar motive to develop the testimony at the hearing.

3. Under FRE 804(b)(1), what are the requirements for former testimony?

   Testimony at a trial, hearing, or deposition, offered against a party who had an opportunity and similar motive to develop it. In a civil case, a predecessor in interest's opportunity and motive also suffice.

4. Under FRE 804(b)(3)(B), what additional showing is required for a statement against penal interest in a criminal case?

   Corroborating circumstances clearly indicating its trustworthiness. Since 2010, the requirement applies whether the statement is offered by the prosecution or the defense.

5. Under FRE 104(a), what standard governs the determination that a declarant is unavailable?

   A preponderance of the evidence, decided by the court. Unavailability is a preliminary question of admissibility.

6. In a robbery prosecution, the victim, believing he was about to die, named his attacker and then recovered but now refuses to testify. What is the status of the statement as a dying declaration?

   It is inadmissible, because dying declarations are limited to homicide prosecutions and civil cases. A robbery prosecution is not a homicide case, regardless of the declarant's belief.

7. Under FRE 804(b)(3), what makes a statement against interest admissible?

   A reasonable person would have made it only if believing it true, because it was so contrary to the declarant's interest. Covered interests are pecuniary, proprietary, civil liability, and criminal liability.

8. Under FRE 804(a)(5), what must the proponent show for an absent declarant when offering former testimony?

   That the proponent could not procure the declarant's attendance by process or other reasonable means.

9. Under FRE 804(b)(2), in which cases is a dying declaration admissible?

   Prosecutions for homicide and civil cases. The declarant need not actually have died, but must be unavailable.

10. Under FRE 804(b)(6), what is the forfeiture-by-wrongdoing exception?

    A statement is admissible against a party who wrongfully caused or acquiesced in the declarant's unavailability, intending that result.

11. Under FRE 804(a), what are the five grounds on which a declarant is considered unavailable?

    Privilege, refusal to testify, lack of memory, death or illness, and absence despite reasonable efforts. A declarant is not unavailable if the proponent procured the unavailability to prevent testimony.

12. Under FRE 804(b)(2), what must the declarant have believed when making a dying declaration?

    That death was imminent. The statement must also concern the cause or circumstances of the impending death.

13. Under FRE 804(b)(4), what statements of personal or family history are admissible?

    Statements about the declarant's own birth, marriage, relationship, or similar facts, or those of a relative or intimate associate. The declarant need not have had personal knowledge of the facts.

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