Past Testimony—804(a) and 804(b)(1)

Volland-Golden v. City of Chicago

89 F. Supp. 3d 983 (N.D. Ill. 2015).

Volland was pulled over. At a previous criminal trial, he testified that the officers stopped him with no reasonable suspicion and abused him before effectuating an arrest. The officers testified that Volland resisted producing identification and pushed the officer through the window of his car, so the officers effectuated an arrest. At that trial, Volland was acquitted of all charges. Now, he is suing the officers for damages based on the same events. Since instigating the lawsuit Volland died, his estate took over the lawsuit, and sought to admit his testimony from the previous case due to his unavailability. The testimony is admitted because there is a predecessor in interest and similar motive to obtain the testimony.

United States v. Duenas, 691 F.3d 1070 (9th Cir. 2012). Ray was arrested for dealing in drugs. He made a statement testifying to the dealings but later recounted that statement as obtained involuntarily and without his Miranda rights being read to him. In the suppression hearing, the state called the officer who took the statement to testify that the statement was properly taken (he was cross-examined at the hearing). After the suppression was denied, but before trial, the officer passed away. May the state offer the testimony from the hearing at trial?

Statements Against Interest—804(b)(3)

Williamson v. United States

512 U.S. 594 (1994).

Harris was pulled over and drugs were discovered in the trunk of his car. Upon interrogation later, he said that the drugs were to be dropped off at a certain dumpster for Williamson to pick up. When the officers attempted to organize a drop, Harris came clean, said that he was following Williamson, and that a drop would be unsuccessful. He refused to write this statement down and would not testify about it at trial. So, the state offered up testimony of the officer to recount Harris’s statement on the theory that Harris had made a statement against his self-interest, making his testimony more reliable. This was admitted and affirmed on appeal. The Supreme Court however argued that Harris’s statements contained a mix of reliable information and none of the statements used to implicate Williamson were against his self-interest. So, the testimony should not have been admitted.

United States v. Barone, 114 F.3d 1284 (1st Cir. 1997). After a bank robbery made by two people, one of the robbers confessed to his sister saying that he and Barone had robbed the bank. Later, the confessing robber was murdered. Can the sister’s testimony regarding the confession be admitted at trial?

Dying Declarations—804(b)(2)

Mattox v. United States, 146 U.S. 140 (1892). Mullen was shot and dying but fully conscious and aware of his actions. When he was informed that he was not likely to survive he turned to a visitor and said, “I saw the people who shot me, and your son [Mattox] was not one of them.” The state sought to suppress this testimony as inadmissible hearsay.

O’Dell v. Ballard, No. 13–0220 (W. Va. 2013). Brookman committed suicide and left a note saying that he and O’Dell had planned on and followed through with murdering an individual. Is the suicide note admissible as a dying declaration against O’Dell?

Shepard v. United States

290 U.S. 96 (1933).

Mrs. Shepard had fallen ill and remained in that state for quite some time. Her recovery showed signs of improvement before she ultimately succumbed to the illness and died. Before she died, at one point she asked the nurse to fetch a certain bottle of whiskey and have it tested for poison, believing her husband to have poisoned her. Now, the state seeks to admit the testimony of the nurse testifying to Mrs. Shepard’s words as a dying declaration. The Supreme Court said this was not allowed because Mrs. Shepard still had a hope of recovery and had lacked the knowledge that her husband had in fact prepared the murder (only stating her suspicions).

Forfeiture by Wrongdoing—804(b)(6)

United States v. Gray

405 F.3d 227 (4th Cir. 2005).

Gray had several husbands and boyfriends, each one dying and leaving her with some insurance money. At one point, Gray had obtained a friendship with Wilson and confessed the murders to her. Previously, Gray was on trial for murdering her first husband when her then husband began to fear for his life. He testified (before his murder) that she had threatened him with a gun, knife, and other weapons. Before he could testify at that trial, he was found murdered.

Admissibility of Mr. Gray’s statements against Mrs. Gray is determined whether Mrs. Gray forfeited her arguments by her wrongdoings. For admission, the state needs to show that (1) Gray engaged in wrongdoing, (2) the purpose was to render the witness unavailable, and (3) the witness did become unavailable.

That happened here so the evidence against her was admissible.


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