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Federal Evidence • Hearsay Exceptions - Unavailability Required
EVID#042
Legal Definition
It is applicable only in serious felony cases (the declarant must have been killed or kidnapped), and the statement must have been recorded by law enforcement.
Plain English Explanation
As you learned in other cards, the Federal Rules are much more broad when it comes to allowing statements from witnesses that the opposing party prevented from testifying. In contrast, in California, this hearsay exception is much more narrow and only applies during super serious felony cases where the person who made the hearsay statement was either killed or kidnapped and their statement was recorded by the police.
Hypothetical
Hypo 1: Bob is on trial for kidnapping Sam. Before Sam disappeared, he told the police that Bob had threatened him. Result: Since Sam cannot testify in court due to the kidnapping, his statement to the police about Bob's threat can be used as evidence against Bob in the trial.
Hypo 2: In a murder case, Bob is accused of killing Sam. Before Sam died, he recorded a video telling the police that Bob was threatening his life. Result: Sam's video is allowed as evidence in court against Bob because Sam was killed and cannot testify, and the statement was recorded by law enforcement.
Hypo 3: Bob is accused of committing fraud against Sam. Sam, due to fear of retaliation from Bob, refuses to come to court. Result: Sam's statements to the police about the fraud cannot be used in court against Bob, as this rule applies only in cases of serious felonies like murder or kidnapping, not fraud.
Hypo 2: In a murder case, Bob is accused of killing Sam. Before Sam died, he recorded a video telling the police that Bob was threatening his life. Result: Sam's video is allowed as evidence in court against Bob because Sam was killed and cannot testify, and the statement was recorded by law enforcement.
Hypo 3: Bob is accused of committing fraud against Sam. Sam, due to fear of retaliation from Bob, refuses to come to court. Result: Sam's statements to the police about the fraud cannot be used in court against Bob, as this rule applies only in cases of serious felonies like murder or kidnapping, not fraud.
Visual Aids
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