Memorizing Hearsay Exceptions as a Fad
When it comes to hearsay, it’s important to know which exceptions to the hearsay rule that condition admissibility of the hearsay statement on the present unavailability of the declarant to testify, and conversely, which exceptions do not require that the declarant be unavailable.
There are only five important exceptions to the hearsay rule that condition admissibility of the hearsay statement on the present unavailability of the declarant to testify.
Know those five exceptions that require “unavailability,” then you also know that all the other exceptions fall into the category of “availability immaterial.”
Let me suggest FADSS for those exceptions that condition admissibility on the present unavailability of the declarant to testify.
Why FADSS? Well, what’s a fad?
According to Lexico, a fad is “an intense and widely shared enthusiasm for something, especially one that is short-lived and without basis in the object's qualities; a craze.” Like my PancakeBot that I purchased in 2014—that’s a fad.
Now, hear me out. Remember that unavailability doesn’t require the declarant to be dead. That’s just one way. There are lots of ways where a declarant can be unavailable. For example, a declarant is unavailable if the person refuses to testify. There are several other reasons why a declarant might be unavailable, but this one is relevant to help me remember FADSS because if one is so steadfastly committed to refusing to testify, then that’s doing something that might be “without basis” and "crazy." Also, a fad is short-lived, meaning that it dies quickly. If something dies quickly, then it’s unavailable.
Now what does FADSS stand for?
F – Former testimony
A – Against interest (i.e., statement against interest)
D – Dying declaration
S – Statement of personal or family history
S – Statement offered against party procuring declarant’s unavailability
If you know these five “unavailability” exceptions, then you know, by elimination, that the remaining exceptions are ones where availability is immaterial.
