EvidenceProf Blog

Die Another Day: Property Dispute Reveals Difference Between Federal & Utah Dying Declaration Exceptions

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

It is easier to admit a dying declaration under Utah Rule of Evidence 804(b)(2). That rule provides an exception to the rule against hearsay

In a civil or criminal case, a statement made by the declarant while believing thedeclarant’s death to be imminent, if the judge finds it was made in good faith.

In other words, a statement is only admissible under Federal Rule of Evidence 804(b)(2) if it was made about the cause or circumstances of what the declarant believed to be his imminent death while there is no similar requirement under Utah Rule of Evidence 804(b)(2). As a result, statements made by a decedent while she was suffering from cancer were potentially admissible at a trial involving a Utah property dispute. But were they actually admissible? Let's take a look at Howard v. Manes, 2013 WL 4473091 (Utah App. 2013).

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Be Careful Who You Text (or Call): Early Dispatches from a New World of Text Messaging Evidence

The New Jersey case of Kubert v. Best is making headlines for holding that not only can a person who is texting and driving be liable for negligence when a crash results, but so too can the “remote texter”  – i.e., the person who is corresponding via  text message with the negligent driver.

Opinion here (as is almost always the case, the opinion, although not without flaws, is more thoughtful than media reports suggest).

In the case, the court holds that a sender of a text message can be liable for negligence when her message distracts a driver and “the sender knows that the recipient is both driving and will read the text immediately.”  The court nevertheless affirmed the trial court’s grant of summary judgment in favor of the “remote texter” because the plaintiffs failed to produce sufficient evidence to meet the above standard.

The case is interesting from an evidence perspective because it highlights the potential for text messages as a source of evidence, and the need for litigators to get ahold of text messages (early) in discovery.

Most basically, the case highlights the number of text messages that are out there, particularly in cases involving young people.  In her deposition, the remote-texter stated she “text[ed] more than 100 times per day,” explaining:  “I’m a young teenager.  That’s what we do.”  The remote texter and driver texted each other 62 times on the day of the accident, including an exchange just before the accident.

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A Long Time Ago: 7th Circuit Assesses Admissibility of Conviction Introduced Under Rule 609(b)

Federal Rule of Evidence 609(b) provides that

This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

It is rare for a court to find a witness' prior conviction admissible under Rule 609(b). In Horvath v. West Bend Mut. Ins. Co., 2013 WL 4124127 (7th Cir. 2013), the district court, however, had allowed for the admission of such a conviction. Did the Seventh Circuit agree?

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Before & After: Court of Appeals of Ohio Finds Error in Admission of Prior Consistent Statement

Similar to its federal counterpart, Ohio Rule of Evidence 801(d)(1)(B) provides that 

A statement is not hearsay if...The declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is...(b) consistent with declarant's testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive....

In United States v. Tome, 513 U.S. 150 (1987), the Supreme Court noted an important limitation on the admission of such prior consistent statements:

The Rule permits the introduction of a declarant's consistent out of court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive.

Accordingly, in Tome, statements made by a daughter after her parents divorced were not admissible as prior consistent statements when the divorce was alleged to be the improper influence or motive. The same was true with the recent opinion of the Court of Appeals of Ohio, First District, in State v Trusty, 2013 WL 4400547 (Ohio App 1 Dist. 2013).

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From Federal Prison to Federal Clerkship

For those who missed the remarkable story of Shon Hopwood, the convicted bank robber turned D.C. Circuit law clerk, the NY Times' Adam Liptak has a nice writeup here 

-JB

 

The Shrink(ing) Privilege, Take 3: Supreme Court of Alaska Grapples With Psychotherapist-Patient Privilege

Pursuant to Alaska Rule of Evidence 504(b),

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental or emotional conditions, including alcohol or drug addiction, between or among the patient, the patient's physician or psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.

That said, Alaska Rule of Evidence 504(d)(1) provides that 

As to communications relevant to the physical, mental or emotional condition of the patient in any proceeding in which the condition of the patient is an element of the claim or defense of the patient, of any party claiming through or under the patient, of any person raising the patient's condition as an element of that person's own case, or of any person claiming as a beneficiary of the patient through a contract to which the patient is or was a party; or after the patient's death, in any proceeding in which any party puts the condition in issue.

So, if plaintiffs seek damages for mental anguish, does Rule 504(d)(1) apply, meaning that the plaintiffs have waived the privilege contained in Rule 504(b)? Courts in other states addressing a similar issue have split on the issue. In Kennedy v. Municipality of Anchorage, 2013 WL 4399118 (Alaska 2013), the Supreme Court of Alaska resolved this issue as a matter of first impression in The Last Frontier.

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CNN: Outrageous Privacy Invasion (click here to see the video)

CNN's web site (unintentionally!?) provides an example of the ever-present tension between our concern for, and utter disregard of, privacy rights.

Screenshot from CNN web site below:

 

 

- JB

Cause of Death?: Marc Ginsberg Assesses Whether Forensic Autopsy Reports Implicate the Confrontation Clause

The forensic autopsy report is an important component of a criminal homicide prosecution. The report, which is used to memorialize the cause and manner of death, under the auspices of a coroner’s or medical examiner’s office, constitutes a significant phase of a death investigation which is used "to (hopefully) convict the guilty and exonerate the innocent."... 

The classic forensic pathology testimony at a criminal homicide trial comes in one of two basic forms: (1) the examining pathologist - the pathologist who performed the forensic autopsy on the victim and prepared the autopsy report – is the in-court witness who refers to the autopsy report and explains its findings and conclusions. This witness is subject to cross-examination by the defendant; (2) the examining pathologist is not the in-court witness. Instead, the in-court witness is a “surrogate” pathologist from the office of the coroner or medical examiner. The surrogate pathologist relies on the examining pathologist’s autopsy report and offers professional opinions at trial, as an expert witness. Here, the defendant is unable to confront and cross- examine the examining pathologist. Marc Ginsberg, The Confrontation Clause And Forensic Autopsy Reports — A 'Testimonial' (forthcoming Louisiana Law Review).

Given this last point, the question becomes, pursuant to the Supreme Court's Confrontation Clause jurisprudence since Crawford v. Washington, whether forensic autopsy reports are "testimonial" and thus implicate the Clause. This is the topic taken up by Professor Ginsberg in his forthcoming article.

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"Tell My Father That I Love Him": Admissible or Inadmissible?

In our suite of my first year dorm, we had two 24-hour periods where we played something over and over again. The first was Stanley Kubrick's Vietnam War classic, "Full Metal Jacket." The other was David Bowie's "Space Oddity." Indeed, we even built a shrine to Ziggy Stardust. Yes, we were a strange lot. 

After the latter experience, I will never get the words, "Tell my wife I love her very much, she knows" out of my head. And those lyrics were the first things that I though about after reading the recent opinion of the Supreme Court of Rhode Island in State v. Covington, 2013 WL 3337275 (R.I. 2013).

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Evidence Day 1, the Second Hour: A Guest Post by Kevin Lapp

I teach a 4 credit course that meets twice a week. I described earlier what I do in the first hour. This post covers the second hour. At the break, I distribute 3x5 cards and ask students to put on it their name, hometown and what it is famous for, and what their dream job would be. My administrative assistant will then attach pictures to the 3x5 cards, and I’ve got myself a little bit of information about my students that might help me down the line.

I begin the second hour with class rules, and then pull up on the screen a cartoon that has a lawyer telling a reporter “the proof was in the pudding, but the pudding was ruled inadmissible as evidence.” I ask why we would ever do such a thing. A discussion of the purpose of the rules of evidence follows, linked back to the evidence we discussed in the first hour.  Having established that the rules promote accuracy, efficiency, fairness and serve external interests viewed as socially useful by excluding some otherwise relevant information, we spend the remaining time on trial mechanics, including FRE 611 (order of proof, scope of testimony, mode of questioning), 614, 615 and 103 (preserving error).

I do this because one of the bigger challenges of teaching Evidence, or any law school course to first and second year students, is the fact that a good majority of them haven’t taken a case from beginning to end and haven’t been in a courtroom for more than a couple of hours. As such, they lack a basic understanding of trial mechanics. Without that framework, much of the moving parts and considerations that complicate evidentiary issues can be easily lost on them. So it’s my hope that by addressing trial mechanics early, and often, my students will more quickly be able to situate the problems we discuss in class within the lawyering and litigation context in which they arise.

Ideally, by the end of the first day, I‘ve accomplished a few things. (1) My students have heard, and pondered, things like relevance, personal knowledge, prejudice, hearsay, experts and privileges, all tied to a familiar fact pattern. (2) They have participated in a discussion about this stuff, whether in a small class or by volunteering during a class-wide discussion, articulating and listening to reasons for and against the admission of evidence. (3) They’ve been introduced to the basic structure of our adversarial system of resolving disputes, and have begun to understand that the rules of evidence are intimately linked to our process of proof.

One thing I don’t do that intrigues me – I don’t do a substantive overview of the entire semester in 20-60 minutes. I have a colleague who teaches his entire first-year course in 2 days, and then uses the rest of the semester to expand on, refine and critically analyze the contents of that 2 day lecture. I really like the idea of laying it all out there at the beginning. Such a method seems well-suited to helping the students master the core material, and gives them front-end context with which they can take in and assess the details and nuances of the rules we learn. It also lets me flag issues or themes that are important to mastering the material right from the start. Does anyone do anything like that? How about distributing the semester-end review powerpoint the first week? Curious to hear thoughts on this.

What's the Harm?: Cynthia Lee's Making Race Salient & Jury Instructions on Racial Bias and Cross-Racial Identifications

Cynthia Lee, the Charles Kennedy Poe Research Professor of Law at the George Washington University Law School, presented her forthcoming article, Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet Post-Racial Society, at the SEALS Conference. In this post, I want to focus on one specific section of that terrific article. That section deals with the use of jury instructions to make race salient in cases like the Trayvon Martin/George Zimmerman trial. According to Professor Lee,

Another way race can be made salient is through jury instructions. For example, U.S. District Court Judge Mark Bennett expressly tells jurors in his courtroom that they should not rely on implicit biases: 

Do not decide the case based on "implicit biases." As we discussed in jury selection, everyone, including me, has feelings, assumptions, perceptions, fears, and stereotypes, that is, “implicit biases,” that we may not be aware of. These hidden thoughts can impact what we see and hear, how we remember what we see and hear, and how we make important decisions. Because you are making very important decisions in this case, I strongly encourage you to evaluate the evidence carefully and to resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you return a just verdict, based solely on the evidence, your individual evaluation of that evidence, your reason and common sense, and these instructions. Our system of justice is counting on you to render a fair decision based on the evidence, not on biases.

Judge Bennett’s instruction goes further than most model jury instructions, which simply tell jurors to determine the facts without bias or prejudice. For example, Maryland’s Criminal Pattern Jury Instructions state: "[Y]ou must consider and decide this case fairly and impartially. You are to perform this duty without bias or prejudice as to any party. You should not be swayed by sympathy, prejudice or public opinion." Some model jury instructions go a bit further and explicitly tell jurors not to be influenced by race, ethnicity, or gender. For example, the criminal jury instructions for the District of Columbia suggest that judges instruct juries as follows: "[Y]ou should determine the facts without prejudice, fear, sympathy, or favoritism. You should not be improperly influenced by anyone’s race, ethnic origin, or gender. Decide the case solely from a fair consideration of the evidence." California's model jury instructions on bias go even further in terms of attempting to educate jurors about stereotypes and implicit bias, providing:

Each one of us has biases about or certain perceptions or stereotypes of other people. We may be aware of some of our biases, though we may not share them with others. We may not be fully aware of some of our other biases.

Our biases often affect how we act, favorably or unfavorably, toward someone. Bias can affect our thoughts, how we remember, what we see and hear, whom we believe or disbelieve, and how we make important decisions.

As jurors you are being asked to make very important decisions in this case. You must not let bias, prejudice, or public opinion influence your decision.

Your verdict must be based solely on the evidence presented. You must carefully evaluate the evidence and resist any urge to reach a verdict that is influenced by bias for or against any party or witness.

So, are instructions like the instruction given by Judge Bennett a good or a bad thing? Well, by way of analogy, let's consider the recent opinion of the Supreme Court of Washington in State v. Allen, 294 P.3d 679 (Wash. 2013), concerning jury instructions regarding the inaccuracy of cross-racial identifications.

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You Can't Trust a Drunk, Right?: Court of Appeals of Minnesota Finds Drunk Statement Was a Recorded Recollection

Similar to its federal counterpart, Minnesota Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

So, can a statement made while the declarant was so drunk that she cannot remember the statement be shown to reflect the declarant's knowledge correctly? According to the recent opinion of the Court of Appeals of Minnesota in State v. Barta, 2013 WL 440579 (Minn.App. 2013), the answer is "yes." I disagree.

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Please Welcome My New Co-Blogger, Ben Trachtenberg

Please welcome Ben Trachtenberg as my new co-blogger on EvidenceProf Blog. Professor Trachtenberg is an Associate Professor at the University of Missouri School of Law. Previously, Professor Trachtenberg was a Visiting Assistant Professor at Brooklyn Law School.

Prior to teaching, Professor Trachtenberg clerked at the United States Court of Appeals for the Second Circuit with Judge Jose A. Cabranes and was a Litigation Associate at Covington & Burling LLP assigned to white collar investigations and civil securities cases.

Professor Trachtenberg received his B.A. from Yale University in Political Science and his J.D. from Columbia Law School. His scholarship includes:

•Law School Marketing and Legal Ethics, 91 NEB. L. REV. 866 (2013), available at http://ssrn.com/abstract=2192694

•Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, and the Sixth Amendment Confrontation Clause, 64 FLA. L. REV. 1669 (2012), available at http://ssrn.com/abstract=2192625

•Reducing the Discount Rate, ENVIRONMENTAL FORUM (Nov.-Dec. 2012), available at http://ssrn.com/abstract=2178129

•Rethinking Pro Bono, N.Y. TIMES (May 14, 2012) (op-ed), available at http://www.nytimes.com/2012/05/14/opinion/a-better-pro-bono-plan.html

•Tinkering with the Machinery of Life, 59 UCLA L. REV. DISCOURSE 128 (2012), available at http://ssrn.com/abstract=2021290

•Health Inflation, Wealth Inflation, and the Discounting of Human Life, 89 OR. L. REV. 1313 (2011), available at http://ssrn.com/abstract=1845504

•Coconspirators, “Coventurers,” and the Exception Swallowing the Hearsay Rule, 61 HASTINGS L.J. 581 (2010), available at http://ssrn.com/abstract=1358530

•Incarceration Policy Strikes Out: Exploding prison population compromises the U.S. justice system, A.B.A. JOURNAL, Feb. 2009 (winning entry in Ross Essay Contest)

•An Exchange of E-mails (with James J. White), in Bruce W. Frier & James J. White, The Modern Law of Contracts 102-03 (2005) (additional material in instructor’s supplement) (also printed in 2d ed. 2008)

•State Sentencing Policy and New Prison Admissions, 38 U. MICH. J.L. REFORM 479 (2005), available at http://ssrn.com/abstract=703921 

Professor Trachtenberg guest blogged here in August 2010. You can find some of his guest posts here, here, here, here, here, here, here, here, here, here, here, and here. His posts will be followed by -BT while mine are followed by -CM and Jeffrey Bellin's are follow by -JB.

-CM

The First Day of Class: A Guest Post by Kevin Lapp

First things first: thank you to Colin Miller for inviting me to guest blog here at EvidenceProf blog. I taught Evidence for the first time last spring, after having taught the Lawyering course (first-year research and writing) at NYU for three years. This blog, and Colin, were of great help in getting me through that first exhausting Evidence prep.

As someone who is new at this, I’m in the big tinkering stage with the construction of my Evidence course now. I have a better sense of what I want to, and am able to, accomplish. And so it is along the lines of teaching Evidence that I intend to concentrate my postings over the next couple of months. And what better place to start than the first day of class. I am curious about what people do with their classes on Day 1, and what they hope to accomplish by doing so. The particulars of any class certainly matter, such as class size, whether it is made up of only 2Ls (or only 3Ls or some kind of mix), whether the class is required for graduation or not, etc.

For us here at Loyola Law School, Los Angeles, Evidence is a required course for 2Ls. Most students prefer to take it in the Fall, and it’s offered in big rooms, so I have an enrollment of about 108 students. My experience as a Lawyering professor has greatly influenced my pedagogy. I value an inter-active classroom, which means that my class is not dominated by my lecturing, but regularly involves students speaking to the class or amongst themselves in small groups. I also believe that in-role exercises are important to the learning and training that a good legal education should provide, so my students regularly find themselves cast in the role of proponent or opponent of a piece of evidence articulating arguments to students in the role of judges, who then offer a ruling supported by reasoning. 

With this in mind, my first day looks something like this.

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Please Welcome Guest Blogger Kevin Lapp

Please welcome guest blogger Kevin Lapp. Professor Lapp teaches at the Loyola Law School in Los Angeles.

 

Prior to joining the academy, Professor Lapp spent four years at the Legal Aid Society of New York City in the Juvenile Rights Practice and clerked for the Honorable A Howard Matz in the Central District of California.

•Kevin Lapp and Joy Radice, A Better Balancing: Reconsidering Preconviction DNA Extraction from Federal Arrestees, 90 N.C. L. Rev. Addendum 157 (2012) (which I reviewed here);

•Kevin Lapp, Reforming the Good Moral Character Requirement for U.S. Citizenship, 87 Ind. L. J. 1571 (2012);

•Kevin Lapp, Pressing Public Necessity: The Unconstitutionality of the Absconder Apprehension Initiative, 29 N.Y.U. Rev. L. & Soc. Change 573 (2005).

Professor Lapp will primarily be doing pedagogical-type posts that focus on his experience as a new law professor teaching Evidence for the first, and now the second, time.

-CM

Article of Interest: The Stricter Standard, by Andrew Jurs & Scott DeVito

For decades, the D.C. Circuit's opinion in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), ruled the roost in terms of the admissibility of expert opinion testimony. Pursuant to Frye, a court was only to admit expert opinion testimony if it was based upon a technique, technology, etc. that had "general acceptance" in the relevant expert community.

In 1993, however, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court found that this Frye test no longer applied in cases governed by the Federal Rules of Evidence. In Daubert, the Court created the idea of judicial gatekeeper and held that in determining whether expert testimony is based upon reliable principles and methods under Federal Rule of Evidence 702, federal judges can consider factors such as

whether the "technique can be (and has been) tested," "[w]hether it has been subjected to peer review and publication," the "known or potential rate of error," "whether there are standards controlling the technique's operation," and "whether the...technique enjoys general acceptance within a relevant scientific community."

Part of the basis for this new Daubert test was that "junk science" that had general acceptance in a relevant expert community (e.g., the arson investigation community) might be admitted pursuant to Frye despite not withstanding external scrutiny. That said, in his majority opinion in Daubert, Justice Blackmun noted that

Nothing in the text of this Rule establishes "general acceptance" as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a "general acceptance" standard. The drafting history makes no mention of Frye, and a rigid "general acceptance" requirement would be at odds with the "liberal thrust" of the Federal Rules and their "general approach of relaxing the traditional barriers to 'opinion' testimony."

This would seem to imply that the replacement of the Frye test with the Daubert test was intended in part to allow for the admission of more expert opinion testimony. And, if that's the case, has Daubert been successful in this regard? According to Professors Andrew Jurs and Scott DeVito in their forthcoming article, The Stricter Standard: An Empirical Assessment of Daubert's Effect on Civil Defendants (Catholic University Law Review), the answer is "no."

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Chapter of Interest: Frederick Vars' Behavioral Economics and Evidence Law

Frederick Vars, an Associate Professor at the University of Alabama School of Law, has an interesting chapter, Behavioral Economics and Evidence Law, in the forthcoming Oxford Manual on Behavioral Economics and Law. Here's the abstract to the chapter:

Behavioral economics has been applied to evidence law in at least four different ways: (1) to explain or justify current law; (2) to argue that current law counteracts or fails to counteract the findings; (3) to advocate changes in practice under existing law; and (4) to argue for law reform. On the surface, the first two applications appear descriptive and the second two normative. Below the surface all four missions share common assumptions about the power and generalizability of the psychological findings. Even superficially explanatory assertions are premised on the normative view that psychology should inform our understanding of evidence law. Whether it should, and how law and practice should be changed, are incredibly complex questions. Illustrating the complexity and suggesting ways forward are the goals of this Chapter.

Professor Vars considers several types of evidence in his chapter, including character evidence, expert evidence, and eyewitness testimony. In this post, however, I want to focus on his discussion of evidence of subsequent remedial measures.

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Will the Next Swiss Banks Be Email Service Providers?

Stories about electronic data (social media posts, email and text messaging) are a constant theme in recent news. There are usually two legal angles in these stories:  (1) the government's ability to access the data, and (2) its use in litigation/admissibiliy in court.

While I usually focus on the second question on this blog, I couldn't resist posting about a fascinating story emerging on the first question that doesn't seem to have gotten much coverage.  According to the Times, two secure email service providers Lavabit and Silent Circle “essentially committed suicide” rather than respond to government requests to turn over customer data.  Reading between the lines it looks like Silent Circle “destroyed” their email servers rather than respond to future government requests for customer data.  Lavabit has apparently suspended operations and is contemplating legal action, but it is less clear that it actually destroyed existing files -- a wise hint of caution if it faces a pending legal request.  Here is a cryptic note from its founder on its web site. (The Guardian notes that Lavabit previously complied “with a warrant concerning a child pornography suspect in Maryland.”)

Lavabit is known for being the email service of Edward Snowden (probably the best endorsement an encrypted email service could obtain), apparently through the so-obvious-it-can’t-be-real email address:  [email protected]  

Lavabit’s founder urges those in search of privacy to use non-US based email providers, which brings me to the title of the post:  Will we see the emergence of Swiss-bank-like offshore email providers in the wake of these developments?

As an aside, I thought I would announce EvidenceProf Blog's new complaints policy.  All complaints regarding postings on the site should be directed to:  [email protected]

-JB

What a Marvel: 2nd Circuit Finds Expert Evidence Inadmissible in Jack Kirby/Marvel Appeal

Jack Kirby is one of the fathers of many of the most iconic characters that still have cultural currency today, including the X-Men, the Hulk, Captain America, Thor, and the Fantastic Four. Yesterday, however, the Second Circuit found that these characters were "works for hire" now owned by Marvel Entertainment, a Walt Disney Co. subsidiary. Specifically, in Marvel Characters, Inc. v. Kirby, 2013 WL 4016875 (2nd Cir. 2013), rejected the claims that Kirby's heirs made to reclaim the rights to the famed comic book characters that he helped create. In doing so, the court made an interesting evidentiary ruling.

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Broken Record?: Does a Judge Have to Make an On-The-Record Determination of Unavailability Under Rule 804(a)?

Similar to its federal counterpart, Mississippi Rule of Evidence 804(a)(4) provides that a witness is "unavailable" at trial if he "Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity...." In turn, if a witness is "unavailable," a party may admit some of his statements pursuant to the hearsay exceptions contained in Rule 804(b). So, does a court have to make an on-the-record determination that a witness is "unavailable" before admitting his hearsay under Rule 804(b)? According to the recent opinion of the Court of Appeals of Mississippi in McKenzie v. State, 2013 WL 3985012 (Miss.App. 2013), the answer is "no."

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