18 a statement contained in a treatise periodical or

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(18) A statement contained in a treatise, periodical, or pamphlet if: o (A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and o (B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit. o Learned treatises can be used for impeachment and substantively, if they pass the hearsay exception. 804: The Declarant Must Be Unavailable Unavailability o 804(a). Criteria for Being Unavailable A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies; o This requires an exemption from the court. (2) refuses to testify about the subject matter despite a court order to do so; o The W must show up and say they aren’t testifying. (3) testifies to not remembering the subject matter; o 104(a); judge judges credibility of the claim. (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or o This must be a sever or chronic medical problem. (5) is absent from the trial or hearing and the statement’s proponent has not been able, by Page 48 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar process or other reasonable means, to procure: o (A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or o (B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4). But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying. Prior Testimony o 804(b)(1). Former Testimony The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (1) Testimony that: o (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and o (B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination. o There must be identity of issues and purposes. o There must be mostly identical parties. In a civil case, it can be the party’s predecessor in interest. Also, the identity of parties only matter against whom the evidence is offered. Dying Declarations o 804(b)(2). Statement Under the Belief of Imminent Death The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (2) In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be
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