RULE 804. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE
* * * * *
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
* * * * *
(4) Statement of Personal or Family History. (i) A statement concerning the declarant's own birth, adoption, marriage, divorce, parentage, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (ii) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.
(5) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party and to the court in writing sufficiently in advance of its offer in evidence to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
(6) Forfeiture by Wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
Rule 804 was amended, effective March 1, 1990; March 1, 1998; __________________________.
Rule 804 is taken in the main from the Uniform Rules of Evidence (1974).
Subdivision (b)(3) differs from the comparable federal rule by excluding from this exception statements made by a codefendant which implicate both the codefendant and the accused. Such statements may not be against interest, and the area is one in which constitutional rights of the defendant may preclude their admission. Rather than proceed on a case-by-case basis, it was decided to preclude admission of such statements entirely.
Rule 804 was amended, effective _________________, to follow the December 1, 1997, federal amendment by adding a new hearsay exception in subdivision (b)(6), which provides for forfeiture of the right to object on hearsay grounds due to a party's own wrongdoing.
SOURCES: Minutes of Procedure Committee: ________________; March 24-25, 1988, page 12; December 3, 1987, page 15; April 8, 1976, pages 9, 10, 11, 12; October 1, 1975, page 8. Rule 804(a), (b)(4), Federal Rules of Evidence; Rule 804(b)(1), (b)(2), (b)(3), (b)(6), Uniform Rules of Evidence (1974); Rule 804, SBAND proposal.