RULE 804. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE
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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).
It allows certain hearsay evidence to be admitted, but because the guarantees of trustworthiness are not as strong in the situations listed under this rule as under Rule 803, the admission is conditioned upon the unavailability of the declarant. Subdivision (a) defines unavailability of a declarant as not only situations in which the declarant is physically unavailable but, in addition, situations in which it is not possible to obtain the declarant's testimony. Subdivision (b) goes on to list situations in which hearsay evidence is not excluded when a declarant is unavailable. Subdivision (b)(1) states that former testimony may be admitted if the party against whom it is offered had an opportunity and similar motive to examine the witness. This is in accordance with the law in North Dakota as recently stated in State v. Jacob, 222 N.W.2d 586 (N.D. 1974). Subdivision (b)(2) provides the traditional exception for statements made by declarant while believing that death was imminent. This section varies from the federal rules which limit the use of such evidence to civil proceedings and prosecutions for homicide. Subdivision (b)(3) expands the common law exception of statements made against interest by including statements which subject the declarant to civil or criminal liability. To protect against possible fabrication, statements which subject the declarant to criminal liability offered to exculpate the accused must be corroborated before they will be admitted.
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.
Subdivision (b)(4) is a traditional exception, founded upon the difficulty of obtaining such evidence by other means. The traditional exception is liberalized under Rule 804(b)(4) by not requiring first hand knowledge of the declarant and by allowing statements of nonfamily members who are intimately associated with the family. Subdivision (b)(5) is a counterpart of Rule 803(24), and was included for the same reasons. See Rule 803, Procedure Committee Notes. Rule 804 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
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.