EXCEPTIONS; DECLARANT UNAVAILABLE EXCEPTIONS
TO THE RULE AGAINST HEARSAY--WHEN THE DECLARANT IS
UNAVAILABLE AS A WITNESS (a) Definition of unavailability. "Unavailability as a witness" includes situations in which
the declarant -
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
(1) is exempted by ruling of the court on the ground of
privilege from testifying concerning
the subject matter of the declarant's statement;
(1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies;
(2) persists in refusing to testify concerning the subject
matter of the declarant's statement
despite an order of the court to do so;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to a lack of memory of the subject matter of
the declarant's statement;
(3) testifies to not remembering the subject matter;
(4) is unable to be present or to testify at the hearing
because of death or then existing
physical or mental illness or infirmity; or
(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
(5) is absent from the hearing and the proponent of a
statement has been unable to procure
the declarant's attendance (or in the case of a hearsay exception under subdivision (b) (2),
(3), or (4), the declarant's attendance or testimony) by process or other reasonable
(5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure:
(A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).
A declarant is not unavailable as a witness if the declarant's
exemption, refusal, claim of
lack of memory, inability, or absence is due to the procurement or wrongdoing of the
proponent of a statement for the purpose of preventing the witness from attending or
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.
(b) Hearsay exceptions. The following are not excluded by
the hearsay rule if the declarant
is unavailable as a witness:
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at
another hearing of the same or a
different proceeding, or in a deposition taken in compliance with law in the course of the
same or another proceeding, if the party against whom the testimony is now offered, or, in
a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive
to develop the testimony by direct, cross, or redirect examination.
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(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.
(2) Statement under belief of impending death. A statement
made by a declarant while
believing that the declarant's death was imminent, concerning the cause or circumstances of
the declarant's belief in impending death.
(2) Statement Under the Belief of Imminent Death. A statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.
(3) Statement against interest. A statement that was at the
time of its making so far contrary
to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant
to civil or criminal liability or to render invalid a claim by the declarant against another or
to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in
the declarant's position would not have made the statement without believing it to be true.
A statement tending to expose the declarant to criminal liability and offered to exculpate the
accused is not admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement. A statement or confession offered against the accused in a
criminal case, made by a codefendant or other person implicating both the declarant and the
accused, is not within this exception.
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and
(B) if it is offered in a criminal case to exculpate the accused, is supported by corroborating circumstances that clearly indicate its trustworthiness as a statement that tends to expose the declarant to criminal liability.
A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both the declarant and the accused, is not within this exception.
(4) Statement of personal or family
(4) Statement of Personal or Family History. A statement about:
(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
(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person's family that the declarant's information is likely to be accurate.
(5) [Other Exceptions.] [Transferred to Rule 807]
(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.
(6) Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability. A statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant's unavailability as a witness, and did so intending that result.
Rule 804 was amended, effective March 1, 1990; March 1, 2000;______________.
Rule 804 is
taken in the main from the Uniform Rules of
Evidence (1974) based on
Fed.R.Ev. 804. Subdivision Paragraph (b)(3) differs
from the comparable federal rule Fed.R.Ev. 804 by
excluding from this exception statements made by a codefendant or other person
implicate both the codefendant other person 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 March 1, 2000, to follow the December 1, 1997, federal amendment. The contents of Rule 804(b)(5) are transferred to new Rule 807. The addition of Rule 804(b)(6) provides for forfeiture of the right to object on hearsay grounds due to a party's own wrongdoing.
Rule 804 was amended, effective ______________, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
Sources: Joint Procedure Committee Minutes
of _______________; September 24-25,
1998, page 4; April 30-May 1, 1999, page 16; 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
(b)(4), Federal Rules of Evidence Fed.R.Ev. 804; Rule 804(b)(1), (b)(2),
Uniform Rules of Evidence (1974); Rule 804, SBAND proposal.
Cross Reference: N.D.R.Ev. 807 (Residual Exception).