(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;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(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 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).
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) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
(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 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:(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 History. A statement about:(A) the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or(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) 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 is based on Fed.R.Ev. 804.
Paragraph (b)(3) differs from Fed.R.Ev. 804 by excluding from this exception statements made by a codefendant or other person that implicate both the 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 March 1, 2014, 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 27, 2012, pages 24-25; September 24-25, 1998, page 4; April 30-May 1, 1998, 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. Fed.R.Ev. 804(b)(1), (b)(2), (b)(3), (b)(6), Uniform Rules of Evidence (1974); Rule 804, SBAND proposal.
Cross Reference: N.D.R.Ev. 807 (Residual Exception).