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Effective Date: 3/1/2000

Obsolete Date: 3/1/2014

(a) Definition of Unavailability. "Unavailability as a witness" includes situations in which 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;
(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;
(3) testifies to a lack of memory of the subject matter of the declarant's statement;
(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
(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 means.

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 testifying.

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule 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.
(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.
(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.
(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) [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.

Rule 804 was amended, effective March 1, 1990; March 1, 2000; March 1, 2014.

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).

Effective Date Obsolete Date
03/01/2014 View
03/01/2000 03/01/2014 View
03/01/1998 03/01/2000 View
03/01/1990 03/01/1998 View