§ Rule 804 Hearsay Exceptions; Declarant Unavailable

Rule 804 Hearsay Exceptions; Declarant Unavailable

    (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; or

        (2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or

        (3) testifies to a lack of memory of the subject matter of the declarant’s statement; or

        (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 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. — In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

        (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) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

        (4) Statement of personal or family history. — (A) A statement concerning the declarant’s own birth,  adoption, marriage, divorce, legitimacy, 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 (B) 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.] [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.

    (As amended Dec. 12, 1975; Mar. 2, 1987, eff. Oct. 1, 1987; Nov. 18, 1988; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 28, 2010, eff. Dec. 1, 2010.)