§ 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 his statement; or

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

(3) testifies to a lack of memory of the subject matter of his 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 his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b)(3) or (4) his attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his 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.

COMMITTEE COMMENT

The Federal rule is substantially the same as the Colorado Rule; except there is no reference to subsection (b)(2) in the Colorado Rule, as there is no Colorado subsection (b)(2). As to testimony given at a preliminary hearing, seePeople v. Smith, 198 Colo. 120, 597 P.2d 204 (1979). This rule expands upon the former rule of evidence in Colorado. For authorities on the use of such evidence in Colorado, see:Rule 32 of Colorado Rules of Civil Procedure; Emerson v. Burnett, 11 Colo. App. 86, 52 P. 752 (1898); Daniels v. Stock, 23 Colo. App. 529, 130 P. 1031 (1913); Woodworth v. Gorsline, 30 Colo. 186, 69 P. 705 (1902); Henwood v. People, 57 Colo. 544, 143 P. 373 (1914); Gibson v. Gagnon, 82 Colo. 108, 257 P. 348 (1927); Duran v. People, 156 Colo. 385, 399 P.2d 412 (1965); Insul-Wool Insulation Corp. v. Home Insulation, Inc., 176 F.2d 502 (10th Cir. 1949).

(2) [There is no paragraph (b)(2).]

COMMITTEE COMMENT

The Federal rule relates to a statement under belief of impending death. The admissibility of the dying declarations of a deceased person is governed by § 13-25-119, C.R.S.

(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.

COMMITTEE COMMENT

The rule was revised, consistent with recent amendments to FRE 804(b)(3), only to clarify that corroborating circumstances are required regardless of whether a statement is offered to inculpate or exculpate an accused. See People v. Newton, 966 P.2d 563 (Colo.1998) (prosecutors seeking to admit statements against the accused must satisfy the corroboration requirement solely by reference to the circumstances surrounding its making).

(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.

COMMITTEE COMMENT

This rule expanded the former Colorado rule to admit statements of unrelated associates. Some independent proof of relationship under (B) will continue to be required.

(5) [Transferred to Rule 807]

COMMITTEE COMMENT

The contents of Rule 803(24) and Rule 804(b)(5) have been combined and transferred to Rule 807. This was done to facilitate additions to Rules 803 and 804. No change in meaning is intended.