Rule 804: Exceptions to the Rule Against Hearsay — When the Declarant Is Unavailable as a Witness

A declarant is considered unavailable if the declarant is exempted from testifying by a ruling on privilege; persists in refusing to testify despite a court order; testifies to not remembering the subject matter; cannot be present because of death or a then-existing physical or mental illness or infirmity; or is absent and the statement's proponent has not been able to procure the declarant's attendance by process or other reasonable means. A statement is not excluded by the hearsay rule if the declarant is unavailable and the statement falls within one of these exceptions: (1) former testimony given at a prior proceeding where the party against whom it is offered had an opportunity and similar motive to examine the witness; (2) a statement made under the belief of imminent death concerning the cause or circumstances of the believed impending death; (3) a statement against the declarant's interest (pecuniary, proprietary, or penal interest) so contrary to the declarant's interest that a reasonable person would not have made it unless they believed it was true; (4) a statement about personal or family history; or (5) a statement offered against a party that wrongfully caused the declarant's unavailability (forfeiture by wrongdoing).

• 1Requires declarant unavailability — defined as privilege, refusal, lack of memory, death/incapacity, or absence despite reasonable efforts
• 2Former testimony (804(b)(1)) — prior testimony where opposing party had opportunity and similar motive to cross-examine
• 3Dying declaration (804(b)(2)) — statement made under belief of imminent death about the cause/circumstances of death
• 4Statement against interest (804(b)(3)) — statement so contrary to the declarant's interest that a reasonable person would not make it unless true
• 5Forfeiture by wrongdoing (804(b)(5)) — party who caused unavailability through wrongdoing forfeits hearsay objection

• Establishing unavailability — what constitutes reasonable efforts to procure the declarant's attendance?
• Statements against interest: distinguishing declarations against penal interest from mere narrative — corroborating circumstances are needed when offered to exculpate a criminal defendant
• Dying declarations: the declarant must believe death is imminent (but does not actually need to die)
• Former testimony: identifying whether the opposing party had a 'similar motive' to examine the witness in the prior proceeding