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

(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).

But 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. In a prosecution for homicide or in a civil case, 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) 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 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.

Summary and Explanation

Federal Rule of Evidence 804 deals with exceptions to the hearsay rule for unavailable declarants. It provides a framework for admitting certain hearsay statements when the person who made the statement (the declarant) is unavailable to testify in court.

Key points regarding Rule 804:

  1. Definition of Unavailability: Rule 804 defines various situations in which a declarant is considered “unavailable” to testify, including when the declarant:
    • Is exempted from testifying due to privilege or refuses to testify despite a court order.
    • Is unable to testify because of death, physical or mental illness, or other reasons.
    • Cannot be located with due diligence.
  2. Exceptions to the Hearsay Rule: Rule 804(b) outlines specific exceptions to the hearsay rule for statements made by an unavailable declarant. These exceptions include:
    • Former Testimony: Statements made by the declarant in a previous trial or proceeding that are now offered as evidence in a different case.
    • Dying Declarations: Statements made by a declarant who believed their death was imminent, and the statement concerns the cause or circumstances of their impending death.
    • Statements Against Interest: Statements that are against the declarant’s interest and would have made them subject to criminal or civil liability.
    • Statements of Personal or Family History: Statements about the declarant’s own personal or family history.
  3. Requirements for Admissibility: To admit hearsay statements under Rule 804, certain requirements must be met, including:
    • The declarant must be unavailable.
    • The statement must fall within one of the specified exceptions.
    • The statement must be supported by sufficient indicia of reliability.
  4. Confrontation Clause Consideration: When using hearsay exceptions under Rule 804, courts must also consider the Sixth Amendment’s Confrontation Clause, which guarantees a defendant’s right to confront and cross-examine witnesses. Courts must balance the need for the evidence against the defendant’s right to confront the declarant.

Rule 804 provides exceptions to the hearsay rule when the declarant is unavailable to testify in court. These exceptions are designed to allow the admission of reliable hearsay statements that have particular relevance to the case, while also balancing the defendant’s constitutional right to confront witnesses. Admissibility under Rule 804 depends on meeting specific criteria and conditions.


(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1942; Pub. L. 94–149, §1(12), (13), Dec. 12, 1975, 89 Stat. 806; Mar. 2, 1987, eff. Oct. 1, 1987; Pub. L. 100–690, title VII, §7075(b), Nov. 18, 1988, 102 Stat. 4405; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 28, 2010, eff. Dec. 1, 2010; Apr. 26, 2011, eff. Dec. 1, 2011.)

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