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 the declarant’s attendance.
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 civil or criminal case, a statement made by the declarant
while believing the declarant’s death to be imminent,
if the judge finds it was made in good faith.
(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 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.
2011 Advisory Committee Note. – The language of this rule has been
amended as part of the restyling of the Evidence Rules to make them more easily
understood and to make style and terminology consistent throughout the rules.
These changes are intended to be stylistic only. There is no intent to change
any result in any ruling on evidence admissibility.
ADVISORY COMMITTEE NOTE
Subdivision (a) is comparable to Rule 63(7),
Utah Rules of Evidence (1971). Rule 62(7)[(e)], Utah Rules of Evidence (1971),
seems to be encompassed in Rule 804(a)(5). Subdivision (a)(5) is a modification
of the federal rule which permits judicial discretion to be applied in
determining unavailability of a witness.
Subdivision (b)(1) is comparable to
Rule 63(3), Utah Rules of Evidence (1971), but the former rule is broader to
the extent that it did not limit the admission of the testimony to a situation
where the party to the action had the interest and opportunity to develop the
testimony. Condas v. Condas,
618 P.2d 491 (Utah 1980); State v. Brooks, 638 P.2d 537 (Utah 1981).
Subdivision (b)(2) is comparable to
Rule 63(5), Utah Rules of Evidence (1971), but the former rule was not limited
to declarations concerning the cause or circumstances of the impending death
nor did it limit dying declarations in criminal prosecutions to homicide cases.
The rule has been modified by making it applicable to any civil or criminal
proceeding, subject to the qualification that the judge finds the statement to
have been made in good faith.
Subdivision (b)(3) is comparable to
Rule 63(10), Utah Rules of Evidence (1971), though it does not extend merely to
social interests.
Subdivision (b)(4) is similar to Rule
63(24), Utah Rules of Evidence (1971).
Subdivision (b)(5) had no counterpart
in Utah Rules of Evidence (1971).