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).