Exceptions That Require the Declarant to Be Unavailable

Rule 804 holds a second group of hearsay exceptions, and every one of them has an entry condition. The declarant — the person who made the out-of-court statement — must be unavailable as a witness. Until that is established, none of these exceptions is open, no matter how reliable the statement looks. The condition reflects a preference for live testimony where live testimony can be had.

The five ways a declarant becomes unavailable

Rule 804(a) supplies a closed list. A declarant is unavailable when the court rules that a privilege exempts the testimony; when the declarant refuses to testify despite a court order; when the declarant testifies to not remembering the subject matter; when death or a then-existing infirmity prevents attendance or testimony; or when the declarant is absent and the proponent could not procure attendance or testimony by process or other reasonable means.

The last ground carries the most work. For the exceptions covering former testimony, dying declarations and personal or family history, the proponent must show that neither attendance nor testimony could be procured. That is a two-part showing, and offering no deposition attempt is often what sinks it. Statements against interest and forfeiture require only that attendance could not be procured.

The rule closes with an anti-manipulation clause. A declarant is not unavailable if the party seeking to use the statement procured or wrongfully caused the absence in order to prevent the declarant from attending or testifying. The court decides all of this as a preliminary question under Rule 104(a), applying a preponderance standard and not being bound by the rules of evidence in the inquiry.

Testimony given in an earlier proceeding

Rule 804(b)(1) admits testimony given as a witness at a trial, hearing, or lawful deposition, whether in the current proceeding or a different one, if it 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.

Two elements decide most disputes. Opportunity is objective: the party need not have actually questioned the witness, only have had the chance. Similar motive turns on whether the earlier proceeding put the same issue in play with comparable stakes. Grand jury testimony rarely qualifies against a defendant, because the defendant had no opportunity at all. In civil cases the predecessor in interest language has been read broadly by some courts and narrowly by others.

Imminent death and self-damaging statements

Rule 804(b)(2) admits a statement made by a declarant who believed death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. In federal practice the exception is available in a prosecution for homicide and in any civil case. The declarant need not actually die; the belief in imminent death is what supplies the reliability, and that belief must be shown from the circumstances.

Rule 804(b)(3) admits a statement that a reasonable person in the declarant's position would have made only if the person believed it to be true, because it was so contrary to the declarant's proprietary or pecuniary interest, or had so great a tendency to invalidate a claim or expose the declarant to civil or criminal liability. When the statement is offered in a criminal case to expose the declarant to criminal liability, corroborating circumstances must clearly indicate its trustworthiness. Courts parse such statements sentence by sentence, admitting the self-inculpatory parts and excluding the parts that shift blame.

Family history and the party who caused the absence

Rule 804(b)(4) admits a statement about the declarant's own birth, adoption, marriage, divorce, legitimacy, ancestry or similar facts of personal or family history, and a statement about another person if the declarant was related by blood, adoption or marriage, or was so intimately associated with the family as to be likely to have accurate information. It survives because such facts are often provable no other way.

Rule 804(b)(6) is different in kind. It admits 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. It is a forfeiture doctrine rather than a reliability doctrine, and courts have held that it also forfeits the constitutional confrontation objection described in the treatment of testimonial statements under the hearsay definition.

Choosing between the routes

A proponent with a useful out-of-court statement should work through the options in order. Ask first whether the statement is hearsay at all, then whether one of the exceptions that ignore availability applies, and only then take on the burden of proving unavailability. The Rule 803 route is easier because it asks nothing about the declarant's whereabouts.

Where no listed exception fits, Rule 807 permits admission of a statement supported by sufficient guarantees of trustworthiness and more probative on the point than other evidence the proponent can obtain through reasonable efforts, on notice to the adverse party. Cross-border cases raise these questions most often, since witnesses and documents sit outside the subpoena power, and the practical constraints described in obtaining discovery from a party located abroad shape what the record can contain.