(a)Definition of unavailable.--Except when the declarants unavailability has been procured or wrongfully caused by the proponent of declarants statement for the purpose of preventing declarant from attending or testifying, a declarant is unavailable as a witness if declarant:
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the statement; or
(2) persists in refusing to testify concerning the subject matter of the statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of the statement; or
(4) is absent from the hearing because of physical or mental illness or infirmity, or other cause, and the proponent of the statement is unable by process or other reasonable means to procure the declarants attendance at trial, and, with respect to statements proffered under Rules 804(b)(4) and (7), the proponent is unable, without undue hardship or expense, to obtain declarants deposition for use in lieu of testimony at trial.
(b)Hearsay exceptions.--Subject to Rule 807, the following are not excluded by the hearsay rule if the declarant is unavailable as a witness.
(1)Testimony in prior proceedings.
(A) Testimony given by a witness at a prior trial of the same or a different matter, or in a hearing or deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive in the prior trial, hearing or proceeding to develop the testimony by examination or cross-examination.
(B) In a civil action or proceeding, and only when offered by the defendant in a criminal action or proceeding, testimony given in a prior trial, hearing or deposition taken pursuant to law to which the party against whom the testimony is now offered was not a party, if the party who offered the prior testimony or against whom it was offered had an opportunity to develop the testimony on examination or cross-examination and had an interest and motive to do so, which is the same or similar to that of the party against whom it is now offered.
Expert opinion testimony given in a prior trial, hearing, or deposition may be excluded, however, if the judge finds that there are experts of a like kind generally available within a reasonable distance from the place in which the action is pending and the interests of justice so require.
(2)Statement under belief of imminent death.--In a criminal proceeding, a statement made by a victim unavailable as a witness is admissible if it was made voluntarily and in good faith and while the declarant believed in the imminence of declarants impending death.
(3)Statement against interest.--[Adopted in 1993 as Rule 803(c)(25)]
(4)Statement of personal or family history.--A statement (A) concerning the declarants own birth, adoption, marriage, divorce, legitimacy, ancestry, relationship by blood, adoption, or marriage, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) concerning the foregoing matters, and the death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the others family as to be likely to have accurate information concerning the matters declared.
(5)Other exceptions.--[Not Adopted]
(6)Trustworthy statements by deceased declarants.--In a civil proceeding, a statement made by a person unavailable as a witness because of death if the statement was made in good faith upon declarants personal knowledge in circumstances indicating that it is trustworthy.
(7)Voters statements.--A statement by a voter concerning the voters qualifications to vote or the fact or content of the vote.
(9)Forfeiture by wrongdoing.--A statement offered against a party who has engaged, directly or indirectly, in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. HISTORY:Adopted September 15, 1992 to be effective July 1, 1993; paragraphs (a)(5) and (b)(8) deleted and paragraph (b)(2) amended June 30, 1993 to be effective July 1, 1993; paragraphs (a) and (b) amended September 15, 2004 to be effective July 1, 2005; paragraph (b)(9) added September 15, 2010 to be effective July 1, 2011.
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