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Rule 804. ?Exceptions to the Rule Against Hearsay ? When the Declarant isUnavailable as a Witness.

 

(a)      Criteriafor Being Unavailable. A declarant isconsidered to be unavailable as a witness if the declarant

(a)(1)   is exempted fromtestifying about the subject matter of the declarant?s statementbecause the court rules that a privilege applies;

 

(a)(2)   refuses to testifyabout the subject matter despite a court order to do so;

 

(a)(3)   testifies to notremembering the subject matter;

 

(a)(4)   cannot be present ortestify at the trial or hearing because of death or a then-existing infirmity,physical illness, or mental illness; or

 

(a)(5)   is absent from thetrial or hearing and the statement?s proponent has not been able, by process orother reasonable means, to procure the declarant?s attendance.

 

But this subdivision (a) does not apply if the statement?sproponent procured or wrongfully caused the declarant?s unavailabilityas a witness in order to prevent the declarant fromattending or testifying.

 

(b)      TheExceptions. The following are not excluded by the rule against hearsay ifthe declarant is unavailable as a witness: 

(b)(1)   Former Testimony. Testimony that: 

(b)(1)(A)   was given as a witness at atrial, hearing, or lawful deposition, whether given during the currentproceeding or a different one; and

 

(b)(1) (B)   is now offered against a party who had ? or, in a civil case,whose predecessor in interest had ? an opportunity and similar motive todevelop it by direct, cross-, or redirect examination.

 

(b)(2)   Statement Underthe Belief of Imminent Death. In a civil or criminal case, a statement made by the declarant while believing the declarant?s deathto be imminent, if the judge finds it was made in good faith.

 

(b)(3)   Statement AgainstInterest. Astatement that:

(b)(3)(A)   a reasonable person in the declarant?s positionwould have made only if the person believed it to be true because, when made,it was so contrary to the declarant?s proprietaryor pecuniary interest or had so great a tendency to invalidate the declarant?s claim against someone else or to exposethe declarant to civil or criminalliability; and

 

(b)(3)(B)   is supported by corroboratingcircumstances that clearly indicate its trustworthiness, if it is offered in acriminal case as one that tends to expose the declarant tocriminal liability.

 

(b)(4)   Statement of Personal or FamilyHistory. Astatement about: 

(b)(4)(A)   the declarant?s own birth,adoption, legitimacy, ancestry, marriage, divorce, relationship by blood ormarriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledgeabout that fact; or

 

(b)(4)(B)   another person concerning any ofthese facts, as well as death, if the declarant wasrelated to the person by blood, adoption, or marriage or was so intimatelyassociated with the person?s family that the declarant?s informationis likely to be accurate.

 

 

EffectiveNovember 1, 2004 

 

 

2011 Advisory Committee Note. ?The language of this rule has been amended as part of therestyling of the Evidence Rules to make them more easily understood and to makestyle and terminology consistent throughout the rules. These changes areintended to be stylistic only. There is no intent to change any result in anyruling on evidence admissibility.

 

Original Advisory Committee Note.? Subdivision (a) is comparable to Rule 63(7), Utah Rules ofEvidence (1971). Rule 62(7)[(e)], Utah Rules ofEvidence (1971), seems to be encompassed in Rule 804(a)(5). Subdivision (a)(5) is a modification of the federal rule which permitsjudicial discretion to be applied in determining unavailability of a witness.

 

Subdivision(b)(1) is comparable to Rule 63(3), Utah Rules ofEvidence (1971), but the former rule is broader to the extent that it did notlimit the admission of the testimony to a situation where the party to theaction 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 ofEvidence (1971), but the former rule was not limited to declarations concerningthe cause or circumstances of the impending death nor did it limit dyingdeclarations in criminal prosecutions to homicide cases. The rule has beenmodified by making it applicable to any civil or criminal proceeding, subjectto the qualification that the judge finds the statement to have been made in goodfaith.

 

Subdivision(b)(3) is comparable to Rule 63(10), Utah Rules ofEvidence (1971), though it does not extend merely to social interests.

 

Subdivision(b)(4) is similar to Rule 63(24), Utah Rules ofEvidence (1971).

 

Subdivision(b)(5) had no counterpart in Utah Rules of Evidence(1971).