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Rule 804. Exceptions to the RuleAgainst Hearsay – When the Declarant is Unavailableas a Witness


(a)      Criteria for BeingUnavailable. A declarant is considered to beunavailable as a witness if the declarant:


(1)   is exempted from testifying about thesubject matter of the declarant’s statement becausethe court rules that a privilege applies;


(2)   refuses to testify about the subjectmatter despite a court order to do so;


(3)   testifies to not remembering thesubject matter;


(4)   cannot be present or testify at thetrial or hearing because of death or a then-existing infirmity, physicalillness, or mental illness; or


(5)   is absent from the trial or hearing andthe statement’s proponent has not been able, by process or other reasonablemeans, to procure the declarant’s attendance.


Butthis subdivision (a) does not apply if the statement’s proponent procured orwrongfully caused the declarant’s unavailability as awitness in order to prevent the declarant fromattending or testifying.


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


(1)   FormerTestimony. Testimony that:


(A)   was given as a witness at a trial, hearing,or lawful deposition, whether given during the current proceeding or adifferent one; and


(B)   is now offered against a party who had— or, in a civil case, whose predecessor in interest had — an opportunity andsimilar motive to develop it by direct, cross-, or redirect examination.


(2)   Statement Underthe Belief of Imminent Death. Ina civil or criminal case, a statement made by the declarantwhile believing the declarant’s death to be imminent,if the judge finds it was made in good faith.


(3)   Statement AgainstInterest. A statementthat:


(A)   a reasonable person in the declarant’s position would have made only if the personbelieved it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had sogreat a tendency to invalidate the declarant’s claimagainst someone else or to expose the declarant tocivil or criminal liability; and


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


(4)   Statement ofPersonal or Family History. Astatement about:


(A)   the declarant’sown birth, adoption, legitimacy, ancestry, marriage, divorce, relationship byblood or marriage, or similar facts of personal or family history, even thoughthe declarant had no way of acquiring personalknowledge about that fact; or


(B)   another person concerning any of thesefacts, as well as death, if the declarant was relatedto the person by blood, adoption, or marriage or was so intimately associatedwith the person’s family that the declarant’sinformation is likely to be accurate.



2011 Advisory Committee Note. – The language of this rule has beenamended as part of the restyling of the Evidence Rules to make them more easilyunderstood and to make style and terminology consistent throughout the rules.These changes are intended to be stylistic only. There is no intent to changeany result in any ruling on evidence admissibility.




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 modificationof the federal rule which permits judicial discretion to be applied indetermining unavailability of a witness.


Subdivision (b)(1) is comparable toRule 63(3), Utah Rules of Evidence (1971), but the former rule is broader tothe extent that it did not limit the admission of the testimony to a situationwhere the party to the action had the interest and opportunity to develop thetestimony. Condas v. Condas,618 P.2d 491 (Utah 1980); State v. Brooks, 638 P.2d 537 (Utah 1981).


Subdivision (b)(2) is comparable toRule 63(5), Utah Rules of Evidence (1971), but the former rule was not limitedto declarations concerning the cause or circumstances of the impending deathnor did it limit dying declarations in criminal prosecutions to homicide cases.The rule has been modified by making it applicable to any civil or criminalproceeding, subject to the qualification that the judge finds the statement tohave been made in good faith.


Subdivision (b)(3) is comparable toRule 63(10), Utah Rules of Evidence (1971), though it does not extend merely tosocial interests.


Subdivision (b)(4) is similar to Rule63(24), Utah Rules of Evidence (1971).


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