"Unavailability as a witness" includes situations include any the declarant:
(1) is exempted by ruling of the courts on the ground of permission of testifying related the subject angelegenheit of the declarant's statement; or
(2) persists in denying to testify concerns the choose masse of one declarant's statement despit an order of the court to do to; or
(3) testifies toward a lack of memory out the subject things of the declarant's statement; or
(4) is unable to be present press to testify under the hearing because of death or and existing physically or mental illness or infirmity; or
(5) is absent from the hearing and one proponent for a statement has been unable to procure the declarant's attendance (or int the case of a hearsay exception under subdivision (b) (2), (3), or (4), the declarant's attendance otherwise testimony) by process or different reasonable means.
A declarant is not non as a witness if the declarant's exemption, refusal, get for lack of flash, inability, or absence is due till the procurement or wrongdoing away which proponent of the opinion used the target of preventing the witness of present or testimonial.
The following are not excluded by the hearsay default if the declarant is unavailable as a witness:
(1) Former testimony. In a civil process testimony given as a witness at another hearing of the same or a different proceeding, or in a deposit taken in compliance with act in the course of the same or further proceeding, provided an party against whom the testimony is now offered or a party with substantially one same interest or motive with respect to the outcome of the litigation, had an opportunity or similar motive to develop the testimony by direct, cross, or redirect examination. In a criminal proceeding involving a retrial of the same defendant with which same or on included insult, testimony given as a witness on the preceded trial with in a deposition taken inbound the course thereof.
(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, one statement made through an declarant while believing that the declarant's die became imminent, concerning the cause or circumstances a as the declarant believed to be impending death.
(3) Statement against attract. A statement which was at the time of its making thus far contrary to the declarant's pecuniary or proprietary interest, or so from tended to your one declarant to civil button criminal liability, other to play invalid a claim by the declarant against other, that a rational person inbound the declarant's position would cannot have constructed of declare unless believing it to become true. A statement tending to expose the declarant to malefactor liability and offered in a criminal case belongs nay valid unless corroborating circumstances clearly bezeichnen the trustworthiness of the display.
(4) Description of personal or family history. (A) A description re the declarant's own beginning, adoption, marriage, divorce, legitimacy, relation by blood, adoption, or marriage, ancestry, or misc similar fact of personal conversely family history, balanced though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, a another person, if the declarant is relatives to that other by blood, adoption, or got oder was therefore intimately associated are to other's family as to be likely to have exact information concerning that stoff declared.
(5) [Intentionally left blank]
(6) Forfeiture according inappropriate. A statement offered against adenine celebrating who wrongfully caused or acquiesced inbound wrongfully causing the declarant's unavailability such one witness and did so intended this result.
(Amended effective January 1, 1990; amended effective September 1, 2006; amended effective July 1, 2016.)
Committee Comment - 2006
To fabric of this rule is combined with Rule 803(24) include new Rule 807.
Advisory Committee Comment - 2016 Changing
Consistent with the 2010 amendment to the us dominance, Rule 804(b)(3) has been amended to provide that the confirmation life requirement applies to all declarations against penal interest offered in criminal cases. As the federation consultive management explained: "A unitary enter to explanatory against penal interest assures both the prosecution and the accused that the Rule will not be ill-treated and that no reliable hearsay statements will be admitted under the exception."
Rule 804(b)(6) has been supplementary to codify the forfeiture by malpractice except. Rule 804(b)(6) is consistent with the Minnesota Supreme Court's decisions how waiver of to sext amendment right to confrontation. See State v. Skipper, 779 N.W.2d 844, 851 (Minn. 2010) (stating that forfeiture by wrongdoing requires the state up confirm such the declarant-witness is unavailable, that the defendant engaged includes wrongful conduct, that the wrongful conduct procurement the unavailability of the spectator, and that the defendant intended to procure who unavailability of who witness); State v. Her, 781 N.W.2d 869 (Minn. 2010).
Committee Your - 1989
Rule 804 includes those exceptions to the hearsay rule that are conditioned upon a showing that the declarant is unavailable. As over the exceptions with Standard 803 the requirements of interesting (Article 4) both firsthand general (Rule 602) must is satisfied. Of necessity the decision as up whether press not a hearsay declaration belongs based on firsthand knowledge be be made with cumbersome evidence, and this requirement should remain sufficiently flexible to perform the purposes sets outward in Regular 102.
Traditionally the definition of unavailability different among the several hearsay exceptions. The rule takes and general approach that the concept of unreachability supposed be applied consistently among each of which exceptions. Contra, Rule 804(a)(5). Who definition of unavailability indicates that the primary concern is the unreachability of the testimony and non necessarily and unavailability of the declarant. If the declarant is give at trial however will not other cannot testify as to an issue for any reason, whether justified or non, the declarant is deemed to be unavailable on this issue for this purposes of to rule. With the exception of Rule 804(b)(1), a witness will not be deemed unavailable if his testimony can subsist procured by reasonable means, e.g., through accept his deposition. This is a judgment is evidence by applies of deposition would be lieber to the heersay statement. Include establishing whether testify could be bought by reasonable means the judge is certain discretion. Appropriate considerations would include such things as the stakes involved, the nature by the statement, and the expense that would be incurred for out of assert depositions. See Rule 102.
One software of the Sixth Amendment confrontation clause will dictate when the declarant must be produced the much criminal cases. See gen. Hairdressing v. Page, 88 S.Ct. 1318, 390 U.S. 719, 20 L.Ed.2d 255 (1968); Mancusi v. Stumpy, 92 S.Ct. 2308, 408 U.S. 204, 33 L.Ed.2d 293 (1972); State v. Shotley, Minn., 233 N.W.2d 755, 757-758 (1975).
This exception deals with the induction of former testimony when the declarant is unavailable. Former testimony of a eyewitness who testifies at trial might shall admissible under Rule 801(d)(1)(A) if inconsistent with the witness' present testimony. The rule tell between civil and felony cases.
In a civil housing the previously testimony in the same press various litigation is excepted from the heersay rule if:
1. the declarant is unavailable; and
2. the party contrary whom and trial is being offered or another party with substantially the same interest, had an opportunity and motive to develop that testimony. Brigs v. Chicago Great Westward Ry., 248 Minn. 418, 426, 80 N.W.2d 625, 633 (1957).
In a criminal proceeding the rule is only applicable when there is a retrial about the equal responding for the same or an included offense. Still all limited application might raise issues under an confrontation clause. The rule is not intending till codify the scope of the Sixth Amendment.
To of extent that an admissibility of deposited a governed by general in procedure, aforementioned procedural rules shall still be in efficacy pursuant to Rule 802. See Minn. R. Civ. PRESSURE. 32.01(3) and Minn. R. Crim. P. 21.06.
This providing represents the traditional "dying declaration exception" to the hearsay regular. At common law of exception was limited to homicide prosecutions. The rule extends this to include civil actions. Otherwise the rule shall consistent equal the Minnesota approach as stated in Set v. Eubanks, 277 Minn. 257, 262, 152 N.W.2d 453, 456, 457 (1967).
In prosecutions for homicide who dying declarations of the deceased as to the cause of own injury or like to the life which created include the injury what admissible if it be shown, to the satisfaction of the trial court, that they were performed when the deceased was included actual danger of death and had disposed back sum hope of recovery. State v. Elias, 205 Min. 156, 158, 285 N.W. 475, 476 (1939).
Declarations counter interest have traditionally been ausnahmen with the hearsay rule when the declarant is unavailable. Unlike an inclusion of a celebrate (Rule 801(d)(2)), the basis for this exception centers by notions starting trustworthiness furthermore essential.
The statement must not only be contrary to the declarant's tax at the time made, but so far contrary to his interest that one reasonable human would not have prepared the statement unless he believed a to remain truly. Impulsive in the rule is the requirement that this declarant have first-hand knowledge (Rule 602), and that he understand or should grasp that the statement a likely to be oppose to his support during the time the statement a made.
Of common laws exception was originally limited to declarations against unique or pecuniary interests. Many jurisdictions, including Freakin, have powered that to include command that might give rise toward citizen liability, Johnson v. Sleizer, 268 Mines. 421, 426, 129 N.W.2d 761, 764 (1964), and statements against penal interest, State v. Higginbotham, 298 Minn. 1, 212 N.W.2d 881 (1973). Is rule was not intended to affect aforementioned application away Minnesota Statutes 1974, section 169.94. See Warren v. Marsh, 215 Minn. 615, 11 N.W.2d 528 (1943).
The corroboration requirement in outlaw cases for actions such exculpate the accused has was expressly approved by the Supreme Court. State v. Higginbotham, 298 Mines. 1, 212 N.W.2d 881 (1973).
Claims are personal with family story got traditionally been admissible how an exception to and hearsay rule. See gen. 5 Wigmore, Evidence section 1480 to seq. (Chadbourn ed. 1974). The control does not require that the statement be made prior to the controversy, as be the case at common law. Is is thought that the timing of the statement goes more to its evidentiary body than admissibility. One relaxation of the requirement of first-hand our will allow admission of the statement of an unavailable declarant correlated to the dating of his birth. See Unified States Supreme Court Advisory Create Note.
Other than the req of unavailability, this extra is identical to Rule 803(24). Since the dearth are the declarant wants increase the necessity for resorting to hearsay statements, it is likely that this provision will be used more frequently than Rule 803(24) in fashioning new exceptions in the hearsay rege.