Rule 804. Hearsay exceptions; declarant unavailable

Hearsay exceptions; declarant unavailable.

(a) Grounds of unavailability. “Unavailability as a witness” includes situations in which the declarant –

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or

(2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or

(3) now possesses a lack of memory of the subject matter of the declarant’s statement; or

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of the statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subsection (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means. A declarant is not unavailable as a witness if exemption, refusal, lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

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

(1) FORMER TESTIMONY. Testimony of a witness, in a former trial or action, given

(A) under oath, (B) before a tribunal or officer having by law the authority to take testimony and legally requiring an opportunity for cross-examination, (C) under circumstances affording the party against whom the witness was offered an opportunity to test his or her credibility by cross-examination, and (D) in litigation in which the issues and parties were substantially the same as in the present cause.

(2) STATEMENT UNDER BELIEF OF IMPENDING DEATH. A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant's impending death.

(3) STATEMENT AGAINST INTEREST. A statement which was at the time of its making so contrary to the declarant's pecuniary or proprietary interest that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.

(4) STATEMENT OF PERSONAL OR FAMILY HISTORY. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and 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 other's family as to be likely to have accurate information concerning the matter declared.

(5) FORFEITURE BY WRONGDOING. A statement offered against a party that has engaged in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. [Amended 8-15-2013, eff. 10-1-2013.]

Committee Notes

Advisory Committee’s Notes Section (a). Grounds of unavailability. Section (a) is patterned after the corresponding federal rule. It gives five grounds of “unavailability.” Each of the four exceptions found in Rule 804(b) carries a condition precedent that the declarant be “unavailable.” This is the threshold distinction between Rule 804(b) exceptions and those found in Rule 803. Assertion of a privilege. Whenever a court-approved assertion of privilege precludes a declarant/witness from relating the subject matter of the witness’s own statement, the witness is then “unavailable” for the purpose of activating the Rule 804(b) exceptions. This ground of “unavailability” is consistent with traditional Alabama practice. See Miles v. State, 476 So.2d 1228 (Ala.Crim.App.1985); Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837, cert. denied, 254 Ala. 74, 46 So.2d 847 (1950). See also C. Gamble, McElroy’s Alabama Evidence § 245.07(8) (4th ed. 1991). Refusal to testify. Even in the face of judicial pressure, some witnesses stand by their refusal to testify. A refusal to testify as to the subject matter of the declarant/witness’s statement, in face of a court order to do so, constitutes “unavailability” for the purpose of activating the exceptions of Rule 804(b). Alabama has little preexisting authority dealing with whether a refusal to testify equates with unavailability. Adopting the principle that it does, however, is fully consistent with the modern trend in the United States as a whole. See United States v. Gonzalez, 559 F.2d 1271, 1272-73 (5th Cir.1977); E. Cleary, McCormick on Evidence § 249.01(2) (3d ed. 1984). Lack of memory. A declarant/witness’s lack of memory concerning the subject matter of his or her statement satisfies the unavailability requirement of the Rule 804(b) exceptions. The witness’s own testimony will be offered to establish the lack of memory. Thus, the committee envisions that the witness will be produced and subjected to cross-examination. It was stat