Rule 804. Exceptions to the Rule Against Hearsay—When the Declarant is Unavailable as a Witness

(a) Criteria for being unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(1) Is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies;

(2) Refuses to testify about the subject matter despite a court order to do so;

(3) Testifies to not remembering the subject matter;

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

(5) Is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure the declarant's attendance. But this subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability as a witness in order to prevent the declarant from attending or testifying.

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

(1) Former Testimony. Testimony that:

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

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

(2) Statement under the belief of imminent death. A statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.

(3) Statement against interest. A statement—except, in a criminal case, for a statement or confession made by a defendant or other person implicating both the declarant and the accused that is offered against the accused—that:

(A) A reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace; and

(B) Is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

(4) Statement of personal or family history. A statement about:

(A) The declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or

(B) Another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person's family that the declarant's information is likely to be accurate.

Committee Notes

Maine Restyling Note [November 2014] Restyled Maine Rule 804 preserves the substantive differences between the Maine and Federal Rules.

Advisers' Note to former M.R. Evid. 804 (February 2, 1976) This rule covers hearsay exceptions when the declarant is unavailable. Subdivision (a) defines unavailability. Subsection (1), providing that a successful claim of privilege satisfies the unavailability requirement, is in accord with Maine law. State v. Robbins, 318 A.2d 51 (Me. 1974). Subsection (2) provides that one who simply refuses to testify despite an order to do so is unavailable. No Maine case on the point has been found, but the great weight of authority is in accord. McCormick, Evidence (2d ed.) 612; United States v. Mobley, 421 F.2d 345 (5th Cir. 1970). Subsection (3) provides that one who testifies to a lack of memory of the subject matter of his statement is unavailable. Again, no Maine case has been found and the cases elsewhere are few and conflicting. The claimed lack of memory must be established through the testimony of the witness at the trial and subject to cross-examination on his memory and his motives. On this preliminary question, the court may disbelieve the testimony of the declarant as to his lack of memory. See United States v. Insana, 423 F.2d 1165, 1169-70 (2d Cir. 1970). Subsection (4) provides that death and then existing mental illness or infirmity are grounds for a finding of unavailability. Death is an obvious and longstanding basis for this finding. Dwyer v. State, 154 Me. 179, 145 A.2d 100 (1958). Physical or mental illness or infirmity is also generally accepted. Compare M.R.C.P. 32(a)(3) (use of deposition if witness dead or unable to attend or testify because of age, illness, or infirmity); M.R. Crim. P. 15(e) (to same effect—death, sickness, or infirmity). In Maine even a temporary disability has been held sufficient. Chase v. Springvale Mills Co., 75 Me. 156 (1883). Most cases involving temporary disability are, however, handled by a continuance. Subsection (5) provides that a declarant is unavailable if his presence cannot be secured by legal process or if he simply cannot be found. There is no requirement that an attempt be made to depose the declarant. The Federal Rule is to the contrary. The proponent must have been unable to procure the attendance or testimony of the witness by process or other reasonable mean. This imposes a needless and impractical complication. Depositions are expensive and time-consuming and the Civil and Criminal Rules are not well adapted to implementing this requirement. No purpose is served unless the deposition, if taken, may be used as evidence. Under M.R.C.P. 32(a)(3) and M.R. Crim. P. 15(e) a deposition may not be admissible and under M.R. Crim. P. 15(a) obstacles exist to even taking a deposition. The existing deposition procedure remains available to those who wish to use it. Subdivision (a) concludes with the pronouncement that a witness is not "unavailable" if the circumstances which would otherwise constitute unavailability are due to the procurement or other wrongdoing of the proponent of the declaration. Cf. M.R.C.P. 32(a)(3) (" . . . unless it appears that the absence of the witness was procured by the party offering the deposition"); M.R. Crim. P. 15(e) (same). Subdivision (b)(1) covers the hearsay exception for former testimony. It is in accord with present Maine law in admitting prior testimony only if the party against whom it is offered or, in a civil case, a predecessor in interest, had an opportunity and similar motive to develop the testimony. Ellsworth v. Waltham, 125 Me. 214, 132 A. 423 (1926). In a criminal case, State v. Budge, 127 Me. 234, 142 A. 857 (1928), the state was allowed to introduce upon a second trial the testimony at the first trial of a witness who had left the state so that his attendance could not be compelled. This was held to be a proper exception to the hearsay rule and not a violation of the constitutional right of confrontation. It is also the Maine law, as it continues to be under the rule, that the testimony is admissible if offered against a party who called the witness at a prior trial. Direct and redirect examination is the equivalent of an opportunity for cross-examination. Dwyer v. State, 154 Me. 179, 145 A.2d 100 (1958). Subdivision (b)(2) covers the familiar common law exception to the hearsay rule for dying declarations. State v. Chaplin, 286 A.2d 325 (Me. 1972). It expands the common law somewhat by making these declarations admissible concerning the cause or circumstances of what the declarant believed to be his impending death without limitation as to type of case. At common law the declaration of the victim was admissible only if offered in a criminal homicide case. Death is not the only form of unavailability under this subdivision. If the declarant believed death was imminent when he spoke and if he is unavailable at the time of trial, the declaration is admissible if in fact the declarant is not dead when the case is tried. The Federal Rule limits this exception to prosecutions for homicide and civil actions, thus eliminating it from criminal prosecutions other than for homicide. Subdivision (b)(3) covers declarations against interest. It applies to declarations by nonparties; if a statement is that of a party, offered by an adverse party, it is an admission under Rule 801(d)(2), which provides that an admission of a party opponent is not hearsay. The familiar common law declaration against interest exception was confined to declarations against pecuniary or proprietary interest. Maine has long recognized this exception. Consolidated Rendering Co. v. Martin, 128 Me. 96, 106, 145 A. 896, 900 (1929). It is required that the statement be against interest at the time it was made. Small v. Rose, 97 Me. 286, 54 A. 726 (1903). The subdivision adds declarations subjecting the declarant to criminal or civil liability, including tort liability. It also adds declarations tending to make the declarant an object of hatred, ridicule, or disgrace. The justification is that the motivation here to tell the truth is as strong as when financial interests are at stake. It is a preliminary question for the court whether a given statement would tend to make the declarant an object of hate, ridicule, or disgrace. The Federal Rule does not include a provision for this last type of declaration. Subdivision (b)(4) deals with the hearsay exception for statements of personal or family history. It drops some of the conditions imposed by Northrop v. Hale, 76 Me. 306 (1884), the leading Maine case, in an effort to ensure reliability. These conditions on admissibility of declarations concerning pedigree were: (1) there must be evidence outside the declaration that the declarant was lawfully related by blood or marriage to the person or family whose history the facts concern; (2) the declarant must be dead when the declaration is offered; and (3) the declaration must have been made before commencement of the litigation. Under this subdivision the ante litem motam requirement is eliminated, the time of the declaration with reference to the institution of the lawsuit going to its weight, not its admissibility. Under (A) it is not required that the declarant have firsthand knowledge of the facts of his own pedigree. Obviously, he would have no firsthand knowledge of the date of his birth. Under (B) the declarant qualifies as a consequence of intimate association with the family of the person whose pedigree is in issue. This is contrary to a dictum in Northrop. The subdivision also goes beyond Northrop in allowing other bases of unavailability besides death. The Federal Rule contains a catch-all provision like that in Rule 803(24).

Advisory Committee Note November 2011 This proposed amendment is designed to bring M.R. Evid. 804(b)(3) in line with its federal counterpart, as recently amended. The federal Advisory Committee recommended amendment of Fed. R. Evid. 804(b)(3) to harmonize the rule with several U.S. Courts of Appeals decisions that applied the corroboration requirement of Rule 804(b)(3) to statements of penal interest used against the accused as well as to those tending to exculpate the accused. The same policy considerations that support the corroboration requirement when statements against penal interest are offered to exculpate an accused also apply to such statements when offered by the prosecution as evidence of guilt. The policy considerations supporting the amendment of the federal rule apply with equal force within the State of Maine. These considerations and the desirability of maintaining substantial similarity between the federal and the Maine rules suggest that Maine Rule of Evidence 804(b)(3) be amended to correspond with its federal counterpart. The amendment does not address the admissibility of statements against penal interest in civil cases.