(a) Definition 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) testifies to 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 a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (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, claim of 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 given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
(2) Statement under belief of impending death.—In a prosecution for homicide or in a civil action or proceeding, 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 impending death.
(3) Statement against interest.—A statement which was at the time of its making so far 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, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
(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 fact of personal or family history, even though declarant had no 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) [Other exceptions.] [Transferred to Rule 807]
**(6) Forfeiture by wrongdoing.—A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
(As amended Dec. 12, 1975; Mar. 2, 1987, eff.** Oct. 1, 1987; Nov. 18, 1988; Apr. 11, 1997, eff. Dec. 1, 1997.)
added in current removed in current
Compared to current version (2025).
(a) Definition of unavailability.-‘‘UCriteria for Being Unavailable. A declarant is considered to be unavailabilityle as a witness’’ includes situations in which if the declarant-:
(1) is exempted by ruling of the court on the ground of privilege from testifying concerningabout the subject matter of the declarant’s statement; or
(2) persists in because the court rules that a privilege applies;
(2) refusinges to testify concerningabout the subject matter of the declarant’s statement despite an order of the courtdespite a court order to do so; or
(3) testifies to a lack of memory of the subject matter of the declarant’s statement; or
(4) is unable tonot remembering the subject matter;
(4) cannot be present or to testify at the trial or hearing because of death or a then -existing physicalinfirmity, physical illness, or mental illness or infirmity; or
(5) is absent from the trial or hearing and the proponent of a statement has been unablestatement’s proponent has not been able, by process or other reasonable means, to procure:
(A) the declarant’s attendance (or, in the case of a hearsay exception under subdivision (b)(2), (3), or (4),Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony) by process or other reasonable means. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4). But this subdivision (a) does not apply if the statement’s proponent procurementd or wrongdoing of the proponent of a statement for the purpose offully caused the declarant’s unavailability as a witness in order to preventing the witnessdeclarant from attending or testifying.
(b) Hearsay eThe Exceptions.- The following are not excluded by the rule against hearsay rule if the declarant is unavailable as a witness:
(1) Former tTestimony.- Testimony that:
(A) was given as a witness at another hearing of the same or a different proceed trial, hearing, or in alawful deposition taken in compliance with law , whether given during the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, arent 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 ithe testimony by direct, cross-, or redirect examination.
(2) Statement uUnder bthe Belief of impending dImminent Death.- In a prosecution for homicide or in a civil action or proceedingcase, a statement made by athat the declarant, while believing that the declarant’s death wasto be imminent, concerning themade about its cause or circumstances of what the declarant believed to be impending death.
(3) Statement aAgainst iInterest.- A statement which was at the time of its making so farthat:
(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 pecuniroprietary or proprietecuniary interest, or so far tendehad tso subject the declarant to civil or criminal liability, or to render invalid a claim bygreat a tendency to invalidate the declarant’s claim against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statemensomeone else or to expose the declarant to civil or criminal liability; and
(B) if offered in a criminal case as one that tendings to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless, is supported by corroborating circumstances that clearly indicate theits trustworthiness of the statemenafter considering the totality of circumstances under which it was made and any evidence that supports or undermines it.
(4) Statement of pPersonal or fFamily hHistory.-(A) A statement concerningabout:
(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or otheor similar facts of personal or family history, even though the declarant had no meansway of acquiring personal knowledge of the matter statedabout that fact; or
(B) a statement concerning the foregoing matters, and death also, of another personnother person concerning any of these facts, as well as death, if the declarant was related to the otherperson by blood, adoption, or marriage or was so intimately associated with the otherperson’s family as to be likely to have accurate information concerning the matter declaredthat the declarant’s information is likely to be accurate.
(5) [ Other eExceptions. ] [Transferred to Rule 807.]
(6) Forfeiture by wrongdoing.-Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party that has engagwrongfully caused -or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
(As amended Dec. 12, 1975; Mar. 2, 1987, eff. Oct. 1, 1987; Nov. 18, 1988; Apr. 11, 1997, eff. Dec. 1, 1997fully causing-the declarant’s unavailability as a witness, and did so intending that result. (As amended Pub. L. 94-149, § 1(12), (13), Dec. 12, 1975, 89 Stat. 806; Mar. 2, 1987, eff. Oct. 1, 1987; Pub. L. 100-690, title VII, § 7075(b), Nov. 18, 1988, 102 Stat. 4405; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 28, 2010, eff. Dec. 1, 2010; Apr. 26, 2011, eff. Dec. 1, 2011; Apr. 2, 2024, eff. Dec. 1, 2024.)