Rule 804 — Exceptions to the Rule Against Hearsay—When the De- clarant Is Unavailable as a Witness

Fed. R. Evid. 804

• Source: Federal Rules of Evidence
• Rule: 804
• ARTICLE VIII: HEARSAY
• Citation: Fed. R. Evid. 804

Text

(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 privi-
lege 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 be-
cause 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:
(A) the declarant’s attendance, in the case of a hearsay
exception under Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, 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 procured or wrongfully caused the declarant’s un-
availability 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 redi-
rect examination.
(2) Statement Under the Belief of Imminent Death. In a prosecu-
tion for homicide or in a civil case, a statement that the de-
clarant, while believing the declarant’s death to be imminent,
made about its cause or circumstances.
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would
have made only if the person believed it to be true be-
cause, when made, it was so contrary to the declarant’s
proprietary or pecuniary interest or had so great a tend-
ency to invalidate the declarant’s claim against someone
else or to expose the declarant to civil or criminal liabil-
ity; and
(B) if offered in a criminal case as one that tends to ex-
pose the declarant to criminal liability, is supported by
corroborating circumstances that clearly indicate its
trustworthiness after considering the totality of circum-
stances under which it was made and any evidence that
supports or undermines it.
(4) Statement of Personal or Family History. A statement
about:
(A) the declarant’s own birth, adoption, legitimacy, an-
cestry, 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 per-
sonal 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 associ-
ated with the person’s family that the declarant’s informa-
tion is likely to be accurate.
(5) [Other Exceptions.] [Transferred to Rule 807.]

(6) Statement Offered Against a Party That Wrongfully Caused
the Declarant’s Unavailability. A statement offered against a
party that wrongfully caused—or acquiesced in wrongfully
causing—the declarant’s unavailability as a witness, and did
so intending that result.

Advisory Committee Notes

(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.)