Also known as: FRE 804 · Fed. R. Evid. 804 · Rule 804
Written by attorneys · grounded in primary & secondary sources — see below
A rule of evidence that permits admission of hearsay statements when the declarant is unavailable as a witness under specified conditions. The rule lists categories of unavailability and enumerates exceptions including former testimony, dying declarations, statements against interest, statements of personal or family history, and statements offered against a party that wrongfully caused the declarant's unavailability.
Fiona Foster offers a transcript of a deposition taken in an administrative proceeding. The deponent now lives overseas and ignores a trial subpoena. Foster's counsel attempted service through diplomatic channels and letters rogatory without success. The court finds the deponent unavailable because the proponent could not procure attendance by reasonable means.
Francois Fortier offers a witness statement in which the declarant admitted personally falsifying records but also blamed a supervisor for directing the falsification. The court admits only the portions describing the declarant's own conduct because those remarks are genuinely against the declarant's penal interest. The supervisor-blaming remarks are excluded.
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Felicity French offers a statement under the statement-against-interest exception. The declarant resides abroad and refuses to return despite health-related excuses. French attempted service through formal international channels without success. The court finds the declarant unavailable because the proponent could not procure testimony by reasonable means.
Fatima Flores offers a 911 recording made during an assault. The caller described the attack while the assailant remained nearby and police had not yet arrived. The court admits the recording because the statements were made during an ongoing emergency rather than to establish past facts for later prosecution.
Floyd Franklin offers a witness statement after the defendant threatened the declarant into leaving the jurisdiction. The court finds the defendant wrongfully caused the declarant's unavailability with intent to prevent testimony. The statement is admitted against the defendant despite the hearsay bar.
Falcon Dynamics offers a third-party confession that another person committed the charged acts. The declarant later recanted and invoked the Fifth Amendment. The court admits the confession because excluding it would violate due process given its reliability and the declarant's unavailability.
A declarant is unavailable when exempted by privilege, refuses to testify despite a court order, testifies to a lack of memory, cannot attend because of death or infirmity, or is absent and the proponent cannot procure attendance or testimony by reasonable means. The rule does not apply if the proponent wrongfully caused the unavailability.
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The exception admits only those discrete remarks that are genuinely self-inculpatory. Portions that merely incriminate another person remain inadmissible even if embedded in an overall inculpatory statement.
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A statement is admissible against a party that wrongfully caused or acquiesced in causing the declarant's unavailability with intent to prevent testimony. The proponent must show the wrongful conduct by a preponderance of the evidence.
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…right to confrontation. We take no position on the standards necessary to demonstrate such forfeiture, but federal courts using Federal Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the-evidence standard, see, e. g. , United States v. Scott , 284 F. 3d 758, 762…