Also known as: FRE 804 · Fed. R. Evid. 804 · Federal Rule of Evidence 804 · Rule 804(b) · hearsay unavailable declarant · former testimony · dying declaration
Written by attorneys · grounded in primary & secondary sources — see below
A procedural rule establishing criteria for determining when a declarant is unavailable as a witness and enumerating hearsay exceptions that apply only upon a showing of unavailability. The rule requires the proponent to demonstrate that the declarant cannot be produced despite reasonable efforts or falls within one of the listed categories such as death, privilege, or refusal to testify. It further provides that the proponent may not benefit from the exceptions if responsible for procuring the unavailability.
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Renata Russo offers a transcript of a prior deposition given by a witness now living abroad. The proponent shows repeated unsuccessful attempts through letters rogatory and diplomatic channels to secure attendance. The court finds the declarant unavailable under the attendance requirement for former-testimony exceptions.
Ronald Reed faces trial on assault charges. The prosecution seeks to introduce prior testimony from a witness now incarcerated out of state. Despite the incarceration the state made only minimal telephone inquiries and no formal extradition attempt. The court holds the showing of unavailability insufficient under the stricter criminal standard.
Roberto Reyes offers a coworker's out-of-court admission exposing the declarant to civil liability. The declarant is now deceased. The court requires the proponent to show inability to procure attendance or testimony by reasonable means before admitting the statement under the applicable exception.
Regina Robinson offers a deceased employee's narrative that admits personal safety violations and also implicates a supervisor. The court admits only the genuinely self-inculpatory portions that expose the declarant to liability while excluding the non-self-inculpatory remarks that merely shift blame.
Raphael Rivera moves to suppress evidence obtained during a search. The government relies on statements from a third party who later refuses to testify. The court evaluates whether the third party's absence satisfies unavailability criteria before considering the statements.
Ryan Roberts stands trial for conspiracy. The prosecution offers a recorded police interview of a witness who later refuses to appear. Because Roberts never had an opportunity to cross-examine the declarant the court excludes the statement despite the witness's unavailability.
A declarant is unavailable if exempted by privilege, refuses to testify despite a court order, testifies to lack of memory, cannot attend because of death or infirmity, or is absent and the proponent cannot procure attendance by reasonable means. The rule expressly disqualifies the proponent from relying on unavailability if the proponent wrongfully caused it.
Supporting sources
…cases from the early 19th century that took a more stringent view of the right to confrontation than does the Court, prohibiting former testimony even if the witness was subjected to cross-examination. See ante , at 50 (citing Finn v. Commonwealth , 26 Va. 701, 708 (1827); State v. Atkins , 1 Tenn. 229 (Super. L. & Eq. 1807) ( per…
…right to confrontation. We take no position on the standards necessary to demonstrate such forfeiture, but federal courts using Federal Rule of Evidence 804
…against penal interest are to be excluded under Donnelly v. United States , 228 U. S. 243, 272-277 (1913), or because, if Rule 804
…their areas was of Mexican origin. On the other hand, written material inserted in the record of the Senate hearings included former testimony
…as an exception to the general rule barring admission of hearsay
Yes. When former testimony is offered against a criminal defendant the prosecution must demonstrate bona fide efforts to produce the witness. Mere incarceration outside the state is insufficient without good-faith attempts such as extradition proceedings.
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Only the discrete portions that are genuinely self-inculpatory qualify. Remarks that merely incriminate another person remain inadmissible even if embedded in an otherwise inculpatory narrative. Each statement must be examined individually.
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The transcript is admissible if the declarant is unavailable, the deposition was lawful, and the party against whom it is offered had an opportunity and similar motive to develop the testimony. Limited participation in an administrative proceeding may still satisfy the opportunity requirement when the subject matter overlaps with the current civil action.
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Yes. Testimonial statements are inadmissible against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. Hearsay exceptions alone cannot satisfy the constitutional requirement when the statement is testimonial.
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