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 — see sources 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.
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.
In February 1971, William Matlock was indicted for robbing a federally insured bank in violation of 18 U.S.C. § 2113. A week later he filed a motion to suppress evidence seized from a home in Pardeeville, Wisconsin, where he had been living. Suppression hearings followed in the District Court. On November 12, 1970, Matlock was arrested in the yard in front of the home leased by Mr. and Mrs. Marshall. Living in the home were Mrs. Marshall, several of her children including her daughter Gayle Graff, Graff's three-year-old son, and Matlock. Three arresting officers went to the door, were admitted by Graff, told her they were looking for money and a gun, and asked if they could search the house. Graff consented voluntarily to the search of the house, including the east bedroom on the second floor which she said was jointly occupied by Matlock and herself. The east bedroom was searched and $4,995 in cash was found in a diaper bag in the only closet in the room. Graff made statements to the officers that she and Matlock occupied the east bedroom together, shared the dresser, and had slept together regularly in the room including the early morning of November 12. Other evidence showed Matlock and Graff had lived together in a one-bedroom apartment in Florida from April to August 1970, lived at the Marshall home from August to November 12, 1970, were seen going up or down stairs together, and that the east bedroom contained evidence it was lived in by a man and a woman. At the suppression hearings the District Court excluded as inadmissible hearsay Graff's out-of-court statements about joint occupancy as well as statements by both Graff and Matlock that they were husband and wife. The court concluded the remaining evidence was insufficient to prove to a reasonable certainty that Graff and Matlock were living together in the east bedroom at the time of the search. The Court of Appeals affirmed the District Court judgment in all respects. The Supreme Court granted certiorari.
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.
On August 5, 1999, Michael Crawford stabbed Kenneth Lee in the torso during a confrontation at Lee's apartment. Crawford and his wife Sylvia had gone there after Sylvia alleged that Lee had attempted to rape her several weeks earlier. Lee was taken to the hospital and later died from his wounds. Police arrested both Crawford and Sylvia that night. Detectives gave Miranda warnings and interrogated Sylvia twice at the station house. In her recorded statement Sylvia initially denied involvement but eventually admitted she had led Crawford to Lee's apartment and had seen the stabbing. Crawford also gave police a statement describing the events and his belief that Lee may have reached for something before the stabbing. At trial Crawford asserted self-defense, but Sylvia did not testify because of Washington's marital privilege. The State offered Sylvia's tape-recorded statement as evidence that the stabbing was not in self-defense and invoked the hearsay exception for statements against penal interest. The trial court admitted the statement after finding it bore particularized guarantees of trustworthiness. The jury convicted Crawford of assault. The Washington Court of Appeals reversed after applying a nine-factor test and concluding the statement lacked sufficient indicia of reliability. The Washington Supreme Court reinstated the conviction. It determined that Sylvia's statement interlocked with Crawford's statement and therefore bore adequate guarantees of trustworthiness, noting that both accounts were ambiguous on whether Lee had possessed a weapon. The United States Supreme Court granted certiorari.
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(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the-
…against penal interest are to be excluded under Donnelly v. United States , 228 U. S. 243, 272-277 (1913), or because, if Rule 804 (b) (4) of the proposed Federal
…their areas was of Mexican origin. On the other hand, written material inserted in the record of the Senate hearings included former testimony of an experienced federal
…as an exception to the general rule barring admission of hearsay evidence
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.
Supporting sources
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.
Supporting sources