Ohio R. Evid. 804

As amended through March 13, 2024

Rule 804 - Hearsay Exceptions; Declarant Unavailable

(A) Definition of unavailability. "Unavailability as a witness" includes any of the following 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;

(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;

(3) testifies to a lack of memory of the subject matter of the declarant's statement;

(4) is unable to be present or to testify at the hearing because of death or then-existing physical or mental illness or infirmity;

(5) is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under division (B)(2), (3), or (4) of this rule, the declarant's attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if the declarant's exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant's 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. Testimony given at a preliminary hearing must satisfy the right to confrontation and exhibit indicia of reliability.

(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 his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impending death.

(3) Statement against interest. A statement that 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 the declarant believed it to be true. A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the truthworthiness 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 the 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) Statement by a deceased or incompetent person. The statement was made by a decedent or a mentally incompetent person, where all of the following apply:

(a) the estate or personal representative of the decedent's estate or the guardian or trustee of the incompetent person is a party;

(b) the statement was made before the death or the development of the incompetency;

(c) the statement is offered to rebut testimony by an adverse party on a matter within the knowledge of the decedent or incompetent person.

(6) Forfeiture by wrongdoing. A statement offered against a party if the unavailability of the witness is due to the wrongdoing of the party for the purpose of preventing the witness from attending or testifying. However, a statement is not admissible under this rule unless the proponent has given to each adverse party advance written notice of an intention to introduce the statement sufficient to provide the adverse party a fair opportunity to contest the admissibility of the statement.

Ohio. R. Evid. 804

Effective 7/1/1980; amended effective 7/1/1981,7/1/1993;7/1/2001.

Staff Note (July 1, 2001 Amendment)

Evidence Rule 804 Hearsay exceptions; declarant unavailable

Evidence Rule 804(A) Definition of unavailability

The amendment to division (A) of the rule involved clarifying changes in language. In addition, the amendment placed in a separate paragraph what had been in the last sentence of division (A)(5) in order to clarify that the final sentence of the division applies to all of the rule's definitions of "unavailability." No substantive change is intended by these amendments.

Evidence Rule 804(B)(6) Forfeiture by wrongdoing

The 2001 amendment added division (B)(6), forfeiture by wrongdoing. This division recognizes a forfeiture rule for hearsay statements that would have been admissible as testimony had the witness been present at trial. It is patterned on the federal rule, which was adopted in 1997. It codifies a principle that has been recognized at common-law in Ohio.

Rationale. The U.S. Supreme Court has recognized the forfeiture doctrine in the context of the right of confrontation. In Illinois v. Allen, 397 U.S. 337 (1970), the Court held that while the defendant has the right to be present at his or her trial, the right may be lost where defendant is so disorderly that the trial cannot be continued with his or her presence. Similarly, the Court held in Taylor v. United States, 414 U.S. 17 (1973), that defendant's voluntary absence from the courtroom can be construed as a waiver of the defendant's right to confrontation, without a warning from the court. In Reynolds v. United States, 98 U.S. 145 (1878), the Court upheld the admissibility of hearsay because the defendant had refused to reveal the declarant's location.

The term "forfeiture" was chosen over alternatives such as "waiver," "waiver by conduct," or "implied" or "constructive waiver" because the rule applies even if the party is not aware of the right of confrontation or the hearsay rule. In other words, the intentional relinquishment of a known right is not the standard.

Only a few Ohio cases have addressed the issue, but all have recognized that Ohio's commonlaw of evidence incorporates a rule of forfeiture similar to the federal rule. See State v. Kilbane, 1979 Ohio App. Lexis 10550, Nos. 38428, 38383, 38433 (8th Dist. Ct. App., 4/3/79), at *19; State v. Liberatore, 1983 Ohio App. Lexis 13808, No. 46784 (8th Dist. Ct. App. 12/3/83), at *13 ("[T]he evidence in Steele clearly indicated that the defendants had procured the witness' unavailability. The evidence in the instant case is far from clear that defendant procured Mata's 'unavailability'."); State v. Brown, 1986 Ohio App. Lexis 6567, No. 50505 (8th Dist. Ct. App. 4/24/86), at *11-12 ("[T]he victim expressed concern that the defendant's brother had threatened her mother and her children. An accused cannot rely on the confrontation clause to preclude extrajudicial evidence from a source which he obstructs.") See also Steele v. Taylor, 684 F.2d 1193, 1200-04 (6th Cir. 1982) (federal habeas corpus review of the conviction in Kilbane), cert. denied, 460 U.S. 1053 (1983).

Standard. The offering party must show (1) that the party engaged in wrongdoing that resulted in the witness's unavailability, and (2) that one purpose was to cause the witness to be unavailable at trial. See United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996) ("waiver by homicide") ("[I]t is sufficient in this regard to show that the evildoer was motivated in part by a desire to silence the witness; the intent to deprive the prosecution of testimony need not be the actor's sole motivation."), cert. denied, 519 U.S. 1118 (1997).

Coverage. As the federal drafters note, "[t]he wrongdoing need not consist of a criminal act. The rule applies to all parties, including the government. It applies to actions taken after the event to prevent a witness from testifying." Fed.R.Evid. 804 advisory committee's note. Thus, the rule does not apply to statements of the victim in a homicide prosecution concerning the homicide, including a felony-murder case.

The Ohio rule does not adopt the word "acquiesce" that is used in the federal rule. This departure from the federal model is intended to exclude from the rule's coverage situations in which, under federal practice, a party's mere inaction has been held to effect a forfeiture. See, e.g. United States v. Mastrangelo, 693 F.2d 269, 273-74 (2nd Cir. 1982), cert. denied, 467 U.S. 1204 (1984) ("Bare knowledge of a plot to kill Bennett and a failure to give warning to appropriate authorities is sufficient to constitute a waiver.") Encouraging a witness to invoke a valid privilege, such as the Fifth Amendment, or the spousal competency rule, Evid. R. 601, does not trigger this rule because such conduct is not wrongdoing. Encouraging a witness to leave the state is wrongdoing in this context because no one has the legal right to refuse to provide testimony in the absence of a privilege or other rule of evidence. The prosecution, however, should not be able to cause a potential defense witness to assert the Fifth Amendment for the sole purpose of making that witness unavailable to the defense and then refuse to immunize that witness's testimony.

The rule extends to potential witnesses. See United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996) ("Although the reported cases all appear to involve actual witnesses, we can discern no principled reason why the waiver-by-misconduct doctrine should not apply with equal force if a defendant intentionally silences a potential witness.") (citation omitted), cert. denied, 519 U.S. 1118 (1997).

The rule governs only the hearsay aspect; the trial court retains authority under Evid. R. 403 to exclude unreliable statements. This is probably also a due process requirement. See generally Comment, The Admission of Hearsay Evidence Where Defendant Misconduct Causes the Unavailability of a Prosecution Witness, 43 Am. U. L. Rev. 995, 1014 (1994) ("The procuring defendant actually acknowledges the reliability of the absent witness' information when he or she endeavors to derail the witness' court appearance - an act the defendant would be less likely to commit if the witness's information is false or untrustworthy.")

The rule does not cover the admissibility of evidence regarding the wrongful act of procuring a witness's unavailability when the evidence is offered as an "implied" admission. Evidence of that character is not hearsay and is governed by the relevance rules. 1 Giannelli & Snyder, Baldwin's Ohio Practice, Evidence Section 401.9 (1996) (admissions by conduct).

Procedures. The trial court decides admissibility under Evid. R. 104(A); the traditional burden of persuasion (preponderance of evidence) rests with the party offering the evidence once an objection is raised. If the evidence is admitted, the court does not explain the basis of its ruling to the jury. This is similar to the procedure used in admitting a co-conspirator statement under Evid. R. 801(D)(2)(c), where the trial judge must decide the existence of a conspiracy as a condition of admissibility but would not inform the jury of this preliminary finding.

The opposing party would, however, have the opportunity to attack the reliability of the statement before the jury, Evid. R. 104(E), and impeach the declarant under Evid. R. 806.

The notice requirement, which is based on Evid. R. 609(B), may trigger an objection by a motion in limine and the opportunity for determining admissibility at a hearing outside the jury's presence. See United States v. Thai, 29 F.3d 785 (2d Cir. 1994) (unsworn statements made to detective prior to declarant's murder by defendant). ("Prior to admitting such testimony, the district court must hold a hearing in which the government has the burden of proving by a preponderance of the evidence that the defendant was responsible for the witness's absence.")

Staff Note (July 1, 1993 Amendment)

Rule 804 Hearsay Exceptions; Declarant Unavailable

Rule 804(A) Definition of unavailability

The only changes to division (A) are the use of gender neutral language; no substantive change is intended.

Rule 804(B) Hearsay exceptions

The substantive amendment to this division is in division (B)(5). The amendment to division (B)(5) removes references to "deaf-mutes" as a separate category of incompetent persons whose statements are admissible on behalf of an estate, guardian, or personal representative to rebut certain testimony by adverse parties.

The hearsay exception established by Evid. R. 804(B)(5) is designed to account for the effective abolition of the "Dead Man's Statute" (R.C. 2317.04) by the provisions of Evid. R. 601. The statute prohibited a party from testifying when the adverse party was, among others, "the guardian or trustee of either a deaf and dumb or an insane person." R.C. 2317.04. Under Evid. R. 601, there is no competency bar to a party's testimony in those cases, but if the party does testify, Evid. R. 804(B)(5) permits the guardian or trustee to introduce the statements of the ward in rebuttal.

As originally drafted, Evid. R. 804(B)(5) referred to the same categories of persons subject to guardianship as were referred to in the statute, albeit with some modernization in terminology. In particular, the rule identified "a deaf-mute who is now unable to testify" as a category of declarant-ward distinct from "a mentally incompetent person." As employed in the statute, however, that distinction appears to be no more than a remnant of nineteenth century guardianship laws, which at one time provided for the guardianship of the "deaf and dumb" separately from provisions for guardians of "idiots" or the "insane." See Act of March 9, 1838, Section 17, 36 Ohio Laws 40. To a large extent, provisions of that kind reflected the nineteenth century view that a person who was "deaf and dumb" was probably, if not certainly, mentally incompetent.

The nineteenth century's assumptions about the mental faculties of those with hearing or speech impairments are certainly inaccurate as an empirical matter. In any event, under modern law, the appointment of a guardian for an adult requires a determination that the person is mentally incompetent and there is no separate provision for the guardianship of incompetent "deaf-mutes." See R.C. 2111.02. That being the case, the "deaf-mute" declarants referred to in the rule are necessarily included within the rule's class of "mentally incompetent person[s]": an adult subject to a guardianship is by definition mentally incompetent, without regard to the existence of a "deaf-mute condition."

The identification of a separate class of "deaf-mute" declarants is thus redundant, and it likewise rests on archaic and mistaken views of the effect of hearing and speech impairments on one's mental capacities. The amendment deletes the rule's references to "deaf-mute" declarants in order to eliminate both of these difficulties, and in order to clarify that the rule applies only to statements by declarants who are deceased or mentally incompetent.