Del. R. Evid. 804

As amended through December 15, 2023

Rule 804 - Exceptions to the Against Hearsay- When the Declarant is Unavailable as a Witness

(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 privilege 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 because 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 the declarant's attendance.

But this subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability as a witness in order to prevent the declarant 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.

(2)Statement under belief of impending death. A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant's impending death.

(3)Statement against interest. A statement which was, at the time of its making, so far contrary to the declarant's pecuniary or propriety 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 and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness 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 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)Other exceptions.

[Omitted].

(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

Del. R. Evid. 804

Amended November 28, 2017, effective 1/1/2018.

Comment

D.R.E. 804(a) tracks F.R.E. 804(a)(1), (2), (3) and (4). D.R.E. 804(a)(5) was modified in 1980 to track the draft of F.R.E. 804(a)(5) as proposed by the United States Supreme Court Advisory Committee instead of F.R.E. 804(a)(5) as adopted by Congress. D.R.E. 804(a)(5) as adopted omits the words "or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), his attendance or testimony" which were added by Congress to the original draft of U.RE.

D.RE. 804(b)(1) tracks F.RE. 804(b)(1).

D.R.E. 804(b)(2) was revised in 1980 so as to track the draft of F.R.E. 804(b)(2) as proposed by the United States Supreme Court Advisory Committee instead of F.R.E. 804(b)(2) as adopted by Congress. The words "In a prosecution for homicide or in a civil action or proceeding" at the beginning of F.R.E. 804(b)(2) were omitted. D.R.E. 804(b)(2) as adopted therefore applies to all criminal and civil proceedings.

D.R.E. 804(b)(3) as adopted in 1980 tracks F.R.E. 804(b)(3). The Committee decided against adopting the language of U.R.E. 804(b)(3). In applying D.R.E. 804(b)(3), care should be taken not to violate the rule in Bruton v. United States, 389 U.S. 818, 88 S. Ct. 126, 19 L. Ed. 2d 70 (1967).

D.RE. 804(b)(4) tracks F.R.E. 804(b)(4). D.R.E. 804(b)(4) as adopted in 1980 modified the case law in Pote v. Farren, Del. Super., 129 A. 238 (1924), which held that the declaration be made after the controversy arose. It does not change the rest of the ruling.

D.R.E. 804(b)(5) was omitted since the Committee found in 1980 that it was the same as D.R.E. 807 (formerly D.R.E. 803(24) ).

D.R.E. 804(b)(6) tracks F.R.E. 804(b)(6)

For prior Delaware cases illustrating the law covered by this rule, see Barnes v. State, Del. Supr., 352 A.2d 409 (1975); Rogers v. Rogers, Del. Super., 66 A. 374 (1907); State v. Virden, Del. Gen. Sess., 118 A. 597 (1922); Gardner v. State, Del. Gen. Sess., 47 A.2d 310 (1946); Gibson v. Gillespie, Del. Super., 152 A. 589 (1928); Hall v. Dougherty, Del. Super., 10 Del. 435 (1878); Stille v. Layton, Del. Super., 2 Del. 149 (1837); Ward v. State, Del. Supr., 395 A.2d 367 (1978); State v. Trusty, Del. Oyer & Term., 40 A. 766 (1898); State v. Oliver, Del. Oyer & Term., 7 Del. 585 (1855).

D.R.E. 804 was amended in 2017 in response to the 2011 restyling of the Federal Rules of Evidence. The amendment is intended to be stylistic only. There is no intent to change any result in ruling on evidence admissibility.