Rule 804 - Exceptions to the Rule 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 (A) the statement's proponent has not been able, by process or other reasonable means, to procure: (i) the declarant's attendance, in the case of a hearsay exception under subrule (b)(1), (2), or (6); or(ii) the declarant's attendance or testimony, in the case of a hearsay exception under subrule (b)(3), (4), or (5); and(B) in a criminal case, the proponent shows due diligence. But this subrule (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) the Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:(1) Former testimony. Testimony that: (A) was given as a witness at a trial or hearing whether given during the current proceeding or a different one; and (B) is now offered against a party who had - or, in a civil case, whose predecessor in interest had - an opportunity and similar motive to develop it by direct, or cross, or redirect examination.(2) Deposition Testimony. A witness's testimony given in a lawful deposition during the same or another proceeding, if the party against whom the testimony is now offered had - or in a civil case, a predecessor in interest had - an opportunity and similar motive to develop the testimony by direct, or cross-, or redirect examination. For this paragraph (2) only, "unavailability of a witness" also includes situations in which: (A) the witness is more than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the witness's absence was procured by the party offering the deposition; or(B) on motion and notice, exceptional circumstances make it desirable - in the interests of justice and with due regard to the importance of presenting witnesses' testimony orally in open court - to allow the deposition to be used.(3) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.(4) Statement Against Interest. A statement that: (A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and(B) must be supported by corroborating circumstances that clearly indicate its trustworthiness, if it tends to expose the declarant to criminal liability.(5) Statement of Personal or Family History. A statement about: (A) the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person's family that the declarant's information is likely to be accurate. (6) Statement Offered Against a Party That Wrongfully Caused or Encouraged the declarant's Unavailability. A statement offered against a party that wrongfully caused - or encouraged - the declarant's unavailability as a witness, and did so intending that result. Amended September 20, 2023, effective 1/1/2024; amended April 11, 2024, effective 4/11/2024; amended March 27, 2024, effective 5/1/2024.Staff Comment (ADM File No. 2022-30): The amendment of MRE 702 requires the proponent of an expert witness's testimony to demonstrate that it is more likely than not that the factors for admission are satisfied and clarifies that it is the expert's opinion that must reflect a reliable application of principles and methods to the facts of the case. The amendment of MRE 804(b)(4)(B) requires corroborating circumstances of trustworthiness for any statement against interest that exposes a declarant to criminal liability.