Miss. R. Evid. 804

As amended through March 21, 2024

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;

(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:

(A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

(B) the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4); or

(6) is a child for whom testifying in the physical presence of the accused is substantially likely to impair the child's emotional or psychological health substantially.

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)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, hearing, or lawful deposition, 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, cross-, or redirect examination.

(2)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.

(3)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) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

(4)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.

(5)Other Exceptions. A statement not specifically covered by this Rule if:

(A) the statement has equivalent circumstantial guarantees of trustworthiness;

(B) it is offered as evidence of a material fact;

(C) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts;

(D) admitting it will best serve the purposes of these rules and the interests of justice; and

(E) before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant's name and address, so that the party has a fair opportunity to meet it.

(6)Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability. A statement offered against a party that wrongfully caused - or acquiesced in wrongfully causing - the declarant's unavailability as a witness, and did so intending that result.

Miss. R. Evid. 804

Amended effective 3/27/1991; amended effective 7/1/2009; restyled eff. 7/1/2016; amended effective 7/1/2020.

Advisory Committee Historical Note.

Effective March 20, 1995, the Comment to Rules 804(a) and (b)(1) were amended to note the repeal of a statute. 648-651 So.2d 651 So.2d XXVI (West Miss.Cas.1995).

Effective March 27, 1991, Rule 804(a) and its Comment were amended to add a sixth definition of unavailability applicable only to child declarants, Rule 804(a)(6). 574-576 So.2d XXVIII (West Miss.Cas.1991).

Effective March 1, 1989, the Comment regarding Rule 804(a)(5) was amended to include a statement that this rule does not affect the admissibility of depositions under a civil rule. 536-538 So.2d XXXII (West Miss.Cas.1989).

Advisory Committee Note

The language of Rule 804 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. Rule 804(b)(5) has been restructured with additional subparagraphs. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

(a) In defining unavailability, the rule lists six situations in which unavailability exists:

(1) When the witness exercises a privilege, he is deemed to be unavailable as to the portion of his testimony which is covered by the claimed privilege. The trial court, however, may first make a preliminary determination that the witness has the right to claim the privilege asserted.

(2) When a witness refuses to testify, despite being ordered to do so by the court, he is deemed unavailable.

(3) If the witness testifies that he has a lack of memory as to the subject matter under inquiry, he is deemed to be unavailable.

(4) Death and sickness render a witness unavailable. See Paulk v. Housing Authority of Tupelo, 228 So.2d 871 (Miss. 1969), and Home Ins. Co. v. Gerlach, 220 Miss. 732, 71 So.2d 787 (1954).

(5) Absence of the witness from the hearing accompanied by an inability of the proponent of the evidence to compel the witness's presence is within the definition of unavailability. Nothing contained herein, however, shall affect the admissibility of depositions otherwise admissible under M.R.C.P. 32.

(6) The rationale for this definition of unavailability is based on the recognition of child trauma. If the exception in Rule 804(b)(1) were to be applied in a criminal case, the rights of the defendant under the Confrontations Clauses of Federal and State Constitutions must be respected. Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed. 666 (1990); Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988).

A finding of unavailability and indicia of reliability should be made on the record.

If, however, the proponent of the evidence is responsible for the existence of any of the aforementioned conditions, the condition of unavailability for the purposes of Rule 804 is not satisfied.

Rule 804 gives a more expanded definition of unavailability than existed under M.C.A. 13-1-111 (repealed effective July 1, 1991) which provided for unavailability only in the case of physical or mental incapacity.

(b) (1) Former Testimony. The former testimony exception is recognized at common law. McMasters v. State, 83 Miss. 1, 35 So. 302 (1903). An essential ingredient of the exception has always been the unavailability of the declarant. See Ellis & Williams, Mississippi Evidence, 8-19.

M.C.A. 13-1-111 (repealed effective July 1, 1991) formerly provided for the use of former testimony in civil actions. In addition, the Mississippi court used the common law exception to admit testimony given in a prior criminal action. Smith v. State, 247 So.2d 705 (Miss. 1971); Lee v. State, 124 Miss. 398, 86 So. 856 (1921).

Rule 804(b)(1) permits the prior testimony to be offered (1) against the party against whom it was previously offered or (2) against the party who offered it previously. Thus, the rule equates the direct and redirect examination of one's own witness with the cross-examination of an adversarial witness.

It is not required that the former testimony be in an earlier proceeding of the same case. It is only essential that the party against whom it is directed had a similar motive and an opportunity to develop the testimony on the previous occasion. The rule does not speak in terms of identity of issues. Identity of issues is only important because it bears on motive. Thus, the rule deletes the law common phrase "identity of issues" and substitutes "motive" and "opportunity."

(b) (2) Statement Under Belief of Impending Death. This rule is broader than the common law dying declaration exception formerly observed in Mississippi practice. The rule allows for the dying declaration to be used in homicide cases and in civil actions, but it is not available in non-homicide criminal actions. Mississippi practice has permitted dying declarations only in cases of homicide.

(b)(3) Statement Against Interest. Rule 804(b)(3) expands the common law exception of declaration against interest. Traditionally, courts have recognized two declarations against interest, pecuniary and proprietary. The rule extends the exception to declarations against penal interest on the theory that such declarations are reliable. No reasonable person would make such a statement and subject himself to possible criminal liability if the statement were not true.

Subparagraph (b)(3)(B) provides that the corroborating circumstances requirement applies to all declarations against penal interest offered in criminal cases. A unitary approach to declarations against penal interest assures both the prosecution and the accused that the Rule will not be abused and that only reliable hearsay statements will be admitted under the exception. The Rules does not address the use of the corroborating circumstances for declarations against penal interest offered in civil cases.

In assessing whether corroborating circumstances exist, the credibility of the witness who relates the statement is not a proper factor for the court to consider in assessing corroborating circumstances. To base admission or exclusion of a hearsay statement on the witness's credibility would usurp the jury's role of determining the credibility of testifying witnesses.

(b)(4) Statement of Personal or Family History. This rule is similar to Rule 803(19). The distinguishing feature is that the statements under Rule 804(b)(4) are statements made by unavailable declarants concerning their own personal and family history or that of a family member or intimate associate. Rule 803(19) focuses more on reputation.

(b)(5) This rule is identical to Rule 803(24) in both language and intent.

(b)(6) Forfeiture by Wrongdoing. Rule 804(b)(6) provides that a party forfeits the right to object on hearsay grounds to the admission of a declarant's prior statement when the party's deliberate wrongdoing or acquiescence therein procured the unavailability of the declarant as a witness. This recognizes the need for a prophylactic rule to deal with abhorrent behavior "which strikes at the heart of the system of justice itself." United State v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982), cert. denied, 104 S.Ct. 2385(1984). Davis v. Washington, 126 S. Ct. 2266, 2280 (2006) ("While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system."). Likewise, a party forfeits rights under the Confrontation Clause when misconduct attributable to a party causes a witness's absence. U.S. v. Carson, 455 F.3d 336 (C.A.D.C. 2006) (wrongdoing by co-conspirators). The wrongdoing need not consist of a criminal act and the rule applies to all parties, including the government.

When any of the hearsay exceptions in Rule 804 are applied in a criminal case, the rights of the defendant under the Confrontations Clauses of Federal and State Constitutions must be respected. Crawford v. Washington 124 S.Ct. 1354 (2004) (The confrontation clause forbids "admission of testimonial statements of a witness who did not appear at trial unless [the witness is] unavailable to testify, and the defendant had had a prior opportunity for crossexamination."); Davis v. Washington, 126 S.Ct. 2266 (2006) (Among other things, prior testimony, depositions, affidavits, and confessions are testimonial, as are other statements to police if "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."). See also Rubenstein v. State 941 So. 2d 735 (Miss. 2006) (applying Rule 804(b)(5) in light of Crawford and finding statements nontestimonial); Bell v. State, 928 So. 2d 951 (Miss. Ct. App. 2006) (applying Rules 804(a)(6) and 803(2) in light of Crawford and finding statements testimonial).

[Amended effective July 1, 2009, to update citations and add subsection (b)(6); amended effective December 1, 2015, to update subsection (a)(5); "Advisory Committee Note" substituted for "Comment," effective June 16, 2016; amended July 1, 2016, to note restyling; amended effective July 1. 2020.]

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