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Hearsay Exceptions When The Declarant Is Unavailable To Testify

  1. Former Testimony. Testimony given as a witness at another hearing in the same or a different proceeding, or in a deposition, is admissible when the declarant is unavailable, provided the party against whom the testimony is now being offered had the opportunity to question or cross-examine the witness (Fed. R. Evid. 804(1)).
  2. A Statement Made Under the Belief of Impending Death. A statement made by a declarant who, when making the statement, believed death to be imminent, is admissible to show the cause or circumstances of the death. For example, the statement "Horace shot me," made moments before the declarant died, is admissible for the purpose of proving that Horace committed murder (Fed. R. Evid. 804(2)).
  3. A Statement Against the Declarant's Interest. A statement that, at the time of its making, was contrary to the declarant's pecuniary or proprietary interest, or that subjected the declarant to civil or criminal liability, is admissible if the declarant is unavailable to testify. For example, the statement "I never declare all my income on my tax returns" could subject the declarant to criminal tax fraud liability, and is thus an admissible statement against interest (Fed. R. Evid. 804(3)).
  4. A Statement of Personal or Family History. A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, or similar fact of personal family history is admissible hearsay when the declarant is unavailable to testify (Fed. R. Evid. 804(4)).

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