Rule 804. Hearsay Exceptions; Declarant Unavailable

(a) Definition of unavailability. "Unavailability as a witness" includes
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; or

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

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

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

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

A declarant is not unavailable as a witness if exemption, refusal, claim of lack
of memory, inability, or absence is due to the procurement or wrongdoing of the
proponent of a 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 (criminal action or proceeding). Former testimony in
criminal actions or proceedings as provided in Rule 19.3(c), Rules of Criminal
Procedure
.

(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 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 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 believing 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. A statement not specifically covered by any of the
foregoing exceptions but having equivalent circumstantial guarantees of
trustworthiness, if the court determines that (A) the statement is offered as
evidence of a material fact; (B) the statement is more probative on the point
for which it is offered than any other evidence which the proponent can procure
through reasonable efforts, and (C) the general purposes of these rules and the
interests of justice will best be served by admission of the statement into
evidence. However, a statement may not be admitted under this exception unless
the proponent of it makes known to the adverse party sufficiently in advance of
the trial or hearing to provide the adverse party with a fair opportunity to
prepare to meet it, the proponent's intention to offer the statement and the
particulars of it, including the name and address of the declarant.

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