Also known as: Rule 804 · Fed. R. Evid. 804 · Federal Rule of Evidence 804 · FRE804 · FRE 804(b) · hearsay unavailable declarant
Written by attorneys · grounded in primary & secondary sources — see below
A federal evidentiary rule that supplies hearsay exceptions when a declarant is unavailable as a witness. The rule first defines unavailability through categories such as privilege, refusal to testify, lack of memory, death or infirmity, and absence despite reasonable efforts to procure attendance. It then lists discrete exceptions including former testimony, dying declarations, statements against interest, and statements of personal or family history.
Felix Franco, the proponent in a civil contract suit, seeks to introduce a witness's prior deposition. The witness now resides abroad and has ignored subpoenas. Franco shows repeated unsuccessful attempts through letters rogatory and diplomatic channels to secure the witness's return. The court finds the witness unavailable under the absence category because reasonable means failed to procure attendance.
Farah Fox offers a colleague's recorded statement in a fraud prosecution. The colleague admitted falsifying records but also blamed a supervisor for directing the scheme. The court admits only the portions in which the colleague implicated himself because non-self-inculpatory remarks that merely shift blame to another do not qualify under the against-interest exception.
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Freya Freeman offers a former treasurer's written confession in a civil embezzlement case. The treasurer refuses to answer questions about the confession even after the court orders him to testify. Freeman demonstrates that the treasurer's refusal satisfies the unavailability requirement for exceptions that require attendance or testimony.
Francisco Frost is charged with assault. The victim made a statement identifying Frost but later disappeared after Frost threatened her family. The prosecution shows by a preponderance that Frost intended to prevent the victim from testifying. The court admits the statement despite the victim's absence because the defendant forfeited confrontation and hearsay objections through wrongdoing.
Flora Ford is tried for murder. A third party confessed to the crime in detail to several witnesses and then recanted on the stand. The defense offers the confession as a statement against penal interest. The court admits the statement after finding sufficient corroborating circumstances that clearly indicate its trustworthiness.
Francois Fortier offers a prior deposition transcript in a civil negligence action. The deponent takes the stand but testifies that he no longer remembers the events or giving the deposition. The court finds the deponent unavailable because of lack of memory concerning the subject matter of the prior testimony.
Unavailability exists when the declarant is exempted by privilege, refuses to testify despite a court order, testifies to a lack of memory, cannot attend because of death or infirmity, or is absent despite reasonable efforts to procure attendance or testimony. The rule also disqualifies unavailability that the proponent wrongfully caused.
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No. Only discrete remarks that are genuinely self-inculpatory qualify. Portions that merely incriminate another person remain inadmissible even if embedded in an overall inculpatory account.
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The requirement applies only when the statement is offered in a criminal case. In civil cases the exception requires only that a reasonable person would not have made the statement unless believing it true because of exposure to liability.
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Deportation can establish unavailability, but the rule also examines whether the proponent or an opposing party wrongfully caused the absence. If a party intentionally procured the deportation to prevent testimony, that party forfeits hearsay and confrontation objections.
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…right to confrontation. We take no position on the standards necessary to demonstrate such forfeiture, but federal courts using Federal Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the-evidence standard, see, e. g. , United States v. Scott , 284 F. 3d 758, 762…