(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.
Comment
Out-of-court statements are admissible under Rule 803 because, when made under thecircumstances described in those exceptions, they are generally more reliable than in-court testimony during a trial or hearing, which is usually long after the event in question and after the witnesses know the parties are in litigation, thus cross-examination would add little to the reliability of the fact-finding process.[1] Statements admissible under Rule 804 have a different reason for admission. While cross-examination "is the greatest legal engine ever invented for the discovery of truth"[2] and thus live testimony is preferable, Rule 804 recognizes that, when the declarant is unavailable and thus cannot testify and be cross-examined, in certain circumstances the out-of-court statements are better than nothing at all, so in the circumstances listed in the exceptions of that rule, the out-of-court statements are admissible. Thus, for a statement to be admissible under Rule 804 the declarant must be unavailable and the statement must have an adequate indicia of reliability, which will exist if the statement was given under the circumstances listed in the exceptions.[3]
The determination whether a witness is unavailable is a preliminary question for the trial court under Rule 104(a), thus the trial court is not bound by the rules of evidence and may consider such things as hearsay in making this determination.[4] A witness is unavailable where (1) the witness is exempt from testifying because of a privilege,[5] (2) the witness refuses to testify,[6] (3) the witness cannot remember,[7] (4) the witness is dead or physically or mentally impaired,[8] or (5) the proponent has been unable to procure the witness's attendance by reasonable means.[9] This rule specifically provides that a declarant is not unavailable if the witness's exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying. Thus, a defendant who chooses not to testify could not use this as a means to admit the defendant's own statements by claiming they were against his or her penal or pecuniary interest. Even though the trial court determines that the witness is unavailable, the evidence still might be inadmissible if some other rule precludes it, such as the requirement that the witness (or in this case the declarant) have firsthand knowledge.[10]
Paragraph (1) allows the admission of former testimony in a criminal case whenever a witness is declared incompetent to testify or is otherwise unavailable.[11] Rule 803(25) allows the admission of former testimony in a civil case, and apparently reflects the preference of civil practitioners not to have live testimony. In a criminal case, this testimony is admissible if it complies with the requirements of Rule 19.3(c)(1), Ariz. R. Crim. P.,[12] which allows prior recorded testimony if the party against whom the evidence is offered was a party in the action from which the prior testimony came, and that party had the right and opportunity to cross-examine the declarant[13] with an interest and motive similar to that in the present action.[14]
Paragraph (2) allows for the admission in a homicide prosecution or a civil action of a statement when the declarant believed death was imminent and made a statement concerning the cause and circumstances of the impending death.[15] There need not be a direct assertion by the declarant that the declarant was dying when the statement was made; all that is required is that the declarant was under a sense of impending death, which may be shown by either direct or circumstantial evidence.[16] At common law, this was the exception for dying declarations, and was admissible only in homicide prosecution. This rule expands the exception to include civil actions and proceedings, but in a criminal prosecution the exception is still limited to homicide cases.
Paragraph (3) allows the admission of declarations against interest based on the presumption that a person would not say something against pecuniary or proprietary interest, or something that would subject the person to civil or criminal liability, unless it were true.[17] The rule is structured within the reasonable person test, meaning an ordinary person within a particular fact situation would not have made the statement unless the person believed it to be true. When the statement exposes the declarant to criminal liability and at the same time exculpates the accused at a criminal trial, the statement is not admissible unless corroborating circumstances clearly indicate the truthfulness of the statement.[18] Corroborating circumstances are only those under which the statement was made, thus the trial court may not consider extrinsic evidence that may corroborate the truthfulness of the statement.[19] When the statement exposes the declarant to criminal liability and at the same time inculpates the accused at a criminal trial, this rule allows only those portions of the statement that are truly inculpatory,[20] and does not allow admission of non-self-inculpatory statements, even if made within a broader narrative that is generally self-inculpatory.[21] Admission of a statement offered under this exception does not violate a defendant's Sixth Amendment right of confrontation,[22] and exclusion of a statement offered under this exception by the defendant does not violate the constitutional right to present evidence.[23]
This paragraph does not apply to statements made by a party-opponent. Those statements are excluded from the definition of hearsay under Rule 801(d)(2), so there is no need to rely upon a hearsay exception for their admission.
Paragraph (4) allows for the admission of a statement concerning the declarant's own personal history, even if the declarant had no means of acquiring personal knowledge of the matter stated. In addition, it allows for admission of a statement by the declarant concerning a third person's personal...
