Art. 804. Hearsay exceptions; declarant unavailable
A. Definition of unavailability. Except as otherwise provided by this Code, a
declarant is "unavailable as a witness" when the declarant cannot or will not appear in court
and testify to the substance of his statement made outside of court. This 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 his statement;
(2) Persists in refusing to testify concerning the subject matter of his statement
despite an order of the court to do so;
(3) Testifies to a lack of memory of the subject matter of his statement;
(4) Is unable to be present or to testify at the hearing because of death or then
existing physical or mental illness, infirmity, or other sufficient cause; or
(5) Is absent from the hearing and the proponent of his statement has been unable to
procure his attendance by process or other reasonable means. A declarant is not unavailable
as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due
to the procurement or wrong-doing of the proponent of his 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. Testimony given as a witness at another hearing of the same
or a different proceeding, if the party against whom the testimony is now offered, or, in a
civil action or proceeding, a party with a similar interest, had an opportunity and similar
motive to develop the testimony by direct, cross, or redirect examination. Testimony given
in another proceeding by an expert witness in the form of opinions or inferences, however,
is not admissible under this exception.
(2) Statement under belief of impending death. A statement made by a declarant
while believing that his death was imminent, concerning the cause or circumstances of what
he believed to be his 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 him
to civil or criminal liability, or to render invalid a claim by him against another, that a
reasonable man in his position would not have made the statement unless he believed 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, made before the
controversy, concerning the declarant's own birth, adoption, marriage, divorce, filiation,
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, made before the controversy, 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) Complaint of sexually assaultive behavior. A statement made by a person under
the age of thirteen years and the statement is one of initial or otherwise trustworthy complaint
of sexually assaultive behavior.
(6) Other exceptions. In a civil case, a statement not specifically covered by any of
the foregoing exceptions if the court determines that considering all pertinent circumstances
in the particular case the statement is trustworthy, and the proponent of the evidence has
adduced or made a reasonable effort to adduce all other admissible evidence to establish the
fact to which the proffered statement relates and the proponent of the statement makes
known in writing to the adverse party and to the court his intention to offer the statement and
the particulars of it, including the name and address of the declarant, sufficiently in advance
of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet
it. If, under the circumstances of a particular case, giving of this notice was not practicable
or failure to give notice is found by the court to have been excusable, the court may authorize
a delayed notice to be given, and in that event the opposing party is entitled to a recess,
continuance, or other appropriate relief sufficient to enable him to prepare to meet the
evidence.
(7)(a) Forfeiture by wrongdoing. A statement offered against a party that has
engaged or acquiesced in wrongdoing that was intended to, and did, procure the
unavailability of the declarant as a witness.
(b) A party seeking to introduce statements under the forfeiture by wrongdoing
hearsay exception shall establish, by a preponderance of the evidence, that the party against
whom the statement is offered, engaged or acquiesced in the wrongdoing.
Acts 1988, No. 515, §1, eff. Jan. 1, 1989; Acts 1995, No. 346, §1; Acts 1995, No.
1300, §§1 and 2; Acts 1997, No. 577, §§2, 4; Acts 2004, No. 26, §4; Acts 2009, No. 7, §1;
Acts 2010, No. 543, §1; Acts 2025, No. 346, §3.