Rule 804. Hearsay exceptions; declarant unavailable. - North Carolina Statutes

Rule 804. Hearsay exceptions; declarant unavailable.

(a)        Definition of unavailability. – "Unavailability as awitness" includes situations in which the declarant:

(1)        Is exempted by ruling of the court on the ground ofprivilege from testifying concerning the subject matter of his statement; or

(2)        Persists in refusing to testify concerning the subjectmatter of his statement despite an order of the court to do so; or

(3)        Testifies to a lack of memory of the subject matter of hisstatement; or

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

(5)        Is absent from the hearing and the proponent of hisstatement has been unable to procure his attendance (or in the case of a hearsayexception under subdivision (b)(2), (3), or (4), his attendance or testimony)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 orwrongdoing of the proponent of his statement for the purpose of preventing thewitness from attending or testifying.

(b)        Hearsay exceptions. – The following are not excluded by thehearsay rule if the declarant is unavailable as a witness:

(1)        Former Testimony. – Testimony given as a witness at anotherhearing of the same or a different proceeding, or in a deposition taken incompliance with law in the course of the same or another proceeding, if theparty against whom the testimony is now offered, or, in a civil action orproceeding, a predecessor in interest, had an opportunity and similar motive todevelop the testimony by direct, cross, or  redirect examination.

(2)        Statement Under Belief of Impending Death. – A statementmade by a declarant while believing that his death was imminent, concerning thecause or circumstances of what he believed to be his impending death.

(3)        Statement Against Interest. – A statement which was at thetime of its making so far contrary to the declarant's pecuniary or proprietaryinterest, or so far tended to subject him to civil or criminal liability, or torender invalid a claim by him against another, that a reasonable man in hisposition would not have made the statement unless he believed it to be true. Astatement tending to expose the declarant to criminal liability is notadmissible in a criminal case unless corroborating circumstances clearlyindicate the trustworthiness of the statement.

(4)        Statement of Personal or Family History. – (A) A statementconcerning the declarant's own birth, adoption, marriage, divorce, legitimacy,relationship by blood, adoption, or marriage, ancestry, or other similar factof personal or family history, even though declarant had no means of acquiringpersonal knowledge of the matter stated; or (B) a statement concerning theforegoing matters, and death also, of another person, if the declarant wasrelated to the other by blood, adoption, or marriage or was so intimatelyassociated with the other's family as to be likely to have accurate informationconcerning the matter declared.

(5)        Other Exceptions. – A statement not specifically covered byany of the foregoing exceptions but having equivalent circumstantial guaranteesof trustworthiness, if the court determines that (A) the statement is offeredas evidence of a material fact; (B) the statement is more probative on thepoint for which it is offered than any other evidence which the proponent canprocure through reasonable efforts; and (C) the general purposes of these rulesand the interests of justice will best be served by admission of the statementinto evidence. However, a statement may not be admitted under this exceptionunless the proponent of it gives written notice stating his intention to offerthe statement and the particulars of it, including the name and address of thedeclarant, to the adverse party sufficiently in advance of offering thestatement to provide the adverse party with a fair opportunity to prepare tomeet the statement. (1983, c. 701, s.1.)