Article VIII. Hearsay

219

Rule 804: Hearsay Exceptions; Declarant Unavailable.

(a) Definition of Unavailability - "Unavailability of a witness" includes situations in which the declarant:

(1) is exempted by ruling of the court on the grounds 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) demonstrates 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 the declarant's 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 by process; or

(6) for depositions in civil actions only, is at a greater distance than 100 miles from the place of trial or hearing.

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.

Advisory Commission Comments.

These grounds for unavailability are familiar to Tennessee practitioners. The fourth and fifth – death, illness, and impossibility of subpoena – are typically the reasons a declarant is unavailable to testify. The first two bases found acceptance by the Supreme Court in Breeden v. Independent Fire Ins. Co., 530 S.W.2d 769 (Tenn. 1975).

Advisory Commission Comments [1994].

The third ground for unavailability is new. Memory lapse, if demonstrated to the trial judge under Rule 104(a), is enough to get the contents of recorded recollection read to the jury, and the same condition should be enough to get cross-examining sworn former testimony before the jury. The new provision also applies to declarations against interest and individual declarations of pedigree.

Advisory Commission Comments [1997].

This amendment conforms Tenn.R.Civ.P. 32 and Tenn.R.Evid. 804. If the former testimony is a deposition, an additional ground of unavailability is a distance of over 100 miles between the deponent and the courthouse.

Advisory Commission Comments [1998].

The amendment to Rule 804(a) is technical.

Advisory Commission Comment [2003].

Paragraph (a)(6) is amended to restrict the 100 mile unavailability ground to depositions in civil, not criminal, trials.

(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 or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had both an opportunity and a similar motive to develop the testimony by direct, cross, or redirect examination.

Advisory Commission Comments.

The rule makes admissible former testimony even though one of the present parties was not at the earlier hearing, but only if the former testimony is offered against the party common to both hearings. In summary, no mutuality of parties is required, such as requirement having been abolished in State v. Causby, 706 S.W.2d 628 (Tenn. 1986).

The rule covers depositions as well as trial and preliminary hearing transcripts. Amended T.R.C.P. 32.01 contains the same principle of admissibility for depositions.

By specifically requiring "both an opportunity and a similar motive,"this proposed rule is designed to avoid the holdings of Lloyd v. American Export Lines, Inc., 580 F.2d 1179 (3d Cir. 1978), and Clay v. Johns-Manville Sales Corp., 722 F.2d 1289 (6th Cir. 1983).

(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 and concerning the cause or circumstances of what the declarant believed to be impending death.

Advisory Commission Comments.

The rule retains Tennessee's common law limitations. The trial must be for homicide of the declarant, and the declaration is limited to circumstances surrounding the declarant's death. Obviously with this restricted exception, the ground for declarant's unavailability invariably will be death.

Advisory Commission Comments [2009].

The revised language makes admissible a dying declaration even though the declarant is not the victim of the homicide being prosecuted. The exception would apply, for example, where there were multiple victims but the prosecutions were severed. The revision also admits dying declarations in civil cases where relevant and material.

(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.

Advisory Commission Comments.

This rule follows modern Tennessee law by admitting declarations against penal interest as well as those against pecuniary or proprietary interest. Breeden v. Independent Fire Ins. Co., 530 S.W.2d 769 (Tenn. 1975); Smith v. State, 587 S.W.2d 659 (Tenn. 1979). The proposal eliminates the condition espoused by Smith that declarations against penal interest offered by the accused in a criminal prosecution must be corroborated.

(4) Statement of Personal and Family History.  A statement made before the controversy arose (A) concerning declarant's own birth, adoption, marriage, divorce, or legitimacy; relationship by blood, adoption, or marriage; ancestry; or other similar fact of personal or family history; even though the declarant had no means of acquiring personal knowledge of the matter asserted; or (B) 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.

Advisory Commission Comments.

When pedigree evidence is an individual's extrajudicial declaration rather than the community consensus, the declarant must be unavailable and must have spoken or written "before the controversy arose."  The rule reflects Tennessee common law.

(5) [Reserved.]

Advisory Commission Comments.

There is no residual exception even where declarants are unavailable. Occasionally, however, constitutional considerations require a tribunal permit the accused in a criminal case to introduce trustworthy hearsay not falling within a traditional exception. See Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). See also F.R.Evid. 804(b)(5).

(6) Forfeiture by Wrongdoing.  A statement offered against a party that has engaged in wrongdoing that was intended to and did procure the unavailability of the declarant as a witness.

[As amended by order entered December 20, 1994, effective July 1, 1994; by order effective July 1, 1997; and by order effective July 1, 1998; as added by order entered January 26, 1999, effective July 1, 1999; by order entered January 31, 2003, effective July 1, 2003; and by order entered January 8, 2009, effective July 1, 2009.]

Advisory Commission Comments [1999].

Rule 804(b)(6) adds a new hearsay exception. It seems only fair to let a party offer any extrajudicial statements of declarants whose unavailability was procured by the opponent.

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