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Rule 804. Hearsay Exceptions-Declarant Unavailable.
(a) Definition of Unavailability. The definition of unavailability implements the division of hearsay exceptions into two categories: Rules 803 and 804(b).
At common law the unavailability requirement was evolved in connection with particular hearsay exceptions rather than along general lines. However, no reason is apparent for making distinctions as to what satisfies unavailability for the different exceptions.
Five instances of unavailability are specified:
(1) Substantial authority supports the position that exercise of a claim of privilege by the declarant satisfies the requirement of unavailability (usually in connection with former testimony). Wyatt v. State, 46 So.2d 837 (Ala. App. 1950); State v. Stewart, 116 P. 489 (Kan. 1911); Annot., 45 A.L.R.2d 1354; Uniform Rule 62(7) (a); California Evidence Code § 240 (a) (1); Kansas Code of Civil Procedure § 60-459(g) (1). A ruling by the judge is required, which clearly implies that an actual claim of privilege must be made.
(2) A witness is rendered unavailable if he simply refuses to testify concerning the subject matter of his statement despite judicial pressures to do so, a position supported by similar considerations of practicality. Johnson v. People, 384 P.2d 454 (Colo. 1963); People v. Pickett, 63 N.W.2d 681, 45 A.L.R.2d 1341 (Mich. 1954). Contra, Pleau v. State, 38 N.W.2d 496 (Wis. 1949).
(3) The position that a lack of memory by the witness of the subject matter of his statement constitutes unavailability likewise finds support in the cases, though not without dissent. If the claim is successful, the practical effect is to put the testimony beyond reach, as in the other instances. In this instance, however, it will be noted that the lack of memory must be established by the testimony of the witness himself, which clearly contemplates his production and subjection to cross-examination. However, the court may choose to disbelieve the declarant's testimony as to his lack of memory. To make this clear, Rule 804(a) (3) begins with the word "establishes" rather than the words "testifies to" which begin its federal counterpart. See United States v. Insana, 423 F.2d 1165, 1169-1170 (2nd Cir.), cert. denied, 400 U.S. 841 (1970). A preliminary finding is required under Rule 104(a).
(4) Death and infirmity find general recognition as grounds. Uniform Rule 62(7) (c); California Evidence Code § 240(a) (3); Kansas Code of Civil Procedure § 60-459(g) (3); New Jersey Evidence Rule 62(6) (c). See also the provisions on use of depositions in Rule 32(a) (3) of the Alaska Rules of Civil Procedure and Rule 15(e) of the Alaska Rules of Criminal Procedure.
(5) Absence from the hearing coupled with inability to compel attendance by process or other reasonable means or to depose the declarant in order to provide an opportunity for oath and cross-examination also satisfies the requirement. Uniform Rule 62(7) (d) and (e); California Evidence Code § 240(a) (4) and (5); Kansas Code of Civil Procedure § 60-459(g) (4) and (5); New Jersey Rule 62(6) (b) and (d). If the conditions otherwise constituting unavailability result from the procurement or wrongdoing of the proponent of the statement, the requirement is not satisfied.
The requirement that an attempt to depose a witness have been made, if possible, was added by the Committee on the Judiciary of the House of Representatives when it considered the Federal Rules. The Senate Committee on the Judiciary was not enthusiastic about the addition, arguing:
Under the House amendment, before a witness is declared unavailable, a party must try to depose a witness (declarant) with respect to dying declarations, declarations against interest, and declarations of pedigree. None of these situations would seem to warrant this needless, impractical and highly restrictive complication. A good case can be made for eliminating the unavailability requirement entirely for declarations against interest cases.
In dying declaration cases, the declarant usually, though not necessarily, will be deceased at the time of trial. Pedigree statements which are admittedly and necessarily based largely on word of mouth are not greatly fortified by a deposition requirement.
Depositions are expensive and time-consuming. In any event, deposition procedures are available to those who wish to resort to them. Moreover, the deposition procedures of the Civil Rules and Criminal Rules are only imperfectly adapted to implementing the amendment. No purpose is served unless the deposition, if taken, may be used in evidence.... [Footnote omitted.]
But the Senate Committee concluded with a statement indicating it did not completely disagree with the goals of the House Committee:
The committee understands that the rule as to unavailability, as explained by the Advisory Committee "contains no requirement that an attempt be made to take the deposition of a declarant." In reflecting the committee's judgment, the statement is accurate insofar as it goes. Where, however, the proponent of the statement, with knowledge of the existence of the statement, fails to confront the declarant with the statement at the taking of the deposition, then the proponent should not, in fairness, be permitted to treat the declarant as "unavailable" simply because the declarant was not amenable to process compelling his attendance at trial. The committee does not consider it necessary to amend the rule to this effect because such a situation abuses, not conforms to, the rule. Fairness would preclude a person from introducing a hearsay statement on a particular issue if the person taking the deposition was aware of the issue at the time of the deposition but failed to depose the unavailable witness on that issue.
Despite the fact that several states have abjured the provision requiring an effort to depose, this rule follows the federal lead in requiring that oath and cross-examination are utilized whenever reasonably possible. An opportunity for oath and cross-examination is favored despite its costs.
Paragraph (b) (1) is not included under (a) (5) for an obvious reason; there has already been an opportunity for oath and cross-examination. The Federal Rule excluded (b) (5) as well, but no good reason argues why statements falling within the general exception should be admitted if an opportunity to depose has been foregone. Indeed, since this paragraph involves controversial evidence not within traditional exceptions, there is more, not less, reason to include it in (a) (5).
(b) Hearsay Exceptions. Rule 803, supra, is based upon the assumption that a hearsay statement falling within one of its exceptions possesses qualities which justify the conclusion that whether the declarant is available or unavailable is not a relevant factor in determining admissibility. The instant rule proceeds upon a different theory: hearsay which admittedly is not equal in quality to testimony of the declarant on the stand may nevertheless be admitted if the declarant is unavailable and if his statement meets a specified standard. The rule expresses preferences: testimony given on the stand in person is preferred over hearsay, and hearsay, if of the specified quality, is preferred over complete loss of the evidence of the declarant. The exceptions evolved at common law with respect to declarations of unavailable declarants furnish the basis for the exceptions enumerated in the proposal. The term "unavailable" is defined in subdivision (a).
(1) Former Testimony. Former testimony does not rely upon some set of circumstances to substitute for oath and cross-examination, since both oath and opportunity to cross-examine were present in fact. The only missing one of the ideal conditions for the giving of testimony is the presence of the trier ("demeanor evidence"). This is lacking with all hearsay exceptions. Hence it may be argued that former testimony is the strongest hearsay and should be included under Rule 803, supra. However, opportunity to observe demeanor is what in a large measure confers depth and meaning upon oath and cross-examination. Thus, in cases under Rule 803 demeanor lacks the significance which it possesses with respect to testimony. In any event, the tradition, founded in experience, uniformly favors production of the witness if he is available. The exception indicates continuation of the policy. This preference for the presence of the witness is apparent also in rules and statutes on the use of depositions, which deal with substantially the same problem.
Under the exception, the testimony may be offered (1) against the party against whom it was previously offered or (2) against the party by whom it was previously offered. In each instance the question resolves itself into whether fairness allows imposing, upon the party against whom now offered, the handling of the witness on the earlier occasion. (1) If the party against whom now offered is the one against whom the testimony was offered previously, no unfairness is apparent in requiring him to accept his own prior conduct of cross-examination or decision not to cross-examine. Only demeanor has been lost, and that is inherent in the situation. (2) If the party against whom now offered is the one by whom the testimony was offered previously, a satisfactory answer becomes somewhat more difficult. One possibility is to proceed somewhat along the line of an adoptive admission, i.e., by offering the testimony proponent in effect adopts it. However, this theory savors of discarded concepts of witnesses' belonging to a party of litigants' ability to pick and choose witnesses, and of vouching for one's own witnesses. A more direct and acceptable approach is simply to recognize direct and redirect examination of one's own witness as the equivalent of cross-examining an opponent's witness. Allowable techniques for dealing with hostile, double-crossing, forgetful, and mentally deficient witnesses leave no substance to a claim that one could not adequately develop his own witness at the former hearing. An even less appealing argument is presented when failure to develop fully was the result of a deliberate choice.
The common law did not limit the admissibility of former testimony to that given in an earlier trial of the same case, although it did require identity of issues as a means of insuring that the former handling of the witness was the equivalent of what would now be done if the opportunity were presented. Modern decisions reduce the requirement to "substantial" identity. Since identity of issues is significant only in that it bears on motive and interest in developing fully the testimony of the witness, expressing the matter in the latter terms is preferable. Testimony given at a preliminary hearing was held in California v. Green, 399 U.S. 149, 26 L.Ed.2d 489 (1970), to satisfy confrontation requirements in this respect. The opportunity to prepare will have to be examined in all cases, however.
Part (b) of Rule 804 (1), as submitted by the Supreme Court to the Congress, allowed prior testimony of an unavailable witness to be admissible if the party against whom it is offered or a person "with motive and interest similar" to his had an opportunity to examine the witness. The Congress concluded that it is generally unfair to impose upon the party against whom the hearsay evidence is being offered responsibility for the manner in which the witness was previously handled by another party; the sole exception to this is when a party's predecessor in interest in a civil action or proceeding had an opportunity and similar motive to examine the witness. Congress amended the rule to reflect these policy determinations. Alaska Rule 804(b) (1) follows the lead of Congress, although several states have adopted the broader exception proposed by the Advisory Committee and approved by the United States Supreme Court.
It has been noted that the paragraph (b) (1) when read in conjunction with paragraph (a)(5) is more limited than Alaska R. Civ. P. 32 (a) (limited to depositions; broader definition of unavailability). Cf., K. Redden & S. Saltzburg, Federal Rules of Evidence Manual 731 (2d ed. 1977). This procedural rule remains effective, as does Alaska R. Crim. P. 15(e) (limited to depositions; virtually identical to Rule 801 (a) (5) & (b) (1) in application to depositions). These procedural rules "create of their own force exceptions to the hearsay rule in the case of unavailable deponents, which Rule 802 continues. Rule 804(b) (1) applies to depositions only to the extent that they are offered in a proceeding different from the one in connection with which they are taken." 4 Weinstein's Evidence ¶ 804(b) (1)  (1975). Rule 804(b) (1) amends the Federal Rule to make it clear that it does not cover depositions taken by parties in the same case that goes to trial.
It is important to keep in mind that Rule 801(d) (1) (A) may authorize admission of former testimony for its truth even when a witness is present. And Rule 801(d) (2) may do the same.
(2) Statement Under Belief of Impending Death. The exception is the familiar dying declaration of the common law, expanded beyond its traditional limits. While the original religious justification for the exception may have lost its conviction for some persons over the years, it can scarcely be doubted that powerful psychological pressures are present. See 5 Wigmore § 1443 and the classic statement of Chief Baron Eyre in Rex v. Woodcock, 1 Leach 500, 502, 168 Eng. Rep. 352, 353 (K.B. 1789).
The common law required that the statement be that of the victim, offered in a prosecution for criminal homicide. Thus declarations by victims in prosecution for other crimes, e.g., a declaration by a rape victim who dies in childbirth, and all declarations in civil cases were outside the scope of the exception. An occasional statute has removed these restrictions or has expanded the area of offenses to include abortions, 5 Wigmore § 1432, at 224, n.4. While the common law exception no doubt originated as a result of the exceptional need for the evidence in homicide cases, the theory or admissibility applies equally in civil cases. The same considerations suggest abandonment of the limitation to circumstances attending the event in question, yet when the statement deals with matters other than the supposed death, its influence is believed to be sufficiently attenuated to justify the limitation. Unavailability is not limited to death. See subdivision (a) of this rule. Any problem as to declarations phrased in terms of opinion is laid at rest by Rule 701, and continuation of a requirement of firsthand knowledge is assured by Rule 602.
Comparable provisions are found in Uniform Rule 63(5); California Evidence Code § 1242; Kansas Code of Civil Procedure § 60-460(e); New Jersey Evidence Rule 63(5).
Federal Rule 804(b) (2) is limited to homicide cases and civil cases. While the United States Supreme Court approved a rule like Alaska's the Congress limited the exception in the belief that dying declarations are not among the most reliable forms of hearsay and should only be admitted when necessary. Admittedly, there are problems with this exception; imminent death may distort perception, jumble narration and disrupt memory. At best, the prospect of death will generate sincerity. But once the balance is struck in favor of admission where the penalty is greatest, there is no reason to distinguish among classes of cases. It is difficult to defend the argument that dying declarations are more necessary in a homicide case than in an abortion prosecution. If the dying declarant is the only or best witness, any case with issues turning on the cause of the death needs dying declarations.
(3) Statement Against Interest. The circumstantial guarantee of reliability for declarations against interest is the assumption that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true. If the statement is that of party, offered by his opponent, it comes in as an admission, Rule 801 (d) (2), and there is no occasion to inquire whether it is against interest, this not being a condition precedent to admissibility of admissions by opponents.
The common law required that the interest declared against be pecuniary or proprietary. The exception discards the common law limitation and expands to the full logical limit. One result is to remove doubt as to the admissibility of declarations tending to establish a tort liability against the declarant or to extinguish one which might be asserted by him, in accordance with the trend of the decisions in this country. McCormick (2d ed.) § 277, at 671-72. And finally, exposure to criminal liability satisfies the against-interest requirement. The refusal of common law to concede the adequacy of penal interest was no doubt indefensible in logic. See the dissent of Mr. Justice Holmes in Donnelly v. United States, 228 U.S. 243, 57 L.Ed. 820 (1913), but one senses in the decisions a distrust of evidence of confessions by third persons offered to exculpate the accused arising from suspicions of fabrication either of the fact of the making of the confession or in its contents, enhanced in either instance by the required unavailability of the declarant. Nevertheless, an increasing amount of decisional law recognizes exposure to punishment for crime as a sufficient stake. Annot., 162 A.L.R. 456. The requirement of corroboration is included in the rule in order to effect an accommodation between these competing considerations. When the statement is offered by the accused by way of exculpation, the resulting situation is not adapted to control by rulings as to the weight of the evidence, and hence the provision is cast in terms of a requirement preliminary to admissibility. Cf., Rule 104(a). The requirement of corroboration should be construed in such a manner as to effectuate its purpose of circumventing fabrication.
Maine added a sentence to its declaration against interest exception: "A statement or confession offered against the accused in a criminal case, made by a co-defendant or other person implicating both himself and the accused, is not within this exception." Apparently, this was a response to the following comment by the Federal Advisory Committee on its rule:
Ordinarily the third-party confession is thought of in terms of exculpating the accused, but this is by no means always or necessarily the case: it may include statements implicating him, and under the general theory of declarations against interest they would be admissible as related statements. Douglas v. Alabama, 380 U.S. 415 (1965), and Bruton v. United States, 389 U.S. 818 (1968), both involved confessions by codefendants which implicated the accused. While the confession was not actually offered in evidence in Douglas, the procedure followed effectively put it before the jury, which the Court ruled to be error. Whether the confession might have been admissible as a declaration against penal interest was not considered or discussed. Bruton assumed the inadmissibility, as against the accused, of the implicating confession of his codefendant, and centered upon the question of the effectiveness of a limiting instruction. These decisions, however, by no means require that all statements implicating another person be excluded from the category of declarations against interest. Whether a statement is in fact against interest must be determined from the circumstances of each case. Thus a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest. See the dissenting opinion of Mr. Justice White in Bruton. On the other hand, the same words, spoken under different circumstances, e.g., to an acquaintance, would have no difficulty in qualifying. The rule does not purport to deal with questions of the right of confrontation. (multiple citations omitted).
Without deciding the confrontation question, it is fair to say that it is not highly probable that the Constitution will be read to allow one non-testifying defendant's declarations against interest made to the police to be used against another defendant. But see, Dutton v. Evans, 400 U.S. 74, 27 L.Ed.2d 213 (1970). Once the decision is made to cooperate with the government, statements by one accused are suspect if offered against another who refuses to cooperate. Cf., Rule 410 and its Reporter's Comment. But declarations against interest made outside of the formal interrogation process may, and perhaps should, be treated differently. To the extent that they are truly disserving to the declarant and only tangentially refer to another, the statements may be thought to be reliable as to both. In custody, statements are difficult to classify as totally disserving; they are disserving, but often are made with a hope of some benefit. To the extent that the Advisory Committee suggests that even declarations against interest made in custody might be admissible against someone other than the declarant if the declarant does not testify, it is probably wrong. Such an approach would cut the heart out of Bruton. To the extent that it suggests that other declarations against interest might be admissible irrespective of whether the declarant testifies, it may be correct. This rule is not as quick to close the door to such statements as Maine's is, although it is not easy to imagine many statements intended to be against interest being made by participants in crime outside of custody.
Maine also added to its rule a provision qualifying statements tending to make the declarant an object of hatred, ridicule or disgrace as declarations against interest. Such a provision was found in earlier drafts of the Federal Rule. Alaska Rule 804(b) (3) rejects this expansion because it is not clear whether the hatred, ridicule, or disgrace that the declarant must fear to qualify his statements under the hearsay exception must be widespread in the community, or in some subgroups, or can be limited to the person to whom the statement is made. Nor is it clear how intense the negative reaction must be thought to be. Proprietary, pecuniary and penal liability offer more objective criteria with which to work. Subdivision (b) (5) allows especially reliable statements to be admitted.
(4) Statement of Personal or Family History. The general common law requirement that a declaration in this area must have been made ante litem motam has been dropped, as bearing more appropriately on weight than admissibility. See 5 Wigmore § 1483, Item (A) specifically disclaims any need of firsthand knowledge respecting a declarant's own personal history. In some instances it is self-evident (marriage) and in other impossible and traditionally not required (date of birth). Item B deals with declaration concerning the history of another person. As at common law, declarant is qualified if related by blood or marriage. 5 Wigmore § 1489. In addition, and contrary to the common law, declarant qualifies by virtue of intimate association with the family. 5 Wigmore § 1487. The requirement sometimes encountered that when the subject of the statement is the relationship between two other persons the declarant must qualify as to both is omitted. Relationship is reciprocal. 5 Wigmore § 1491.
For comparable provisions, see, Uniform Rule 63(23), (24), (25); California Evidence Code §§ 1310, 1311; Kansas Code of Civil Procedure § 60-460(v), (w); New Jersey Evidence Rules 63(23), 63(24), 63(25).
(5) Other Exceptions. In language and purpose, this exception is identical with Rule 803. See Reporter's Comment to that provision.
EDITOR'S NOTE: Section 3, Chapter 67, Session Laws of Alaska 1982, provides that "AS 12.45.047 added by sec. 2 of this Act [Chapter 67, Session Laws of Alaska, 1982] has the effect of changing Rule 804, Rules of Evidence, by adding the videotaped evidence of a young victim of a violation of AS 11.41.410 - 11.41.455 to the list of exceptions to the hearsay rule."
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