Section VIII · Hearsay

Rule 804. Exceptions to the rule against hearsay - when the declarant is unavailable as a witness

2024 Manual for Courts-Martial, United States · Last updated

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(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant's statement because the military judge rules that a privilege applies;
(2) refuses to testify about the subject matter despite the military judge's order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure:
(A) the declarant's attendance, in the case of a hearsay exception under subdivision (b)(1) or (b)(5);
(B) the declarant's attendance or testimony, in the case of a hearsay exception under subdivision (b)(2), (b)(3), or (b)(4); or
(6) has previously been deposed about the subject matter and is absent due to military necessity, age, imprisonment, non-amenability to process, or other reasonable cause.
Subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability as a witness in order to prevent the declarant from attending or testifying.
(b) The Exceptions. The following are exceptions to the rule against hearsay, and are not excluded by that rule if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given by a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
Subject to the limitations in Articles 49 and 50, a record of testimony given before a court-martial, court of inquiry, military commission, other military tribunal, or preliminary hearing under Article 32 is admissible under subdivision (b)(1) if the record of the testimony is a verbatim record.
(2) Statement under the Belief of Imminent Death. In a prosecution for any offense resulting in the death of the alleged victim, a statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.
(3) Statement against Interest. A statement that:
(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and
(B) if offered in a criminal case as one that tends to expose the declarant to criminal liability, is supported by corroborating circumstances that clearly indicate its trustworthiness after considering the totality of circumstances under which it was made and any evidence that supports or undermines it. revised · 2024 Amendments to Federal Rules of Evidence
(4) Statement of Personal or Family History. A statement about:
(A) the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or
(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person's family that the declarant's information is likely to be accurate
(5) Other Exceptions. [Transferred to Mil. R. Evid. 807]
(6) Statement Offered against a Party that Wrongfully Caused the Declarant's Unavailability. A statement offered against a party that wrongfully caused or acquiesced in wrongfully causing the declarant's unavailability as a witness, and did so intending that result.
Cross-referencesCited by 4Cites 4
Cited by

Provisions elsewhere in the Manual whose text cites Rule 804. Each link opens the citing provision.

Rules for Courts-Martial
Discussion under R.C.M. 702(a)(5) — Depositions (804(a), 804(b)(1))
…on the merits or on an interlocutory question as substantive evidence if the witness is unavailable under Mil. R. Evid. 804(a) except that a deposition may be admitted in a capital case only upon offer by the defense. See Mil. R. Evid.…
R.C.M. 703(b)(3) — Production of witnesses and evidence (804(a))
…of this rule, a party is not entitled to the presence of a witness who is unavailable within the meaning of Mil. R. Evid. 804(a). However, if the testimony of a witness who is unavailable is of such central importance to an issue that it…
R.C.M. 810(a)(2)(A) — Procedures for rehearings, new trials, other trials, and remands (804(b)(1))
…not sentenced may be established by any party whether or not testimony so read is otherwise admissible under Mil. R. Evid. 804(b)(1) and whether or not it was given through an interpreter.
Military Rules of Evidence
Mil. R. Evid. 807(a) — Residual exception
…excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Mil. R. Evid. 803 or 804:
Rule 804 cites

Provisions named in the text of Rule 804. Where the cited provision is on this site, the link opens it.