Rule 804 Hearsay exceptions; declarant unavailable. (a) Definition of unavailability. "Unavailability as a witness" 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 the declarant's statement;

(2) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;

(3) Testifies to a lack of memory of the subject matter of the declarant's statement;

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

(5) Is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance by process or other reasonable means.

A declarant is not unavailable as a witness if the declarant's exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant's statement for the purpose of preventing the witness from attending or testifying. Determination of unavailability as a witness pursuant to this rule does not affect the opponent's right, under rule 806, to call and to cross-examine the declarant concerning the subject matter of any statement received in accordance with this rule.

(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, at the instance of or against a party with an opportunity to develop the testimony by direct, cross, or redirect examination, with motive and interest similar to those of the party against whom now offered;

(2) Statement under belief of impending death. A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant's 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 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 the declarant 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 concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, 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 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) Statement of recent perception. A statement, not in response to the instigation of a person engaged in investigating, litigating, or settling a claim, which narrates, describes, or explains an event or condition recently perceived by the declarant, made in good faith, not in contemplation of pending or anticipated litigation in which the declarant was interested, and while the declarant's recollection was clear;

(6) Statement by child. A statement made by a child when under the age of sixteen, describing any act of sexual contact, sexual penetration, or physical violence performed with or against the child by another, if the court determines that the time, content, and circumstances of the statement provide strong assurances of trustworthiness with regard to appropriate factors that include but are not limited to: (A) age and mental condition of the declarant; (B) spontaneity and absence of suggestion; (C) appropriateness of the language and terminology of the statement, given the child's age; (D) lack of motive to fabricate; (E) time interval between the event and the statement, and the reasons therefor; and (F) whether or not the statement was recorded, and the time, circumstances, and method of the recording. If admitted, the statement may be read or, in the event of a recorded statement, broadcast into evidence but may not itself be received as an exhibit unless offered by an adverse party;

(7) Forfeiture by wrongdoing. A statement offered against a party that has procured the unavailability of the declarant as a witness;

(8) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and (B) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. [L 1980, c 164, pt of §1; gen ch 1985; am L 1993, c 198, §1(3); am L 2002, c 134, §5]

RULE 804 COMMENTARY

This rule differs from Fed. R. Evid. 804 in several respects. It omits from Rule 804(a)(5) a parenthetical phrase which would have required a good faith effort to depose witnesses as a requirement for a determination of unavailability under the dying declaration, declaration against interest, and declaration of pedigree exceptions. Rule 804(b)(1), dealing with former testimony, is considerably broader than its federal counterpart. Rule 804(b)(2), concerning "dying declarations," is slightly broader than its federal counterpart. The rule also adds subsection (b)(5), providing for the admissibility of statements of recent perceptions.

The scheme of this rule is that the exceptions collected in subsection (b) all depend upon a foundation requirement that the hearsay declarant be "unavailable" as that term is defined in subsection (a). The underlying theory of the Rule 804 exceptions to the hearsay ban is that they possess a degree of reliability which, while not necessarily as high as that characterizing the Rule 803(b) exceptions, justifies admission of declarants' statements provided the declarants cannot be produced to testify. As the Advisory Committee's Note to Fed. R. Evid. 804 puts it, "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."

Subsection (a): This subsection provides a consistent standard of "unavailability" for the purpose of determining admissibility of hearsay declarations under any of the exceptions defined in subsection (b). Traditional common law varied unavailability requirements according to the category of the hearsay exception. See generally McCormick §253. "However, no reason is apparent for making distinctions as to what satisfies unavailability for the different exceptions. The treatment in the rule is therefore uniform...." Fed. R. Evid. 804(a), Advisory Committee's Note.

Hawaii courts have demanded unavailability of the declarant as the basis for admission of some classes of hearsay testimony. In Tsuruda v. Farm, 18 H. 434, 437 (1907), the court admitted the former testimony of an unavailable witness, based on what the court termed the "principle of necessity." The court noted also that unavailability of a witness "may result from his death, his absence from the jurisdiction, his disappearance and inability to find him, his illness, infirmity, age or official duty preventing his attendance, insanity, loss of memory, speech or sight or disqualification by infamy," id. at 438. See also, Levy v. Kimball, 51 H. 540, 465 P.2d 580 (1970), holding that, in a civil case, the former testimony of a declarant located in New York at the time of trial was properly admitted because the witness was "without our jurisdiction" and hence unavailable under the Tsuruda rule. HRCP 32(a)(3)(B), defining "unavailability" in connection with the use of depositions in civil cases, specifies that a deponent is unavailable if he "resides on an island other than that of the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition." It is intended that the phrase "unable to procure his attendance by process or other reasonable means" in subsection (a)(5) of the present rule be construed in civil cases to allow a finding of unavailability where the declarant of an 804(b) statement resides on another island and the proponent demonstrates that procuring attendance of the declarant would work undue financial hardship, considering the personal circumstances of the proponent and the amount in controversy in the case.

Subsection (a)(5) of this rule also rejects the additional Fed. R. Evid. requirement that an effort be made to depose the declarant as a precondition to admissibility under exceptions in 804(b)(2), (3) and (4). This variation is justified on several grounds. Foremost, the pivotal issue in determination of hearsay admissibility is that of trustworthiness, see State v. Leong, 51 H. 581, 465 P.2d 560 (1970); and the deposition requirement does not relate to the circumstantial indicia of trustworthiness and reliability which characterize the hearsay exceptions. A pedigree declaration, for example, which lacks the requirement of personal knowledge, will scarcely be bolstered by a deposition. In addition, depositions are costly, time-consuming, and in many instances impractical. Depositions cannot be freely taken in criminal cases, see HRCrP 15(a). In any event, the parties are not precluded from taking depositions in appropriate circumstances under HRCP 30 and 31 and HRCrP 15.

In criminal proceedings, the determination of unavailability of a declarant raises constitutional issues. The right of an accused under the Sixth Amendment to the U.S. Constitution and Article I, §14, of the Hawaii Constitution, to confront and to cross-examine witnesses against him mandates a more rigorous showing of unavailability in criminal proceedings than in civil litigation. The Hawaii Supreme Court in State v. Adrian, 51 H. 125, 453 P.2d 221 (1969), and State v. Kim, 55 H. 346, 519 P.2d 1241 (1974), ruled that the mere absence of a witness from the state was an insufficient showing of unavailability to dispense with the defendant's right of confrontation. In Kim, the court held that the prosecution must establish, as a precondition to admission of the former testimony of an absent witness, "a good faith effort to ascertain the actual location of the witness, and thereafter, if necessary, [an] attempt to compel the witness' attendance at trial through use of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings," 55 H. at 350, 519 P.2d at 1244. The Uniform Act referred to by the court is found in Hawaii Rev. Stat. ch 836 (1976). See also State v. Faafiti, 54 H. 637, 513 P.2d 697 (1973), in which the court ruled that this heightened standard of proof of unavailability had been met. The relevant federal decisions are Berger v. California, 393 U.S. 314 (1969), and Barber v. Page, 390 U.S. 719 (1968). In all cases the question of "unavailability" is addressed to the court under Rule 104.

Subsection (b): The general level of trustworthiness of Rule 804(b)'s exceptions is thought to be inferior to that of those classified in Rule 803(b) but sufficiently superior to hearsay generally to justify receipt of the evidence provided the declarant is unavailable. Therefore, each of the following exceptions depends upon a preliminary determination that "the declarant is unavailable" under subsection (a).

Subsection (b)(1): This provision differs markedly from Fed. R. Evid. 804(b)(1), which admits former testimony only "if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." The present rule is taken from the U.S. Supreme Court's 1972 proposal for federal rule 804(b)(1), see 28 App. U.S. Code Service, App. 6 (1975).

The only reason given by the House Judiciary Committee for its substitution of current Fed. R. Evid. 804(b)(1) for the Supreme Court's proposed rule was "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 present rule rejects this reasoning because: (1) none of the other exceptions in this subsection involves any cross-examination at all; and (2) the House objection does not relate to the trustworthiness and necessity factors which underlie the 804(b) exceptions generally. Former testimony and depositions, it should be remembered, necessarily involve testimony under oath subject to cross-examination, and the trustworthiness is assured by the requirement that the previous party had "motive and interest similar to those of the party against whom now offered." Present Rule 804(b)(1) assures at least as much trustworthiness as do the other exceptions in this subsection.

The present rule governs the use of testimony taken at former trials, preliminary hearings, and other like proceedings, and the use of depositions generally. Depositions of parties to the litigation may be usable as admissions under Rule 803(a)(1); as to other deponent-declarants, the requirement of unavailability and the conditions of this exception govern.

The Hawaii cases have sustained admission of depositions and former testimony on a showing of unavailability, see Levy v. Kimball, 51 H. 540, 465 P.2d 580 (1970); Kono v. Auer, 51 H. 273, 458 P.2d 661 (1969); Tsuruda v. Farm, 18 H. 434 (1907). In criminal cases the use of former testimony against the accused entails consideration of the requirements of State v. Kim, supra, Commentary to Rule 804(a).

Subsection (b)(2): This exception is similar to Fed. R. Evid. 804(b)(2), the intent of which is to abolish the common-law requirement that the exception be limited to the statements of victims in homicide prosecutions. As the Advisory Committee's Note to Fed. R. Evid. 804(b)(2) points out: "While the common law exception no doubt originated as a result of the exceptional need for the evidence in homicide cases, the theory of admissibility applies equally in civil cases." Regarding that theory, the Note recognizes that the "original religious justification" may have diminished over the years, but asserts the rather common belief that "it can scarcely be doubted that powerful psychological pressures are present." The federal rule, however, bars the use of dying declarations in criminal cases not involving homicide, a limitation rejected in the present rule.

Hawaii cases are Territory v. Buick, 27 H. 28, 54 (1923); Provisional Government of the Hawaiian Islands v. Hering, 9 H. 181 (1893).

Subsection (b)(3): This exception is identical with Fed. R. Evid. 804(b)(3).

The present rule rejects the traditional common law limiting declarations against interest to statements that adversely affected the pecuniary or proprietary interest of the declarant. Statements against penal interest, ordinarily not admissible at common law, are included in this rule, as are statements that "render invalid a claim by [the declarant] against another." The qualification, addressed to the court under Rule 104, is that "a reasonable man in [the declarant's] position would not have made the statement unless he believed it to be true."

Although the majority of jurisdictions still cling to the traditional limitation, a few states have extended it either by statute or by judicial decision. See McCormick §§277 and 278. The same logic that supports the assumption of trustworthiness for statements against pecuniary or proprietary interest applies to statements against penal interest: no reasonable man would likely make such a statement if it were untrue.

Statements against interest should be sharply distinguished from party admissions, see Rule 803(a) supra, which need not be against interest when made. This distinction was recognized by the Hawaii Supreme Court in Kekua v. Kaiser Foundation Hosp., 61 H. 208, 216 n. 3, 601 P.2d 364, 370 n. 3 (1979), and in State v. Leong, 51 H. 581, 587, 465 P.2d 560, 564 (1970). See the commentary to Rule 803(a). Leong also anticipated the present rule and extended the present hearsay exception to include statements against penal interest.

The Leong court, in holding admissible a statement against penal interest offered to exculpate a criminal defendant, made no mention of a corroboration requirement. There is good reason for incorporating such a requirement in the rule, for the reasons set forth in the Advisory Committee's Note to Fed. R. Evid. 804(b)(3): "The refusal of the common law to concede the adequacy of a penal interest was no doubt indefensible in logic ... 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.... The requirement of corroboration is included in the rule in order to effect an accommodation between these competing considerations."

Subsection (b)(4): This exception is identical with Fed. R. Evid. 804(b)(4). The common law hearsay exception for statements of pedigree required that the declaration have been made ante litem motam, and that the declarant be a member of the family about which his statement was made. See McCormick §322. Even under the common law formulation, however, the first-hand knowledge requirement was omitted as impractical in some instances, such as the date of the declarant's own birth, and as self-evident in others, such as the date, place, or fact of the declarant's marriage.

The present exception liberalizes the common law rule by eliminating the ante litem motam requirement as being relevant to weight rather than admissibility, and by extending the exception to statements made by non-family members who have been "intimately associated" with the family. A number of other jurisdictions have adopted a similar rule, see, e.g., Cal. Evid. Code §§1310, 1311.

Hawaii courts have largely adhered to the traditional limitations in past decisions. In an elaborate formulation of the rule, the court in Drummond v. Makaena, 30 H. 116, 129 (1927), stated:

By reason of their intimate acquaintance with each other and their familiarity with the subsidiary facts from which persons ordinarily gather their impressions and knowledge as to who their relatives are and by reason further of the traditions built within a family upon detached statements and acts and omissions as to what the relationships are in that family, it has come to be regarded by courts as safe and proper to admit as evidence declarations of deceased persons concerning the relationships within the family of which he [sic] was a member....

More recently, in Apo v. Dillingham Investment Corp., 57 H. 64, 549 P.2d 740 (1976), the court approved a pedigree declaration and observed that the required showing of the declarant's relationship to the family of which he speaks can be shown by the declaration itself. This is consistent with Rule 104(a) supra, and its accompanying commentary.

Subsection (b)(5): This rule has no Fed. R. Evid. counterpart, but restates the holding of Hew v. Aruda, 51 H. 451, 457, 462 P.2d 476, 480 (1969):

[A] statement is not excluded by the hearsay rule if the declarant is unavailable as a witness and the court finds that the statement was made in good faith, upon the personal knowledge of the declarant, and while his recollection was clear, unless other circumstances were present indicating a clear lack of trustworthiness.

Hew v. Aruda was recently cited approvingly by Chief Justice Richardson in Kekua v. Kaiser Foundation Hosp., 61 H. 208, 601 P.2d 364, 370 (1979).

Subsection (b)(6): This exception is analogous in scope and purpose to its companion exception, 803(b)(24) supra.

RULE 804 SUPPLEMENTAL COMMENTARY

The Act 198, Session Laws 1993 amendments added the last sentence in subsection (a) and supplied a new hearsay exception, subsection (b)(6).

The right of cross-examination of an "unavailable" declarant, according to the Hawaii Supreme Court's Final Report of the Committee on Hawaii Rules of Evidence 36 (1991), is inserted to assure opponent's cross-examination of a hearsay declarant who "testifies to a lack of memory" concerning the subject matter of the hearsay statement and thus becomes unavailable under subsection (a)(3) of this rule. The amendment also confirms the entitlement contained in the last sentence of Rule 806.

The new child-declarant hearsay exception, subsection (b)(6), was also recommended by the Hawaii Supreme Court in its Final Report of the Committee on Hawaii Rules of Evidence 37-38 (1991): "What is needed is a hearsay exception that will provide sufficient safeguards to allow for receipt of reliable hearsay statements in cases where child declarants become 'unavailable' through inability to remember or to communicate.... The committee has carefully constructed proposed Rule 804(b)(6) with Justice O'Connor's Idaho v. Wright [497 U.S. 805 (1990)] analysis in mind. We have specified the relevant circumstances ... and have articulated the bottom-line reliability criterion: '[T]hat the time, content, and circumstances of the statement provide strong assurances of trustworthiness.'" Idaho v. Wright disapproved, as offensive to the Confrontation Clause, hearsay accusations made by a two and a half year old sexual abuse complainant under circumstances that failed to evidence the constitutionally required level of reliability and trustworthiness. The new criterion, "strong assurances of trustworthiness", is intended to countenance only those hearsay statements that are "so reliable that cross-examination does not appear necessary", see Conference Committee Report No. 11.

The Act 134, Session Laws 2002 amendment adds subsection (b)(7), "Forfeiture by wrongdoing", to the Rule 804 hearsay exceptions. The Federal Rules of Evidence and Uniform Rules of Evidence have similarly adopted "forfeiture by wrongdoing" exceptions to Rule 804. The comment to Fed. R. Evid. 804(b)(6) explains: "This recognizes the need for a prophylactic rule to deal with abhorrent behavior 'which strikes at the heart of the system of Justice itself.'... The wrongdoing need not consist of a criminal act." See, e.g., United States v. Dhinsa, 243 F.3d 635 (2d Cir. 2001) (murder of declarant, applying FRE 804(b)(6) and collecting cases applying forfeiture-by-misconduct rule to accused who procured witnesses' absence by means of threats, violence, or murder).

Case Notes

Trial court did not abuse its discretion in excluding declarant's out-of-court statement where declarant's equivocation cast doubt on trustworthiness of statement. 66 H. 448, 666 P.2d 169 (1983).

Hearsay statements excluded because of the lack of corroborating circumstances of trustworthiness. 70 H. 343, 771 P.2d 509 (1989).

Confrontation clause not violated by admission of declarant's former testimony under subsection (b)(1) where prosecution established declarant's unavailability, that it had made good faith efforts to secure declarant's presence, and reliability of statement was shown. 82 H. 202, 921 P.2d 122 (1996).

Confrontation clause violated as prosecution witness not "unavailable" under subsection (a)(5); prosecution's good faith efforts require a search equally as vigorous as that which it would undertake to find a critical witness if it had no prior testimony to rely upon in the event of unavailability. 83 H. 267, 925 P.2d 1091 (1996).

Where corroborating circumstances and evidence proffered by defendant was too weak to clearly indicate the trustworthiness of declarant's confessions under subsection (b)(3), trial court did not err in excluding them from the evidence at trial. 88 H. 407, 967 P.2d 239 (1998).

As there is no exception under subsection (b)(8) for pending or anticipated litigation, such that statements by victim-wife would have been admissible even if a divorce proceeding had actually been underway, trial court did not abuse discretion in determining hearsay statements were trustworthy; however, trial court abused discretion in admitting statements in violation of defendant's constitutional right to confront and cross-examine adverse witnesses. 103 H. 89, 79 P.3d 1263 (2003).

Declarant's statements inadmissible because not trustworthy. 6 H. App. 83, 712 P.2d 1136 (1985).

Trial court did not err in excluding witness from testifying about statements defendant's nephew made to witness during a pretrial interview where nephew's interview statements failed to satisfy the basic requirement of subsection (b)(3) that the statements be against nephew's interest and also were not admissible because they were inherently untrustworthy. 110 H. 386 (App.), 133 P.3d 815 (2006).

Kumu hula's affidavit stating that a certain person (Kamokulewa) was the son of father and mother (Apaa and Kekue) was admissible to show family relationships, pursuant to this rule. 114 H. 56 (App.), 156 P.3d 482 (2006).