27-804. Rule 804. Hearsay exceptions; enumerated; declarant unavailable; unavailability, defined.

(1) Unavailability as a witness includes situations in which the declarant:

(a) Is exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of his statement; or

(b) Persists in refusing to testify concerning the subject matter of his statement despite an order of the judge to do so; or

(c) Testifies to lack of memory of the subject matter of his statement; or

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

(e) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance 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 or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.

(2) Subject to the provisions of section 27-403, the following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(a) 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 a different 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;

(b) A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death;

(c) 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 him to civil or criminal liability or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he 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;

(d)(i) 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 (ii) 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; or

(e) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact, (ii) 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 (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. 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, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Source

Annotations

1. Unavailability determination

2. Notice of unavailability

3. Admissibility of statements

4. Residual hearsay

5. Miscellaneous

1. Unavailability determination

Pursuant to subdivision (2)(c) of this section, a trial court cannot rely simply on the State's assurances of unavailability or on the declarant's invocation of the privilege against self-incrimination and the failure to call the declarant to testify as a result. Instead, before a declarant may be excused as unavailable based on a claim of privilege, the declarant must appear at trial, assert the privilege, and have that assertion approved by the trial judge. In addition, the witness must be exempted from testifying by a ruling of the court. State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).

When considering whether a good faith effort to procure a witness has been made under subdivision (1)(e) of this section, the proper inquiry is whether the means utilized by the proponent prior to trial were reasonable, not whether other means remain available at the time of trial or whether additional steps might have been undertaken. State v. Trice, 292 Neb. 482, 874 N.W.2d 286 (2016).

This section requires that when a witness appears at trial but refuses to testify, the trial court must order the witness to testify before determining that the witness is unavailable for trial. State v. Kitt, 284 Neb. 611, 823 N.W.2d 175 (2012).

The burden to establish a declarant's unavailability is on the party seeking to introduce the declarant's deposition testimony under the hearsay exception for deposition testimony of an unavailable witness. Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).

The determination whether a witness is unavailable to appear at trial and give testimony, for purposes of the hearsay exception for deposition testimony of an unavailable witness, is within the discretion of the trial court. Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).

Where the appellant submitted an insufficient record for the appellate court to review the trial court's alleged error in admitting deposition testimony under the unavailable witness exception, the trial court's ruling was affirmed because the appellate court had no way of knowing whether an expert's deposition testimony was cumulative or whether other evidence sustained the judgment. Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).

Under subsection (1)(b) of this section, where it was clear from the record that a witness was intent on continuing to refuse the court's repeated requests to testify and that there was no sanction available that would compel the witness to testify because the witness was already serving a lengthy sentence, it was not a judicial abuse of discretion to conclude that the witness was unavailable, even though the court's instruction to testify was not couched in the specific language of an "order". State v. McHenry, 250 Neb. 614, 550 N.W.2d 364 (1996).

Child victims of abuse may be unavailable for purposes of the residual hearsay exception due to the trauma resulting from the abuse. State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990).

The party seeking to introduce hearsay evidence pursuant to this section's exception must show that diligence was used to locate the witness and that the witness is unavailable. It is within the sound discretion of the trial court to determine whether the proponent has met this burden. State v. Jordan, 229 Neb. 563, 427 N.W.2d 796 (1988).

A witness is not unavailable under subsection (1)(e) of this section unless the prosecutorial authorities have made a good faith effort to obtain the witness' presence at trial. State v. Carter, 226 Neb. 636, 413 N.W.2d 901 (1987).

The requirement of unavailability for the admission of hearsay testimony under this section will not be regarded as satisfied if the proponent of the evidence has caused the unavailability. State v. Wiley, 223 Neb. 835, 394 N.W.2d 641 (1986).

A prerequisite to the admission of hearsay statements into evidence under these exceptions to the rule against hearsay is that the proponent of the statement must make a showing that the declarant is unavailable as a witness. It is within the discretion of the trial court to determine whether the unavailability of the witness has been shown. State v. Bothwell, 218 Neb. 395, 355 N.W.2d 506 (1984).

Testimony given by a witness at a prior trial is not to be considered hearsay if the declarant is unavailable as a witness. State v. Evans, 212 Neb. 476, 323 N.W.2d 106 (1982).

Pursuant to subsection (2)(a) of this section, the occurrence witness who lived in another state, and thus outside the subpoena power of the court, was unavailable to testify for the purposes of this section. The definition of "unavailability" in Neb. Ct. R. of Discovery 32(a)(3)(B) does not create different conditions for availability than subsection (1)(e) of this section. Burke v. Harman, 6 Neb. App. 309, 574 N.W.2d 156 (1998).

2. Notice of unavailability

An adverse party's knowledge of a statement is not enough to satisfy the notice requirement of subsection (2)(e) of this section. The proponent of the evidence must provide notice before trial to the adverse party of his or her intentions to use the statement to take advantage of the residual hearsay exception under subsection (2)(e) of this section. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

It is not enough that the adverse party is aware of the unavailable declarant's statement; the proponent of the evidence must provide notice to the adverse party of his or her intentions to use the statement in order to take advantage of the hearsay exception in subsection (2)(e) of this section. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

Subsection (2)(e) of this section is not a firmly rooted hearsay exception for Confrontation Clause purposes. State v. Sheets, 260 Neb. 325, 618 N.W.2d 117 (2000).

It is not enough that the adverse party is aware of an unavailable declarant's statement; the proponent of the evidence must provide notice to the adverse party of his intention to use the statement in order to take advantage of hearsay exception in subsection (2)(e) of this section. Drew v. Walkup, 240 Neb. 946, 486 N.W.2d 187 (1992).

Under subsection (2)(e) of this section, it is not enough that the adverse party is aware of the unavailable declarant's statement; the proponent of the evidence must provide notice to the adverse party of his intentions to use the statement at trial. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).

Section 27-804(2)(e), R.R.S.1943, requires actual notice of the intent to use the out-of-court statement. State v. Leisy, 207 Neb. 118, 295 N.W.2d 715 (1980).

3. Admissibility of statements

Statements made during plea negotiations are not against penal interest when the defendant is told the statements will not be used against him or her in any form. State v. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011).

Neb. Ct. R. Disc. section 6-332 creates an exception to the hearsay rule as it applies to depositions, and a deposition need no longer satisfy the requirements of subdivision (2)(a) of this section to be admissible under the rules of discovery. Walton v. Patil, 279 Neb. 974, 783 N.W.2d 438 (2010).

Subsection (2)(c) of this section uses the term "statement" in a narrow sense to refer to a specific declaration or remark incriminating the speaker and not more broadly to refer to the entire narrative portion of the speaker's confession. To the extent subsection (2)(c) of this section encompasses inherently unreliable statements, it is not a firmly rooted hearsay exception for purposes of Confrontation Clause analysis. State v. Sheets, 260 Neb. 325, 618 N.W.2d 117 (2000).

Testimony falling within the parameters of subsection (2)(a) of this section is admissible because the opportunity to cross-examine, the administering of an oath, the solemnity of the occasion, and the accuracy of modern methods of recording testimony all combine to give former testimony a high degree of reliability. Nickell v. Russell, 260 Neb. 1, 614 N.W.2d 349 (2000).

Subsection (2)(a) of this section is a firmly rooted hearsay exception, and therefore testimony admitted thereunder does not violate the Confrontation Clause of the U.S. or Nebraska Constitution. State v. Carter, 255 Neb. 591, 586 N.W.2d 818 (1998).

An appellate court will affirm the trial court's ruling on whether evidence is admissible under subsection (2)(e) of this section unless the trial court has abused its discretion. State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998).

Subsection (2)(a) of this section is a firmly rooted hearsay exception. State v. Allen, 252 Neb. 187, 560 N.W.2d 829 (1997).

Per subsection (2)(a) of this section, the exception to the hearsay rule does not exclude depositions taken in compliance with law if the declarant is unavailable as a witness. The unavailability requirement of this statute must be read into Neb. Ct. R. of Discovery 32 (rev. 1996) so the Nebraska discovery rules do not create an additional exception to the hearsay rule. Menkens v. Finley, 251 Neb. 84, 555 N.W.2d 47 (1996).

In determining whether a statement is admissible under this section, a court considers five factors: (1) the statement's trustworthiness, (2) materiality of the statement, (3) probative importance of the statement, (4) interests of justice, and (5) whether notice of the statement's prospective use was given to the opponent. Under this section, a court must make a preliminary inquiry to determine whether a declarant had personal knowledge regarding the subject matter of the statement that is sought to be introduced pursuant to the residual exception to the hearsay rule. State v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996).

To be admissible as a statement against the declarant's penal interest, pursuant to subsection (2)(c) of this section, the proponent of the evidence must establish that the declarant is unavailable, and that the statement is against the declarant's penal interests. If the statement implicates a third party in the alleged crime, the proponent must also prove that the statement was trustworthy. State v. Hughes, 244 Neb. 810, 510 N.W.2d 33 (1993).

In determining whether evidence is admissible under subsection (2)(e) of this section, the residual exception to the hearsay rule, a court considers (1) a statement's trustworthiness, (2) the probative importance of the statement, (3) the materiality of the statement, (4) the interests of justice, and (5) whether notice of the statement's prospective use was given to opponent. An appellate court will affirm the trial court's ruling unless the trial court has abused its discretion. State v. Toney, 243 Neb. 237, 498 N.W.2d 544 (1993).

The essential element to the admission of a statement as a dying declaration pursuant to subsection (2)(b) of this section is that declarant be conscious of approaching death at the time of the making of the statement; although this is best shown by express communication of declarant to that effect, circumstances surrounding declarant's death may be sufficient. Declarant's statement was inadmissible under subsection (2)(e) of this section where record failed to establish declarant had personal knowledge regarding the subject matter of her testimony. State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993).

A wife's statement is not against her pecuniary interest because the statement might tend to incriminate her husband, exposing him to criminal prosecution and possible incarceration, resulting in loss of support previously provided by her husband. State v. Johnson, 236 Neb. 831, 464 N.W.2d 167 (1991).

A statement by a 4-year-old witness regarding child abuse and murder made in response to police questioning nearly 2 days after the events in question constitutes an excited utterance. The statement is also admissible under the residual hearsay exception. State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990).

Statements made by decedent to her attorney in course of professional consultation held admissible under this section but not a statement made by decedent to a friend which had no equivalent guarantees of trustworthiness. State v. Beam, 206 Neb. 248, 292 N.W.2d 302 (1980).

The contents of a conversation that included what may have been a general statement of regret were not admissible under the exception to the hearsay rule set out in section 27-804(2)(c), R.R.S.1943. State v. Matthews, 205 Neb. 709, 289 N.W.2d 542 (1980).

Pursuant to subsection (2) of this section, an alleged verbal cancellation or discharge of a promissory note cannot be said to be against a decedent's pecuniary interest, because there was no evidence of discharge by one of the physical acts, as detailed in Uniform Commercial Code section 3-604(a)(i), nor was there a signed writing, as detailed in section 3-604(a)(ii), offered or received into evidence which purported to discharge the debt owed to the decedent. Haynes v. Dover, 17 Neb. App. 640, 768 N.W.2d 140 (2009).

4. Residual hearsay

Hearsay rulings under the residual hearsay exception are reviewed on appeal for an abuse of discretion. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

In determining admissibility under subsection (2)(e) of this section, a court must examine the circumstances surrounding the declaration in issue and may consider a variety of factors affecting trustworthiness of a statement. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

In determining whether a statement is admissible under subsection (2)(e) of this section, the residual exception to the hearsay rule, a court considers five factors: a statement's trustworthiness, materiality of the statement, probative importance of the statement, interests of justice, and whether notice of the statement's prospective use as evidence was given to an opponent. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

The trial court did not abuse its discretion in concluding that out-of-court statements were not sufficiently trustworthy to fall within the residual exception to the hearsay rule where the declarant was in police custody when the statements were made. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

The court must make a preliminary inquiry to determine whether a declarant has personal knowledge regarding the subject matter of the statement that is sought to be introduced pursuant to subsection (2)(e) of this section, the residual exception to the hearsay rule. State v. Toney, 243 Neb. 237, 498 N.W.2d 544 (1993).

The residual hearsay exception is to be used rarely and only in exceptional circumstances. In connection with the residual hearsay exception, particularized guarantees of trustworthiness must be shown from the totality of the circumstances, which circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief. State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990).

It is the duty of the proponent of a will, in the first instance, to make a prima facie case as to testamentary capacity; it then devolves upon the contestant to overcome the presumption arising therefrom, after which the burden of proving testamentary capacity by a preponderance of the evidence devolves upon the proponent. Under the residual hearsay exception, the proponent of the evidence has the burden of establishing each of the conditions of admissibility imposed by the rule. In re Estate of Schoch, 209 Neb. 812, 311 N.W.2d 903 (1981).

5. Miscellaneous

Whether a particular remark within a larger narrative is truly self-inculpatory—such that a reasonable person would make the statement only if believed to be true—is a fact-intensive inquiry requiring careful examination of all the circumstances surrounding the criminal activity involved. When considering statements of a mixed nature, the question is whether the statements have a net exculpatory versus net inculpatory effect. State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).

A “statement” within the meaning of subdivision (2)(c) of this section is a specific individual statement that a proponent offers into evidence rather than the entire narrative of which the statement is a part; subdivision (2)(c) uses the term “statement” in a narrow sense to refer to a specific declaration or remark incriminating the speaker and not more broadly to refer to the entire narrative portion of the speaker’s confession. State v. Phillips, 286 Neb. 974, 840 N.W.2d 500 (2013).

A defendant's due process rights are protected by the language of this section. State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003).

In determining whether there are corroborating circumstances which clearly indicate the trustworthiness of a statement tending to expose the declarant to criminal liability and offered to exculpate the accused, a court should examine all circumstances surrounding the making of the statement, as well as any other evidence which either supports or undermines its veracity. State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003).

In determining whether "other reasonable means" are available to secure the appearance of a witness so as to admit or not admit the deposition testimony of the witness, the court may consider the stakes in the litigation, the relative resources of the parties, the importance of the declarant's statement in the suit, the foreseeability of the need for the statement, the relative expense encountered in securing the declarant's trial or deposition testimony, the financial hardship on the proponent to secure the witness' personal appearance, and the hostility or animosity of the witness whose testimony is sought. Maresh v. State, 241 Neb. 496, 489 N.W.2d 298 (1992).

The opportunity to cross-examine was not unduly denied because questions the deposition witness refused to answer were about collateral matters and did not relate to the subject of the witness' direct examination. Burke v. Harman, 6 Neb. App. 309, 574 N.W.2d 156 (1998).