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RULE 804

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; 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) testifies to 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 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 (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

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.

(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, 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.

(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, concerning the cause or circumstances of what the declarant believed to be 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 believing 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.

Note:

Subsection (a) is identical to the federal rule and consistent with South Carolina law. Riddle v. State, 314 S.C. 1, 443 S.E.2d 557 (1994) (witness unavailable who refuses to testify even after being threatened with contempt); State v. Doctor, 306 S.C. 527, 413 S.E.2d 36 (1992) (witness who asserts a privilege is unavailable); State v. Steadman, 216 S.C. 579, 59 S.E.2d 168, cert. denied, 340 U.S. 850, 71 S.Ct. 78, 95 L.Ed. 623 (1950) (witness who is absent from the jurisdiction and cannot be found is unavailable); State v. Rogers, 101 S.C. 280, 85 S.E. 636 (1914) (witness who is dead, insane, beyond the seas, or kept away by the contrivance of the opposing party is unavailable).

Subsection (b) omits subsection (5), the "catch all" or residual hearsay exception found in the federal rule, but is otherwise identical to the federal rule. Subsection (1) is consistent with South Carolina law. State v. Steadman, 216 S.C. 579, 59 S.E.2d 168, cert. denied, 340 U.S. 850, 71 S.Ct. 78, 95 L.Ed. 623 (1950). It should be noted that S.C. Code Ann. ยง 19-11-50 (1985), which provides that the testimony of a criminal defendant may not be used in any subsequent criminal case against him except prosecution for perjury founded on that testimony, may place some limit on the admissibility of evidence under this subsection. Subsection (2) broadens the admissibility of dying declarations by making them admissible in civil cases. See Sligh v. Newberry Electric Co-op., 216 S.C. 401, 58 S.E.2d 675 (1950). The rigid requirement that the declarant must actually have died, State v. Dawson, 203 S.C. 167, 26 S.E.2d 506 (1943), is relaxed under the Rule which only requires the death of the declarant in a homicide prosecution. Subsection (3) is consistent with South Carolina law. State v. Doctor, 306 S.C. 527, 413 S.E.2d 36 (1992). Subsection (4) is consistent with South Carolina law. McLain v. Woodside, 95 S.C. 152, 79 S.E. 1 (1913).