§34.01 INTRODUCTION

• Jurisdiction: United States

§34.01. INTRODUCTION

Rule 804 specifies five hearsay exceptions that require a showing that the declarant is unavailable to testify at trial.¹ In contrast, the exceptions enumerated in Rule 803 do not depend on the unavailability of the declarant. Unlike the Rule 803 exceptions, here the preference is for live testimony, and resort to the Rule 804 exceptions is permitted only when live testimony is not obtainable.²

But what is the justification for the disparate treatment between the Rule 803 and Rule 804 exceptions — which requires a showing of unavailability only for the latter? Are the Rule 803 exceptions more reliable? Are excited utterances (Rule 803) really more trustworthy than declarations against interest (Rule 804)? Such an argument would be questionable for former testimony, which could be considered the most reliable exception since the opportunity for cross-examination is required for that exception. The reasons for requiring unavailability for this exception do not involve its unreliability (see § 34.03 below).

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Notes:

^[1] There is...