Hearsay Exceptions: Where Declarant Unavailable — Rule 804

• Jurisdiction: Colorado

Hearsay Exceptions: Where Declarant Unavailable — Rule 804

SUMMARY OF RULE 804

Provides Definition of Unavailability of a Witness, Including:

• The declarant is exempted due to privilege.
• The declarant refuses to testify.
• The declarant testifies to lack of memory.
• The declarant is deceased or has an existing physical or mental illness.
• The declarant is not available by service of process or other reasonable means.

Hearsay Exceptions When Declarant is Unavailable

• Former testimony given at another hearing or deposition if the party (against whom testimony is now offered) had opportunity or similar motive to develop the testimony by direct, cross, or redirect examination.
• A statement against interest is a statement that (1) a reasonable person in the declarant's position would have made only if the person believed it to be true because it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim or to expose the declarant to civil or criminal liability; and (2) is supported by corroborating circumstances that clearly indicate trustworthiness, if offered in criminal case as one that tends to expose the declarant to criminal liability.
• A statement of personal or family history, concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, or similar fact of personal or family history, even if the declarant did not have means to acquire personal knowledge.
• A statement concerning personal or family matters, including the death of another if the declarant is related to the other by blood, adoption, or marriage, or was intimately associated with the family to likely have accurate knowledge.

LEGAL AUTHORITIES

• For the deposition of a witness to be admitted as an exception to the hearsay rule, the witness must be unavailable such that his or her testimony would be excluded. Devenyns v. Hartig, 983 P.2d 63 (Colo. App. 1998).

• The deposition of a party may be used for any purpose without a showing of unavailability. C.R.C.P. 32(a)(2); Devenyns v. Hartig, 983 P.2d 63 (Colo. App. 1998).

• The unavailability of the witness is determined at the time of trial. People v. Newton, 966 P.2d 563 (Colo. 1998).

• The witness must take the stand and invoke the privilege from testifying before the court may make a finding of unavailability. People v. Rosenthal, 670 P.2d 1254 (Colo. App. 1983).

• Dying declaration requirements are codified at C.R.S. § 13-25-119, and do not...