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Montgomery County, Texas Criminal Defense Attorney Texas Rules of Evidence Series - Rule 804

Montgomery County, Texas Criminal Defense Attorney Brian Foley is Board Certified in Criminal Law.


Rule 804 of the Texas rules of evidence covers additional hearsay exceptions that have a special requirement. Rule 804 hearsay exceptions are only exceptions when the declarant is unavailable as a witness.


What does unavailable mean?


  1. Some privilege applies to the witness. This could be attorney client privilege, marital privilege, or the privilege against self incrimination in the 5th Amendment. If the witness is present in the courtroom but cannot testify then they are ruled "unavailable."

  2. If the witness just straight up refuses to testify despite a court order.

  3. If the witness says that they do not remember the subject matter.

  4. If the witness is dead or is rendered incapable of appearing in court because of injury or sickness.

  5. If the witness just isn't in the courtroom and can't be located and subpoenaed. This one has the mobster exception where it isn't available if you killed them, threatened them, or beat them up. If you cause the unavailability because of wrongdoing then you don't get to benefit from the rules.

In criminal law when discussing hearsay it is always important to remember that the 6th Amendment to the United States Constitution requires confrontation. This means that generally a criminal defendant must be faced with his accusers and have the opportunity for meaningful cross examination of the witnesses against him. Therefore the hearsay exceptions for unavailable witnesses can pose a problem. Lets look at each one closely.





FORMER TESTIMONY IN CIVIL CASE - If the witness can't testify but has already testified in court or at another deposition and it was generally about the same topic and the other party had the same interest that you do. For example if there was a criminal case for intoxication manslaughter and the defendant testified and was cross examined by the prosecutor then it might be able to be used in a civil case for wrongful death. The motive to cross examine isn't exactly the same but it is pretty similar. This would not typically work in reverse order for a criminal case.


FORMER TESTIMONY IN CRIMINAL CASE - In a criminal case the rules allow a hearsay exception when the testimony was given as a witness at a trial or hearing and there was a similar motive in how the witness was cross examined or was taken in a deposition under the provisions of Chapter 39 of the code of criminal procedure. This rule has little difference other than to ensure that the various requirements of criminal depositions occur. Depositions in criminal cases are extremely rare.


DYING DECLARATIONS - The dying declaration is a hearsay exception for when someone dies but tells someone something about how they died with the belief that this was basically the last chance for them to tell their story. The rule is kind of interesting because it doesn't actually require that the person die. Huh? Yes you read that correctly. You can get a dying declaration or the now more boringly named Statement Under the Belief of Imminent Death, hearsay exception even if the witness who made the statement doesn't die. The important part of the rule is that the person thought they were going to die. If they pull through then the rationale doesn't change. People who think they are about to die are more likely to tell the truth. Or at least that is what the theory behind the rule assumes.


The Supreme Court held that a victim's “identification and description of the shooter and the location of the shooting were not testimonial statements, and their admission at . . . trial did not violate the Confrontation Clause.” Michigan v. Bryant, 562 U.S. 344, 349 (2011).


And the godfather of confrontation himself Scalia mentions that dying declarations are not a problem for the 6th Amendment. “The burden is upon the prosecutor who seeks to introduce evidence over this bar to prove a long-established practice of introducing specific kinds of evidence, such as dying declarations, see Crawford, supra, at 56, n. 6, 124 S.Ct. 1354, for which cross-examination was not typically necessary.” Ohio v. Clark, 576 U.S. 237, 253 (2015).


STATEMENT OF PERSONAL OR FAMILY HISOTRY - Here is another one that comes up from time to time in will or probate cases. A statement made by a person about their own birth (of which they couldn't have personal knowledge right?), adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption or marriage (again?), or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; (see they thought about persnickety lawyers like us.) or another person concerning any of those facts as well as death if you are related to the person by blood, adoption, or marriage or were so intimately associated with the person's family that the declarant's information is likely to be accurate. That rule is kind of a mouthful. But the basic idea is that people get to talk about the family history of people in their family. And if you're the kid from the blind side or you're just living with some other family for a long time you probably know them well enough that you get to talk about them too.



Rule 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable as a Witness

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;

(2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter;

(4) cannot be present or testify at the trial or hearing because of death or a then existing infirmity, physical illness, or mental illness; or

(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure the declarant’s attendance or testimony. But this subdivision does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.


(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:


(1) Former Testimony. Testimony that:

(A) when offered in a civil case:

(i) was given as a witness at a trial or hearing of the current or a different proceeding or in a deposition in a different proceeding; and

(ii) is now offered against a party and the party—or a person with similar interest—had an opportunity and similar motive to develop the testimony by direct, cross-, or redirect examination.

(B) when offered in a criminal case:

(i) was given as a witness at a trial or hearing of the current or a different proceeding; and (ii) is now offered against a party who had an opportunity and similar motive to develop it by direct, cross-, or redirect examination; or

(iii) was taken in a deposition under—and is now offered in accordance with—chapter 39 of the Code of Criminal Procedure.


(2) Statement Under the Belief of Imminent Death. A statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.


(3) Statement of Personal or Family History. A statement about:

(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or

(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.


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