2006 Nebraska Revised Statutes - § 27-804 — Rule 804. Hearsay exceptions; enumerated; declarant unavailable; unavailability, defined.

Section 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:

Laws 1975, LB 279, § 58

Annotations:

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).2. Notice of unavailability

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

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 was 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).4. Residual hearsay

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

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).

~Reissue Revised Statutes of Nebraska