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ARTICLE VIII. HEARSAY

Table of Contents

Article I. General Provisions
Article II. Judicial Notice
Article III. Presumptions
Article IV. Relevancy and Its Limits
Article V. Privileges
Article VI. Witnesses
Article VII. Opinions and Expert Testimony
Article VIII. Hearsay
Rule 801
Rule 801a
Rule 801c
Rule 801d
Rule 801e
Rule 803
Rule 804
Rule 805
Article X. Contents of Writings, Recordings,
and Photographs

       (d) [Statements which are not hearsay. A statement is not hearsay if --] [Moved to Revised Rules 613, 801(c), 803(3), and 805(1) & (2)]Unavailability. [Changes highlighted] [Moved from Current Rule 804(a)] "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] refuses to testify [concerning the subject matter of the declarant's] about the statement despite an order [of] by 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 death or then existing physical or mental illness or infirmity; or

       (5) is absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under 804(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.]

If the proponent of the statement caused the unavailability of the declarant, then the proponent may not offer the statement under the exceptions provided in Rule 804.

Click here to see commentary on Revised Rule 801(d).

       (d) Unavailability. [Clean copy] "Unavailability" 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) refuses to testify about the statement despite an order by 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 death or then existing physical or mental illness or infirmity; or

       (5) is absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under 804(b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

If the proponent of the statement caused the unavailability of the declarant, then the proponent may not offer the statement under the exceptions provided in Rule 804.

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