TITLE EIGHT — HEARSAY
Rule 804. Hearsay Exceptions; Declarant Unavailable
Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
in a civil case, testifies to not remembering the subject matter;
cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
is absent from the trial or hearing and the statement’s proponent has not been able to procure the declarant’s attendance by process or other reasonable means.
Refusal to Testify. A declarant is also unavailable where the declarant refuses to testify about the subject matter of the declarant’s statement despite an order of the court directing the declarant to do so. The proponent shall show that the court directed the declarant to testify, that the declarant was informed of the consequences of refusal, and that the declarant persisted in the refusal. A refusal so shown does not excuse the court from proceeding under Rid. R. Crim. P. 43 or Rid. R. Civ. P. 53, or from treating the refusal as contempt of court as 6 R. Stat. § 131.302 permits.
Proponent’s Procurement. A declarant is not unavailable within the meaning of this subdivision where the proponent of the statement procured, wrongfully caused, or acquiesced in the declarant’s unavailability, or the declarant’s inability to be present or to testify, in order to prevent the declarant from attending or testifying. The opponent bears the burden of showing procurement under this paragraph.
Reasonable Means; Findings.
Reasonable Means. For the purpose of paragraph (d), reasonable means include a summons or subpoena issued under Rid. R. Civ. P. 32 or 6 R. Stat. § 131.301, service through the electronic filing system, notice in the case’s Discord proceeding communications, notice by direct message to the account through which the declarant acts, and, in a criminal case, an application for an order directing a law enforcement officer to bring the witness before the court. The proponent shall show what means were employed, when, and with what result.
Findings. Unavailability is a preliminary question for the court under Rule 104(1). The proponent bears the burden of establishing it by a preponderance of the evidence. The court shall state its findings on the record before admitting a statement under this rule.
Continuing Duty. Where a declarant found unavailable becomes available before the close of the evidence, any party may move to strike a statement admitted under this rule, and the court shall consider whether the declarant should be called.
The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
Prior Recorded Testimony. Testimony that:
was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one, and
is now offered against a party who had—or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
Adequacy of the Opportunity. The court shall determine whether the party against whom the testimony is offered had an opportunity and similar motive to develop it. In making that determination the court shall consider the nature and the purpose of the earlier proceeding, the issues then in dispute, whether the party was represented, and whether the party was afforded a fair opportunity to examine. A determination of probable cause for detention made at a first appearance under Rid. R. Crim. P. 3.1, at which the court considers only the arresting officer’s affidavit, no evidence is received from any party, and which shall not exceed five (5) minutes, does not of itself afford an adequate opportunity to develop testimony, and testimony given at such a determination shall not be received against a defendant under this paragraph absent a finding that an adequate opportunity was in fact afforded. Testimony taken at a trial or hearing conducted in the defendant’s absence under 6 R. Stat. § 131.501, at which counsel of record appeared and was afforded the full opportunity to participate that § 131.501(f) and Rid. R. Crim. P. 18.4(3) require, affords an adequate opportunity to develop the testimony, and is admissible against that defendant at a new trial ordered under Rid. R. Crim. P. 18.5 upon the same terms as testimony taken in the defendant’s presence, unless the court finds that the absence in fact deprived counsel of a fair opportunity to examine upon the subject.
Proof of the Testimony. Testimony within this paragraph may be proved by a transcript, by the recording of the proceeding, by the record of the case’s Discord proceeding communications, by a deposition recorded by ordinary audio as Rid. R. Civ. P. 23(1)(c) permits, or by the testimony of a person who heard it. Its use is otherwise governed by Rid. R. Civ. P. 25.
Criminal Cases. Where the testimony is offered against a defendant in a criminal case, the requirements of Rule 802(4) shall also be satisfied.
Statement Against Interest. A statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else, or to expose the declarant to civil or criminal liability. In a criminal case, the exception does not apply to a statement that tends to expose the declarant to criminal liability and is offered to exculpate the defendant, or is offered by the State to inculpate the defendant, unless corroborating circumstances clearly indicate the trustworthiness of the statement.
Each Statement Examined Separately. Where a narrative contains several statements, the court shall examine each separately. Only a statement that is itself against the declarant’s interest is admissible. A collateral statement, a statement that shifts blame to another person, a statement that minimizes the declarant’s own conduct, and a statement made in the expectation of leniency are not against the declarant’s interest, and are not admissible under this paragraph merely because they appear within the same narrative.
Corroborating Circumstances. In determining whether corroborating circumstances clearly indicate trustworthiness, the court shall consider the timing and the circumstances of the statement, the declarant’s relationship to the party offering it and to the person implicated, whether the declarant had a motive to lie or to curry favor, whether the statement was repeated consistently, and whether the statement is corroborated by independent evidence.
Interest in This World. A statement is against the declarant’s proprietary or pecuniary interest where it acknowledges a debt, a delinquency, a forfeiture, a garnishment, the loss or the transfer of an item or of in-game currency, or liability upon a judgment enforceable under Rid. R. Civ. P. 50.
Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party if the court finds:
that the witness is unavailable;
that the party was involved in, or responsible for, procuring the unavailability of the witness; and
that the party acted with the intent to procure the witness’s unavailability.
Procedure. The proponent bears the burden of establishing each finding by a preponderance of the evidence. The court shall determine the question as a preliminary question under Rule 104(1), and in a trial by jury shall do so outside the hearing of the jury. In deciding the question the court may consider the statement itself together with other evidence.
Conduct Within This Paragraph. Conduct within this paragraph includes killing, injuring, detaining, or threatening the declarant; procuring another person to do so; offering or paying a consideration for the declarant’s absence; and directing, persuading, or pressuring the declarant to disobey process, to leave the jurisdiction, to become unreachable through the account through which the declarant acts, or to refuse to testify.
Effect Upon Confrontation. A finding under this paragraph forfeits the objection stated in Rule 802(4)(a) as to that declarant.
Statement Under Belief of Imminent Death. In a prosecution for homicide, or in a civil action or proceeding, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
Belief of Imminent Death. The proponent shall show that the declarant, when the statement was made, believed death to be imminent and had abandoned all hope of recovery. That belief may be shown by the declarant’s own words, by the nature and the extent of the declarant’s wounds or condition, by what the declarant was told by a person rendering assistance, and by the surrounding circumstances.
Death Not Required. The declarant need not have died. The declarant shall be unavailable as a witness under subdivision (1).
Subject Matter. The statement shall concern the cause or the circumstances of what the declarant believed to be the declarant’s impending death. A statement upon another subject is not within this paragraph.
Personal Knowledge. The statement shall rest upon the declarant’s personal knowledge, as Rule 602 requires. A statement expressing the declarant’s opinion, conjecture, or belief as to matters the declarant did not perceive is not admissible under this paragraph.
Statements in This World. A statement within this paragraph includes one transmitted in the game environment by voice or chat, over the Dispatch radio channel, or in a Discord channel or direct message while the declarant was mortally wounded or in circumstances the declarant believed to be fatal.
Statement of Personal History. A statement concerning the declarant’s own identity; the account through which the declarant acts and the date upon which it was created; the declarant’s residence within the State; the declarant’s employment, civil service, rank, or licensure; the declarant’s membership in an organization; or a similar fact of the declarant’s personal history, even though the declarant had no way of acquiring personal knowledge about that fact.
Statement About Another Person. A statement concerning any fact described in this paragraph about another person is admissible where the declarant was so intimately associated with that person’s affairs as to be likely to have accurate information about the fact asserted.
Limitation. This paragraph does not admit a statement concerning the conduct of a person, the commission of an offense, or a fact in issue other than a fact of personal history described in this paragraph.
Trustworthiness. The statement is not admissible where the circumstances under which it was made indicate a lack of trustworthiness, including where it was made after a controversy concerning the fact asserted had arisen.