A.  Definition of unavailability.  Except as otherwise provided by this Code, a declarant is “unavailable as a witness” when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court.  This 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 his statement;

(2)  Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so;

(3)  Testifies to a lack of memory of the subject matter of his statement;

(4)  Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness, infirmity, or other sufficient cause; or

(5)  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 wrong-doing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.

B.  Hearsay exceptions.  The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1)  Former testimony.  Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a party with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.  Testimony given in another proceeding by an expert witness in the form of opinions or inferences, however, is not admissible under this exception.

(2)  Statement under belief of impending death.  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.

(3)  Statement against interest.  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.

(4)  Statement of personal or family history.  (a) A statement, made before the controversy, concerning the declarant’s own birth, adoption, marriage, divorce, filiation, 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

(b)  A statement, made before the controversy, 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.

(5)  Complaint of sexually assaultive behavior.  A statement made by a person under the age of twelve years and the statement is one of initial or otherwise trustworthy complaint of sexually assaultive behavior.

(6)  Other exceptions.  In a civil case, a statement not specifically covered by any of the foregoing exceptions if the court determines that considering all pertinent circumstances in the particular case the statement is trustworthy, and the proponent of the evidence has adduced or made a reasonable effort to adduce all other admissible evidence to establish the fact to which the proffered statement relates and the proponent of the statement makes known in writing to the adverse party and to the court his intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it.  If, under the circumstances of a particular case, giving of this notice was not practicable or failure to give notice is found by the court to have been excusable, the court may authorize a delayed notice to be given, and in that event the opposing party is entitled to a recess, continuance, or other appropriate relief sufficient to enable him to prepare to meet the evidence.

(7)(a)  Forfeiture by wrongdoing.  A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

(b)  A party seeking to introduce statements under the forfeiture by wrongdoing hearsay exception shall establish, by a preponderance of the evidence, that the party against whom the statement is offered, engaged or acquiesced in the wrongdoing.

Acts 1988, No. 515, §1, eff. Jan. 1, 1989; Acts 1995, No. 346, §1; Acts 1995, No. 1300, §§1 and 2; Acts 1997, No. 577, §§2, 4; Acts 2004, No. 26, §4; Acts 2009, No. 7, §1; Acts 2010, No. 543, §1.