Rule 804. Exceptions to the Rule Against HearsayWhen 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 declarants 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 statements proponent has not been able, by process or other reasonable means, to procure:
(A) the declarants attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarants attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).
But this subdivision (a) does not apply if the statements proponent procured or wrongfully caused the declarants unavailability as a witness in order to prevent the declarant from attending or testifying.
This rule is identical to F.R.E. 804(a).
The provisions of this Rule are amended March 10, 2000, effective immediately, 30 Pa.B. 1639; amended December 17, 2004, effective January 31, 2005, 35 Pa.B. 8; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (265707) to (265708) and (308925) to (308928).
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