SCRE 804

(a) Definition of Unavailability. "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 to testify concerning the subject matter of the declarant's

statement despite an order of 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 of death or then

existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of a statement has been unable to

procure the declarant's attendance (or in the case of a hearsay exception under

subdivision (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.

(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, or in a deposition taken in compliance with law in the

course of the same or another proceeding, if the party against whom the testimony is

now offered, or, in a civil action or proceeding, a predecessor in interest, had an

opportunity and similar motive to develop the testimony by direct, cross, or redirect

examination.

(2) Statement Under Belief of Impending Death. In a prosecution for homicide or

in a civil action or proceeding, a statement made by a declarant while believing that

the declarant's death was imminent, concerning the cause or circumstances of what

the declarant believed to be 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 the declarant to civil or criminal liability, or to render invalid a claim by the

declarant against another, that a reasonable person in the declarant's position would

not have made the statement unless believing 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 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 (B) 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.

Note:

Subsection (a) is identical to the federal rule and consistent with South Carolina law.

Riddle v. State, 314 S.C. 1, 443 S.E.2d 557 (1994) (witness unavailable who refuses to

testify even after being threatened with contempt); State v. Doctor, 306 S.C. 527, 413

S.E.2d 36 (1992) (witness who asserts a privilege is unavailable); State v. Steadman, 216

S.C. 579, 59 S.E.2d 168, cert. denied, 340 U.S. 850, 71 S.Ct. 78, 95 L.Ed. 623 (1950)

(witness who is absent from the jurisdiction and cannot be found is unavailable); State

v. Rogers, 101 S.C. 280, 85 S.E. 636 (1914) (witness who is dead, insane, beyond the

seas, or kept away by the contrivance of the opposing party is unavailable).

Subsection (b) omits subsection (5), the "catch all" or residual hearsay exception found

in the federal rule, but is otherwise identical to the federal rule. Subsection (1) is

consistent with South Carolina law. State v. Steadman, 216 S.C. 579, 59 S.E.2d 168, cert.

denied, 340 U.S. 850, 71 S.Ct. 78, 95 L.Ed. 623 (1950). It should be noted that S.C. Code

Ann. § 19-11-50 (1985), which provides that the testimony of a criminal defendant

may not be used in any subsequent criminal case against him except prosecution for

perjury founded on that testimony, may place some limit on the admissibility of

evidence under this subsection. Subsection (2) broadens the admissibility of dying

declarations by making them admissible in civil cases. See Sligh v. Newberry Electric

Co-op., 216 S.C. 401, 58 S.E.2d 675 (1950). The rigid requirement that the declarant

must actually have died, State v. Dawson, 203 S.C. 167, 26 S.E.2d 506 (1943), is relaxed

under the Rule which only requires the death of the declarant in a homicide

prosecution. Subsection (3) is consistent with South Carolina law. State v. Doctor, 306

S.C. 527, 413 S.E.2d 36 (1992). Subsection (4) is consistent with South Carolina law.

McLain v. Woodside, 95 S.C. 152, 79 S.E. 1 (1913).