24-8-804. Hearsay rule exceptions; declarant unavailable.

As used in this Code section, the term “unavailable as a witness” includes situations in which the declarant:#

1. (1)

   Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement;#

2. (2)

   Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so;#

3. (3)

   Testifies to a lack of memory of the subject matter of the declarant’s statement;#

4. (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. (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 exceptions under paragraph (2), (3), or (4) of subsection (b) of this Code section, the declarant’s attendance or testimony, by process or other reasonable means.#

   1. A declarant shall not be deemed unavailable as a witness if the declarant’s 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.

The following shall not be excluded by the hearsay rule if the declarant is unavailable as a witness:#

1. (1)

   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 proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. If deposition testimony is admissible under either the rules stated in Code Section 9-11-32 or this Code section, it shall be admissible at trial in accordance with the rules under which it was offered;#

2. (2)

   In a prosecution for homicide or in a civil proceeding, a statement made by a declarant while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death;#

3. (3)

   A statement against interest. A statement against interest is a statement:#

   1. (A)

      Which 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 a claim by the declarant against another or to expose the declarant to civil or criminal liability; and#

   2. (B)

      Supported by corroborating circumstances that clearly indicate the trustworthiness of the statement if it is offered in a criminal case as a statement that tends to expose the declarant to criminal liability;#

4. (4)

   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 the declarant had no means of acquiring personal knowledge of the matter stated or 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; or#

5. (5)

   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.#