Md. R. Evid. 5-804

As amended through October 15, 2024

Rule 5-804 - [Effective until 7/1/2024] Hearsay Exceptions; Declarant Unavailable

(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;

(2) refuses to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;

(3) testifies to a lack of memory of the subject matter of the declarant's statement;

(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 the statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subsection (b)(2), (3), or (4) of this Rule, the declarant's attendance or testimony) by process or other reasonable means.

A statement will not qualify under section (b) of this Rule if the unavailability is due to the procurement or wrongdoing of the proponent of the 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 in any action or proceeding or in a deposition taken in compliance with law in the course of any action or 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 an offense based upon an unlawful homicide, attempted homicide, or assault with intent to commit a homicide or in any civil action, 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 the declarant's impending death.

(3)Statement Against Interest. A statement which was at the time of its making so contrary to the declarant's pecuniary or proprietary interest, so tended to subject the declarant to civil or criminal liability, or so tended 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 the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered in a criminal case is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Cross reference: See Code, Courts Article, § 10-920, distinguishing expressions of regret or apology by health care providers from admissions of liability or fault.

(4)Statement of Personal or Family History.

(A) A statement concerning the declarant's own birth; adoption; marriage; divorce; legitimacy; ancestry; relationship by blood, adoption, or marriage; or other similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated.

(B) A statement concerning the death of, or any of the facts listed in subsection (4)(A) about another person, if the declarant was related to the other person by blood, adoption, or marriage or was so intimately associated with the other person's family as to be likely to have accurate information concerning the matter declared.

(5)Witness Unavailable Because of Party's Wrongdoing.

(A) Civil Actions. In civil actions in which a witness is unavailable because of a party's wrongdoing, a statement that (i) was (a) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (b) reduced to writing and was signed by the declarant; or (c) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement, and (ii) is offered against a party who has engaged in, directed, or conspired to commit wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness, provided however the statement may not be admitted unless, as soon as practicable after the proponent of the statement learns that the declarant will be unavailable, the proponent makes known to the adverse party the intention to offer the statement and the particulars of it.

Committee note: A "party referred to in subsection (b)(5)(A) also includes an agent of the government.

(B) Criminal Causes. In criminal causes in which a witness is unavailable because of a party's wrongdoing, admission of the witness's statement under this exception is governed by Code, Courts Article, § 10-901.

Committee note: Subsection (b)(5) of this Rule does not affect the law of spoliation, "guilty knowledge, or unexplained failure to produce a witness to whom one has superior access. See Washington v. State, 293 Md. 465, 468 n. 1 (1982); Breeding v. State, 220 Md. 193, 197 (1959); Shpak v. Schertle, 97 Md. App. 207, 222-27 (1993); Meyer v. McDonnell, 40 Md. App. 524, 533, (1978), rev'd on other grounds, 301 Md. 426 (1984); Larsen v. Romeo, 254 Md. 220, 228 (1969); Hoverter v. Director of Patuxent Inst., 231 Md. 608, 609 (1963); and DiLeo v. Nugent, 88 Md. App. 59, 69-72 (1991). The hearsay exception set forth in subsection (b)(5)(B) is not available in criminal causes other than those listed in Code, Courts Article, § 10-901(a).

Md. R. Evid. 5-804

This Rule is derived from F.R.Ev. 804.

Adopted Dec. 15, 1993, eff. 7/1/1994. Amended Nov. 8, 2005, eff. 1/1/2006; 6/16/2009, eff. 6/17/2009; 10/20/2010, eff. 1/1/2011; amended March 1, 2024, eff. 7/1/2024.

HISTORICAL NOTES

2005 Orders

The November 8, 2005, order inserted the cross reference following subsec. (b)(3); rewrote subsec. (b)(5); and amended the cross reference following subsec. (b)(5). Prior to amendment, subsec. (b)(5) read:

"(5) Other Exceptions. Under exceptional circumstances, the following are not excluded by the hearsay rule, even though the declarant is unavailable as a witness: A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. A statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the intention to offer the statement and the particulars of it, including the name and address of the declarant."

2009 Orders

The June 16, 2009, order, corrected a statutory reference in the committee note following section (b)(5)(B).

2010 Orders

The October 20, 2010, order, in subsec. (b)(3), substituted "offered in a criminal case" for "offered to exculpate the accused".

For the residual hearsay exception applicable regardless of the availability of the declarant, see Rule 5-803(b)(24).