KRE 804: 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) Persists in refusing 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 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 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 criminal prosecution or in a

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

that the declarant's death was imminent, concerning the cau se or

circumstances of what the declarant 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 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 expos e the declarant to criminal liability is not

admissible unless corroborating circumstances clearly indicate the

trustworthiness of the statement.

(4) Statements 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.

(5) 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.