Certain types of hearsay testimony may be admissible if the declarant is unavailable to testify at trial. A declarant is “unavailable” if the declarant (i) is exempted by the ruling of the court on the ground of privilege from testifying concerning the subject matter of the statement, (ii) persists in refusing to testify concerning the subject matter of the statement despite an order of the court to do so, (iii) testifies to a lack of memory about the subject matter of the statement, (iv) is unable to be present or to testify because of death or then-existing physical or mental illness or infirmity, or (v) is absent from the proceeding 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 if the exemption, refusal, claim of lack of memory, inability or absence is due to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the witness from attending or testifying.128
The decision whether or not a declarant is unavailable is within the discretion of the trial court.129 The proponent of the hearsay evidence has the burden of demonstrating that the declarant is unavailable. Although there is no set quantum of proof required, the evidence is not likely to be allowed if it appears that the effort to locate the declarant and bring him or her to trial is meager.130 In a criminal trial where the State seeks to offer hearsay under one of the exemptions discussed below on the ground that the witness is unavailable due to illness, a court should consider whether, instead of admitting the hearsay, fairness to the defendant requires a continuance until the declarant is available. In making such a determination, a court should consider (i) the importance of the absent witness, (ii) the nature and extent of the cross-examination of the earlier testimony, (iii) the nature of the illness, (iv) the expected time of recovery, (v) the reliability of the evidence of the probable duration of the illness, and (vi) any special circumstances counselling against delay.131
If a court determines that a witness is unavailable, the following types of hearsay evidence are admissible:
Former Testimony. Testimony given by a declarant as a witness in another hearing in the same or a different proceeding or in a deposition taken in compliance with law in the course of the same or a different proceeding, is admissible provided that the party against whom the testimony is now offered or a predecessor in interest had an opportunity and a motive to develop the testimony by direct, cross or re-direct examination.132 In determining whether there was similarity of motive, a court should consider (i) the subject matter covered by the prior testimony that is sought to be introduced, and (ii) whether the issue applicable to the subject matter of the prior testimony which makes that testimony relevant against the adverse party in the present action also made that testimony relevant against a party in the action in which the deposition was taken. This does not require that all of the issues be identical.133
Statement Under Belief Of Impending Death. A statement made by a declarant while believing that death was imminent, concerning the declarant’s belief as to the cause or circumstance of the declarant’s death, is admissible.134 The declarant’s belief in the imminence of his or her death may be proven by what the injured person said; or from the nature and extent of the wounds inflicted being obviously such that he must have felt or known that he could not survive; as well as from his conduct at the time and the communications, if any, made to him by his medical advisers, or assented to or understandingly acquiesced in by him. A mere belief that death was possible, or even probable, is not sufficient; the declarant must be virtually certain that death is imminent. The declarant’s comprehension of the imminency of death is to be determined from the totality of the circumstances.135
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 he or she believed it to be true, is admissible. 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.136
In determining the reliability of a statement tending to expose the declarant to criminal liability, courts will focus primarily on the trustworthiness of the statement, and not of that of the declarant, although courts may rely on the latter to some degree in determining the trustworthiness of the statement. Courts will also consider whether the statement (i) was made spontaneously and in close temporal proximity to the commission of the crime; (ii) is corroborated by other evidence in the case; and (iii) is truly self-incriminating and against the declarant’s penal interest. The corroborating circumstances must clearly indicate the trustworthiness of the statement.137
What qualifies as sufficient corroboration is case-specific, and may be subject to a sliding scale, with the amount or quality of the corroboration required decreasing as the significance of the statement to the defendant rises. Generally speaking, evidence that the declarant was near the scene and had some motive or background connecting him or her with the crime will be considered sufficient corroboration.138 The issue of whether there is sufficient corroboration is a preliminary question of law as to the admissibility of the evidence. Once the trial judge finds that sufficient corroborating circumstances exist as a threshold matter, it is up to the jury to assess the weight of the evidence.139
When a statement against interest is a component of a larger statement, the other parts of which do not constitute statements against interest are not otherwise admissible under any other exception to the hearsay rule, such neutral collateral statements may not be introduced into evidence. Only the segment constituting the statement against interest may be introduced.140
Statement of Personal Or Family History. 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 is admissible, even though the declarant had no means of acquiring personal knowledge of the matter stated. A statement concerning the same matters, and death also, of another person is admissible 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.141
Forfeiture by Wrongdoing. A statement offered against a party that has engaged in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.142
128. D.R.E. 804(a). See also Demby v. State, 695 A.2d 1152, 1158 (Del. 1997).
129 Firestone Tire & Rubber Co. v. Adams, 541 A.2d 567, 572 (Del. 1988); Younger v. State, 496 A.2d 546, 551 (Del. 1985); Graves v. State, No. 55, 1996, slip op. at 3, Hartnett, J. (Del. Mar. 30, 1998) (ORDER), disposition reported at 708 A.2d 639 (Del. 1998) (TABLE).
130. Graves v. State, No. 55, 1996, slip op. at 3, Hartnett, J. (Del. Mar. 30, 1998) (ORDER), disposition reported at 708 A.2d 639 (Del. 1998) (TABLE).
131. Younger v. State, 496 A.2d 546, 551 (Del. 1985).
132. D.R.E. 804(b)(l); Firestone Tire & Rubber Co. v. Adams, 541 A.2d 567, 572 (Del. 1988); Temple v. Raymark Industries, Inc., 551 A.2d 67, 69 (Del. Super. 1988); State v. Phillips, C.A. No. 276, slip op. at 2-3, Hartnett, V.C. (Del. Ch. Apr. 25, 1980).
133. Temple v. Raymark Industries, Inc., 551 A.2d 67, 69 (Del. Super. 1988).
134. D.R.E. 804(b)(2); Barnes v. State, 352 A.2d 409, 410 (Del. 1976). See also Collins v. Ashland, Inc., C.A. No. 06C-03-339-JRJ, slip op. at 7, Jurden, J. (Del. Super. Aug. 12, 2008) (statement made 149 days before death deemed not imminent); Stigliano v. Anchor Packing Co., C.A. No. 05C-06-263-ASB, slip op. at 2, Slights, J. (Del. Super. Oct. 18, 2006) (statement made 73 days before death not imminent).
135. State v. Johnson, No. 9908026980 slip op. at 18, Cooch, J. (Del. Super. Apr. 19, 2001).
136. D.R.E. 804(b)(3); Neal v. State, 80 A.3d 935, 948-49 (Del. 2013); Cabrera v. State, 840 A.2d 1256, 1266-67 (Del. 2004); Demby v. State, 695 A.2d 1152, 1157 (Del. 1997). See also Clough v. Clough, CA. No. 6494, slip op. at 4, Berger, V.C. (Del. Ch. Feb. 27, 1985).
137. Neal v. State, 80 A.3d 935, 948-49 (Del. 2013); Demby v. State, 695 A.2d 1152, 1157 (Del. 1997); Outten v. State, 650 A.2d 1291, 1296-97 (Del. 1994).
138. Demby v. State, 695 A.2d 1152, 1159 (Del. 1997).
139. Neal v. State, 80 A.3d 935, 948-49 (Del. 2013); Demby v. State, 695 A.2d 1152, 1159 (Del. 1997).
140. Outten v. State, 650 A.2d 1291, 1297-98 (Del. 1994), cert. denied 515 U.S. 1145 (1995); Smith v. State, 647 A.2d 1083, 1086-88 (Del. 1994).
141. D.R.E. 804(b)(4).
142. D.R.E. 804(b)(6).
© 2014 David L. Finger