Rule 2:804.HEARSAY EXCEPTIONS APPLICABLE WHERE THE DECLARANT IS

Rule 2:804 gathers the hearsay exceptions that come into play only when the declarant cannot be produced. Subdivision (a) states the threshold: these exceptions apply where the declarant is dead or otherwise unavailable as a witness, unlike the Rule 2:803 exceptions, which apply regardless of availability.

Subdivision (b) lists five recognized exceptions. Former testimony admits testimony given under oath, or otherwise subject to penalties for perjury, at a prior hearing or deposition, if offered in reasonably accurate form and if the party against whom it is now offered (or, in a civil case, a privy) was a party in that earlier proceeding who examined the witness on direct or had the opportunity to cross-examine, with the issue in both cases substantially the same. A statement under belief of impending death — the dying declaration — applies in homicide prosecutions, admitting a statement about the cause or circumstances of the declarant’s death made by someone who believed death was imminent and had given up all hope of survival.

A statement against interest covers two variations: a statement the declarant knew, at the time it was made, was contrary to the declarant’s own pecuniary or proprietary interest or tended to subject the declarant to civil liability; and a statement the declarant knew would tend to subject the declarant to criminal liability, admissible only if shown to be reliable. A statement of personal or family history admits, when no better evidence is available, a statement about family relationships or pedigree made before the controversy existed, by a member of the family or a relative.

The fifth exception, statement by a party incapable of testifying, incorporates Code § 8.01-397 by reproducing its text: no judgment may rest on a party’s uncorroborated testimony in an action by or against someone incapable of testifying (or that person’s representative), but entries, memoranda, and declarations made by the incapable party while capable, relevant to the matter, may be received as evidence — with an exclusion for someone who made himself incapable of testifying through an intentional self-inflicted injury. The rule adds that an entry authored by an adverse or interested party in a business record can corroborate that party’s testimony, and if not authenticated through a request for admission, it may be authenticated by a non-adverse, non-interested person other than the entry’s author.