(1) Unavailability as a witness includes situations in which the declarant:
(a) Is exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or
(b) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the judge to do so; or
(c) Testifies to lack of memory of the subject matter of the declarant's statement; or
(d) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(e) Is absent from the hearing and the proponent of the declarant's 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 the declarant's exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant's statement for the purpose of preventing the declarant from attending or testifying.
(2) Subject to the provisions of section 27-403, the following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(a) 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 a different proceeding, at the instance of or against a party with an opportunity to develop the testimony by direct, cross, or redirect examination, with motive and interest similar to those of the party against whom now offered;
(b) 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;
(c) 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 such person believed it to be true. 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;
(d)(i) 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 (ii) 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;
(e) A statement offered against a party that wrongfully caused, or intentionally aided another in wrongfully causing, the declarant's unavailability as a witness, and did so intending that result; or
(f) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact, (ii) 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 (iii) 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 proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
Notes of Decisions
Cited in
88
cases (
5 in the last 5 years), 1976–2025 · leading case:
State v. Lotter, 664 N.W.2d 892 (Neb. 2003).
State v. Lotter, 664 N.W.2d 892 (Neb. 2003).
· cites it 13× “Haley’s deposition, taken on October 18, 2000, was offered into evidence for substantive purposes under the penal interest exception to hearsay, Neb. Rev. Stat. § 27-804 (2)(c) (Reissue 1995).”
Maresh v. State, 489 N.W.2d 298 (Neb. 1992).
· cites it 19× “The State objected to the admission of the deposition on the grounds that the deposition was hearsay and that there had been no showing of unavailability as required by Neb. Rev. Stat. § 27-804 (2)(a) (Reissue 1989).”
State v. Sheets, 618 N.W.2d 117 (Neb. 2000).
· cites it 26× “§ 27-802 (Reissue 1995), § 27-804, and Sheets' right to confront witnesses against him, pursuant to Neb.”
State v. Trice, 292 Neb. 482 (Neb. 2016).
· cites it 14× “The State asked the court to find Baldwin unavailable under Neb. Rev. Stat. § 27-804 (1)(e) (Reissue 2008) and offered a transcript of Baldwin’s testimony from the first trial.”
Tchikobava v. Albatross Express, 876 N.W.2d 610 (Neb. 2016).
· cites it 4× “Tchikobava further argues for admissibility under Neb. Rev. Stat. §27-804 (2)(a) (Reissue 2008), which generally provides that a deposition is not excluded by the hearsay rule if the declarant is unavailable as a witness and if the deposition was taken in a different proceed-…”
State v. Plant, 461 N.W.2d 253 (Neb. 1990).
· cites it 12× “The second residual hearsay exception, set forth in § 27-804, is identical to that in § 27-803(22) except that unavailability of the declarant must be shown.”
State v. Oldson, 884 N.W.2d 10 (Neb. 2016).
· cites it 2× “Walkowiak testified that he did not remember the 1989 inter- view and that his memory of the night of May 31, 1989, was better now than it was then.”
State v. Allen, 301 Neb. 560 (Neb. 2018).
· cites it 2× “804(2)(a), Neb. Rev. Stat. § 27-804 (2)(a) (Reissue 1995), a firmly rooted hearsay exception.”
Walton v. PATIL, 783 N.W.2d 438 (Neb. 2010).
· cites it 12× “[8] We explained that the unavailability requirement of § 27-804 must be read into § 6-332 so that an independent exception to the hearsay rule was not created by the Nebraska discovery rule.”
State v. Jacob, 494 N.W.2d 109 (Neb. 1993).
· cites it 8× “The district court ruled that the statements made August 2 were admissible as dying declarations under Neb. Rev. Stat. § 27-804 (2)(b) (Reissue 1989) and under the residual exceptions contained in §§ 27-803(22) and 27-804(2)(e) and that the statement made on August 3 was…”
Burke v. Harman, 574 N.W.2d 156 (Neb. Ct. App. 1998).
· cites it 12× “The witness indicated in his deposition that he is willing to appear and he is therefore not “unavailable” under Neb. Rev. Stat. § 27-804 (2)(a); *321 b. The defendant was deprived of his right to effectively cross-examine the witness at his deposition by the witness’s refusal…”
Worth v. Kolbeck, 728 N.W.2d 282 (Neb. 2007).
· cites it 4× “Sonja’s counsel argued that because defense counsel had not made a reasonable effort to obtain Glass’ attendance, his deposition testimony was inadmissible under Neb. Rev. Stat. § 27-804 (l)(e) (Reissue 1995).”
— Neb. Rev. Stat. § 27-804(1) — 8 cases
State v. Plant, 461 N.W.2d 253 (Neb. 1990).
“The second residual hearsay exception, set forth in § 27-804, is identical to that in § 27-803(22) except that unavailability of the declarant must be shown.”
— Neb. Rev. Stat. § 27-804(1)(a) — 2 cases
— Neb. Rev. Stat. § 27-804(1)(b) — 1 case
— Neb. Rev. Stat. § 27-804(1)(e) — 4 cases
State v. Trice, 292 Neb. 482 (Neb. 2016).
“The State asked the court to find Baldwin unavailable under Neb. Rev. Stat. § 27-804 (1)(e) (Reissue 2008) and offered a transcript of Baldwin’s testimony from the first trial.”
Walton v. PATIL, 783 N.W.2d 438 (Neb. 2010).
“[8] We explained that the unavailability requirement of § 27-804 must be read into § 6-332 so that an independent exception to the hearsay rule was not created by the Nebraska discovery rule.”
Maresh v. State, 489 N.W.2d 298 (Neb. 1992).
“The State objected to the admission of the deposition on the grounds that the deposition was hearsay and that there had been no showing of unavailability as required by Neb. Rev. Stat. § 27-804 (2)(a) (Reissue 1989).”
— Neb. Rev. Stat. § 27-804(2) — 5 cases
State v. Sheets, 618 N.W.2d 117 (Neb. 2000).
“§ 27-802 (Reissue 1995), § 27-804, and Sheets' right to confront witnesses against him, pursuant to Neb.”
State v. Trice, 292 Neb. 482 (Neb. 2016).
“The State asked the court to find Baldwin unavailable under Neb. Rev. Stat. § 27-804 (1)(e) (Reissue 2008) and offered a transcript of Baldwin’s testimony from the first trial.”
— Neb. Rev. Stat. § 27-804(2)(a) — 8 cases
Burke v. Harman, 574 N.W.2d 156 (Neb. Ct. App. 1998).
“The witness indicated in his deposition that he is willing to appear and he is therefore not “unavailable” under Neb. Rev. Stat. § 27-804 (2)(a); *321 b. The defendant was deprived of his right to effectively cross-examine the witness at his deposition by the witness’s refusal…”
Walton v. PATIL, 783 N.W.2d 438 (Neb. 2010).
“[8] We explained that the unavailability requirement of § 27-804 must be read into § 6-332 so that an independent exception to the hearsay rule was not created by the Nebraska discovery rule.”
Maresh v. State, 489 N.W.2d 298 (Neb. 1992).
“The State objected to the admission of the deposition on the grounds that the deposition was hearsay and that there had been no showing of unavailability as required by Neb. Rev. Stat. § 27-804 (2)(a) (Reissue 1989).”
Worth v. Kolbeck, 728 N.W.2d 282 (Neb. 2007).
“Sonja’s counsel argued that because defense counsel had not made a reasonable effort to obtain Glass’ attendance, his deposition testimony was inadmissible under Neb. Rev. Stat. § 27-804 (l)(e) (Reissue 1995).”
— Neb. Rev. Stat. § 27-804(2)(b) — 1 case
State v. Jacob, 494 N.W.2d 109 (Neb. 1993).
“The district court ruled that the statements made August 2 were admissible as dying declarations under Neb. Rev. Stat. § 27-804 (2)(b) (Reissue 1989) and under the residual exceptions contained in §§ 27-803(22) and 27-804(2)(e) and that the statement made on August 3 was…”
— Neb. Rev. Stat. § 27-804(2)(c) — 12 cases
State v. Lotter, 664 N.W.2d 892 (Neb. 2003).
“Haley’s deposition, taken on October 18, 2000, was offered into evidence for substantive purposes under the penal interest exception to hearsay, Neb. Rev. Stat. § 27-804 (2)(c) (Reissue 1995).”
State v. Sheets, 618 N.W.2d 117 (Neb. 2000).
“§ 27-802 (Reissue 1995), § 27-804, and Sheets' right to confront witnesses against him, pursuant to Neb.”
— Neb. Rev. Stat. § 27-804(2)(e) — 22 cases
State v. Jacob, 494 N.W.2d 109 (Neb. 1993).
“The district court ruled that the statements made August 2 were admissible as dying declarations under Neb. Rev. Stat. § 27-804 (2)(b) (Reissue 1989) and under the residual exceptions contained in §§ 27-803(22) and 27-804(2)(e) and that the statement made on August 3 was…”
State v. Plant, 461 N.W.2d 253 (Neb. 1990).
“The second residual hearsay exception, set forth in § 27-804, is identical to that in § 27-803(22) except that unavailability of the declarant must be shown.”
— Neb. Rev. Stat. § 27-804(l)(a) — 1 case
— Neb. Rev. Stat. § 27-804(l)(b) — 2 cases
— Neb. Rev. Stat. § 27-804(l)(c) — 1 case
— Neb. Rev. Stat. § 27-804(l)(e) — 3 cases
Maresh v. State, 489 N.W.2d 298 (Neb. 1992).
“The State objected to the admission of the deposition on the grounds that the deposition was hearsay and that there had been no showing of unavailability as required by Neb. Rev. Stat. § 27-804 (2)(a) (Reissue 1989).”
Burke v. Harman, 574 N.W.2d 156 (Neb. Ct. App. 1998).
“The witness indicated in his deposition that he is willing to appear and he is therefore not “unavailable” under Neb. Rev. Stat. § 27-804 (2)(a); *321 b. The defendant was deprived of his right to effectively cross-examine the witness at his deposition by the witness’s refusal…”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.