N.J. R. Evid. 804 (2026)

(a) Definition of Unavailable. Except when the declarant's unavailability has been procured or wrongfully caused by the proponent of declarant's statement for the purpose of preventing declarant from attending or testifying, a declarant is "unavailable" as a witness if declarant:

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the statement; or

(2) persists in refusing to testify concerning the subject matter of the statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the statement; or

(4) is absent from the trial, hearing or proceeding because of death, physical or mental illness or infirmity, or other cause; and

(A) the proponent of the statement is unable by process or other reasonable means to procure the declarant's attendance at the trial, hearing, or proceeding; and

(B) with respect to statements proffered under Rules 804(b)(4) and (7), the proponent must be unable, without undue hardship or expense, to obtain declarant's deposition for use in lieu of testimony at the trial, hearing, or proceeding; or

(5) [Deleted – see N.J.R.E. 803(c)(27)].

(b) Hearsay Exceptions. Subject to Rule 807, the following are not excluded by the hearsay rule if the declarant is unavailable as a witness.

(1) Testimony in Prior Proceedings.

(A) Testimony that: (i) was given by a witness at a prior trial of the same or a different matter, or in a hearing or deposition taken in compliance with law in the same or another proceeding; and (ii) is now offered against a party who had an opportunity and similar motive in the prior trial, hearing or deposition to develop the testimony by examination or cross-examination.

(B) In a civil proceeding, or when offered by the defendant in a criminal proceeding, testimony given in a prior trial, hearing or deposition taken in compliance with law to which the party against whom the testimony is now offered was not a party, if the party who offered the prior testimony or against whom it was offered had an opportunity to develop the testimony on examination or cross-examination and had an interest and motive to do so, which is the same or similar to that of the party against whom it is now offered.

(C) Expert opinion testimony given in a prior trial, hearing, or deposition otherwise admissible under (A) or (B) may be excluded if the court finds that there are experts of a like kind generally available within a reasonable distance from the place in which the action is pending and the interests of justice so require.

(2) Statement Under Belief of Imminent Death. In a criminal proceeding, a statement made by a victim unavailable as a witness is admissible if it was made voluntarily and in good faith and while the declarant believed in the imminence of declarant's impending death.

(3) Statement Against Interest. A statement that a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary, pecuniary or social interest, or had so great a tendency to invalidate the declarant’s claim against another or to expose the declarant to civil or criminal liability. Such a statement is admissible against a defendant in a criminal proceeding only if the defendant was the declarant.

(4) Statement of Personal or Family History. A statement about:

(A) the declarant's own birth, adoption, legitimacy, ancestry, marriage or civil union, divorce, relationship by blood, adoption, or marriage or civil union, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or of the matter stated; or

(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or civil union, or was so intimately associated with the person's family that the declarant’s information is likely to be accurate.

(5) Other Exceptions. [Not Adopted]

(6) Trustworthy Statements by Deceased Declarants. In a civil proceeding, a statement made by a person unavailable as a witness because of death if the statement was made in good faith upon declarant's personal knowledge in circumstances indicating that it is trustworthy.

(7) Voters' Statements. A statement by a voter concerning the voter's qualifications to vote or the fact or content of the vote.

(8) [Deleted.]

(9) Forfeiture by Wrongdoing. A statement offered against a party who has engaged, directly or indirectly, in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

NOTE: Adopted September 15, 1992 to be effective July 1, 1993; paragraphs (a)(5) and (b)(8) deleted and paragraph (b)(2) amended June 30, 1993 to be effective July 1, 1993; paragraphs (a) and (b) amended September 15, 2004 to be effective July 1, 2005; paragraph (b)(9) added September 15, 2010 to be effective July 1, 2011; paragraph (a) caption and text amended, paragraph (b) caption amended, paragraphs (b)(1), and (b)(4) captions and text amended, paragraphs (b)(2), (b)(6), (b)(7), (b)(9) captions amended September 16, 2019 to be effective July 1, 2020; paragraph (b)(3) relocated as amended from N.J.R.E. 803(c)(25) September 15, 2023 to be effective July 1, 2024.