A. "Unavailability as a witness", as used in this section, includes the situation in which the declarant: 1. Is exempt by ruling of the court on the ground of privilege from testifying concerning the subject matter or 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 declarant's statement has been unable to procure the declarant's attendance or, in the case of a hearsay exception under paragraphs 2, 3 or 4 of subsection B of this section, the declarant's attendance or testimony, 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 an act by the proponent of the declarant's statement for the purpose of preventing the witness from attending or testifying. B. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
1. Testimony given as a witness at another hearing of the same or another 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. In a prosecution for homicide or in a civil action or proceeding, 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; 3. A statement which was at the time of its making contrary to the declarant's pecuniary or proprietary interest, or which tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, and which a reasonable person in the declarant's position would not have made unless the declarant 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. A statement or confession offered against the accused in a criminal case, made by a codefendant or other individual implicating both the codefendant or other individual and the accused, is not within this exception; 4. A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, ancestry, relationship to another person or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or statement concerning the foregoing matters or death of another person, if the declarant was related to that person by blood, adoption or marriage or was so intimately associated with the person's family as to be likely to have accurate information concerning the matter declared; and 5. A statement offered against a party that wrongfully caused or acquiesced in wrongfully causing the declarant's unavailability as a witness, and did so intending that result. Added by Laws 1978, c. 285, § 804, eff. Oct. 1, 1978. Amended by Laws 2002, c. 468, § 60, eff. Nov. 1, 2002; Laws 2014, c. 106, § 1, eff. Nov. 1, 2014.
Notes of Decisions
Cited in
77
cases (
6 in the last 5 years), 1981–2025 · leading case:
Pavatt v. State, 2007 OK CR 19 (Okla. Crim. App. 2007).
Pavatt v. State, 2007 OK CR 19 (Okla. Crim. App. 2007).
· cites it 6× “12 O.S.Supp.2002, § 2804(A)(1); Funkhouser v.”
Knapper v. State, 2020 OK CR 16 (Okla. Crim. App. 2020).
· cites it 10× “See 12 O.S.Supp.2014, § 2804(A)(1); Thompson , 2007 OK CR 38, ¶ 18, 169 P.”
Littlejohn v. State, 2004 OK CR 6 (Okla. Crim. App. 2004).
· cites it 4× “On appeal, Littlejohn concedes that, for the most part, defense counsel had no objection to this method of presenting evidence.”
Primeaux v. State, 2004 OK CR 16 (Okla. Crim. App. 2004).
· cites it 4× “Title 12 O.S.2001, § 2804(B)(3), states, in part, that, 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.”
Tryon v. State, 2018 OK CR 20 (Okla. Crim. App. 2018).
· cites it 2× “12 O.S.Supp.2014, § 2804(B)(5). And I believe the entire message, admissible under this exception, was relevant to show Appellant's intent and motive for killing the victim and had considerable probative value.”
Walck v. Edmondson, 472 F.3d 1227 (10th Cir. 2007).
· cites it 2× “Okla. Stat. Ann. tit. 12, §§ 2804 (A)(4) & (B)(1).”
Miller v. State, 2004 OK CR 29 (Okla. Crim. App. 2004).
· cites it 5× “¶ 2 While significant amendments were made to 12 O.S.2001, § 2804(B) in 2002 (did not go into effect until November 1, 2002), I find the reasoning behind the amendments to that statute still apply.”
Williamson v. State, 812 P.2d 384 (Okla. Crim. App. 1991).
· cites it 3× “The trial court declared Gore unavailable as a witness pursuant to 12 O.S.1981, § 2804(A)(2), and his preliminary hearing testimony was read to the jury.”
Revilla v. State, 2019 OK CR 30 (Okla. Crim. App. 2019).
· cites it 4× “¶5 Appellant's contention is that at preliminary hearing, the child victim was "unavailable" under 12 O.S.Supp.2014, § 2804(A)(3) because she testified to a lack of memory about some things.”
Hanson v. State, 2009 OK CR 13 (Okla. Crim. App. 2009).
· cites it 2× “[7] Under 12 O.S.Supp.2002, § 2804(B)(1), testimony given as a witness at another hearing of the same or another proceeding may be admitted if the declarant is unavailable and the party against whom the testimony is now offered had an opportunity and similar motive to develop…”
State Ex Rel. Oklahoma Bar Ass'n v. Dobbs, 2004 OK 46 (Okla. 2004).
· cites it 2× “Cargile deposition testimony as hearsay for which there is no applicable exception under the provisions of 12 O.S.2001 § 2804. 37 *49 The trial panel admitted Mrs.”
Mahdavi v. State, 2020 OK CR 12 (Okla. Crim. App. 2020).
· cites it 2× “12 O.S.2011, § 2804(A), (B)(1). Our review of this claim is limited to plain error because Appellant did not object to Dr.”
— Okla. Stat. tit. 12, § 2804(A) — 5 cases
Mahdavi v. State, 2020 OK CR 12 (Okla. Crim. App. 2020).
“12 O.S.2011, § 2804(A), (B)(1). Our review of this claim is limited to plain error because Appellant did not object to Dr.”
— Okla. Stat. tit. 12, § 2804(A)(1) — 3 cases
Pavatt v. State, 2007 OK CR 19 (Okla. Crim. App. 2007).
“12 O.S.Supp.2002, § 2804(A)(1); Funkhouser v.”
Knapper v. State, 2020 OK CR 16 (Okla. Crim. App. 2020).
“See 12 O.S.Supp.2014, § 2804(A)(1); Thompson , 2007 OK CR 38, ¶ 18, 169 P.”
— Okla. Stat. tit. 12, § 2804(A)(2) — 2 cases
Williamson v. State, 812 P.2d 384 (Okla. Crim. App. 1991).
“The trial court declared Gore unavailable as a witness pursuant to 12 O.S.1981, § 2804(A)(2), and his preliminary hearing testimony was read to the jury.”
— Okla. Stat. tit. 12, § 2804(A)(3) — 3 cases
Revilla v. State, 2019 OK CR 30 (Okla. Crim. App. 2019).
“¶5 Appellant's contention is that at preliminary hearing, the child victim was "unavailable" under 12 O.S.Supp.2014, § 2804(A)(3) because she testified to a lack of memory about some things.”
— Okla. Stat. tit. 12, § 2804(A)(4) — 6 cases
Walck v. Edmondson, 472 F.3d 1227 (10th Cir. 2007).
“Okla. Stat. Ann. tit. 12, §§ 2804 (A)(4) & (B)(1).”
— Okla. Stat. tit. 12, § 2804(A)(5) — 7 cases
Knapper v. State, 2020 OK CR 16 (Okla. Crim. App. 2020).
“See 12 O.S.Supp.2014, § 2804(A)(1); Thompson , 2007 OK CR 38, ¶ 18, 169 P.”
— Okla. Stat. tit. 12, § 2804(B) — 5 cases
Miller v. State, 2004 OK CR 29 (Okla. Crim. App. 2004).
“¶ 2 While significant amendments were made to 12 O.S.2001, § 2804(B) in 2002 (did not go into effect until November 1, 2002), I find the reasoning behind the amendments to that statute still apply.”
— Okla. Stat. tit. 12, § 2804(B)(1) — 14 cases
Littlejohn v. State, 2004 OK CR 6 (Okla. Crim. App. 2004).
“On appeal, Littlejohn concedes that, for the most part, defense counsel had no objection to this method of presenting evidence.”
Knapper v. State, 2020 OK CR 16 (Okla. Crim. App. 2020).
“See 12 O.S.Supp.2014, § 2804(A)(1); Thompson , 2007 OK CR 38, ¶ 18, 169 P.”
Hanson v. State, 2009 OK CR 13 (Okla. Crim. App. 2009).
“[7] Under 12 O.S.Supp.2002, § 2804(B)(1), testimony given as a witness at another hearing of the same or another proceeding may be admitted if the declarant is unavailable and the party against whom the testimony is now offered had an opportunity and similar motive to develop…”
Williamson v. State, 812 P.2d 384 (Okla. Crim. App. 1991).
“The trial court declared Gore unavailable as a witness pursuant to 12 O.S.1981, § 2804(A)(2), and his preliminary hearing testimony was read to the jury.”
— Okla. Stat. tit. 12, § 2804(B)(10) — 1 case
— Okla. Stat. tit. 12, § 2804(B)(2) — 4 cases
— Okla. Stat. tit. 12, § 2804(B)(3) — 13 cases
Primeaux v. State, 2004 OK CR 16 (Okla. Crim. App. 2004).
“Title 12 O.S.2001, § 2804(B)(3), states, in part, that, 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.”
Pavatt v. State, 2007 OK CR 19 (Okla. Crim. App. 2007).
“12 O.S.Supp.2002, § 2804(A)(1); Funkhouser v.”
Miller v. State, 2004 OK CR 29 (Okla. Crim. App. 2004).
“¶ 2 While significant amendments were made to 12 O.S.2001, § 2804(B) in 2002 (did not go into effect until November 1, 2002), I find the reasoning behind the amendments to that statute still apply.”
— Okla. Stat. tit. 12, § 2804(B)(5) — 5 cases
Tryon v. State, 2018 OK CR 20 (Okla. Crim. App. 2018).
“12 O.S.Supp.2014, § 2804(B)(5). And I believe the entire message, admissible under this exception, was relevant to show Appellant's intent and motive for killing the victim and had considerable probative value.”
Miller v. State, 2004 OK CR 29 (Okla. Crim. App. 2004).
“¶ 2 While significant amendments were made to 12 O.S.2001, § 2804(B) in 2002 (did not go into effect until November 1, 2002), I find the reasoning behind the amendments to that statute still apply.”
— Okla. Stat. tit. 12, § 2804(B)(8) — 1 case
Pavatt v. State, 2007 OK CR 19 (Okla. Crim. App. 2007).
“12 O.S.Supp.2002, § 2804(A)(1); Funkhouser v.”
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