Proposed Rules Archives

• Proposed Changes to ER 804 - Hearsay Exceptions: Declarant Unavailable (in Word Format)
• Comments Received for ER 804 - Hearsay Exceptions: Declarant Unavailable

Suggested Amendment

SUPERIOR COURT EVIDENCE RULES
ER 804 – Hearsay Exceptions: Declarant Unavailable
(Codifying hearsay exception when witness is unavailable due to a party’s wrongdoing)

Submitted by the Board of Governors of the Washington State Bar Association

Purpose: In the federal courts, a defendant who causes the nonappearance of a witness at trial (either by killing or intimidating the witness) waives both the hearsay rule and the Sixth Amendment right to confrontation with respect to that witness. As a result, a federal prosecutor is then able to call other witnesses to recount out-of-court statements by the witness who did not appear. Washington State jurisprudence holds that a criminal defendant waives the Sixth amendment right to confrontation by killing a prosecution witness, but Washington has not adopted the language of the Federal Rules of Evidence to clarify that a defendant also waives the hearsay rule. See State v. Mason, 160 Wn.2d 910 (2007); Giles v. California, 128 S. Ct. 2678 (2008). As a result, in Washington, there is an anomalous situation where a defendant is barred from asserting the right to confrontation, and yet may object to the same statements on the basis of the hearsay rule. Codification of the rule on forfeiture by wrongdoing in Washington State would allow the membership the benefit of federal jurisprudence.

Federal Evidence Rule 804(b)(6) creates a hearsay exception for statements offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. Effective December 2011, the federal rule will be revised to state as follows: “[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.”

Different jurisdictions have adopted different formulations of the federal rule. The suggested rule would adopt a formulation of the hearsay exception adopted in the State of New Jersey: “A statement offered against a party that has engaged directly or indirectly in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Suggested ER 804(b)(6) is an adaptation of the federal hearsay rule that clarifies the circumstances giving rise to a waiver. The suggested rule does not incorporate the language of “acquiescence” in that the proponent may not rely on assertions that a party “acquiesced” in conduct that procured the unavailability of a witness. Furthermore, the suggested rule is a hearsay rule and is not designed to alter or impact the present state of constitutional jurisprudence on the right of confrontation.