GA Code § 24-8-804 (2021)
2021 Georgia Code|Title 24 - Evidence|Chapter 8 - Hearsay|Article 1 - General Provisions|§ 24-8-804. Hearsay Rule Exceptions; Declarant Unavailable

  As used in this Code section, the term "unavailable as a witness" includes situations in which the declarant:   Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;   Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;   Testifies to a lack of memory of the subject matter of the declarant's statement;   Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or   Is absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance or, in the case of exceptions under paragraph (2), (3), or (4) of subsection (b) of this Code section, the declarant's attendance or testimony, by process or other reasonable means.  A declarant shall not be deemed 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 a statement for the purpose of preventing the witness from attending or testifying.      The following shall not be excluded by the hearsay rule if the declarant is unavailable as a witness:   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 another proceeding, if the party against whom the testimony is now offered, or, in a civil proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. If deposition testimony is admissible under either the rules stated in Code Section 9-11-32 or this Code section, it shall be admissible at trial in accordance with the rules under which it was offered;   In a prosecution for homicide or in a civil proceeding, a statement made by a declarant while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death;   A statement against interest. A statement against interest is a statement:   Which 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 or pecuniary interest or had so great a tendency to invalidate a claim by the declarant against another or to expose the declarant to civil or criminal liability; and   Supported by corroborating circumstances that clearly indicate the trustworthiness of the statement if it is offered in a criminal case as a statement that tends to expose the declarant to criminal liability;     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 the declarant had no means of acquiring personal knowledge of the matter stated or 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; or   A statement 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.       (Code 1981, §24-8-804, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)   Cross references.   - Exceptions to the Rule Against Hearsay - When the Declarant Is Unavailable as a Witness, Fed. R. Evid. 804.   Law reviews.   - For article, "An Analysis of Georgia's Proposed Rules of Evidence," see 26 Ga. St. B.J. 173 (1990).   JUDICIAL DECISIONS   ANALYSIS    General Consideration   Former Testimony   Declarations Against Interest   Deceased Persons   a. Completeness   b. Factual Requirements   c. Scope of Declarations   d. Identity of Assailant   e. Elicited by Questions   a. Evidentiary Foundation   b. Witnesses   c. Impeachment   d. Instructions   e. Duty of Jury   Statements by Deceased Persons in Civil Matters   Statements by Third Parties    RESEARCH REFERENCES   Am. Jur. 2d.   - 29A Am. Jur. 2d, Evidence, §§ 813, 838, 841, 842, 843, 904 et seq.   C.J.S.   - 31A C.J.S., Evidence, §§ 299, 312 et seq., 342, 350 et seq., 447, 482, 537 et seq.   ALR.    - Death of adverse party as affecting evidence with respect to book account, 6 A.L.R. 756.    Admissibility of dying declaration with respect to transaction prior to homicide, 14 A.L.R. 757.    Use in criminal case of testimony given on former trial, or preliminary examination, by witness not available at present trial, 15 A.L.R. 495; 79 A.L.R. 1392; 122 A.L.R. 425; 159 A.L.R. 1240.    Impeaching or discrediting dying declarations, 16 A.L.R. 411.    Dying declarations involving an opinion or conclusion, 25 A.L.R. 1370; 86 A.L.R.2d 905.    Admissibility in favor of accused in criminal case of extrajudicial confession by stranger, 35 A.L.R. 441; 48 A.L.R. 348.    When transfer deemed to be one in contemplation of death within the meaning of the Inheritance Tax Law, 41 A.L.R. 989; 75 A.L.R. 544; 120 A.L.R. 170; 148 A.L.R. 1051.    Admissibility of dying declarations in cases not involving homicide, 49 A.L.R. 1282; 91 A.L.R. 560; 47 A.L.R.2d 526.    Admissibility of dying declarations inculpating defendant in murder of one other than victim named in indictment, 69 A.L.R. 1221.    Admissibility in behalf of defendant in action for libel or slander of similar charges made by other persons against plaintiff, 74 A.L.R. 732.    When one deemed to be beyond jurisdiction of court within meaning of statute relating to admissibility of testimony given on former trial, 87 A.L.R. 891.    Admissibility of dying declarations in cases other than prosecution for homicide, 91 A.L.R. 560.    Admissibility of dying declarations as affected by their incompleteness, 94 A.L.R. 679.    Quantum of proof of preliminary facts necessary to admissibility of dying declarations, 96 A.L.R. 621.    Constitutionality, construction, and application of statutes making statements of deceased persons admissible in evidence, 96 A.L.R. 686.    Admissibility of memoranda made by one since deceased regarding matters in respect of which he acted for one of the parties to the present litigation, 103 A.L.R. 1501.    Admissibility in connection with dying declarations of other declarations by deceased not made in circumstances entitling them to admission as independent dying declarations, 104 A.L.R. 1319.    Admissibility of admissions against title to tangible personal property made by one subsequent to executing chattel mortgage thereon, 106 A.L.R. 1296.    Admissibility of oral testimony as to dying declarations which had been reduced to writing, 112 A.L.R. 43.    Permitting dying declarations to be taken into jury room, 114 A.L.R. 1519.    Adverse possession as affected by attempt during period thereof to change, or make more specific, the tract claimed, 115 A.L.R. 1299.    Effect of war on litigation pending at the time of its outbreak, 137 A.L.R. 1335; 147 A.L.R. 1298; 148 A.L.R. 1384; 149 A.L.R. 1451; 149 A.L.R. 1452; 150 A.L.R. 1417; 150 A.L.R. 1418; 151 A.L.R. 1453; 152 A.L.R. 1450; 154 A.L.R. 1447.    Admissibility of oral or written statement by deceased as to fact or terms of an antenuptial or postnuptial agreement which cannot be found, 140 A.L.R. 1133.    Identity of parties as condition of admissibility in civil case of testimony or deposition in former action or proceeding of witness not available in present action or proceeding, 142 A.L.R. 673.    Admissibility on question of constructive trust of declarations made by grantor after execution and delivery of deed absolute on its face, 156 A.L.R. 1335.    Weight and value of dying declarations as evidence, 167 A.L.R. 147.    Binding effect of party's own unfavorable testimony, 169 A.L.R. 798.    Use of interpreter in court proceedings, 172 A.L.R. 923.   Mode of proof of testimony given at former examination, hearing, or trial, 11 A.L.R.2d 30.   Right of prosecution, in homicide case, to introduce evidence in rebuttal to show good, quiet, and peaceable character of deceased, 34 A.L.R.2d 451.   Admissibility of declarations of grantor on issue of delivery of deed, 34 A.L.R.2d 588.   Adverse possession of landlord as affected by tenant's recognition of title of third person, 38 A.L.R.2d 826.   Reputation as to ownership or claim as admissible on question of adverse possession, 40 A.L.R.2d 770.   Admissibility of dying declaration in civil case, 47 A.L.R.2d 526.   Opinion of doctor or other attendant as to declarant's consciousness of imminent death so as to qualify his statement as dying declaration, 48 A.L.R.2d 733.   Declarations or admissions of person in control of vehicle as admissible against or binding upon owner, lien claimants, or the like, of a vehicle subjected to forfeiture proceedings, 55 A.L.R.2d 1280.   Admissibility, in action on employee fidelity bond or policy, of confessions or declarations of such employee no longer available as witness, 65 A.L.R.2d 631.   Identity of subject matter or of issues as condition of admissibility in civil case of testimony or deposition in former proceeding of witness not now available, 70 A.L.R.2d 494.   Use in civil case of testimony given in criminal case by witness no longer accessible, 70 A.L.R.2d 1179.   Admissibility in evidence of receipt of third person, 80 A.L.R.2d 915.   Admissibility in criminal trial of dying declarations involving an asserted opinion or conclusion, 86 A.L.R.2d 905.   Admissibility of homicide victim's statements exculpating the accused, 95 A.L.R.2d 637.   Admissibility of evidence of uncommunicated threats on issue of self-defense in prosecution for homicide, 98 A.L.R.2d 6.   Admissibility, as part of res gestae, of accusatory utterances made by homicide victim after act, 4 A.L.R.3d 149.   Admissibility of statements of coconspirators made after termination of conspiracy and outside accused's presence, 4 A.L.R.3d 671.   Statements of declarant as sufficiently showing consciousness of impending death to justify admission of dying declaration, 53 A.L.R.3d 785.   Sufficiency of showing of consciousness of impending death, by circumstances other than statements of declarant, to justify admission of dying declaration, 53 A.L.R.3d 1196.   Admissibility, as against interest, in civil case of declaration of commission of criminal act, 90 A.L.R.3d 1173.   Sufficiency of efforts to procure missing witness's attendance to justify admission of his former testimony - state cases, 3 A.L.R.4th 87.   Disqualification, for bias, of one offered as interpreter of testimony, 6 A.L.R.4th 158.   Fence as factor in fixing location of boundary line - modern cases, 7 A.L.R.4th 53.   Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter, 12 A.L.R.4th 1016.   Former testimony used at subsequent trial as subject to ordinary objections and exceptions, 40 A.L.R.4th 514.   When do corroborating circumstances clearly indicate trustworthiness of hearsay statement tending to expose declarant to criminal liability and offered to exculpate accused, so as to permit admission of statement under Rule 804(b)(3) of Federal Rules of Evidence (28 USCS Appx), 125 A.L.R. Fed. 477.   Admissibility under Rules 804(b)(1) and 807 of Federal Rules of Evidence (Fed. Rules Evid. Rules 804(b)(1) and 807, 28 USCA) of grand jury testimony of unavailable witness, 149 A.L.R. Fed. 231.   Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through interpreter - state cases, 97 A.L.R.6th 567.   Hearsay objections to admission of text messages or testimony thereof, 10 A.L.R.7th 4.   Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter - federal cases, 91 A.L.R. Fed. 2d 187.