2.04.420 [Rule 39] Hearsay Exceptions: Declarant Unavailable
(a) Definition of "Unavailability:" A declarant is unavailable in situations where the declarant:
(1) Is exempted by ruling of the Court on the grounds of privilege from testifying;
(2) Persists in refusing to testify despite an order of Court to do so;
(3) Testifies to a lack of memory;
(4) Is unable to be present because of death or then existing physical or mental illness or infirmity;
(5) Is absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance by process or other reasonable means.
(b) Declarant is not unavailable as a witness if that unavailability is due to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the witness from attending or testifying.
(c) Exceptions: The following are not excluded by the Hearsay Rule if the declarant is unavailable as a witness.
(1) Former testimony. Testimony which was given under oath at the same or different proceeding, so long as the party offering the evidence, or a predecessor in interest in a civil action, has an opportunity and similar motive to develop the testimony by direct, cross or redirect examination.
(2) Statement against interest. A statement, at the time made, that is contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to criminal or civil liability, that a reasonable person in the declarant's position would not have made the statement unless he 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 indicate the trustworthiness of the statement.
(3) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceedings, 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 impending death.