Hearsay Exceptions: Former Testimony and Dying Declarations

Rule 804 contains five hearsay exceptions that apply when the declarant is unavailable. I addressed one of them—the residual exception—in a prior post. Another one of the five—statements of family history—rarely arises in the criminal law so I won’t spend any time on it. In this post I’ll tackle two of the Rule 804 exceptions: former testimony and dying declaration. Former Testimony. Rule 804(b)(1) provides a hearsay exception for former testimony. Specifically, it creates an exception for “[t]estimony 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 same or another proceeding, if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” N.C. Evid. R. 804(b)(1). When the evidence is offered by the State, case law adds the additional requirement that the defendant must have been present at the former proceeding and represented by counsel. See, e.g., State v. Rollins, __ N.C. App. __, 738 S.E.2d 440, 445 (2013). In most cases, this exception raises no complicated issues. By way of example, courts have held the following types of prior testimony admissible under this rule: A witness’s testimony during a prior trial on the charges at issue. See, e.g., State v. Hunt, 339 N.C. 622, 646 (1994); State v. Swindler, 129 N.C. App. 1, 5 (1998). A witness’s testimony during the defendant’s juvenile transfer hearing [...]