Exceptions to the rule against hearsay –

when the declarant is unavailable as a witness (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the subject matter of the declarant’s statement because the military judge rules that a privilege applies; (2) refuses to testify about the subject matter despite the military judge’s order to do so; (3) testifies to not remembering the subject matter; III-45 (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or (5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure: (A) the declarant’s attendance, in the case of a hearsay exception under subdivision (b)(1) or (b)(5); (B) the declarant’s attendance or testimony, in the case of a hearsay exception under subdivision (b)(2), (b)(3), or (b)(4); or (6) has previously been deposed about the subject matter and is absent due to military necessity, age, imprisonment, non-amenability to process, or other reasonable cause. Subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying. (b) The Exceptions. The following are exceptions to the rule against hearsay, and are not excluded by that rule if the declarant is unavailable as a witness: (1) Former Testimony. Testimony that: (A) was given by a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had an opportunity and similar motive to develop it by direct, cross-, or redirect examination. Subject to the limitations in Articles 49 and 50, a record of testimony given before a court-martial, court inquiry, military commission, other military of tribunal, or preliminary hearing under Article 32 is admissible under subdivision (b)(1) if the record of the testimony is a verbatim record. (2) Statement under the Belief of Imminent Death. In a prosecution for any offense resulting in the death of the alleged victim, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances. (3) Statement against Interest. A statement that: (A) 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 the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and III-46 (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it tends to expose the declarant to criminal liability and is offered to exculpate the accused. (4) Statement of Personal or Family History. A statement about: (A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or (B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate (5) Other Exceptions. [Transferred to Mil. R. Evid. 807] (6) Statement Offered against a Party that Wrongfully Caused the Declarant’s Unavailability. 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.