Hearsay Exceptions: Declarant Must

Be Unavailable The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a differ- ent proceeding, provided (A) the issues in the former hearing are the same or substantially simi- lar to those in the hearing in which the testimony is being offered, and (B) the party against whom the testimony is now offered had an opportunity to develop the testimony in the former hearing. (2) Dying declaration. In a prosecution in which the death of the declarant is the subject of the charge, a statement made by the declarant, while the declarant was conscious of his or her impending death, concerning the cause of or the circumstances surrounding the death. (3) Statement against civil interest. A trust- worthy statement that, at the time of its making, was against the declarant’s pecuniary or proprie- tary interest, or that so far tended to subject the declarant to civil liability that a reasonable person in the declarant’s position would not have made Connecticut Code of Evidence the statement unless the person believed it to be true. In determining the trustworthiness of such a statement the court shall consider whether safe- guards reasonably equivalent to the oath taken by a witness and the test of cross-examination exist. (4) Statement against penal interest. A trust- worthy statement against penal interest that, at the time of its making, so far tended to subject the declarant to criminal liability that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. In determining the trustworthiness of a statement against penal interest, the court shall consider (A) the time the statement was made and the person to whom the statement was made, (B) the existence of corroborating evidence in the case, and (C) the extent to which the statement was against the declarant’s penal interest. (5) Statement concerning ancient private boundaries. A statement, made before the con- troversy arose, as to the location of ancient private boundaries if the declarant had peculiar means of knowing the boundary and had no interest to misrepresent the truth in making the statement. (6) Reputation of a past generation. Reputa- tion of a past generation concerning facts of public or general interest or affecting public or private rights as to ancient rights of which the declarant is presumed or shown to have had competent knowledge and which matters are incapable of proof in the ordinary way by available witnesses. (7) Statement of pedigree and family rela- tionships. A statement concerning pedigree and family relationships, provided (A) the statement was made before the controversy arose, (B) the declarant had no interest to misrepresent in mak- ing the statement, and (C) the declarant, because of a close relationship with the family to which the statement relates, had special knowledge of the subject matter of the statement. (8) Forfeiture by wrongdoing. A statement offered against a party who has engaged in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. (Amended June 29, 2007, to take effect Jan. 1, 2008.) COMMENTARY The fundamental threshold requirement of all Section 8-6 hearsay exceptions is that the declarant be unavailable as a witness. At common law, the definition of unavailability has varied with the particular hearsay exception at issue. For example, the Supreme Court has recognized death as the only form of unavailability for the dying declaration and ancient private boundary hearsay exceptions. See, e.g., Rompe v. King, 185 Conn. 426, 429, 441 A.2d 114 (1981) (boundaries); State v. Manganella, 113 Conn. 209, 215–16, 155 A. 74 (1931) (dying declarations). More recently, the court adopted the uni- form definition of unavailability set forth in rule 804 (a) of the Federal Rules of Evidence. See Maio v. New Haven, 326 Conn. 708, 726–28 and n.15, 167 A.3d 338 (2017); see also 39