1. (i) an oral or written assertion; or
2. (ii) nonverbal conduct of a person, if it is intended by the person as an assertion.
3. (2) A declarant is a person who makes a statement.
4. (3) Hearsay is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

5. (4) A statement is not hearsay if:

   1. (i) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:

      1. (a) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; or
      2. (b) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; or
      3. (c) one of identification of a person made after perceiving the person.

   2. (ii) Admission by party-opponent. The statement is offered against a party and is:

      1. (a) the party's own statement in either the party's individual or representative capacity; or
      2. (b) a statement of which the party has manifested the party's adoption or belief in its truth; or
      3. (c) a statement by a person authorized by the party to make a statement concerning the subject; or
      4. (d) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment of the agent or servant, made during the existence of the relationship; or

      5. (e) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

         (b) Hearsay rule.

         Hearsay is not admissible except as provided by these rules or by an Act of Congress applicable in trials by court-martial.

         (c) Hearsay exceptions; availability of declarant immaterial.

         The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

6. (1) Present sense impression. A statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter.
7. (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
8. (3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
9. (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and described medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
10. (5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum may be read into evidence, but may not itself be received as an exhibit unless offered by an adverse party.
11. (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness. The term business as used in this paragraph includes the Armed Forces, a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Among those memoranda, reports, records, or data compilations normally admissible pursuant to this paragraph are enlistment papers, physical examination papers, outline-figure and fingerprint cards, forensic laboratory reports, chain of custody documents, morning reports and other personnel accountability documents, service records, officer and enlisted qualification records, logs, unit personnel diaries, individual equipment records, daily strength records of prisoners, and rosters of prisoners.
12. (7) Absence of entry in records kept in accordance with the provisions of paragraph (6) of this subdivision. Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

13. (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public office or agencies, setting forth:

    1. (i) the activities of the office or agency; or
    2. (ii) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by police officers and other personnel acting in a law enforcement capacity; or
    3. (iii) against the government, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. Notwithstanding subparagraph (ii) of this paragraph, the following are admissible under this paragraph as a record of a fact or event if made by a person within the scope of the person's official duties and those duties included a duty to know or to ascertain through appropriate and trustworthy channels of information the truth of the fact or event and to record such fact or event: enlistment papers, physical examination papers, outline-figure and fingerprint cards, forensic laboratory reports, chain of custody documents, morning reports and other personnel accountability documents, service records, officer and enlisted qualification records, records of court-martial convictions, logs, unit personnel diaries, individual equipment records, guard reports, daily strength records of prisoners, and rosters of prisoners.
14. (9) Records of vital statistics. Record or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.
15. (10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Mil. R. Evid. 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
16. (11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history contained in a regularly kept record of a religious organization.
17. (12) Marriage, baptismal, and similar certificates. Statements of fact obtained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a time thereafter.
18. (13) Family records. Statements of facts concerning personal or family history contained in family Bibles, genealogies, charts, engraving on rings, inscription on family portraits, engraving on urns, crypts, or tombstones, or the like.
19. (14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.
20. (15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
21. (16) Statements in ancient documents. Statements in a document in existence 20 years or more the authenticity of which is established.
22. (17) Market reports, commercial publications. Market quotations, tabulations, directories, lists (including government price lists), or other published compilations generally used and relied upon by the public or by persons in particular occupations.
23. (18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
24. (19) Reputation concerning personal or family history. Reputation among members of the person's family by blood, adoption, or marriage, or among the person's associates, or in the community, concerning the person's birth, adoption, marriage, divorce, death, legitamacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of the person's personal or family history.
25. (20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.
26. (21) Reputation as to character. Reputation of a person's character among the person's associates or in the community.
27. (22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death, or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the government for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.
28. (23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family, or general history, or boundaries essential to the judgment, if the same would be provable by evidence of reputation.

29. (24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that:

    1. (i) the statement is offered as evidence of a material fact;
    2. (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and

    3. (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

       However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the intention to offer the statement and the particulars of it, including the name and address of the declarant.

       (d) Hearsay exceptions; declarant unavailable.

30. (1) Definitions of unavailability. Unavailability as a witness includes situations in which the declarant:

    1. (i) is exempted by ruling of the military judge on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or
    2. (ii) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the military judge to do so; or
    3. (iii) testifies to a lack of memory of the subject matter of the delcarant's statement; or
    4. (iv) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
    5. (v) is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subparagraph [2] [ii], [iii] or [iv] of this subdivision, the declarant's attendance or testimony) by process or other reasonable means; or

    6. (vi) is unavailable within the meaning of Military Law, section 130.49(d).

       A declarant is not 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 the declarant's statement for the purpose of preventing the witness from attending or testifying.

31. (2) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness.

    1. (i) Former testimony. Testimony given as a witness at another hearing of the same or 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 had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. A record of testimony given before courts-martial, courts of inquiry, military commissions, other military tribunals, and before proceedings pursuant to or equivalent to those required by N.Y.S. Military Law, section 103.32 is admissible under this paragraph if such a record is a verbatim record. This subparagraph is subject to the limitations set forth in articles 49 and 50.
    2. (ii) Statement under belief of impending death. In a prosecution for homicide or for any offense resulting in the death of the alleged victim, 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 the declarant's impending death.
    3. (iii) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the position of the declarant would not have made the statement unless the person 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 clearly indicate the trustworthiness of the statement.

    4. (iv) Statement of personal or family history.

       1. (a) 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 declarant had no means of acquiring personal knowledge of the matter stated; or
       2. (b) 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.

    5. (v) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the military judge determines that:

       1. (a) the statement is offered as evidence of a material fact;
       2. (b) the statement is more probative of the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and

       3. (c) the general purposes of these rules and the interest of justice will best be served by admission of the statement into evidence.

          However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the intention to offer the statement and the particulars of it, including the name and address of the declarant.

          (e) Hearsay within hearsay.

          Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

          (f) Attacking and supporting credibility of declarant.

          When a hearsay statement, or a statement defined in Mil. R. Evid. 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

(a) Definitions.

The following definitions apply under this section:

(1)