1. A. "Unavailability as a witness," as used in this section, includes the situation in which thedeclarant:

   1. 1. Is exempt by ruling of the court on the ground of privilege from testifying concerning the subject matter or his statement ;
   2. 2. Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so;
   3. 3. Testifies to a lack of memory of the subject matter of his statement ;
   4. 4. 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. 5. Is absent from the hearing and the proponent of his statement has been unable to procure his attendance or, in the case of a hearsay exception under paragraphs 2, 3 or 4 of subsection B of this section, his attendance or testimony, by process or other reasonable means. A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability or absence is due to an act by the proponent of his statement for the purpose of preventing the witness from attending or testifying.

2. B. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

   1. 1. Testimony given as a witness at another hearing of the same or another 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 or, in a civil action or proceeding, a predecessor in interest had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination;
   2. 2. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death;
   3. 3. A statement which was at the time of its making contrary to the declarant's pecuniary or proprietary interest, or which tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, and which a reasonable man in his position would not have made 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 clearly indicate the trustworthiness of the statement ;
   4. 4. A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, ancestry, relationship to another person or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or statement concerning the foregoing matters or death of another person, if the declarant was related to that person by blood, adoption or marriage or was so intimately associated with the person's family as to be likely to have accurate information concerning the matter declared; and

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

      1. a. the statement is offered as evidence of a material fact,
      2. b. 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 c. the general purposes of this Code and the interests of justice will best be served by admission of the statement into evidence. A statement shall not be admitted under this exception unless its proponent 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, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Laws 1978, SB 276, c. 285, § 804, eff. October 1, 1978.