1. (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

   1. (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
   2. (2) refuses to testify about the subject matter despite a court order to do so;
   3. (3) testifies to not remembering the subject matter, except as provided in Rule 803.1(4);
   4. (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. (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:

      1. (A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

      2. (B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

         But this paragraph (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.

         Comment

         Pa.R.E. 804(a)(3) differs from F.R.E. 804(a)(3) in that it excepts from this rule instances where a declarant-witness’s claim of an inability to remember the subject matter of a prior statement is not credible, provided the statement meets the requirements found in Pa.R.E. 803.1(4). This rule is otherwise identical to F.R.E. 804(a). A declarant-witness with credible memory loss about the subject matter of a prior statement may be subject to this rule.

Source

The provisions of this Rule 804 amended March 10, 2000, effective immediately, 30 Pa.B. 1639; amended December 17, 2004, effective January 31, 2005, 35 Pa.B. 8; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended March 1, 2017, effective April 1, 2017, 47 Pa.B. 1623. Immediately preceding text appears at serial page (365916).