709.5Personal or Family History [Rule 804(b)(4)]
- Statements from an unavailable declarant about facts related to the declarant’s personal or family history are not barred by the hearsay rules.
- Statements from an unavailable declarant about the personal or family history of another person, including the fact of that person’s death, are not barred by the hearsay rules if the other person is related to or intimately associated with the declarant’s family.
The Basic Rule
Rule 804(b)(4) – Statement of Personal or Family History
(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
(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.
G.S. 8C-804(b)(4) (re-formatted for clarity).
As with all other hearsay exceptions found in Rule 804(b), this exception only applies if the declarant is “unavailable” pursuant to Rule 804(a). For more information, see the related Evidence entry on Declarant Unavailable [Rule 804(a)].
Purpose and Scope
The first prong of Rule 804(b)(4) “specifically disclaims any need of first-hand knowledge respecting declarant's own personal history.” G.S. 8C-804(b)(4)(A), Official Commentary. For example, a declarant is deemed capable of making accurate statements about matters such as her date of birth, or the fact that she is the child of her mother and father, or another “similar fact of personal or family history” even though the declarant obviously does not have direct personal knowledge (or memory) of her own birth. See G.S. 8C-804(b)(4)(A).
The second prong of Rule 804(b)(4) authorizes similar statements from the declarant about the personal or family history of another person (including the death of that person), if the declarant was a relative of the other person (by blood, adoption, or marriage) or was otherwise so “intimately associated” with the other person’s family that the declarant was “likely to have accurate information concerning the matter declared.” G.S. 8C-804(b)(4(B). In other words, a declarant is considered capable of making accurate statements about matters such as the fact that his parents were married, or that the declarant’s aunt on his mother’s side is deceased, even though that statement might be based on matters that are beyond the declarant’s direct personal knowledge or may have even occurred prior to the declarant’s birth. The declarant is deemed sufficiently knowledgable to make such a statement “by virtue of intimate association with the family.” G.S. 8C-804(b)(4)(B), Official Commentary.
Significantly, this rule only permits the introduction of statements about the “fact of personal or family history” itself; it does not permit testimony regarding “events, activities, or emotional states occurring within those relationships.” State v. Hester, 343 N.C. 266 (1996) (trial court correctly held that Rule 804(b)(4) would only authorize statements about the fact and existence of a marriage – it did not authorize admission of hearsay statements about the abusive nature of that marriage or hearsay statements made during the marriage that related to motive for murder).
When is this used?
Rule 804(b)(4) is very rarely used in criminal practice, but it could be helpful for establishing necessary elements such as the victim’s age in a sex offense case or to prove the existence of a family relationship in a child abuse case.