Also known as: unavailable · unavailabilities
Written by attorneys · grounded in primary & secondary sources — see below
3 senses
The condition of a declarant being unable to testify at a hearing or trial. This status triggers hearsay exceptions under Rule 804 when the declarant is exempted by privilege, refuses to testify despite a court order, testifies to a lack of memory, is unable to attend due to death or illness, or is absent despite reasonable efforts to procure attendance or testimony.
The status that renders a justification or defense inapplicable. This occurs when the actor was reckless or negligent in creating the situation that required a choice of harms or in placing himself in a position where duress was probable.
The condition that makes agreed berthing, loading, unloading facilities, or a type of carrier unavailable. When this occurs without fault of either party and a commercially reasonable substitute exists, the substitute performance must be tendered and accepted.
Each sense below has its own examples, sources, and questions.
The condition of a declarant being unable to testify at a hearing or trial. This status triggers hearsay exceptions under Rule 804 when the declarant is exempted by privilege, refuses to testify despite a court order, testifies to a lack of memory, is unable to attend due to death or illness, or is absent despite reasonable efforts to procure attendance or testimony.
Select any source to read its text and confirm it supports the definition.
Unity Underhill seeks to introduce her co-defendant's out-of-court statement against Ulf Ulfsson at trial. She had arranged for the co-defendant to leave the country before trial to avoid testifying. The court refuses to apply the hearsay exception because the proponent wrongfully caused the declarant's unavailability.
Ulysses Usher offers a police interrogation transcript of a witness who fled the jurisdiction before trial. The prosecution cannot show the defendant had any prior opportunity to cross-examine the declarant. The statement is excluded under the Confrontation Clause even if it would otherwise qualify as reliable hearsay.
Ursula Ung refuses to testify against her spouse in a criminal case after the court upholds a spousal privilege claim. The prosecution seeks to introduce her prior grand jury testimony under a hearsay exception. The declarant is unavailable because she is exempted by privilege, satisfying the threshold for Rule 804(b) exceptions.
A declarant is unavailable if exempted by privilege, refuses to testify despite a court order, lacks memory of the subject matter, cannot attend due to death or illness, or is absent and the proponent cannot procure attendance or testimony by reasonable means. The rule lists these five grounds explicitly.
Supporting sources
Yes. Rule 804(a) provides that the unavailability subdivision does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability to prevent attendance or testimony. This prevents parties from benefiting from their own misconduct.
Supporting sources
The status that renders a justification or defense inapplicable. This occurs when the actor was reckless or negligent in creating the situation that required a choice of harms or in placing himself in a position where duress was probable.
Select any source to read its text and confirm it supports the definition.
Uri Underwood starts a fire while carelessly handling explosives near a crowded building. He later claims necessity as a defense for breaking into a neighboring structure to escape. The justification is unavailable because his recklessness created the situation requiring the choice of harms.
Ulf Ulfsson voluntarily joins a criminal gang knowing its members routinely use threats of violence to enforce compliance. When later charged with robbery, he claims he acted under duress from gang leaders. The defense is unavailable because he recklessly placed himself in a situation where duress was probable.
The justification is unavailable when the actor was reckless or negligent in bringing about the situation requiring a choice of harms or in appraising the necessity for conduct. The same principle applies to duress when the actor recklessly placed himself in a probable duress situation.
Supporting sources
The condition that makes agreed berthing, loading, unloading facilities, or a type of carrier unavailable. When this occurs without fault of either party and a commercially reasonable substitute exists, the substitute performance must be tendered and accepted.
Select any source to read its text and confirm it supports the definition.
Una Ueda contracts with United Bank to ship perishable goods by a specific refrigerated rail carrier that later ceases operations. A commercially reasonable truck alternative is available. United Bank must tender and accept the substitute performance rather than treat the contract as breached.
When an agreed type of carrier becomes unavailable without fault of either party and a commercially reasonable substitute is available, the substitute must be tendered and accepted. The rule applies only when the agreed manner of delivery becomes commercially impracticable.
Supporting sources
…proponent of expert testimony can show that the evidence satisfies the first prong of Rule 702.[^maj-10] Where such evidence is unavailable, the proponent of expert scientific testimony may attempt to satisfy its burden through the testimony of its own experts. For such a showing to be sufficient, the experts must explain…
…the reporter possesses information relevant to a crime the grand jury is investigating, that the information the reporter has is unavailable from other sources, and that the need for the information is sufficiently compelling to override the claimed invasion of First Amendment interests occasioned by the disclosure. Principally…
…does; and further, that the incidence of venereal disease and premarital pregnancy is affected by the availability or
…crime. Holt and Murphy , the government contends, are of examples of this line of cases, which, the government asserts, is unavailable
…does; and further, that the incidence of venereal disease and premarital pregnancy is affected by the availability or
Testimonial hearsay is inadmissible against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. Mere reliability of the statement does not satisfy the constitutional requirement.
Supporting sources