Also known as: unavailable as a witness · witness unavailability · hearsay exception unavailable declarant
Written by attorneys · grounded in primary & secondary sources — see below
A status of a declarant that satisfies one of the enumerated grounds permitting certain hearsay exceptions. The status arises when the declarant is exempted by privilege, refuses to testify despite a court order, testifies to a lack of memory, cannot attend because of death or infirmity, or is absent despite reasonable efforts to secure attendance or testimony. The status does not exist if the statement's proponent procured or wrongfully caused the declarant's absence to prevent testimony.
Ugo Uberti offers a prior statement from his former employee after arranging for the employee to leave the country. The court finds that Ugo procured the absence to prevent testimony. The statement is excluded even though the employee satisfies an absence ground.
Umeko Uchida invokes spousal privilege when called to testify about a text thread. The court sustains the privilege and excuses her from testifying on that subject. Her prior statement qualifies for a hearsay exception that requires unavailability.
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Umar Usmani offers a deposition transcript after the deponent dies before trial. The court determines the declarant meets the unavailability requirement. The transcript is admitted under the former-testimony exception.
Ulysses Maritime offers a statement against a rival that arranged for the declarant to disappear. The court finds the rival wrongfully caused the absence intending to prevent testimony. The statement is admitted under the forfeiture exception.
Ursula Ung offers a prior statement from a witness who cannot be located despite diligent efforts. The court finds the declarant unavailable. Admission satisfies the constitutional requirement when the statement bears adequate indicia of reliability.
No. A declarant who appears but refuses to testify about the subject matter after a court order, claims a valid privilege, or testifies to a lack of memory still qualifies as unavailable under Rule 804(a).
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The proponent must show that the declarant is absent and that reasonable means, including process or other diligent attempts, failed to procure attendance or testimony. Exhaustion of every theoretical possibility is not required.
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Rule 804(a) bars the unavailability finding if the proponent procured or wrongfully caused the declarant's absence in order to prevent testimony. No such bar applies when the proponent acted in good faith.
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Yes. A court ruling that exempts the declarant from testifying on the subject matter because of a valid privilege satisfies the unavailability definition under Rule 804(a)(1).
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…Ohio statute, like the analogous Federal Rule of Evidence, requires the prosecution to demonstrate that the declarant is unavailable as a witness before the preliminary hearing testimony may be introduced. The State conceded that Anita Isaacs was unavailable at the time of trial. The record reveals that the State issued five separate…