Also known as: unavailability as a witness · witness unavailable · unavailable witness · hearsay unavailability · Rule 804 unavailability
Written by attorneys · grounded in primary & secondary sources — see below
A status of a declarant who cannot or will not provide testimony at trial. The status exists when the declarant is exempted by privilege, refuses to testify despite a court order, testifies to lacking memory of the subject matter, is unable to attend because of death or infirmity, or is absent and the proponent has been unable by reasonable means to procure attendance or testimony.
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Uriel Urban offered a recorded statement from his former employee after paying the employee to leave the country. The court refused to treat the employee as unavailable because Uriel had caused the absence to block testimony.
Usha Upton called a witness who invoked the Fifth Amendment on the stand. After the court exempted the witness from testifying, Usha offered the witness's prior recorded statement under an unavailable-declarant exception.
Ugo Uberti offered a transcript of a deposition taken in an earlier administrative proceeding. The deponent had retired abroad and ignored repeated subpoenas despite letters rogatory, so the court found the deponent unavailable and admitted the transcript under the former-testimony exception.
Umar Underwood offered a coworker's recorded statement after evidence showed Umar had arranged an assault on the coworker to stop cooperation with investigators. The court admitted the statement against Umar under the forfeiture provision.
Ursula Ung, the prosecutor, issued multiple subpoenas to a key witness at her last known address and enlisted the help of out-of-state authorities. After the witness could not be found, the court ruled her unavailable and allowed introduction of her earlier preliminary-hearing testimony.
Usman Uddin told an associate that a potential witness had reported him to police. The associate later killed the witness for personal reasons unrelated to any proceeding. The court refused to apply forfeiture and excluded the witness's prior statement because Usman had not acted to prevent testimony.
A declarant is unavailable if exempted by privilege, refuses to testify after a court order, testifies to lacking memory, cannot attend because of death or infirmity, or is absent despite the proponent's reasonable efforts to secure attendance or testimony. The rule also bars a finding of unavailability if the proponent wrongfully caused the absence to prevent testimony.
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…can best be determined. In Ohio v. Roberts , we held that the Confrontation Clause does not bar the admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate indicia of reliability.” To meet that test, evidence must either fall within a “firmly rooted hearsay exception” or…
…Moreover, if a hearing on forfeiture is required, Edwards , for instance, observed that "hearsay evidence, including the unavailable witness
…Ohio statute, like the analogous Federal Rule of Evidence, requires the prosecution to demonstrate that the declarant is unavailable as a witness
…designed to prevent a witness from testifying. The view that the exception applies only when the defendant intends to make a witness unavailable
Yes. When a court rules that a privilege applies and excuses the witness from testifying about the subject matter, the witness meets the unavailable-declarant definition. The proponent may then offer qualifying hearsay statements under Rule 804(b) exceptions.
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Absence satisfies unavailability when the proponent has made reasonable but unsuccessful efforts to secure attendance through subpoenas, letters rogatory, or diplomatic channels. Health excuses or foreign residence do not defeat the finding if those efforts are exhausted in good faith.
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Yes. Forfeiture applies only when the defendant engaged in wrongdoing with the specific purpose of making the declarant unavailable as a witness. Conduct that merely causes unavailability without that intent does not trigger the exception.
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Yes. A witness who takes the stand and states under oath that the declarant does not remember the subject matter satisfies the lack-of-memory category regardless of whether the memory loss appears credible or feigned.
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