§ 10.14 THE UNAVAILABILITY OF THE DECLARANT AT TRIAL

• Jurisdiction: North Carolina

§ 10.14 THE UNAVAILABILITY OF THE DECLARANT AT TRIAL

[1] AT COMMON LAW AND BY STATUTE

At common law, the exceptions requiring proof of unavailability emerged at different times and developed varying tests for unavailability. Some exceptions demanded proof of the declarant's death, while others were satisfied by proof that the declarant was beyond the reach of compulsory process. The drafters of the Federal Rules elected a single, uniform definition of unavailability. Federal Rule of Evidence 804(a) sets out that definition:

A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(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) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure:

(A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

But this subdivision (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.

Under Rule 804(a), there are numerous methods of demonstrating the prior witness's unavailability. In the first three subsections of Rule 804(a), the witness is technically unavailable but actually present at trial (hearing #2). Under Rule 804(a)(1), the witness is deemed unavailable if the witness "is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies." The prior witness from hearing #1 actually takes the stand in hearing #2, but the witness properly refuses to testify on the ground of privilege. Under Rule 804(a)(2), the witness is considered unavailable if he or she "refuses to testify about the subject matter despite a court order to do so." Here the witness does not have a legitimate ground for refusing to answer; but if the witness refuses to answer notwithstanding a court order to answer, as a practical matter the witness is unavailable. Under Rule 804(a)(3), the witness is unavailable if the witness "testifies to not remembering the subject matter."⁵ Here too the witness is physically present, but as a practical matter the witness's testimony is unavailable. When the proponent is relying on one of these three grounds to show unavailability, the proponent need ensure only that the witness's refusal or failure to recall is reflected on the record. The proponent should ask point blank about the topic of the prior testimony: "WHAT was the color of the defendant's car?" If the witness responds "I refuse to answer" or "I cannot remember," there is a sufficient showing of unavailability.

Rule 804(a)(4) declares that the prior witness is unavailable when the witness "cannot be present to testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness." If the witness is now dead, the proponent may introduce a properly attested death certificate. The death certificate qualifies as an official record. If the witness is ill, under Rule 104(a), the jurisdiction may permit the proponent to prove the illness by a physician's affidavit, declaration, or letter. (Remember that in determining the existence of preliminary facts under Rule 104(a), the trial judge need not follow the technical exclusionary rules such as hearsay.) Otherwise the proponent may have to call the physician at hearing #2 to prove the illness of the prior witness. The proponent would have to lay the expert opinion testimony foundation outlined in § 9.03 of Chapter 9: the physician's qualifications, the physician's major premise, the basis of the expert's opinion, the ultimate opinion that the former witness is now too ill to appear and testify, and the expert's explanation of the opinion.

Finally, Rule 804(a)(5) announces that the former witness is considered unavailable if the witness "is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure" the witness's attendance or, under Rules 804(b)(2)-(4), the witness's attendance or testimony. In the case of the latter exceptions, the proponent must explore the possibility of deposing the declarant before the trial or hearing; even if the proponent cannot secure the witness's "attendance," a deposition hearing would enable to obtain the witness's "testimony" under oath." This subsection usually comes into play in two situations.

The first situation is the case in which the proponent simply cannot locate the former witness. The proponent...