§ 34.02 UNAVAILABILITY

• Jurisdiction: United States

§ 34.02. UNAVAILABILITY

Rule 804(a) contains five conditions of unavailability. The list is illustrative, not exclusive.³ By adopting a uniform rule of unavailability for all the Rule 804(b) exceptions, the rule changes the common law, under which each exception had developed its own conditions of unavailability. For example, the common law unavailability requirements for former testimony, dying declarations, and declarations against interest were not the same.⁴

The unavailability of the declarant's testimony, rather than the unavailability of the declarant, is determinative. Thus, if the declarant is present in court but claims a valid privilege, refuses to testify, or suffers a lack of memory, the declarant's testimony is unavailable, and the Rule 804(b) exceptions apply. A witness is not "unavailable" under Rule 804(a) if unavailability is due to the procurement or other wrongdoing of the proponent of the statement.⁵

Once there is an objection, the burden of establishing unavailability rests on the party offering the evidence.

[A] Claim of Privilege: FRE 804(a)(1)

A declarant is unavailable if exempted by a court ruling on the ground of privilege.⁶ The most common example is a witness who claims the Fifth Amendment privilege against self-incrimination.⁷ However, a party who invokes his Fifth Amendment privilege is not unavailable under Rule 804(a): "The sponsor of a declarant's former testimony may not create the condition of unavailability and then benefit therefrom."⁸

[B] Refusal to Testify: FRE 804(a)(2)

If the court decides a claim of privilege is invalid but the witness persists in refusing to testify, Rule 804(a)(2) applies, and the unavailability requirement is satisfied. A ruling by the trial judge on the claim of privilege is required.⁹ If the court finds the claim invalid, continued refusal to testify may result in holding the witness in contempt. The rule does not, however, require the imposition of contempt as a condition for finding the declarant unavailable — only an order to testify is required.¹⁰

[C] Lack of Memory: FRE 804(a)(3)

If the declarant testifies to a lack of memory, the declarant is unavailable. The rationale is straightforward: "If the claim is successful, the practical effect is to put the testimony beyond reach . . . ."¹¹ Nevertheless, the rule was somewhat controversial because of a concern about fabricated claims of memory lapse. In response, the drafters observed: "In this instance, however, it will be noted that the lack of memory must be established by the testimony of the witness himself, which clearly contemplates his production and subjection to cross-examination."¹² Stated another way, the trial judge can eyeball the witness and "may choose to disbelieve the declarant's testimony as to his lack of memory."¹³

[D] Death or Illness: FRE 804(a)(4)

A declarant is unavailable if unable to testify because of death or then-existing physical or mental illness or infirmity.¹⁴ A continuance may resolve problems associated with a temporary infirmity.¹⁵ Moreover, the Confrontation Clause imposes stricter unavailability standards, at least for former testimony.¹⁶

[E] Unable to Procure Testimony: FRE 804(a)(5)

A declarant is unavailable if the proponent is unable to procure the declarant's attendance or testimony. The rule governs situations in which the declarant's present whereabouts are unknown¹⁷ and when the declarant is beyond the subpoena power of the court.¹⁸

Depositions required. In the case of some of the Rule 804(b) exceptions (e.g., statements against interest, dying declarations), the rule requires that the testimony as well as the attendance of the witness be unavailable.¹⁹ Thus, the offering party must attempt to take the declarant's deposition.²⁰ Deposition evidence is thought superior to dying declarations and declarations against...