§ 34.07 KEY POINTS

• Jurisdiction: United States

§ 34.07. KEY POINTS

Unavailability: FRE 804(a)

Rule 804(a) contains five conditions of unavailability. The list is illustrative, not exclusive. 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.

Claim of privilege. The most common example is a witness who claims the privilege against self-incrimination.

Refusal to testify. If the court decides a claim of privilege is invalid but the witness persists in refusing to testify, the unavailability requirement is met. A ruling by the trial judge on the claim of privilege is required.

Lack of memory. The rule was somewhat controversial because of a concern about fabricated claims of memory lapse. The judge, however, can eyeball the witness and may choose to disbelieve the witness's testimony regarding the lack of memory.

Death or illness. A continuance may resolve problems associated with a temporary infirmity.

Unable to procure testimony. The rule governs situations in which the declarant's present whereabouts are unknown or the declarant is beyond the subpoena power of the court. In the case of some the Rule 804 exceptions (e.g., statements against interest, dying declarations), the rule requires that the testimony as well as the attendance of the witness be unavailable. Thus, the offering party must attempt to take the declarant's deposition. This provision does not apply to former testimony because a deposition is a type of former testimony. By the nature of the exception, forfeiture by wrongdoing precludes the possibility of a deposition.

Procuring Unavailability. The unavailability requirement does not apply if the offering party procured or wrongfully caused the declarant's unavailability in order to prevent the declarant from attending or testifying. In such a case, the requirements of Rule 804(b) still apply — e.g., declaration against interest. This provision differs from Rule 804(b)(6), which governs forfeiture by wrongdoing. The latter recognizes a separate exception, albeit one that also requires the procurement of unavailability.

Former Testimony: FRE 804(b)(1)

Rationale. Unlike other hearsay exceptions, former testimony is not based on any trustworthiness guarantee that is considered an adequate substitute for cross-examination. The exception requires an opportunity for cross-examination as well as testimony under oath. The only trial safeguard missing is the...