Chapter 12 - § 13.5 EXCEPTIONS TO HEARSAY: DECLARANT UNAVAILABLE

• Jurisdiction: Colorado

§ 13.5 EXCEPTIONS TO HEARSAY: DECLARANT UNAVAILABLE

Some hearsay statements are admissible upon proof that the declarant is unavailable to testify.

Colorado

➢ A Party Must Make Reasonable, Good Faith Effort to Procure Attendance of Witness but need not exhaust every possible means or undertake futile means. See People v. Hernandez, 899 P.2d 297, 300 (Colo. App. 1995).

➢ Physical or Mental Disability May Render Witness Unavailable in limited circumstances. People v. Lyons, 907 P.2d 708, 711 (Colo. App. 1995).

➢ Court's Ruling that the Testimony Is Privileged Is a Prerequisite to Finding of Unavailability on account of a claim of privilege. People v. Rosenthal, 670 P.2d 1254, 1256 (Colo. App. 1983).

Colorado

➢ Definition of Unavailability.

Unavailability as a witness' includes situations in which the declarant —

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; or
(2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of his statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision [(b)(2) in federal cases only] (b)(3) or (4) his attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.

CRE 804(a); FRE 804(a) is substantially the same except that 804(a)(5) also refers to FRE 804(b)(2).

➢ List of Reasons for Unavailability Under CRE 804(a) is Partial and Non-Exclusive. Declarant may qualify as "unavailable" for a reason not listed in the rule. People v. Reed, 216 P.3d 55, 57-58 (Colo. App. 2008).

Federal

➢ Criteria for Being Unavailable.

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

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