Section 16.22 Definition of Unavailability

• Library: Evidence 2017

A. (§16.22) Definition of Unavailability

Out-of-court statements of persons who are not parties may be admitted as exceptions to the hearsay rule when the person making the statement is unavailable to testify at trial if the statements are:

· prior testimony under oath;

· statements against the declarant’s interest;

· statements made under belief of impending death (“dying declarations”); or

· statements concerning personal or family history.

The essential precondition to the admission of evidence under these hearsay exceptions is that the person making the statement is unavailable to testify at trial—“the necessity principle.” Sutter v. Easterly, 189 S.W.2d 284, 289 (Mo. 1945). Although at one time the only recognized unavailability was the death of the declarant—the ultimate unavailability—there are now myriad situations in which the declarant has been held to be unavailable, thus making the hearsay evidence admissible under these exceptions. State v. Hester, 801 S.W.2d 695 (Mo. banc 1991). The formal test is “that whenever the testimony of the witness is unavailable as a practical proposition, his declaration should be received.” Sutter, 189 S.W.2d at 289.

The Sutter Court held that the assertion of the privilege against self-incrimination made the declarant unavailable, thus making his affidavit admitting complicity in a conspiracy to provide perjured testimony admissible as a declaration against interest. Id. To take advantage of this particular brand of unavailability, counsel must call the witness, and the witness must invoke the privilege at trial. See State v. Grant, 560 S.W.2d 39, 43 (Mo. App. E.D. 1977). Cf. State v. Register, 375 S.W.3d 99, 102–03 (Mo. App. W.D. 2012) (the trial court abused its discretion when the witness was called to invoke her rights not to testify and there were “negative inferences [drawn] from the invocation”; there is no distinction between a valid and invalid invocation of the privilege).

A party may offer out-of-court statements under these exceptions when the declarant is unavailable because of:

· death, State v. Pacheco, 101 S.W.3d 913, 921 (Mo. App. S.D. 2003);

· insanity, State v. Pierson, 85 S.W.2d 48, 52–54 (Mo. 1935);

· physical or emotional disability, United Mo. Bank, N.A. v. City of Grandview, Mo., 179 S.W.3d 362, 371 (Mo. App. W.D. 2005) (Alzheimer’s disease); State v. Williams, 554 S.W.2d 524, 531–35 (Mo. App. S.D. 1977) (physical illness); In re S.J., 849 S.W.2d 608, 613 (Mo. App. W.D. 1993)...