Also known as: declarant unavailability · unavailable declarant · Rule 804 · hearsay unavailable declarant
Written by attorneys — see sources below.
A status under the Federal Rules of Evidence assigned to a declarant who cannot be present or testify at trial for one of the enumerated reasons in Rule 804(a). The status enables admission of the declarant's out-of-court statements under the hearsay exceptions in Rule 804(b) provided the proponent did not procure the unavailability.
Sarah, a former field supervisor, invoked her Fifth Amendment privilege at trial when asked about pesticide application. The court excused her from testifying. Owen then offered her recorded interview under Rule 804(b). Because the court ruled a privilege applied, Sarah meets the unavailability standard and the interview becomes eligible for admission under an 804(b) exception.
Antonio told Elena he had overridden safety systems and that the plant manager had ordered the overrides. Antonio later died in an unrelated accident. Chelsea offers Elena's testimony about both parts of the statement under the statement-against-interest exception. Only Antonio's own admissions about overriding the systems are genuinely self-inculpatory and therefore admissible. The remarks blaming the manager are excluded.
Madison retired abroad and ignored a trial subpoena, citing health reasons. Sabrina's counsel pursued diplomatic channels and letters rogatory without success. Sabrina offers Madison's earlier deposition transcript. Madison's absence after reasonable but unsuccessful efforts satisfies the unavailability requirement for the former-testimony exception.
A defendant threatens a witness to prevent her from testifying about prior abuse. The witness dies before trial from unrelated causes. The prosecution seeks to introduce the witness's earlier statements. Because the defendant did not procure the death to silence the witness, the unavailability finding is not barred by the Rule 804(a) proviso.
On September 29, 2002, Dwayne Giles shot his ex-girlfriend Brenda Avie six times outside the garage of his grandmother’s house. Giles’ niece heard the two speaking in conversational tones before Avie yelled “Granny” several times and a series of gunshots sounded. Giles’ niece and grandmother ran outside and saw Giles standing near Avie with a gun in his hand. Avie had not been carrying a weapon. Giles fled the scene and was apprehended by police about two weeks later. Three weeks before the shooting, Avie spoke to a police officer responding to a domestic-violence report. Avie, who was crying, told the officer that Giles had accused her of having an affair, grabbed her by the shirt, lifted her off the floor, choked her, punched her in the face and head, and threatened her with a folding knife. At trial, prosecutors sought to introduce these statements. Over Giles’ objection, the trial court admitted them under California Evidence Code section 1370. Giles testified that he had acted in self-defense. He described Avie as jealous and violent, said she had threatened to kill him and his new girlfriend on the day of the shooting, and claimed she charged at him before he fired. A jury convicted Giles of first-degree murder. While Giles’ appeal was pending, the Supreme Court decided Crawford v. Washington. The California Court of Appeal held that admission of Avie’s statements did not violate the Confrontation Clause because Giles had forfeited his confrontation right by committing the murder. The California Supreme Court affirmed on the same ground. The U.S. Supreme Court granted certiorari.
View caseA woman living with the defendant gives statements to police about contraband in their shared bedroom. She later becomes unavailable. The government offers her statements at a suppression hearing. The court treats the cohabitation relationship as relevant when assessing whether the statements can be used once unavailability is established.
In February 1971, William Matlock was indicted for robbing a federally insured bank in violation of 18 U.S.C. § 2113. A week later he filed a motion to suppress evidence seized from a home in Pardeeville, Wisconsin, where he had been living. Suppression hearings followed in the District Court. On November 12, 1970, Matlock was arrested in the yard in front of the home leased by Mr. and Mrs. Marshall. Living in the home were Mrs. Marshall, several of her children including her daughter Gayle Graff, Graff's three-year-old son, and Matlock. Three arresting officers went to the door, were admitted by Graff, told her they were looking for money and a gun, and asked if they could search the house. Graff consented voluntarily to the search of the house, including the east bedroom on the second floor which she said was jointly occupied by Matlock and herself. The east bedroom was searched and $4,995 in cash was found in a diaper bag in the only closet in the room. Graff made statements to the officers that she and Matlock occupied the east bedroom together, shared the dresser, and had slept together regularly in the room including the early morning of November 12. Other evidence showed Matlock and Graff had lived together in a one-bedroom apartment in Florida from April to August 1970, lived at the Marshall home from August to November 12, 1970, were seen going up or down stairs together, and that the east bedroom contained evidence it was lived in by a man and a woman. At the suppression hearings the District Court excluded as inadmissible hearsay Graff's out-of-court statements about joint occupancy as well as statements by both Graff and Matlock that they were husband and wife. The court concluded the remaining evidence was insufficient to prove to a reasonable certainty that Graff and Matlock were living together in the east bedroom at the time of the search. The Court of Appeals affirmed the District Court judgment in all respects. The Supreme Court granted certiorari.
View caseA witness confesses to a crime in detail but later recants on the stand. The defendant is prevented by state evidence rules from introducing the confession after the witness becomes unavailable. The confession's exclusion violates due process because the declarant is unavailable and the statement carries strong indicia of reliability.
The events that led to Leon Chambers' prosecution occurred on Saturday evening, June 14, 1969, in the small town of Woodville, Mississippi. Two Woodville policemen entered a local bar and pool hall to execute a warrant for the arrest of C. C. Jackson. Jackson resisted and a hostile crowd of some 50 or 60 persons gathered. During the commotion five or six pistol shots were fired. Officer Liberty was shot several times in the back. Liberty fired both barrels of his riot gun into an alley and hit Leon Chambers in the back of the head and neck. Chambers' friends James Williams, Berkley Turner, and Gable McDonald transported the wounded Chambers to the hospital. Chambers was subsequently charged with Liberty's murder. He pleaded not guilty and has asserted his innocence throughout. In November 1969 Gable McDonald gave a sworn confession to Chambers' attorneys admitting that he shot Officer Liberty with his .22-caliber revolver. One month later at a preliminary hearing McDonald repudiated his prior sworn confession. He testified that Reverend Stokes had persuaded him to confess and had promised that he would not go to jail and would share in the proceeds of a lawsuit Chambers would bring against the town of Woodville. At trial in October of the following year after a change of venue to Amite County Chambers called McDonald as a witness and introduced the sworn confession into evidence. The trial court denied Chambers' request to examine McDonald as an adverse witness under the voucher rule. Chambers attempted to introduce the testimony of Sam Hardin, Berkley Turner, and Albert Carter regarding McDonald's additional confessions to them but the court excluded this evidence as hearsay. The jury convicted Chambers of murder and sentenced him to life imprisonment. The Mississippi Supreme Court affirmed the conviction. The United States Supreme Court granted certiorari to consider whether petitioner's trial was conducted in accord with principles of due process under the Fourteenth Amendment.
View caseRule 804(a) lists five grounds: privilege, refusal despite court order, lack of memory, death or infirmity, and absence despite reasonable efforts to procure attendance or testimony. Each ground is evaluated independently on the facts presented.
Supporting sources
Yes, provided the proponent did not procure the refusal. The rule treats the fact of refusal following a judicial order as sufficient without further inquiry into voluntariness or psychological state.
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Absence establishes unavailability when the proponent has exhausted process and other reasonable means to secure attendance or testimony. International efforts such as letters rogatory and diplomatic channels count as reasonable means when domestic process is ineffective.
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Yes. Death is an independent ground under Rule 804(a)(4). The rule does not require proof that the declarant could have attended earlier or that death was the sole reason for absence.
Supporting sources
…is no reason to do so. Consider also that California’s hearsay rules authorize admission of the out-of-court statement of an unavailable declarant where the statement describes or explains the “infliction or threat of physical injury upon the declarant,” if the “statement” was “made at or near the time of the infliction or threat of…