Also known as: unavailability as a witness · witness unavailable · unavailable witness · hearsay unavailability · Rule 804 unavailability
Written by attorneys — see sources below.
A status of a declarant who cannot or will not provide testimony at trial. The status exists when the declarant is exempted by privilege, refuses to testify despite a court order, testifies to lacking memory of the subject matter, is unable to attend because of death or infirmity, or is absent and the proponent has been unable by reasonable means to procure attendance or testimony.
Uriel Urban offered a recorded statement from his former employee after paying the employee to leave the country. The court refused to treat the employee as unavailable because Uriel had caused the absence to block testimony.
Usha Upton called a witness who invoked the Fifth Amendment on the stand. After the court exempted the witness from testifying, Usha offered the witness's prior recorded statement under an unavailable-declarant exception.
Ugo Uberti offered a transcript of a deposition taken in an earlier administrative proceeding. The deponent had retired abroad and ignored repeated subpoenas despite letters rogatory, so the court found the deponent unavailable and admitted the transcript under the former-testimony exception.
Umar Underwood offered a coworker's recorded statement after evidence showed Umar had arranged an assault on the coworker to stop cooperation with investigators. The court admitted the statement against Umar under the forfeiture provision.
Ursula Ung, the prosecutor, issued multiple subpoenas to a key witness at her last known address and enlisted the help of out-of-state authorities. After the witness could not be found, the court ruled her unavailable and allowed introduction of her earlier preliminary-hearing testimony.
In January 1975, local police in Lake County, Ohio, arrested Herschel Roberts and charged him with forgery of a check in the name of Bernard Isaacs and with possession of stolen credit cards belonging to Isaacs and his wife Amy. A preliminary hearing took place on January 10 in Municipal Court, where the prosecution presented several witnesses including Mr. Isaacs. Roberts's appointed counsel called Anita Isaacs, the daughter of the Isaacs, as the defense's sole witness. Anita testified that she knew Roberts and had allowed him to use her apartment for several days while she was away, but she denied giving him her parents' checks or credit cards. Defense counsel questioned her extensively in an attempt to obtain an admission that she had provided the items without permission, though she maintained her denial, and the prosecutor did not examine her. A county grand jury later indicted Roberts for forgery, receiving stolen property, and possession of heroin, after which new counsel was appointed for him. Between November 1975 and March 1976, the State issued five subpoenas to Anita at her parents' Ohio residence for four different trial dates, with the last three including instructions that she should call before appearing. Anita did not respond to the subpoenas or appear at the March 1976 trial in the Court of Common Pleas. At trial, Roberts testified that Anita had given him her parents' checkbook and credit cards with permission to use them. The State then offered the transcript of Anita's preliminary hearing testimony pursuant to an Ohio statute allowing use of such testimony when a witness cannot be produced. During a voir dire hearing on the transcript's admissibility, Amy Isaacs testified that Anita had left home for Tucson, Arizona, shortly after the preliminary hearing. She described limited contacts, including a welfare application in San Francisco about a year before trial that led to one phone call, and another call seven or eight months before trial in which Anita said she was traveling outside Ohio. Mrs. Isaacs stated she had no way to reach Anita in an emergency and knew of no one who knew her location. The trial court admitted the transcript, and the jury convicted Roberts on all counts. The Ohio Court of Appeals reversed the convictions after reviewing the voir dire evidence, concluding that the prosecution had not made a good-faith effort to secure Anita's attendance at trial. The Supreme Court of Ohio affirmed the reversal but on different grounds, determining that while Anita was unavailable, the preliminary hearing testimony did not satisfy the requirements for admission under the Confrontation Clause because defense counsel had not actually cross-examined her there. The United States Supreme Court granted certiorari to address the constitutional issues raised by the admission of the testimony.
Usman Uddin told an associate that a potential witness had reported him to police. The associate later killed the witness for personal reasons unrelated to any proceeding. The court refused to apply forfeiture and excluded the witness's prior statement because Usman had not acted to prevent testimony.
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.
A declarant is unavailable if exempted by privilege, refuses to testify after a court order, testifies to lacking memory, cannot attend because of death or infirmity, or is absent despite the proponent's reasonable efforts to secure attendance or testimony. The rule also bars a finding of unavailability if the proponent wrongfully caused the absence to prevent testimony.
Supporting sources
…can best be determined. In Ohio v. Roberts , we held that the Confrontation Clause does not bar the admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate indicia of reliability.” To meet that test, evidence must either fall within a “firmly rooted hearsay exception” or…
…Moreover, if a hearing on forfeiture is required, Edwards , for instance, observed that "hearsay evidence, including the unavailable witness's out-of-court statements, may be considered." Id., at 545 , 830 N. E. 2d, at 174 . The Roberts approach to the Confrontation Clause undoubtedly made recourse to this doctrine less…
…Ohio statute, like the analogous Federal Rule of Evidence, requires the prosecution to demonstrate that the declarant is unavailable as a witness before the preliminary hearing testimony may be introduced. The State conceded that Anita Isaacs was
…designed to prevent a witness from testifying. The view that the exception applies only when the defendant intends to make a witness unavailable is also supported by modern authorities, such as Federal
Yes. When a court rules that a privilege applies and excuses the witness from testifying about the subject matter, the witness meets the unavailable-declarant definition. The proponent may then offer qualifying hearsay statements under Rule 804(b) exceptions.
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Absence satisfies unavailability when the proponent has made reasonable but unsuccessful efforts to secure attendance through subpoenas, letters rogatory, or diplomatic channels. Health excuses or foreign residence do not defeat the finding if those efforts are exhausted in good faith.
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Yes. Forfeiture applies only when the defendant engaged in wrongdoing with the specific purpose of making the declarant unavailable as a witness. Conduct that merely causes unavailability without that intent does not trigger the exception.
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Yes. A witness who takes the stand and states under oath that the declarant does not remember the subject matter satisfies the lack-of-memory category regardless of whether the memory loss appears credible or feigned.
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