Unavailability Requirement

Question 1

Under what 5 circumstances is a declarant deemed to be unavailable as a witness?

Answer 1

A declarant is deemed to be unavailable as a witness if the declarant:
1. Is exempted from testifying because the court rules that a privilege applies;

2. Refuse to testify despite a court order
3. Testifies to not remembering the subject matter;
4. Cannot be present or testify because of death or physical /mental illness; OR
5. is absent and the statement’s proponent has not been able, by process or other reasonable means to procure the declarant’s attendance.

Question 2

What four hearsay exceptions apply only if the declarant is deemed unavailable?

Answer 2

1. Former testimony;
2. Dying declarations;
3. Statements against interest; AND
4. Forfeiture by wrongdoing

Question 3

When is former testimony admissible?

Answer 3

Former testimony is admissible if:
1. The declarant is unavailable;
2. The statement was prior testimony given at a trial hearing or deposition; AND
3. The opposing party had an opportunity and similar motive to develop the testimony through cross or direct examination.

Question 4

Does a former testimony at a grand jury qualify as former testimony?

Answer 4

NO

Question 5

What is a dying declaration?

Answer 5

A statement is admissible if:

1. The declarant is unavailable;
2. The declarant believed that her death was imminent when she made the statement (i.e., declarant does NOT have to actually die); AND
3. The statement pertains to the cause or circumstances of her death.

Question 6

In what two types of litigation is the dying declaration exception available?

Answer 6

The dying declaration exception is ONLY available in HOMICIDE and CIVIL CASES.

Question 7

What is a statement against interest?

Answer 7

A statement is admissible if:
1. The declarant is unavailable;
2. The statement is against the declarant’s self interest (i.e., the statement exposes the declarant to liability); AND
3. A reasonable person would NOT have made the statement unless he believed it to be true.

Question 8

What is forfeiture by wrongdoing?

Answer 8

A party forfeits her hearsay objection if the party intentionally or wrongfully makes the declarant unavailable to testify as proven by PREPONDERANCE OF THE EVIDENCE.

THe act that makes the witness unavailable need NOT be criminal to qualify as forfeiture by wrondoing (e.g., sending someone away on vacation to a foreign country).