Unavailable Declarants
Some hearsay exceptions only open up once the declarant is unavailable, so the threshold question is what unavailability means.
14. Unavailable Declarants
Some hearsay exceptions apply only to statements by unavailable declarants. Fed. R. Evid. 804(a) defines several types of unavailability.
- A declarant is unavailable if they are “exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies.” Fed. R. Evid. 804(a)(1).
- A declarant is unavailable if they “refuse[] to testify about the subject matter despite a court order to do so.” Fed. R. Evid. 804(a)(2).
- A declarant is unavailable if they “testif[y] to not remembering the subject matter.” Fed. R. Evid. 804(a)(3).
- A declarant is unavailable if they “cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness.” Fed. R. Evid. 804(a)(4).
- A declarant is unavailable if they are “absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure: . . . the declarant’s attendance . . . .” Fed. R. Evid. 804(a)(5).
- “Reasonable means” includes offering to pay an out-of-state witness’s expenses.
- The Nevada FLE does not test application of Fed. R. Evid. 804(a)(5)(B), which requires attempts to obtain an unavailable declarant’s testimony by deposition. That provision applies only to hearsay exceptions that are not tested on the FLE.
- Nor does the Nevada FLE test knowledge of the final provision in Rule 804(a), that the rule “does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.”
Some hearsay exceptions open only once the declarant is unavailable, a defined term. The definition lists several independent categories, and any single one, standing alone, makes the declarant unavailable.
Some hearsay exceptions only open up once the declarant is unavailable, so the threshold question is what unavailability means. It is a defined term, and the definition lists several distinct ways a declarant can count as unavailable. Each one is independent; any single category, standing alone, makes the declarant unavailable.
- 1Privilege: the declarant is exempted from testifying about the subject matter because the court rules that a privilege applies. The court has to rule; a witness merely asserting a privilege does not, by itself, establish unavailability.
- 2Refusal: the declarant refuses to testify about the subject matter despite a court order to do so. The order matters; a witness who is simply reluctant, without a court order that they defy, has not yet triggered this category.
- 3Loss of memory: the declarant testifies to not remembering the subject matter.
- 4Incapacity: the declarant cannot be present or testify because of death or a then-existing infirmity, physical illness, or mental illness.
- 5Absence the proponent could not cure: the declarant is absent and the statement's proponent has not been able, by process or other reasonable means, to procure the declarant's attendance. The definition gives a concrete example of what reasonable means can include, namely offering to pay an out-of-state witness's expenses.
Two things sit outside the tested scope and you should not import them. The Nevada FLE does not test the requirement that a proponent also try to obtain testimony by deposition; that requirement belongs to exceptions the FLE does not test. And the FLE does not test the final wrongdoing provision, the one that strips a proponent of the unavailability ground when the proponent procured or wrongfully caused the declarant's absence to keep them from testifying. For FLE purposes, stay on the five listed categories and the offer-to-pay-expenses example, and do not condition unavailability on a deposition attempt or on the proponent's good faith in not causing the absence.
privilege the court rules applies
refusal despite a court order
testifies to not remembering the subject matter
can't appear due to death or a then-existing infirmity / physical illness / mental illness
absent and the proponent couldn't procure attendance by process or other reasonable means, which includes offering to pay an out-of-state witness's expenses
Two carve-outs the FLE does not test: the deposition-attempt requirement, and the wrongdoing-forfeiture provision.
The court must actually rule on the privilege, and a court order must be defied for refusal.
A plaintiff in a civil case wants to use an out-of-court statement that one of the exceptions allows only when the declarant is unavailable. The declarant now lives in another state and will not come to the trial. The plaintiff served process to compel attendance, it did not work, and the plaintiff then offered to pay the declarant's travel and lodging expenses to attend; the declarant still did not come. The defense argues the declarant is not unavailable because the plaintiff never tried to take the declarant's deposition.
Suppose the declarant lived nearby, was perfectly healthy, claimed no privilege, defied no court order, and simply was not subpoenaed. None of the five categories is met, so the declarant is not unavailable.
An option that treats a bare invocation of privilege, or mere reluctance, as unavailability, skipping the court ruling or the defied court order.
Privilege requires the court to rule that it applies; refusal requires defiance of a court order.An option that conditions an absent declarant's unavailability on the proponent first attempting a deposition.
The deposition-attempt requirement is outside the FLE's tested scope and adds no condition.An option that dismisses the proponent's offer to pay an out-of-state witness's expenses as irrelevant or insufficient.
Reasonable means expressly includes offering to pay an out-of-state witness's expenses.An option that demands a permanent illness or treats a then-existing physical or mental illness as not enough.
A then-existing infirmity, physical illness, or mental illness that prevents appearance or testimony suffices; permanence is not required.An option that strips unavailability whenever the proponent had any role in the absence, importing the untested wrongdoing-forfeiture provision, or that calls any uncooperative witness automatically unavailable.
The wrongdoing-forfeiture provision is outside the tested scope, and unavailability turns on the listed categories, not on mere uncooperativeness.an exception is available only for an unavailable declarant, and the facts press on whether this declarant qualifies.
Run the five-category checklist: did the court rule a privilege applies; did the declarant refuse despite a court order; did the declarant testify to not remembering; is the declarant prevented by death or a then-existing infirmity, physical illness, or mental illness; or is the declarant absent and beyond the proponent's reach by process or other reasonable means (which includes offering to pay an out-of-state witness's expenses).
Any one is enough.
Watch for two FLE traps: an option adding a deposition-attempt requirement, and an option applying the wrongdoing-forfeiture provision.
Both are outside the tested scope and should be rejected.
In a civil suit, a party wants to use an out-of-court statement that an exception permits only if the declarant is unavailable. The declarant has moved to a distant state and will not travel to the trial. The party served process to compel the declarant's attendance, and when that failed, the party offered to pay the declarant's travel and lodging costs to come testify. The declarant still refused to appear. The opposing party contends the declarant is not unavailable because the offer to cover expenses does not count.
Is the declarant unavailable as a witness?
At a civil trial, a person whose out-of-court statement a party seeks to introduce is called to the stand. The person announces that she objects to answering questions about the subject matter on the ground of a recognized privilege. The judge has not yet ruled on whether the privilege actually applies to the questions. The party offering the statement argues the declarant is already unavailable simply because she invoked the privilege.
Is the declarant unavailable on the basis of privilege at this point?
During a civil trial, a key witness is called to testify about events underlying an out-of-court statement a party hopes to introduce under an exception that requires the declarant to be unavailable. Taking the stand, the witness states under oath that he genuinely does not remember anything about the subject matter of the statement. He is physically present, asserts no privilege, and has not been ordered to answer anything he has refused.
Is the witness unavailable as a declarant?
In a civil matter, a party seeks to introduce an out-of-court statement under an exception that applies only when the declarant is unavailable. The declarant is alive and willing to cooperate, but a then-existing serious illness leaves her unable to be present at the trial or to testify. The party offering the statement establishes the illness and her resulting inability to appear or testify. The opposing party argues she is not unavailable because her illness might eventually improve.
Is the declarant unavailable as a witness?
In a civil trial, a party offers an out-of-court statement under an exception that requires the declarant to be unavailable. The declarant is present but, despite a clear court order directing him to answer questions about the subject matter, flatly refuses to testify about it. The party offering the statement points to the defied order. The opposing party responds that the declarant cannot be deemed unavailable unless the party also first attempted to obtain the declarant's testimony by deposition.
Is the declarant unavailable as a witness?