Download - Unavailability
Unavailability
What are the Six Categories
1.
2.
3.
4.
5.
6.
1. Privilege
2. Intransigent
3. Forgetful
4. Death or Disability
5. Absence
6. Other things not listed (list is not exclusive)
PAID FORP rivilegedA bsenceI ntransigentD ead or Disabled For getful
Three Elements of the “Misconduct Proviso”
1. Proponent caused the absence
2. By wrongdoing3. For the purpose of
making declarant unavailable
Category 1 – Privilege Three Elements
1. W refuses to testify
2. Based on privilege
3. Court rules that privilege exists
Category 2 – Intransigence Two Elements
1. Witness refuses to testify
2. After being ordered to do so
Category 3 – Forgetful 1 Element, 3 Warnings, and 1 Question
• Witness testifies to lack of memory of events
• Not lack of memory of prior statement
• Not enough that witness
– Testifies to opposite of prior statement or that it was false
– Testifies that he never knew
• What do you do in those situations?
Category 4 – Death or Disability2 Alternatives (or Maybe 3)
• Dead = dead
• Disabled = too disabled to
– Testify without risk to witness’s health
– Testify at all
Category 5 – Absence Two Elements
1. Declarant is absent
2. Proponent cannot procure:
a. Attendance, or
b. Either
• Attendance or
• Testimony
Category 5 – Absence Attendance vs. Attendance or Testimony
What’s the Difference
1. Attendance = Attendance at Trial
2. Attendance or Testimony =
1. Attendance at Trial, or
2. Deposition
Category 5 – Absence Attendance vs. Attendance or Testimony
When Do We Require Which?
1. Attendance
1. (b)(1) Former Testimony
2. (b)(6) Forfeiture by Wrongdoing
2. Attendance or Testimony
1. (b)(2) Dying Declaration
2. (b)(3) Statement Against Interest
3. (b)(5) Personal/Family History
Why?
Do Problem 39