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