Rule 804(a) defines unavailability to include privilege, refusal to testify, lack of memory, death or infirmity, and absence despite reasonable means to procure attendance. A party cannot create unavailability through wrongdoing.
Procurement efforts must be reasonable.
Alternative Names:
Unavailability|Rule 804(a)
Why it Matters?
Absence beyond subpoena range is not automatically unavailability, since the proponent must show reasonable means were used to procure attendance including a deposition where practicable. That requirement defeats claims of unavailability where the witness could have been deposed. Forfeiture by wrongdoing removes the requirement entirely where a party procured the declarant's absence.
Frequently Confused with
Related terms
Frequently asked questions
Is distance alone sufficient?
What is forfeiture by wrongdoing?
