Intro to the Federal Rules of Evidence - 67

E. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE (FRE 804)

1. Intro
a. Definition of unavailability
FRE 804(b) lists 5 categories: (1) privilege; (2) refusal; (3) lack of memory; (4) inability; (5) absence. But if one of these is due to the proponent’s fault, unavailability is not established.

Regarding “absence,” it is not enough to show that the declarant is beyond the reach of process.

The person offering the out-of-court declaration must show that it was also not possible to procure the witness’s attendance by other means (e.g., persuasion).

For the exceptions given in FRE 804(b)(2), (3), and (4), the person offering the out-of-court declaration in a federal trial must also show that attempts to take the declarant’s deposition were unsuccessful.

b. Constitutional problems
A witness will be deemed sufficiently unavailable not to violate a criminal defendant’s Confrontation Clause rights if the state shows (1) the witness is beyond that state’s own process; and (2) either the state made a good-faith effort to procure the witness’ presence by means other than process, or such efforts would have been very unlikely to succeed.