18. THE UNAVAILABILITY EXCEPTIONS IN RULE 804

The first foundation requirement of a Rule 804 exception is establishing that the declarant is unavailable for one of the 5 specific reasons listed in part (a) of the Rule. It doesn't matter if a witness is unavailable in the true sense, but whether you can prove one of the 5 specific types of unavailability listed in Rule 804(a). As with other parts of the hearsay rule, you must distinguish the name of the rule ("unavailability") from the technical foundation required. The proponent must show by a combination of evidence and common sense that all the requirements of one of the 5 definitions have been satisfied.

For example, look at sections (1) and (2). A witness is not unavailable just because the witness asserts a privilege (usually the privilege against self-incrimination) and refuses to testify. To comply with the first definition, the judge must make a ruling upholding the privilege and exempting the witness from testifying. To comply with the second definition, the judge must order the witness to testify, and the witness must refuse to do so after the order.

Problem 18A.  Attorney MacPherson shows the judge a text message from witness Haller that his flight has been cancelled and he cannot attend trial, so she wants to use his deposition. What objection can the defense make? When you think you know the answer, click here