Hearsay Exceptions: What Does “Unavailability” Mean?

In earlier posts I covered the major Rule 803 hearsay exceptions, for which unavailability is immaterial. Rule 804 contains additional hearsay exceptions, but they only apply when the declarant is unavailable. What does unavailability mean? The Rule specifies five circumstances when a declarant is unavailable. The sections below explore them.

Privilege. A witness is unavailable if he or she is “exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement.” N.C.R. Evid. 804(a). One commonly asserted privilege in this context is the Fifth Amendment privilege against self-incrimination. See, e.g., State v. Sargeant, 365 N.C. 58, 62 (2011) (witness invoked the Fifth Amendment and was unavailable). Another is the marital privilege. See, e.g., State v. Carter, 156 N.C. App. 446, 454 (2003) (witness asserted the marital privilege).

This availability ground requires a determination by the court that the asserted privilege in fact applies; if the privilege does not apply and witness refuses to answer after being ordered to do so, he or she will be unavailable because of a refusal the testify despite a court order, as discussed below.

Refusal To Testify Despite Court Order. A witness is unavailable if he or she “persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so.” N.C. R. Evid. 804(a)(2). As a general rule, the trial court must expressly order the witness to testify. State v. Finney, 358 N.C. 79, 84-87 (2004) (trial court erred by finding the witness unavailable where the witness “never definitively refused to testify and certainly did not persist in a refusal to testify”); State v. Linton, 145 N.C. App 639, 646-47 (2001) (the trial court erred by declaring a child victim unavailable without giving the witness an explicit order to testify; “an order from the trial court is an essential component in a declaration of unavailability”). However, this requirement has been relaxed where the record shows that such an order would have been futile. See, e.g., State v. Carter, 156 N.C. App. 446, 459 (2003) (witness’s conduct and testimony “made it clear that there were no circumstances, including court intervention or order, which would compel him to testify”).

Lack of Memory. A witness is unavailable when he or she “[t]estifies to a lack of memory of the subject matter of his statement.” N.C. R. Evid. 804(a)(3); State v. Rollins, ___ N.C. App. ___, 738 S.E.2d 440, 444 (2013) (defendant did not challenge on appeal the trial court’s finding that a witness who had testified at the previous trial of this case was unavailable when the witness “stated that she could not currently identify defendant, that she did not remember knowing [victim], that she did not remember the events of the day of the murder, and that she could not remember previously testifying”); State v. Brigman, 178 N.C. App. 78, 87-88 (2006) (child witnesses who could not remember were unavailable). A witness is not unavailable on these grounds if he or she remembers the general subject matter in question but can’t remember details. State v. Miller, 330 N.C. 56, 62 (1991) (the trial court erred by finding witnesses unavailable where they testified that they remembered most of what they saw but did not remember every detail of the incident).

Death or Physical or Mental Illness, or Infirmity. A witness is unavailable if he or she is “unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity.” N.C. R. Evid. 804(a)(4). When death is the basis for unavailability, there must be sufficient evidence that the witness is in fact deceased, State v. Triplett, 316 N.C. 1, 8 (1986); State v. McCail, 150 N.C. App. 643, 648-49 (2002) (where no evidence was presented regarding efforts to confirm that the witness was dead, the testimony of a second witness that she had not seen the first witness recently and had heard that he had been killed was insufficient to establish unavailability), such as an official death certificate.

Evidence of hospitalization or a mental or physical condition making it unsafe for the witness to travel may support a finding of unavailability. See, e.g., State v. Carter, 338 N.C. 569, 591-92 (1994) (mental illness); State v. Swindler, 129 N.C. App. 1, 5 (1998) (hospitalization).

Finally, A witness who is incompetent to testify is unavailable. State v. Waddell, 351 N.C. 413, 421-22 (2000).

Attendance Cannot Be Secured. A witness is unavailable if he or she is “absent from the hearing and the proponent of his statement has been unable to procure his attendance . . . or testimony . . . by process or other reasonable means.” N.C. R. Evid. 804(a)(5). This requires a showing of a good faith effort by the proponent of the evidence to locate the witness. State v. Bailey, 163 N.C. App 84, 90 (2004); see also State v. Bowie, 340 N.C. 199, 207 (1995) (trial court properly found that a witness was unavailable based on officer’s efforts to secure her as a witness).

Unavailability Due to Proponent’s Procurement or Wrongdoing. A declarant is not unavailable if his or her unavailability “is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.” N.C. R. Evid. 804(a). Put another way, if the proponent is responsible for the witness’s absence, the witness will not be found to be unavailable. A defendant does not make himself or herself unavailable by asserting the Fifth Amendment. State v. Harris, 338 N.C. 211, 223 n.1 (1994); see also United States v. Bollin, 264 F.3d 391, 413 (4th Cir. 2001) (rejecting the defendant’s contention that he was unavailable because he invoked his Fifth Amendment rights).

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