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Federal Evidence • Hearsay Exceptions - Unavailability Required
EVID#041
Legal Definition
These are statements of a declarant offered against the party who procured the declarant's unavailability. They are admissible in any case, and require the witness to be unavailable.
Plain English Explanation
If someone makes a witness unable to testify, that witness's out-of-court statements can still be used as evidence against the person who made the witness unavailable.
In other words, if Bob knows that Sam is going to testify againsts him and decides to kill Sam (or at least scare him enough to disappear and not show up to court) to prevent him from doing so, the law doesn't want Bob to benefit from his wrongdoing. If a party couldn't use a witness's prior statements against someone who threatened or killed that witness to silence them, it would encourage intimidation of witnesses. So the rule ensures that a party can't undermine the justice system by silencing a witness to exclude their damaging testimony.
In other words, if Bob knows that Sam is going to testify againsts him and decides to kill Sam (or at least scare him enough to disappear and not show up to court) to prevent him from doing so, the law doesn't want Bob to benefit from his wrongdoing. If a party couldn't use a witness's prior statements against someone who threatened or killed that witness to silence them, it would encourage intimidation of witnesses. So the rule ensures that a party can't undermine the justice system by silencing a witness to exclude their damaging testimony.
Hypothetical
Hypo 1: Bob threatens Sam, a witness in Bob's criminal trial, that if Sam testifies, Bob will hurt Sam's family. Sam decides not testify out of fear. The prosecution wants to admit statements Sam previously made to the police implicating Bob. Result: The statements can be admitted under the hearsay exception for statements by unavailable witnesses. Bob procured Sam's unavailability through threats, so cannot benefit by excluding Sam's prior statements.
Hypo 2: Bob falsely tells Sam that the trial date has been moved to next month. Sam does not show up at the original trial date to testify. The prosecution wants to admit Sam's prior statements implicating Bob. Result: The statements would likely be admitted, as Bob tricked Sam into being unavailable, and should not benefit from that wrongdoing.
Hypo 3: Amy is friends with Sam and asks him not to testify against Bob because it would hurt Bob's business. Sam decides not to testify in order to help his friend Amy. The prosecution wants to admit Sam's prior statements. Result: The statements would not be admitted because Amy did not "procure" Sam's unavailability. She merely requested he not testify, which is not enough to invoke this hearsay exception. Additionally, the statements are against Bob, not Amy — Bob had nothing to do with Sam not showing up.
Hypo 2: Bob falsely tells Sam that the trial date has been moved to next month. Sam does not show up at the original trial date to testify. The prosecution wants to admit Sam's prior statements implicating Bob. Result: The statements would likely be admitted, as Bob tricked Sam into being unavailable, and should not benefit from that wrongdoing.
Hypo 3: Amy is friends with Sam and asks him not to testify against Bob because it would hurt Bob's business. Sam decides not to testify in order to help his friend Amy. The prosecution wants to admit Sam's prior statements. Result: The statements would not be admitted because Amy did not "procure" Sam's unavailability. She merely requested he not testify, which is not enough to invoke this hearsay exception. Additionally, the statements are against Bob, not Amy — Bob had nothing to do with Sam not showing up.
Visual Aids
Related Concepts
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