MBE Rules · Evidence
Grounds of Unavailability
FRE 804(a)
The rule
A declarant is unavailable when exempted by privilege ruling, refusing despite court order, lacking memory, dead or ill, or absent beyond process — but not if the proponent procured the unavailability.
In plain English
A declarant is considered unavailable to testify if they meet certain criteria, such as being privileged, refusing to testify despite a court order, lacking memory, being deceased or seriously ill, or being absent and unreachable. However, if the party seeking to use the declarant's statement caused their unavailability, then they cannot claim this exception.
Worked example
In a murder trial, the prosecution wants to introduce a witness's prior statement because the witness is now in a coma and cannot testify. The witness had previously given a statement to the police about what they saw. Since the witness is unavailable due to illness and was not made unavailable by the prosecution, the statement can be admitted as evidence.
Memory hook
Unavailability means no show, but don't cause the no-show yourself!
The trap
Exams often present scenarios where a party's actions led to a witness's unavailability, tricking students into thinking the statement can still be used. Students must carefully analyze the cause of unavailability to avoid this pitfall.
How examiners test it
This rule typically appears in questions involving hearsay exceptions, where the examiners will ask about the admissibility of statements made by unavailable witnesses. Look for clues about how the unavailability occurred to determine if the exception applies.
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