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Unavailability

This overview explores the six categories of unavailability that can affect witness testimony: Privilege, Intransigent, Forgetful, Death or Disability, Absence, and Other factors not explicitly listed. Each category presents unique legal implications and requirements for evidence admissibility. The Misconduct Proviso emphasizes the need for specific elements to establish a case for unavailability. This guide clarifies expectations for each category, detailing what constitutes absence and the differences between attendance at trial and providing testimony, ultimately aiding legal practitioners in navigating these complexities.

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Unavailability

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  1. Unavailability

  2. What are the Six Categories • Privilege • Intransigent • Forgetful • Death or Disability • Absence • Other things not listed (list is not exclusive)

  3. PAID FOR P rivileged A bsence I ntransigent D ead or Disabled For getful

  4. Three Elements of the “Misconduct Proviso” • Proponent caused the absence • By wrongdoing • For the purpose of making declarant unavailable

  5. Category 1 – Privilege Three Elements • W refuses to testify • Based on privilege • Court rules that privilege exists

  6. Category 2 – Intransigence Two Elements • Witness refuses to testify • After being ordered to do so

  7. Category 3 – Forgetful 1 Element, 3 Warnings, and 1 Question • Witness testifies to lack of memory of events • Not lack of memory of prior statement • Not enough that witness • Testifies to opposite of prior statement or that it was false • Testifies that he never knew • What do you do in those situations?

  8. Category 4 – Death or Disability2 Alternatives (or Maybe 3) • Dead = dead • Disabled = too disabled to • Testify without risk to witness’s health • Testify at all

  9. Category 5 – Absence Two Elements • Declarant is absent • Proponent cannot procure: • Attendance, or • Either • Attendance or • Testimony

  10. Category 5 – Absence Attendance vs. Attendance or TestimonyWhat’s the Difference • Attendance = Attendance at Trial • Attendance or Testimony = • Attendance at Trial, or • Deposition

  11. Why? Category 5 – Absence Attendance vs. Attendance or TestimonyWhen Do We Require Which? • Attendance • (b)(1) Former Testimony • (b)(6) Forfeiture by Wrongdoing • Attendance or Testimony • (b)(2) Dying Declaration • (b)(3) Statement Against Interest • (b)(5) Personal/Family History

  12. Do Problem 39

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