Unavailability

1
Unavailability
2
What are the Six Categories

1. Privilege
2. Intransigent
3. Forgetful
4. Death or Disability
5. Absence
6. Other things not listed (list is not exclusive)

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PAID FOR
P rivileged A bsence I ntransigent D ead or
Disabled For getful
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Three Elements of the Misconduct Proviso

1. Proponent caused the absence
2. By wrongdoing
3. For the purpose of making declarant unavailable

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Category 1 Privilege Three Elements

1. W refuses to testify
2. Based on privilege
3. Court rules that privilege exists

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Category 2 Intransigence Two Elements

1. Witness refuses to testify
2. After being ordered to do so

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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?

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Category 4 Death or Disability2 Alternatives
(or Maybe 3)

• Dead dead
• Disabled too disabled to
• Testify without risk to witnesss health
• Testify at all

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Category 5 Absence Two Elements

• Declarant is absent
• Proponent cannot procure
• Attendance, or
• Either
• Attendance or
• Testimony

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Category 5 Absence Attendance vs. Attendance
or TestimonyWhats the Difference

1. Attendance Attendance at Trial
2. Attendance or Testimony
3. Attendance at Trial, or
4. Deposition

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Category 5 Absence Attendance vs. Attendance
or TestimonyWhen Do We Require Which?
Why?

1. Attendance
2. (b)(1) Former Testimony
3. (b)(6) Forfeiture by Wrongdoing
4. Attendance or Testimony
5. (b)(2) Dying Declaration
6. (b)(3) Statement Against Interest
7. (b)(5) Personal/Family History

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Do Problem 39