Criminal Law

What if a Witness Is Unavailable to Testify?

A witness's trial testimony helps a jury decide a defendant's guilt or innocence. However, sometimes a witness is unavailable to testify at trial. The general rule is that testimony can't be used unless the witness testifies in court because it's hearsay, which is evidence based on someone else's report rather than the witness's personal knowledge. Hearsay can be thought of as rumor. If an unavailable witness's statement can be used at trial depends on if it fits into one of the hearsay exceptions. A judge decides the unavailability of a witness and the admissibility of hearsay.

When Is a Witness Unavailable?

An unavailable witness is someone who can't or won't testify at trial. Unavailable can mean that a witness:

  • Claims that he doesn't have to testify because of a protected privilege like marriage, doctor-patient or attorney-client relationships
  • Refuses to testify
  • Testifies that he can't remember
  • Died or has physical or mental illness
  • Is absent from the state

A tricky question arises when the prosecution wants to admit an unavailable witness's statement because this conflicts with a defendant's right to question witnesses. This is known as a defendant's right of confrontation. Essentially, a defendant has a constitutional right to see, face-to-face, and hear the witnesses testifying against him in court. So, the prosecution must show that the witness really was unavailable. For instance, if a witness is not in the state, the prosecution has to show that the witness was beyond process, meaning that he couldn't be served with court papers ordering him to come to court and testify. Also, the prosecution must show that it made a good faith effort to get the witness to attend court.

Hearsay Exceptions

There are five main exceptions to the hearsay rule that allow an unavailable witness's out-of-court statements to be admitted at trial. 

Statements in a Prior Proceeding

Statements made at an earlier hearing or deposition by a witness, who becomes unavailable, are admissible if the defendant was present at the earlier proceeding and had a chance to cross-examine or question the witness.

Dying Declarations

These statements are admissible as long as the witness believed he was dying, and the statement related to the impending cause of his death. Generally, people don't lie in the face of death. A witness doesn't have to die but must be unavailable to testify.

Statements against Interest

A statement against interest exposes the witness to criminal liability. If the statement tends to absolve the defendant from liability, it must be clearly corroborated. On the other hand, if a witness's statement incriminates a defendant, corroboration usually isn't necessary.

Statements by a Witness Whose Unavailability Resulted from Misconduct

If the prosecution or defendant deliberately acted in a way to "make" a witness unavailable, the statements by the witness are admissible. For instance, if a defendant intimidated a witness into not testifying, the witness's statements will be admissible. However, the misconduct doesn't need to be a criminal act. For example, the defendant marries a witness so that the witness can claim privilege by marriage and be "unavailable." It won't work, and statements by the witness are admissible.

Statements about Personal or Family History

Statements about the witness's birth, marriage, divorce or other similar fact of personal or family history are admissible if the witness is unavailable. Likewise, statements about the personal or family history of someone else are admissible if the witness was related to the other person by blood, adoption or marriage.

Questions for Your Attorney

  • Is a witness unavailable if she takes the stand but refuses to be sworn in?
  • What if a witness is in jail at the time of trial?
  • What if a witness is deported?

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