Rule 804. Common Hearsay Exceptions – Unavailability

militarydefenselawyers378Rule 804. Hearsay exceptions; declarant unavailable

  1. Definitions of unavailability. “Unavailability as a witness” includes situations in which the declarant-
    1. is exempted by ruling of the military judge on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or
    2. persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the military judge to do so; or
    3. testifies to a lack of memory of the subject matter of the declarant’s statement; or
    4. is unable to be present or to testify at the hearing because of death or then existing physical or
      mental illness or infirmity; or
    5. is absent from the hearing and the proponent of the declarant’s statement has been unable to
      procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or
      (4), the declarant’s attendance or testimony) by process or other reasonable means; or
    6. is unavailable within the meaning of Article 49(d)(2).
      A declarant is not unavailable as a witness if the declarant’s exemption, refusal, claim of lack of memory,
      inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant’s
      statement for the purpose of preventing the witness from attending or testifying.
    1. 804(a)(1): Claim of privilege (which cannot be remedied by grant of testimonial
      immunity). United States v. Robinson, 16 M.J. 766 (A.C.M.R. 1983).
    2. 804(a)(4): Death, Physical Inability, Mental Incapacity, or Intimidation. United
      States v. Arruza, 26 M.J. 234 (C.M.A. 1988), cert. denied, 489 U.S. 1011 (1989)
      (child intimidated); United States v. Ferdinand, 29 M.J. 164 (C.M.A. 1989), cert.
      denied, 493 U.S. 1044 (1990) (A child victim may become unavailable if
      testifying would be too traumatic). But see United States v. Harjak, 33 M.J. 577
      (N.M.C.M.R. 1991) (notwithstanding judge’s empathetic concerns for child,
      unauthenticated medical reports detailing victim’s physical and psychological
      condition to demonstrate unavailability irrelevant as reports did not discuss her
      current condition).
    3. 804(a)(5): Absence. Inability to locate or procure attendance or testimony
      through good faith, major efforts: United States v. Hampton, 33 M.J. 21 (C.M.A.
      1991). The victim refused to return for the trial and the military judge had no
      means to compel the victim’s attendance. She properly was determined to be
      unavailable under Rule 804(a)(5). Under these circumstances, the pretrial
      deposition was admissible.
    4. United States v. Gardinier, 63 M.J. 531 (A. Ct. Crim. App. 2006). Military judge
      erred when he determined a child-witness was unavailable within the meaning of
      Rule 804(a). Even though a child-witness may not provide any “helpful”
      information, this is not a valid basis for a finding of unavailability. The
      Confrontation Clause guarantees only an opportunity for effective crossexamination,
      not necessarily effective cross-examination.

Definitions of unavailability

804(a)(1):