Unavailable Witness Law and Legal Definition

Unavailable witness is a term used in evidence law in attempts to admit evdence otherwise in admissible under the rule against hearsay. The hearsay rule, prohibits introduction of out-of-court statements of unavailable witnesses into evidence when offered for truthfulness.There are four main hearsay exceptions that require that the declarant be unavailable to testify at trial:

  1. Testimony given in a prior proceeding;
  2. Statements made while the declarant believed his death was impending.
  3. Statements which were against the declarant’s interest when made; and
  4. Statements concerning either the declarant’s or his relatives’ personal or family history.

The Federal Rules of Evidence define five situations in which the declarant will be deemed to be unavailable:

  • He is privileged against testifying about the subject matter of his out-of-court statement;
  • He refuses to testify despite a court order;
  • He testifies that he cannot remember the statement’s subject matter;
  • He cannot be present to testify because of death, or physical or mental illness; or
  • He is absent, and the proponent of his statement has been unable to procure his attendance (or his deposition) by process or other reasonable means.).

None of the above reasons will make the declarant "unavailable" if his unavailability is due to "procurement or wrongdoing" by the proponent.