Text of the rule
• Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure:
(A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (5); or
(B) the declarant's attendance or testimony, in the case of a hearsay exception under rule 804(b)(2), (3), or (4).
But this subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability as a witness in order to prevent the declarant from attending or testifying.
• For information about the forfeiture by wrongdoing exception to the rule against hearsay, please review Forfeiture by Wrongdoing.
Interpretations of the text
• Evidence Rule 804 defines the circumstances when a declarant is unavailable . . . .
• Rule 804(a) defines “unavailability of a witness” as situations where the declarant: (1) is exempt from testifying due to a court ruling that the testimony is privileged; (2) refuses to testify despite an order from the court; (3) testifies that he or she has a lack of memory of the subject matter of the declarant's statement; (4) is unable to be present or to testify at the hearing because of death or illness; or (5) is absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance.
Burden of the proponent
• The proponent of hearsay evidence bears the burden of demonstrating a declarant's unavailability.
See Griffin v. State, 735 N.E.2d 258, 264 (Ind. Ct. App. 2000), reh’g denied, aff’d, 754 N.E.2d 899 (Ind. 2001)(citing Crider v. Crider, 635 N.E.2d 204, 214 (Ind. Ct. App. 1994), reh’g denied, trans. denied)(“It is incumbent on the party asserting the hearsay exception to demonstrate that the witness is unavailable.”)
When the declarant is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies: In general
• Evid. R. 804(a)(1) clarifies that a witness is unavailable for purposes of Rule 804 if the witness refuses to testify under claim of privilege.
When the declarant is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies: Examples from case law
• [The witnesses] were “unavailable” by reason of the invocation of the Fifth Amendment privilege against self incrimination.
• [The witness] is unavailable because the Fifth Amendment affords him the right not to testify.
• For information about various evidentiary privileges, please review Privileges.
When the declarant refuses to testify about the subject matter despite a court order to do so: In general
• [A] witness is deemed “unavailable” if she persists in refusing to testify after the court orders her to proceed.
Fowler v. State, 829 N.E.2d 459, 468 (Ind. 2005), reh’g denied, cert. denied, 547 U.S. 1193 (2006)(citing Lowery v. State, 478 N.E.2d 1214, 1223 (Ind. 1985), reh’g denied, cert. denied, 475 U.S. 1098 (1986))
• It is clear, however, that the Rule's requirement of a court order is a necessary prerequisite to a finding of unavailability of a recalcitrant witness under Rule 804.
When the declarant refuses to testify about the subject matter despite a court order to do so: Example from case law
• [The juvenile witness] was clearly unavailable to testify at trial. Upon taking the stand, [the juvenile witness] became hysterical, repeatedly asking for her mother. She was unresponsive to both the trial court and the State, and refused to testify about the events of the molestation by [the defendant]. . . . Despite the trial court's order to [the juvenile witness] to testify, [the juvenile witness] rose from the stand and repeatedly asked for her mother. It is apparent from the record that the State became aware of [the juvenile witness’s] emotional state during pre-trial preparation several days before the State presented its case-in-chief. Therefore, we hold that [the juvenile witness] was unavailable as a witness under Indiana Evidence Rule 804(a)(2).
When the declarant cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness: Examples from case law
• Under the circumstances of this case, we cannot conclude that the trial court abused its discretion in declaring [the witness] unavailable. The trial court questioned [the witness], who complained of nausea and felt that she might be developing a migraine. [The witness] also indicated that she had very recently been hospitalized for four days, with medical personnel suspecting [multiple sclerosis], seizure, or stroke as the cause of her symptoms. . . . [The defendant] has failed to establish that the trial court abused its discretion in declaring [the witness] unavailable due to present illness.
• Being a residential patient at a healthcare facility does not render one unavailable as a witness.
When the declarant is absent from the trial or hearing: Examples from case law
• The State served [the witness] with a subpoena for his testimony in [the defendant’s] trial and had a victim's advocate escort him to the witness waiting room on the morning of his testimony. After he disappeared, the State initiated an extensive search for [the witness]. We conclude that the trial court did not abuse its discretion when it found the State was unable to procure [the witness’s] attendance by process or other reasonable means. Consequently, the trial court did not abuse its discretion by finding [the witness] to be unavailable for purposes of Evid. R. 804.
• [The defendant] admitted at trial that he had not listed [the witnesses] as potential witnesses, and that he had not subpoenaed them, or made any effort whatsoever to summon them to trial to testify in person. He cannot, therefore, rely on Rule 804's “statement against interest” hearsay exception, which requires the statement's proponent to prove unavailability of the declarant.
Relationship to the right of confrontation
• [T]he Indiana Supreme Court has stated that it cannot import the availability doctrine of Indiana Rule of Evidence 804(a) wholesale into Crawford v. Washington, 541 U.S. 36 (2004).
See Howard v. State, 853 N.E.2d 461, 467 n. 4 (Ind. 2006)(quoting Fowler v. State, 829 N.E.2d 459, 469 (Ind. 2005), reh’g denied, cert. denied, 547 U.S. 1193 (2006))(“As we observed in Fowler, although federal and state evidence rules ‘offer guidance as to the meaning of ‘available for cross-examination’ as Crawford uses that term’ we nonetheless ‘cannot import the availability doctrine of Rule 804(a) wholesale into Crawford.’”)
• Therefore, even if a witness is determined to be “unavailable” under Rule 804(a), that determination does not render the person unavailable for cross-examination for purposes of the Confrontation Clause.
• For interpretations of “unavailable” within the context of the right of confrontation, please review Right of Confrontation.