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.

Evid. R. 804(a)

Exceptions to the hearsay rule

• For information about the exceptions to the hearsay rule that may be used when the declarant is unavailable, please review Exceptions to the Hearsay Rule.


• [The proponent of the evidence bears the burden of proving that the witness is unavailable.]

• [I]t seems that it is incumbent on the party offering such testimony to show affirmatively the existence of all facts necessary to bring the secondary evidence clearly within the exception, and, unless this is done, the evidence should be excluded.

Levi v. State, 104 N.E. 765, 766 (Ind. 1914)

• Appellant failed to demonstrate to the court in his offer to prove why Mrs. Oswald was unavailable to testify or that reasonable diligence had been exercised in procuring her as a witness. In ruling favorably on the State's objection to this evidence the trial court noted that ample time existed between the hearing on the motions and the date of trial during which a competent deposition could have been obtained had the defense been diligent. Appellant neither argues nor displays how judicial discretion was abused in this regard. Thus, on review it must be concluded that no error was committed by excluding the previous testimony.

Schwartz v. State, 379 N.E.2d 480, 489 (Ind. Ct. App. 1978), reh’g denied

• Our supreme court has provided that the decision whether to admit former testimony of an unavailable witness rests within the trial court's discretion.

Guy v. State, 755 N.E.2d 248, 254 (Ind. App. 2001), reh’g denied, trans. denied

• [Pursuant to IRE 104, the court will rule on whether a witness is unavailable]

[W]e find no authority for the proposition the jury need be informed of the reason for the absence of the witness and for invocation of the rule. As made clear in the cases and authorities cited above, whether or not to invoke the rule is a decision committed to the sound discretion of the trial court. There is no need to inform the jury of any of the factors relating to the witness' absence.

Moore v. State, 440 N.E.2d 1092, 1094 (Ind. 1982)

Definition of Unavailability [804(a)]

Unavailable on grounds of privilege:

[Witness must formally claim the privilege to be unavailable under 804]

• A ruling by the judge is required, which clearly implies that an actual claim of privilege must be made.

Fed. R. Evid. 804 Advisory Committee Note a1. (From the Federal Rules, persuasive only)

Unavailable because of refusal to testify:

• In addition, T.M. was clearly unavailable to testify at trial. Upon taking the stand, T.M. 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 Guy. A witness' refusal to testify renders her unavailable for purposes of using her prior testimony. Despite the trial court's order to T.M. to testify, T.M. rose from the stand and repeatedly asked for her mother. It is apparent from the record that the State became aware of T.M.'s emotional state during pre-trial preparation several days before the State presented its case-in-chief. Therefore, we hold that T.M. was unavailable as a witness under Indiana Evidence Rule 804(a)(2).

Guy v. State, 755 N.E.2d 248, 254-55 (Ind. App. 2001), reh’g denied, trans. denied

Claim of lack of memory:

[Note: If a witness claims lack of memory while on the stand, but witness has given prior statements which describe the event, then the testimony is possibly admissible under 801(d)(1)(A) – Prior Inconsistent Statements]

• But after word circulated that Long was cooperating, he began to fear that the government could not protect him from retaliation. Long told an agent that he would no longer assist prosecutors and, if called, would testify that he had forgotten everything. On the witness stand in Park's trial, Long did exactly that. He claimed inability to remember anything except his name. He ‘could not recall’ meeting with Park, passing any messages, providing the facts in the affidavit, or even appearing before the grand jury. At this point the prosecution offered Long's affidavit and grand jury testimony as substantive evidence …”; no error in admission of affidavit.

United States v. Keeter, 130 F.3d 297, 302 (7th Cir. 1997), cert. denied, 523 U.S. 1034 (1998)

Physical or Mental Inability to testify; Death:

[A deceased witness is an unavailable witness]

• Detective Morgan was deceased at the time of Badelle's post conviction hearing, and was therefore unavailable.

Badelle v. State, 754 N.E.2d 510, 523 (Ind. Ct. App. 2001), trans. denied

[But, something less than complete physical disability may suffice to render witness unavailable]

o Under the circumstances of this case, we cannot conclude that the trial court abused its discretion in declaring Timmerman unavailable. The trial court questioned Timmerman, who complained of nausea and felt that she might be developing a migraine. Timmerman also indicated that she had very recently been hospitalized for four days, with medical personnel suspecting MS, seizure, or stroke as the cause of her symptoms. Most importantly, the trial court personally interviewed Timmerman and was able to observe her behavior, demeanor, and appearance, something we cannot do. Berkman has failed to establish that the trial court abused its discretion in declaring Timmerman unavailable due to present illness.

Berkman v. State, 976 N.E.2d 68, 75 (Ind. Ct. App. 2012), trans. denied, cert. denied, 134 S. Ct. 155 (2013)

o The trial court did not abuse its discretion in finding Dr. Hastings and Dr. Crane unavailable

Mundy v. Angelicchio, 623 N.E.2d 456, 461 (Ind. Ct. App. 1993) [Physician witness unavailable for trial because he was performing essential surgery that day: unavailable]

o In a situation where the State argues that a witness is unavailable because of mental illness, the judge must consider both the duration and the severity of the illness. With regard to duration, it is not essential to a finding of unavailability that the illness be permanent. The duration of the illness need only be in probability long enough so that, with proper regard to the importance of the testimony, the trial cannot be postponed. In the case of a mental rather than a physical disability, the trial judge's task is more difficult because there is often greater uncertainty as to the prognosis. A judge must weigh the desirability of a speedy trial against the possibility that a further delay may find the declarant competent.

Burns v. Clusen, 798 F.2d 931, 937-38 (7th Cir. 1986)

o In Schoeff v. McIntire, 287 N.E.2d 369 (Ind. Ct. App. 1972), the court found unavailability sufficiently established by a doctor's testimony he felt testifying would affect the health of the deponent. In Wells v. Gibson Coal Co., 352 N.E.2d 838 (Ind. Ct. App. 1976), the court found sufficient evidence of unavailability in the deponent's references in the deposition to his “physical complaints”. See also Cooper v. Ind. Gas and Water Co., 362 N.E.2d 191 (Ind. Ct. App. 1977) (three witnesses were unavailable; no business replacement, no babysitter, and out of state on vacation were the sufficient reasons); Drummond v. State, 467 N.E.2d 742 (Ind. 1984) (refusal to testify made witness unavailable). . . . In the instant case, Velma Thresher testified before the deposition was offered into evidence that Miss Haines, seventy-nine years old at the time of trial, had surgery on her hands two months after the arrests and that her health had deteriorated in the two years preceding the trial. She was living in a nursing home at the recommendation of her doctor. . . . We find the trial court could reasonably have concluded that Miss Haines was “unable to attend or testify because of age, sickness,” or infirmity; therefore it did not abuse its discretion in admitting the deposition.

Iseton v. State, 472 N.E.2d 643, 649-50 (Ind. Ct. App. 1984)

Inability to procure attendance:

• [When State makes claim that Witness is unavailable, State has burden of showing it made a good faith effort to procure attendance]

[A] witness is not ‘unavailable’ for purposes of ... the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” The record shows that at the time of trial in March 1998 the officer in question was present in the nation's capital attending a Secret Service training session. The deputy prosecutor conceded to the trial court, “I cannot tell the Court we couldn't get him here, we could.” The State argued however that transporting the officer to Indiana for trial would result in the officer falling behind in his course work, and relying on Indiana Trial Rule 32(A), the State also noted that the officer was unavailable because he was outside the state. On this latter point we observe that Rule 32(A) is not applicable to claims involving a violation of a defendant's Sixth Amendment right of confrontation. Rather, the inquiry is whether the State has made a good faith effort to obtain the absent witness' attendance at trial. Here, the State made no effort to obtain the officer's attendance, good faith or otherwise. Accordingly, the officer was not unavailable, and admitting his deposition testimony into evidence was error because it ran afoul of Jackson's Sixth Amendment right of confrontation.

Jackson v. State, 735 N.E.2d 1146, 1151 (Ind. 2000)

Confrontation clause: Crawford

• Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.

Crawford v. Washington, 541 U.S. 36, 59 (2004)

• While a couple of courts have questioned whether probable-cause preliminary hearings and discovery-driven depositions constitute adequate opportunities for confrontation, commentators are encouraging prosecutors to present witnesses at these hearings on the assumption that Crawford will tolerate the admission of their testimonial statements at trial if they later become unavailable. . . . In this jurisdiction, the Rules of Criminal Procedure do not distinguish between discovery depositions and testimonial depositions.

Howard v. State, 853 N.E.2d 461, 470 (Ind. 2006)

• 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. Fowler, 829N.E.2d at 469. As the United States Supreme Court held in United States v. Owens, 484 U.S. 554, 558, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988), as long as the declarant testifies, the Confrontation Clause is satisfied, even if the declarant is unable to recall the events in question. Fowler, 829 N.E.2d at 466. "The feigned or real absence of memory is itself a factor for the trier of fact to establish, but does not render the witness unavailable." Id. A witness who is present and responds willingly to questions is "available for cross-examination" as this phrase is used in Crawford in discussing the Confrontation Clause. Id.

Proctor v. State, 874 N.E.2d 1000, 1002-03 (Ind. Ct. App. 2007)

• Based on the information in the record, we cannot discern whether Fewell was, in fact, "unavailable" under subsection (a)(5) because it is not clear whether she had been served with the State's subpoena. And we do not have sufficient information before us to determine whether she was "unavailable" for any other reason. Still, even if she were unavailable as defined by subsection (a), the requirements of Evidence Rule 804(b) were not satisfied. A declarant's unavailability as a witness alone does not render that declarant's statements admissible at trial. Rather, Rule 804(b) sets forth a list of exceptions to the hearsay rule when the declarant is unavailable as a witness.

Bass v. State, 797 N.E.2d 303, 306 (Ind. Ct. App. 2003)