Witness Unavailability and the Hearsay Rule: Everything You Need to Know About Unavailable Witnesses

May 1, 2013

The verdict or final decision in a criminal trial can sometimes come down to the testimony of one particular witness. In some cases, a witness may be unavailable to testify, and when this happens, it raises the question of whether or not a statement can be admitted instead. This is known as hearsay evidence. Admitting a statement can violate the defendant’s right to confront his or her accusers; however, there are a few instances when courts provide exceptions to the hearsay rule.

Valid Reasons for Witness Unavailability

There can be several reasons why a witness is unavailable. Surprisingly, not all of them require that an individual be absent, as there are certain circumstances when a person could be present, yet still be “unavailable” in the eyes of the law. An unavailable witness is one who:

Has a “privileged” relationship with the defendant (husband-wife, priest-parishioner or doctor-patient)
Suffers from a mental illness
Is dying or deceased
Refuses to testify or be sworn in
Cannot remember the events in question
Has fled the jurisdiction or cannot be located

Possible Exceptions to the Hearsay Rule

When a witness cannot be called upon due to one of the above circumstances, courts may sometimes allow for admitted statements instead. The Federal Rules of Evidence lists over 30 exceptions to the hearsay rule. Some of the most commonly used ones are below:

Statement in a prior proceeding: If a witness makes a statement during a preliminary hearing or deposition, that statement can be admitted in a court trial as long as the defendant previously had an opportunity to cross-examine that person.
Foul play: If a witness is unavailable because the defendant threatened, intimidated, harmed or killed him, any statements made by that person could be admissible in court
Dying declarations: If a witness makes a statement while he believes that he is dying, that statement can usually be presented in court, even if he does not eventually pass away
Statement against interest: This occurs when an individual makes a statement that would incriminate him or her in a criminal matter. A statement like that must be “supported by corroborating evidence that clearly indicates its trustworthiness.”
Statements concerning family history: Statements that attest to a person’s family history can be admitted if a specific witness is unavailable to testify

In determining whether the testimony of an unavailable witness should be admitted, courts will look at the totality of the circumstances.

To get more information about the hearsay rule, residents of the Houston area can contact Brett Podolsky at 713-227-0087 for a free consultation.