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Unavailability

Unavailability. What are the Six Categories. Privilege Intransigent Forgetful Death or Disability Absence Other things not listed (list is not exclusive). PAID FOR. P rivileged A bsence I ntransigent D ead or Disabled For getful. Three Elements of the “Misconduct Proviso”.

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Unavailability

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  1. Unavailability

  2. What are the Six Categories • Privilege • Intransigent • Forgetful • Death or Disability • Absence • Other things not listed (list is not exclusive)

  3. PAID FOR P rivileged A bsence I ntransigent D ead or Disabled For getful

  4. Three Elements of the “Misconduct Proviso” • Proponent caused the absence • By wrongdoing • For the purpose of making declarant unavailable

  5. Category 1 – Privilege Three Elements • W refuses to testify • Based on privilege • Court rules that privilege exists

  6. Category 2 – Intransigence Two Elements • Witness refuses to testify • After being ordered to do so

  7. Category 3 – Forgetful 1 Element, 3 Warnings, and 1 Question • Witness testifies to lack of memory of events • Not lack of memory of prior statement • Not enough that witness • Testifies to opposite of prior statement or that it was false • Testifies that he never knew • What do you do in those situations?

  8. Category 4 – Death or Disability2 Alternatives (or Maybe 3) • Dead = dead • Disabled = too disabled to • Testify without risk to witness’s health • Testify at all

  9. Category 5 – Absence Two Elements • Declarant is absent • Proponent cannot procure: • Attendance, or • Either • Attendance or • Testimony

  10. Category 5 – Absence Attendance vs. Attendance or TestimonyWhat’s the Difference • Attendance = Attendance at Trial • Attendance or Testimony = • Attendance at Trial, or • Deposition

  11. Why? Category 5 – Absence Attendance vs. Attendance or TestimonyWhen Do We Require Which? • Attendance • (b)(1) Former Testimony • (b)(6) Forfeiture by Wrongdoing • Attendance or Testimony • (b)(2) Dying Declaration • (b)(3) Statement Against Interest • (b)(5) Personal/Family History

  12. Do Problem 39

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