709.1Declarant Unavailable [Rule 804(a)]

The Basic Rule

Rule 804(a) – Hearsay Exceptions; Declarant Unavailable

G.S. 8C-804(a). As discussed in the prior entry on Hearsay: Definition and Admissibility, Rules of Evidence 801 and 802 generally bar the introduction of “hearsay” (a statement by the declarant, made other than while testifying, and offered for the truth of the matter asserted) into evidence unless the hearsay is admissible under an exception set forth by statute or another Rule of Evidence.

Rule 804 contains several such hearsay exceptions that may arise in criminal cases; however, these exceptions only apply if the declarant is “unavailable as a witness.” See G.S. 8C-804(a).

Five Types of Unavailability

As discussed below, there are five ways that a declarant may be deemed unavailable under this rule. The trial judge must make sufficient findings on the record to support his or her conclusion that the declarant is an unavailable witness under at least one of these grounds. See, e.g., State v. Triplett, 316 N.C. 1 (1986) (“The degree of detail required in the finding of unavailability will depend on the circumstances of the particular case. […] Situations involving out-of-state or ill declarants or declarants invoking their Fifth Amendment right against self-incrimination may require a greater degree of detail in the findings of fact.”); State v. Clonts, 254 N.C. App. 95 (2017) (citing Triplett and finding that there was insufficient evidence offered to support trial court’s declaration of unavailability).

Privilege Against Testifying

A declarant is unavailable for purposes of Rule 804(a) if the court finds that due to a privilege (e.g., spousal privilege, or the privilege against self-incrimination) the declarant is exempt from being compelled to testify about the subject matter of the statement. G.S. 8C-804(a)(1). See, e.g., State v. Sargeant, 365 N.C. 58 (2011) (declarant was unavailable when he invoked his Fifth Amendment rights and refused to testify when called); State v. Harris, 139 N.C. App. 153 (2000) (declarant was physically present but deemed unavailable after he asserted his Fifth Amendment privilege against self-incrimination); State v. Carter, 156 N.C. App. 446 (2003) (“In its order, the court determined Keisha was unavailable as a witness because she had asserted the marital privilege under G.S. § 8–57 not to testify or be compelled to testify against her husband.”); State v. West, 76 N.C. App. 459 (1985) (where spouse testified at preliminary hearing, but refused to testify at trial on grounds of spousal privilege, court did not err in finding declarant was unavailable and allowing prior testimony to be offered into evidence); State v. Keller, 50 N.C. App. 364 (1984) (declarant unavailable due to self-incrimination privilege).

Refusal to Testify

A declarant is also unavailable if he or she persists in refusing to testify about the subject matter, despite being ordered to do so by the court. G.S. 8C-804(a)(2). See, e.g., State v. Carter, 156 N.C. App. 446 (2003) (declarant was unavailable when he refused to testify, despite threat of contempt; declarant’s conduct “made it clear that there were no circumstances, including court intervention or order, which would compel him to testify”); State v. Peterson, 337 N.C. 384 (1994) (declarant was “unavailable” when she knew that she was under subpoena to testify and knew that she would be held in contempt of court if she did not comply, but still refused to testify).

A declarant may not be deemed unavailable under this provision unless: (i) the court has ordered the declarant to testify as a witness; and (ii) the declarant “persists” in his or her refusal to do so. See, e.g., State v. Finney, 358 N.C. 79 (2004) (error for trial court to rule that declarant was unavailable when she stated several times that she did not want to testify, but “never definitively refused to testify and certainly did not persist in a refusal to testify in the manner contemplated by Rule 804”); State v. Linton, 145 N.C. App. 639 (2001) (error to declare child witness unavailable when court did not first order the child to testify and warn her of possible punishment for refusal, reasoning that the witness might have testified had she been ordered to do so).

Lack of Memory

If the declarant testifies that he or she has no memory of the subject matter of the statement, the declarant is unavailable as a witness because “the practical effect is to put the testimony beyond reach, as in the other instances” of witness unavailability. See G.S. 8C-804(a)(3), Official Commentary. See, e.g., State v. Brigman, 178 N.C. App. 78 (2006) (child abuse victims were properly deemed unavailable to testify “due to the fact that each has no memory of the subject matter of his statement that the State seeks to introduce into evidence”); see also State v. Barnes, 155 N.C. App. 221 (2002) (unpublished) (“In response to questions posed by the State, Mr. Spencer said he did not remember the events of 4 and 5 May 2000 and did not recall giving a statement to Detective Warren at the Alexander County Sheriff's Office on 9 May 2000. Thus, under Rule 804(a)(3), Mr. Spencer was an ‘unavailable’ witness.”).

A declarant’s inability to recall certain details or remembrance of the matter somewhat differently than previously stated does not render him or her unavailable under this rule. See, e.g., State v. Miller, 330 N.C. 56 (1991) (declarants were not unavailable witnesses under Rule 804(a) where they testified that they “remembered most of what they saw and had not had a complete failure of memory about the events,” even though they “did not remember every single detail of the incident”).

Death, Illness, or Infirmity

Rule 804(a)(4) recognizes that a deceased declarant is unavailable as a witness. See, e.g., State v. Valentine, 357 N.C. 512 (2003); State v. Hurst, 127 N.C. App. 54 (1997). For a statement to be admissible under this provision, the court must make a finding, based on sufficient evidence (e.g., a death certificate), that the declarant is deceased. See State v. Triplett, 316 N.C. 1 (1986) (“The trial judge's determination of unavailability in such cases must be supported by a finding that the declarant is dead, which finding in turn must be supported by evidence of death.") (emphasis added). Compare State v. Baker, 338 N.C. 526 (1994) (testimony of two investigating officers that victim was deceased, along with testimony of doctor who performed the autopsy on her, provided “ample evidence of death to support the finding required”) with State v. McCail, 150 N.C. App. 643 (2002) (testimony of one witness that she had not seen declarant “in some time” and that another person told her that the declarant “had been killed in Washington, D.C.” was insufficient to prove declarant was unavailable due to death where proponent had not made a genuine, good-faith effort to verify the death).

Rule 804(a)(4) also allows a declarant to be deemed unavailable by the court due to “then existing physical or mental illness or infirmity.” G.S. 8C-804(a)(4). This provision covers a variety of factors including injury, sickness, psychological trauma, or lack of competence as a witness. See, e.g., State v. Swindler, 129 N.C. App. 1 (1998) (testimony from officer that declarant was in the hospital following a heart attack supported trial court’s finding of unavailability); State v. Carter, 338 N.C. 569 (1994) (witness declared unavailable due to mental illness); State v. Chandler, 324 N.C. 172 (1989) (four year-old sexual assault victim who was so overcome with fear that she could not answer questions was properly deemed unavailable under the rule); but see State v. Fearing, 315 N.C. 167 (1985) (error for trial court to accept stipulation of parties that child witness was incompetent and therefore unavailable under Rule 804(a): “in exercising his discretion in ruling on the competency of a child witness to testify, a trial judge must rely on his personal observation of the child's demeanor and responses to inquiry on voir dire examination”).

Absent and Cannot Be Located

Finally, the trial court may find that a declarant is unavailable under this rule if:

1. the declarant is absent from the proceeding; and 
2. the proponent of the statement has been unable to secure the declarant’s attendance through legal process;
3. despite making a good faith effort to do so.

See G.S. 8C-804(a)(5). See, e.g., State v. Allen, 265 N.C. App. 480 (2019) (witness was properly declared unavailable under this rule where state delivered a subpoena to witness’s attorney and witness agreed to testify, but then failed to appear and could not be located despite the state’s good faith effort to find her); State v. Clark, 165 N.C. App. 279 (2004) (proper showing of unavailability made where prosecutor unsuccessfully tried to locate declarant by visiting areas she frequented and attempted to contact her through friends, and officer testified that he had repeatedly tried to locate declarant); State v. Fowler, 353 N.C. 599 (2001) (victim properly declared unavailable where state made good faith effort to get victim to return from India, but victim refused due to injuries and fear for his safety); State v. Swindler, 129 N.C. App. 1 (1998) (state must make good-faith attempt, but “efforts to produce a witness for trial need only be reasonable and honest”); State v. Dammons, 121 N.C. App. 61 (1995) (declarant was unavailable where state had subpoenaed her numerous times to appear in court but was unable to locate her and defendant was made aware that state was going to use declarant’s statement at trial).

Mere information or belief that a declarant cannot be located is insufficient evidence of unavailability absent a good-faith attempt to secure the declarant’s attendance. See, e.g., State v. Clonts, 254 N.C. App. 95 (2017) (in the absence of any findings showing the state made a good-faith effort to secure the declarant’s attendance, the bare fact that declarant was in the military and deployed outside North Carolina was insufficient to be declared unavailable: “in order for the State to show that a witness is unavailable for trial due to deployment, the deployment must, at a minimum, be in probability long enough so that, with proper regard to the importance of the testimony, the trial cannot be postponed”).

Wrongdoing by the Proponent

The final section of Rule 804(a) states that a witness may not be declared unavailable under any of the five grounds in this rule if: (i) his or her unavailability is due to the “procurement or wrongdoing” of the proponent of the statement; and (ii) that procurement or wrongdoing was committed for the purpose of preventing the witness from attending or testifying. G.S. 8C-804(a). Thus, for example, a party may not threaten or intimidate a declarant in order to keep the declarant from appearing as a witness in court and then ask the court to find that the declarant is unavailable for purposes of using one of the hearsay exceptions under Rule 804. See G.S. 8C-804(a), Official Commentary (“If the conditions otherwise constituting unavailability result from the procurement or wrongdoing of the proponent of the statement, the requirement is not satisfied.”).

In criminal cases, the most significant impact of this provision is that it bars the defendant from offering his or her own exculpatory statements into evidence under Rule 804 on the theory that that the defendant is unavailable because he or she has invoked the privilege against self-incrimination under the Fifth Amendment. In that circumstance, the defendant has voluntarily caused his or her own unavailability, so the Rule 804 exceptions do not apply. See State v. Harris, 338 N.C. 211 (1994) (“That a defendant cannot assert his own unavailability is consistent with the principle that '[t]o take advantage of the hearsay exceptions under Rule 804(b), the proponent must, under Rule 804(a)(5), show at least a good-faith, genuine, and bona fide effort to procure the declarant's attendance'”), quoting 32B Am. Jur.2d Federal Rules of Evidence § 265 (1982); see also United States v. Evans, 635 F.2d 1124, n. 1 (4th Cir. 1980), cert. denied, 452 U.S. 943 (1981) (expressing doubt that defendant may assert his own unavailability). Cf. State v. Carter, 156 N.C. App. 446 (2003) (where co-defendant who pled guilty refused to testify against defendant, court did not err in granting state’s request to declare the co-defendant unavailable because “there was nothing in Temoney's actual plea agreement which prohibited him from testifying for the State,” and therefore the state did not “improperly procure” his unavailability).

Crawford and Confrontation

Even if the declarant is properly deemed unavailable under Rule 804(a), the defendant retains his or her confrontation rights under the Sixth Amendment and Crawford v. Washington, 541 U.S. 36 (2004). Therefore, a statement from an unavailable witness is admissible against the defendant under one of the exceptions in Rule 804(b) only if: (i) the statement was not testimonial; (ii) the defendant had a prior opportunity to cross-examine the witness; or (iii) another confrontation clause exception such as forfeiture by wrongdoing or dying declaration applies. See generally State v. Allen, 265 N.C. App. 480 (2019) (finding that defendant waived his confrontation rights through forfeiture by wrongdoing by threatening and intimidating the witness); State v. Clonts, 254 N.C. App. 95 (2017) (stating rule for admissibility under Rule 804 and confrontation clause); State v. Bodden, 190 N.C. App. 505 (2008) (dying declarations admitted under Rule 804(b)(2) are an exception to the confrontation clause).

For more detailed discussion of this issue, see Jessica Smith, “Guide to Crawford and the Confrontation Clause,” N.C. Superior Court Judges’ Benchbook, July 2018.