Declarant-Unavailable

Declarant Unavailable

Declarant Unavailable in this article explain principle for declarant unavailable and rules 1002,1003 and 1004.

Following are the principles for Hearsay Exceptions; if Declarant is Unavailable

1. Definition of unavailability: Unavailability as a witness” includes situations during which the declarant:

  • is exempted by ruling of the court on the bottom of privilege from testifying concerning the topic matter of the declarant’s statement; or persists in refusing to testify concerning the topic matter of the declarant’s statement despite an order of the court to try to to so; or
  • testifies to a scarcity of memory of the topic matter of the declarant’s statement; or
  • is unable to be present or to testify at the hearing due to death or then existing physical or mental disease or infirmity; or
  • is absent from the hearing and therefore the proponent of a press release has been unable to acquire the declarant’s attendance (or within the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means A declarant isn’t unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is thanks to the procurement or wrongdoing of the proponent of a press release for preventing the witness from attending or testifying,

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2. Hearsay exceptions: the subsequent aren’t excluded by the rule of evidence if the declarant is unavailable as a witness:

  1. Former testimony: Testimony given as a witness at another hearing of an equivalent or a special proceeding, or during a deposition taken in compliance with law during an equivalent or another proceeding, if the party against whom the testimony is now offered, or, during a legal action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
  2. Statement under belief of impending death: during a prosecution for homicide or during a legal action or proceeding, a press release made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
  3. Statement against interest: a press release which was at the time of its making thus far contrary to the declarant’s pecuniary or proprietary interest, approximately far attended subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that an inexpensive person within the declarant’s position wouldn’t have made the statement unless believing it to be true. a press release tending to show the declarant to criminal liability and offered to exculpate the accused isn’t admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
  4. Statement of private or case history (A) a press release concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of private or case history , albeit declarant had no means of acquiring personal knowledge of the matter stated; or (B) a press release concerning the foregoing matters, and death also, of another person, if the declarant was associated with the opposite by blood, adoption, or marriage or was so intimately related to the other’s family on be likely to possess accurate information concerning the matter declared.

Also Read : Availability of Declarant Immaterial

The following rules concern the contents of writings, recordings, and photographs: Rule 1001. Definitions
For purposes of this text , the subsequent definitions are applicable:
  1. Writings and recordings: “Writings” and “recordings” contains letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photo stating, photographing, magnetic impulse, mechanical or electronic recording, or other sort of data compilation.
  2. Photographs: “Photographs” include still photographs, X-ray films, video tapes, and motion pictures.
  3. Original: An “original” of an article or recording is that the writing or recording itself or any counterpart intended to possess an equivalent effect by an individual executing or issuing it. An “original” of a photograph includes the negative or any print therefrom. If data are stored during a computer or similar device, any printout or other output readable by sight, shown to reflect the info accurately, is an “original.”
  4. Duplicate: A “duplicate” may be a counterpart produced by an equivalent impression because the original, or from an equivalent matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques, which accurately reproduces the first .

Rule 1002. Requirement of Original

To prove the content of an article , recording, or photograph, the first writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

Rule 1003. Admissibility of Duplicates

A duplicate is admissible to an equivalent extent as an ingenious unless (1) a real question is raised on the authenticity of the first or (2) within the circumstances it might be unfair to admit the duplicate in lieu of the first.

Rule 1004. Admissibility of Other Evidence of Content

The original isn’t required and other evidence of the contents of writing, recording, or photograph is admissible if:

  1. Originals lost or destroyed: All originals are lost or are destroyed, unless the proponent lost or destroyed them in bad faith; or
  2. Original not obtainable: No original are often obtained by any available judicial process or procedure; or
  3. original in possession of opponent: At a time when an ingenious was under the control of the party against whom offered, that party was placed on notice, by the pleadings or otherwise, that the contents would be a topic of proof at the hearing, which party doesn’t produce the first at the hearing; or
  4. Collateral matters: The writing, recording, or photograph isn’t closely associated with a controlling issue.

Questions related to this topic

  1. What types of evidence must be authenticated explain why?
  2. What is the difference between hearsay and original evidence?
  3. How do you determine the truth of the matter asserted?
  4. What are the rules of evidence in a civil case?

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