Legal Memorandum: Hearsay exceptions – unavailability of declarant as witness

Issue: Under the Illinois Rules of Evidence, what are the exceptions to the hearsay rule when the declarant is not available as a witness?

Illinois Rule 804 provides the exceptions to the rule against hearsay when the declarant is unavailable as a witness.  The Rule also defines the situations in which a witness is considered “unavailable”.

Hearsay Exceptions; Declarant Unavailable

(a) Definition of Unavailability. “Unavailability as a witness” includes situations in which the declarant–

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or

(2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the declarant’s statement; or

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in 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 is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of […]

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