EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, August 3, 2008

The UnAVAILable Exception: Eighth Circuit Finds That A Party Can't Create His Own Unavailability

The Eighth Circuit's recent opinion in United States v. Hughes, 2008 WL 2889723 (8th Cir. 2008), makes an interesting point about witness unavailability and raises an interesting question.  In Hughes, John Hughes (not the John Hughes of "Sixteen Candles," "The Breakfast Club," and "Ferris Bueller's Day Off" fame), was convicted of five counts of purchasing furs in South Dakota without a non-resident fur dealer's license.  According to Hughes' testimony at trial, however, he was not aware that his application to renew his license was rejected until after he returned from his South Dakota fur purchasing trip.  Furthermore, he sought to call his friend and fellow fur trapper Rondent Wheaton to testify that Hughes told him that he did not know his application had been rejected until after his fur-buying trip to South Dakota.  The district court excluded this testimony as hearsay, and after Hughes was convicted, he appealed to the Eighth Circuit.

The Eighth Circuit agreed with the district court.  One ground for its agreement was that Wheaton's proposed testimony was inadmissible under Federal Rule of Evidence 807, the residual hearsay exception because, inter alia, it was not "more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts."  Indeed, Wheaton's proposed testimony was merely cumulative of Hughes' own testimony that he didn't receive his rejection until after his trip.

The Eighth Circuit also rejected Hughes' argument that Wheaton's proposed testimony should have been deemed admissible under Federal Rule of Evidence 804(b)(3), the statement against interest hearsay exception.  Now, I'm not quite sure how Hughes' statement to Wheaton could be construed as a statement against interest, but this wasn't the basis for the Eighth Circuit's decision.  Instead, it noted that Federal Rule of Evidence 804(b)(3) only applies if the declarant is "unavailable" to testify at trial.  Thus, because "Hughes was available to and did, in fact, testify on his own behalf," he could not use the statement against interest exception.

The Eighth Circuit, however, noted that Hughes also contended "that enforcing the unavailability requirement of the exception would force him 'to deny himself his right to testify in order to make himself unavailable.''"  The court rejected this argument, finding that “[w]hen the defendant invokes his Fifth Amendment privilege, he has made himself unavailable to any other party [pursuant to Federal Rule of Evidence 804(a)(1)], but he is not unavailable to himself."  In other words, a defendant "may not create the condition of unavailability and then benefit therefrom."

This conclusion makes sense to me and seems consistent with the final sentence of Federal Rule of Evidence 804(a), which states that "[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 the proponent of a statement for the purpose of preventing the witness from attending or testifying."

It got me wondering, though, what would have happened if Hughes claimed that he didn't remember telling Wheaton that he received his rejection until after he returned from his trip?  In that case, Hughes would be considered "unavailable" under Federal Rule of Evidence 804(a)(3) because he would have "testifie[d] to a lack of memory of the subject matter of the declarant's statement."  Would this mean that he could thus take advantage of the Rule 804(b) hearsay exceptions because he wouldn't have created his own unavailability?  Or would courts treat this situation the same as if Hughes exercised his Fifth Amendment privilege?  I haven't found any precedent on the issue, but I would guess that courts would treat this situation differently, assuming that they would have believed Hughes.



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