Witnesses are key components to most personal injury trials. They support your own statements, disprove other statements, clarify evidence, and provide context for the jury. But sometimes a witness may become legally unavailable. What does this mean? And what can you do if it happens? Here are the answers to your questions.
What Makes a Witness Unavailable?
Being legally unavailable for a trial doesn't just mean that the witness has a scheduling conflict or doesn't want to make the effort. It refers to a situation in which a witness cannot appear in court and/or answer questions for an insurmountable reason.
One of the most obvious reasons is if the witness has passed away or become seriously ill since the case began. Clearly, they would be unable to offer testimony, even through a remote feed.
In addition, the witness may not remember the subject about which they were to testify. There would obviously need to be a genuine reason, such as mental health issues or aging.
Sometimes, the witness is unavailable due to exercising their Constitutional rights. If your witness is currently facing a criminal trial regarding their actions on the day of the accident, for instance, they have a Fifth Amendment right against incriminating themselves in your case. And a spouse may have spousal privilege that prevents them from being compelled to testify.
Finally, the witness may make themselves voluntarily unavailable despite court orders to appear. While they face penalties for failure to obey a subpoena, it may not be physically possible to force them to come and testify anyway.
How Can You Deal With Unavailability?
So, if one or more of your witnesses are legally unavailable, what can you do? In many cases, you can request that the judge allow prior statements to be entered as evidence instead. This is an exception to the hearsay rule, and it is granted on a case-by-case basis.
For example, perhaps an important witness has moved away and you simply have no way to find them for live testimony. In this case, you may be able to use their statements in a deposition — either recorded or transcribed — that was made during discovery. A deposition made in another related case could also be introduced.
Where Should You Start?
If you believe that a key witness is or will be legally unavailable for court, start by learning what options you may have. Meet with a qualified personal injury lawyer in your state today.
For more information, contact a personal injury lawyer near you.