Refusal to testify despite court order. A witness is not available if he or she “continues to refuse to testify on the subject matter of his or her testimony despite a court order.” N.C. R. Evid. 804 (a) (2). As a general rule, the trial court must explicitly invite the witness to testify. State v. Finney, 358 N.C. 79, 84-87 (2004) (trial court erred in declaring witness unavailable if he “never definitively refused to testify and certainly did not insist on refusing to testify”); State v.
Linton, 145 N.C. App 639, 646-47 (2001) (trial court erred in stating that a minor victim was not available without giving the witness an explicit order; “an order of the court of first instance is an essential element of a declaration of unavailability”). However, this requirement was relaxed when it appeared in the records that such an order would have been unnecessary. See, for example, State v. Carter, 156 N.C. App. 446, 459 (2003) (the witness`s conduct and testimony “made it clear that there were no circumstances, including intervention or court order, that would compel him to testify”). As explained below, there are five ways in which an applicant may be considered unavailable under this rule. The trial judge must record sufficient findings to support his or her finding that the declarant is an unavailable witness for at least one of these reasons.
See, for example, State v. Triplett, 316 N.C. 1 (1986) (“The level of detail required to determine unavailability depends on the circumstances of the case. […] Situations in which non-state or sick filers or registrants invoking their right to self-incrimination under the Fifth Amendment may require a higher level of detail in findings of fact. »); State v. Clonts, 254 N.C. App. 95 (2017) (citing triplet and concluding that the evidence presented was insufficient to support the court`s unavailability). Paragraph (a) defines “unavailability as a witness.” The House Bill provides in clause (a)(5) that the party wishing to use the declaration need not be able to obtain the presence of the declarant by a reasonable procedure or other means. In the case of declarations of death, declarations of interest and statements of personal or family history, the House bill requires that the promoter also not be able to obtain the testimony of the declarant (p. e.g., by testimony or examination) by reasonable procedures or other means. The Senate amendment removes the latter provision. With regard to the question of the unavailability of witnesses, it is for the court of first instance to decide whether there is sufficient evidence of unavailability.
State v. Martinez, 102 N.M. 94, 97 (Ct. App.1984). In deciding whether a witness should be declared unavailable, the question arises whether, having regard to all the circumstances, the prosecution exercised “due diligence” in its efforts to ensure the witness` presence. State v. Lopez, 1996-NMCA-101, ¶24. (1) The substantive case law supports the view that the exercise of a preferential claim by the declarant satisfies the requirement of unavailability (usually in relation to previous witness statements). Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837 (1950); State v. Stewart, 85 Kan.
404, 116 p. 489 (1911); Annot., 45 A.L.R.2d 1354; Uniform rule 62 (7) (a); California Proof Code §240(a)(1); Kansas Code of Civil Procedure §60–459(g)(1). A decision of the judge is required, which clearly implies that a real claim of privilege must be made. Rule 804(a)(4) also allows an applicant to be deemed unavailable by the court because of a “then existing physical or mental illness or infirmity.” G.S. 8C-804(a)(4). This provision covers a variety of factors, including injury, illness, psychological trauma or lack of competence as a witness. See, for example, State v. Swindler, 129 N.C. App. 1 (1998) (official statement that Notifier was hospitalized after heart attack supported court conclusion that it was not available); State v. Carter, 338 N.C. 569 (1994) (witness found unavailable due to mental illness); State v.
Chandler, 324 N.C. 172 (1989) (a four-year-old sexual assault victim who was so overwhelmed by fear that she could not answer the questions was correctly considered unavailable under the rule); but see State v. Fear, 315 N.C. 167 (1985) (Trial Court erred in accepting the parties` conclusion that a minor witness is incompetent and therefore not available under rule 804(a): “In exercising his discretion in deciding the capacity of a minor witness to testify, the trial judge must rely on his personal observation of the child`s conduct and his or her responses to the request for questioning”). Evidence of hospitalization or a mental or physical condition that makes the witness`s travel dangerous may support the finding of unavailability. See, for example, State v. Carter, 338 N.C. 569, 591-92 (1994) (mental illness); Staat v.
Swindler, 129 N.C. App. 1, 5 (1998) (hospitalization). Unavailability due to procurement or proponent misconduct. A declarant is not available if his or her unavailability “is due to the obtaining or misconduct of the author of his or her testimony to prevent the witness from being present or testifying.” .