Availability
If a statement is testimonial, the person making the statement must generally be available for cross examination. An exception to this rule is if the witness is unavailable. But even where the witness is unavailable, the defendant must have had a prior opportunity to confront the witness through cross examination. The latter requirement, cross examination, is discussed below.
A witness may be unavailable for a variety of reasons. A common reason for a witness to be unavailable is that the witness is claiming a Fifth Amendment privilege against self incrimination. Other privileges are also a source of unavailability. Witnesses may also be unavailable because they have died, had memory loss, or simply decided not to cooperate as a witness against the defendant.
Read more about this topic: Confrontation Clause
Famous quotes containing the word availability:
“Since ... six weeks ago, there has been no day in which I have not had letters and visits on the subject of my nomination for the Presidency.... I say very little. I have in no instance encouraged any one to work to that end.... I have said the whole talk about me is on the score of availability. Let availability do the work then.”
—Rutherford Birchard Hayes (1822–1893)