Hearsay Exceptions: What Does "Unavailability" Mean?

In earlier posts I covered the major Rule 803 hearsay exceptions, for which unavailability is immaterial. Rule 804 contains additional hearsay exceptions, but they only apply when the declarant is unavailable. What does unavailability mean? The Rule specifies five circumstances when a declarant is unavailable. The sections below explore them. Privilege. A witness is unavailable if he or she is “exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement.” N.C.R. Evid. 804(a). One commonly asserted privilege in this context is the Fifth Amendment privilege against self-incrimination. See, e.g., State v. Sargeant, 365 N.C. 58, 62 (2011) (witness invoked the Fifth Amendment and was unavailable). Another is the marital privilege. See, e.g., State v. Carter, 156 N.C. App. 446, 454 (2003) (witness asserted the marital privilege). This availability ground requires a determination by the court that the asserted privilege in fact applies; if the privilege does not apply and witness refuses to answer after being ordered to do so, he or she will be unavailable because of a refusal the testify despite a court order, as discussed below. Refusal To Testify Despite Court Order. A witness is unavailable if he or she “persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so.” N.C. R. Evid. 804(a)(2). As a general rule, the trial court must expressly order the witness to testify. State v. Finney, 358 N.C. 79, 84-87 (2004) (trial court [...]