The unavailability concept in hearsay includes what criterion?

• A. Illness or death
• B. The statement must be about a criminal act
• C. The declarant must be the defendant
• D. The statement must be made in court

Answer: (A)

Unavailability is a prerequisite for many hearsay exceptions, so a statement can be admitted only if the declarant is unavailable to testify. Illness or death are classic ways a declarant becomes unavailable—if someone is too ill to appear or has died, they cannot testify in court, satisfying the unavailability condition. Once unavailability is shown, certain out-of-court statements may be admitted under specialized exceptions.

The other options miss the point. The content of the statement about a criminal act has no bearing on whether the declarant is unavailable. The declarant being the defendant is irrelevant to unavailability. And a statement made in court isn’t hearsay at all (or isn’t governed by the same unavailability-based exceptions) because it’s an in-court, not an out-of-court, statement.