The Witness Who Will Not Come
Every contested matter has at least one person whose evidence would settle a point and who is unavailable, unwilling or unreachable. The available responses differ sharply depending on which of those three applies, and the difference is worth establishing first.
The rule in short
Where a witness will not attend, the routes are compulsion, a deposition or recorded evidence, an exception permitting the use of an earlier statement, or proceeding without them. Compulsion works where the witness is within reach and merely reluctant; the hearsay exceptions for unavailable witnesses require the unavailability to be established and defined in a particular way.
The absent witness is a fixture of contested matters. What can be done about it depends almost entirely on the reason for the absence, and parties frequently spend effort on compulsion when the witness is beyond reach, or on hearsay arguments when a subpoena would have produced them.
Establishing why they are absent
Unwilling but reachable. The witness is within the jurisdiction and simply does not want to be involved. This is the most tractable case and compulsion is the ordinary answer to it.
Outside the reach of process. Living abroad, or beyond the geographic limit of the court's power to compel. Compulsion fails here whatever the importance of the evidence.
Unable to attend. Illness, infirmity or incapacity, which is a recognized ground of unavailability in most systems and generally has to be evidenced rather than asserted.
Cannot be found. Where reasonable efforts to locate the witness have failed, and the efforts themselves become part of what has to be shown.
Refusing to answer. A witness who attends but claims a privilege is legally unavailable as to the material covered, which is a distinct category with its own consequences.
Compulsion, and its limits
A subpoena compels attendance. Within the geographic limits the rules set, which are narrower than most people assume and are measured from the place of the hearing rather than from the witness's home.
Fees and expenses accompany it. Most systems require attendance money to be tendered with the subpoena, and service without it is defective in a way that is easy to overlook.
Service has to be proved. An affidavit of service is what allows anything to follow from non-attendance, and informal service by email or telephone generally will not do.
Enforcement is available and slow. A witness who ignores a subpoena can be compelled, but the process takes time that a hearing date rarely allows for.
A hostile attending witness is still a witness. Compelling somebody produces attendance, not cooperation, and the evidence that results is frequently worse than useful.
| Reason for absence | First route | Fallback |
|---|---|---|
| Unwilling, within reach | Subpoena | Proceed without, with an inference |
| Living abroad | Remote testimony or a letter of request | Statement, if an exception applies |
| Ill or infirm | Deposition or remote attendance | Unavailability exception |
| Cannot be found | Documented search | Unavailability exception |
| Claiming a privilege | Test the claim | Unavailable as to that material |
Recording the evidence instead
A deposition preserves it. Testimony taken under oath with an opportunity to question, which is admissible in place of attendance in defined circumstances and is the standard answer to a witness who will be away.
Remote attendance solves many absences. Live audio-visual testimony is accepted in most proceedings now, and it removes distance, cost and infirmity as obstacles in one step.
Evidence taken abroad has its own routes. Letters of request and treaty procedures exist, they work, and they take considerably longer than anybody expects, so they have to be started early.
A recorded account is better than none. Even where admissibility is uncertain, obtaining a statement from a witness while they are available preserves an option that disappears if nothing is done.
Preserve while the witness is willing. Cooperation is not permanent, and a statement taken during a period of goodwill survives the later change of mind.
The single most common regret in this area is not taking a statement from a witness while they were still willing. Admissibility can be argued about afterward; an account that was never recorded cannot be recovered once the witness has stopped answering the telephone.
Using what the witness said earlier
Unavailability has to be established first. The exceptions permitting earlier statements to be used apply only where the witness is unavailable in the defined sense, and proving that is a precondition rather than a formality.
Former testimony is the strongest route. Evidence given under oath in an earlier proceeding, where the opposing party had an opportunity to question, is admissible in many systems on proof of unavailability.
Statements against interest. What the absent person said against their own interest may be admissible on its own terms, which is covered in admissions against interest.
Residual routes exist. Most systems retain a general provision for reliable hearsay that fits no listed exception, used sparingly and requiring notice to the other side.
An unsworn statement is the weakest. A signed statement from somebody who never attended is frequently excluded, and where it is admitted it carries little weight because nobody could test it.
Deciding to proceed without them
Ask what they would have added. Frequently the answer is corroboration of something already established by documents, in which case the absence costs less than it appears to.
Look for the documentary substitute. What the witness would have said is often recorded somewhere they wrote it down at the time, which is the argument in business records and the routine entry.
Consider the inference. In some circumstances the unexplained absence of a witness a party could have called permits a comment, which is discussed in adverse inferences.
Do not overstate the loss. A submission built around the evidence that could not be called invites the response that the case therefore fails, which is rarely the intended effect.
Record the efforts made. Attempts to locate, to serve and to secure attendance should be documented, because they are what supports both unavailability and any inference.
The first question is always why the witness is absent, and it is skipped surprisingly often. Effort spent on hearsay arguments about a witness who could have been subpoenaed is wasted, and so is a subpoena addressed to somebody living in another country.
Remote testimony has quietly solved a large share of the practical problems in this area. Distance, cost, infirmity and inconvenience were the reasons behind most absences, and a video link answers all four.
Where the witness is genuinely unavailable, the exceptions permitting earlier statements are real but conditional. Unavailability has to be established by evidence, and a party who has not documented its efforts to locate or compel the witness will struggle at that first step.
The decision to proceed without the evidence deserves more respect than it usually gets. Many absent witnesses would have corroborated something already established, and a case presented confidently on the remaining material is stronger than one presented apologetically.
Removal proceedings produce this problem more often than most, because the witnesses who could speak to conditions or to a relationship are frequently in another country altogether. Where a case depends on somebody who cannot attend, defensive asylum in immigration court is the practice area in which the alternatives are used most regularly.
Above all, the option that disappears is the one nobody exercised. A statement taken while the witness was cooperative, even one whose admissibility is doubtful, preserves a possibility that does not exist once they have decided not to be involved.
Points to carry away
- Unwilling and unavailable are different problems with different answers.
- Compulsion reaches witnesses within the jurisdiction and not those outside it.
- Hearsay exceptions for unavailability require unavailability to be proved.
- Recorded or remote evidence solves many practical absences.
- Proceeding without the witness is sometimes the right decision.
Questions readers ask
How far can a subpoena reach?
Less far than people assume, and the limits are geographic rather than practical. Most systems set a distance within which a witness can be required to travel, measured from the place of the hearing, with wider limits for parties and their officers than for ordinary witnesses. A witness outside those limits cannot be compelled to attend however important their evidence is, which is why remote testimony and evidence taken on commission exist as alternatives rather than as conveniences.
What counts as a witness being unavailable?
The category is defined rather than descriptive, and the definitions are broadly similar across systems. They generally cover a witness who is exempted by privilege, who refuses to testify despite an order, who claims a lack of memory, who is dead or infirm, or who is absent and cannot be brought by reasonable means. Inconvenience does not qualify, and neither does a party's failure to take steps that would have secured attendance. Establishing unavailability requires evidence of what was tried.
Is a signed statement from an absent witness worth obtaining?
Almost always, even where its admissibility is uncertain. A recorded account preserves an option: it may fall within an exception, it may be admitted by agreement, it may support an application, and at the very least it tells the party who obtained it what the witness would have said. None of that is available if nothing was taken, and cooperation is temporary. The cost of an hour spent taking a statement is trivial against the cost of losing the evidence entirely.
Sources
- Federal Rules of Evidence — Rule 804, Exceptions When the Declarant Is Unavailablelaw.cornell.edu
- Federal Rules of Evidence — Rule 807, Residual Exceptionlaw.cornell.edu
- Federal Rules of Civil Procedure — Rule 45, Subpoenalaw.cornell.edu
- Federal Rules of Civil Procedure — Rule 30, Depositions by Oral Examinationlaw.cornell.edu
- 28 U.S. Code § 1782 — Assistance to Foreign and International Tribunalslaw.cornell.edu
- Legal Information Institute — Depositionlaw.cornell.edu
True Justice Record is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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