Brooklyn, NY asked in Personal Injury for New York

Q: Can a witness be unavailable if htey go on vacation

Dana is a plaintiff in a personal injury case. Jeff is Dana's close friend. He was with her when she was injured by an allegedly defective hedge cutter and can provide evidence that supports Dana's claims. Jeff orally assures Dana on many occasions that he will testify on her behalf. However, Jeff calls Dana on the morning of trial and tells her that he can't come to court because he had gone away for the weekend on a ski trip and is snowed in.

Question

In Problem 15-1 Jeff is NOT unavailable because Dana did not attempt to secure his presence.

True or False

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2 Lawyer Answers
Tim Akpinar
Tim Akpinar
Answered
  • Little Neck, NY
  • Licensed in New York

A: Yes, a witness can be unavailable if they are on vacation. If you go to the Federal Rules of Evidence, Rule 804, that should get you pointed in the right direction. Good luck

Tim Akpinar

Jonathan R. Ratchik
Jonathan R. Ratchik
PREMIUM
Answered
  • New York, NY
  • Licensed in New York

A: Is this a real legal question or a question that is on your law school examination?!? Regardless, whether the witness is "unavailable" within the meaning of the law depends on whether the witness is under the control of the party who would be expected to call the witness and/or subject to a subpoena.

Tim Akpinar agrees with this answer

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