An unavailable witness in California is one who fits into one of six specific categories set out in Evidence Code Section 240. Once a witness qualifies, their prior out-of-court statements may come into evidence under several hearsay exceptions that would otherwise keep them out, though in criminal cases the Sixth Amendment adds a second hurdle the prosecution has to clear.
The Six Grounds for Unavailability
Section 240 is exclusive. A witness either fits one of the six situations or is not legally unavailable, no matter how inconvenient their absence is.1California Legislative Information. California Code Evidence Code EVID 240
- Privilege. The witness is exempt from testifying because a recognized privilege applies, such as attorney-client, spousal, or the privilege against self-incrimination.
- Disqualification. The witness has been disqualified from testifying about the relevant matter.
- Death or incapacity. The witness has died or cannot attend or testify because of a physical or mental condition existing at the time of the hearing.
- Beyond the court’s reach. The witness is absent and the court cannot compel their attendance through its own process.
- Absent despite diligent efforts. The witness is absent and the party offering their statement made a genuine effort to bring them in but failed.
- Persistent refusal. The witness has been held in contempt for refusing to testify and still will not cooperate.
The fourth and fifth grounds show up most often. California courts have no subpoena power over someone outside the state, so a witness who has moved away, been deported, or simply cannot be found is often effectively beyond the court’s reach if they will not return voluntarily.
For the death-or-incapacity ground, Section 240 allows expert testimony to establish unavailability. A physician, psychiatrist, or licensed therapist can testify that trauma from an alleged crime is severe enough that the witness cannot take the stand, or cannot do so without suffering substantial harm. This comes up most often in sexual assault and domestic violence cases, where forcing the victim to testify in the defendant’s presence would cause serious psychological damage.
One built-in limit: a witness is not considered unavailable if the party offering their statement was the one who caused the absence. Neither side can manufacture unavailability to slip favorable hearsay into the record.
Proving Reasonable Diligence
Under the fifth category, telling the judge the witness did not show up is not enough. The party offering the statement has to prove they exercised reasonable diligence trying to get the witness into the courtroom, and this is where most unavailability arguments fail.
Courts look at the totality of the effort. A single unanswered phone call will not cut it. Judges expect to see evidence that the party checked the witness’s last known address, contacted relatives or associates, attempted service through a process server, and, where applicable, asked law enforcement for help locating the person. The more important the witness, the more effort the court expects. For a peripheral witness in a civil dispute, a few documented attempts may suffice. For the prosecution’s key eyewitness in a murder trial, courts have demanded exhaustive searches including database checks, jail records, and contact with out-of-state agencies.
Timing matters as much as method. Waiting until the week before trial to start looking signals a lack of diligence. Courts take a dim view of last-minute discovery that a witness has vanished when the party had months to track them down.
Hearsay Exceptions That Open Up
Once the court finds a witness genuinely unavailable, several hearsay exceptions become available. None are automatic; each has its own conditions.
Former Testimony
The most commonly invoked exception is former testimony under Evidence Code Section 1291. If the unavailable witness testified at an earlier proceeding, that testimony can be read into the current trial, but only if the party it is being used against had the right and opportunity to cross-examine the witness during the earlier proceeding and had a similar motive to do so.2California Legislative Information. California Evidence Code 1291
Section 1292 covers civil cases where the former testimony is offered against someone who was not a party to the earlier proceeding. The testimony still comes in as long as the issue is substantially the same and the party in the earlier case had a similar interest and motive to cross-examine.3California Legislative Information. California Code Evidence Code EVID 1292
Dying Declarations
Evidence Code Section 1242 allows a statement made by a dying person about the cause and circumstances of their death, provided they spoke from personal knowledge while believing death was imminent. California’s version is not restricted by case type.4California Legislative Information. California Code Evidence Code 1242 – Dying Declarations
Declarations Against Interest
When an unavailable person previously made a statement so damaging to their own financial, legal, or personal interests that a reasonable person would only have said it if they believed it were true, the statement may come in under the declaration-against-interest exception. Courts examine the context closely: who was present, what prompted the statement, and whether it was self-serving in some less obvious way.
Statements About Family History
Evidence Code Sections 1310 and 1311 cover statements by an unavailable person about their own or another family member’s births, marriages, deaths, relationships, and ancestry. These come in even without firsthand knowledge, as long as the statement does not appear untrustworthy based on the circumstances.5California Legislative Information. California Evidence Code – Chapter 2, Article 11
Forfeiture by Wrongdoing
California has a countermeasure against parties who engineer a witness’s absence. If you cause a witness to become unavailable through wrongdoing, you forfeit the right to object to their hearsay statements. The doctrine prevents defendants from silencing witnesses through intimidation, violence, or worse, and then complaining that they cannot cross-examine the person they silenced.
The party seeking to admit the hearsay has to prove by a preponderance of the evidence that the opposing party intentionally caused the witness’s unavailability. Forfeiture by wrongdoing also overrides the Sixth Amendment’s confrontation protections in criminal cases.
The Confrontation Clause Adds a Second Test in Criminal Cases
In criminal trials, satisfying Section 240 and a hearsay exception is not the end of the analysis. The Sixth Amendment guarantees a defendant the right to face and cross-examine the witnesses against them, and the U.S. Supreme Court’s decision in Crawford v. Washington (2004) drew a hard line. When the prosecution wants to use a “testimonial” statement from someone who does not appear at trial, it must show both that the witness is unavailable and that the defendant had a prior opportunity to cross-examine that person about that statement. Reliability alone is not enough.
Testimonial statements include those made during police interrogations, testimony from preliminary hearings or grand juries, and affidavits prepared for use in court. Casual remarks to friends or offhand comments at a scene generally do not qualify. Nontestimonial statements can still come in under traditional hearsay exceptions without triggering the Crawford requirement.
The practical consequence is significant. If a key witness gave a statement to police and later disappeared, the prosecution cannot simply read that statement to the jury by proving unavailability. Prior testimony from a preliminary hearing usually satisfies Crawford; a recorded police interview almost never does. Crawford left the door open for dying declarations based on their historical pedigree, and California courts continue to admit them in criminal proceedings.
Preserving Testimony Before a Witness Disappears
Rather than fighting over hearsay exceptions after a witness vanishes, California law lets either side lock the testimony in ahead of time. Under Penal Code Section 1336, the prosecution or the defense can ask the court for a conditional examination of a witness who is about to leave the state, is seriously ill, is elderly, is a dependent adult, or whose life is in jeopardy.6California Legislative Information. California Code Penal Code 1336
A conditional examination is essentially a deposition taken under oath, with both sides present and cross-examination built in. If the witness later becomes unavailable, the transcript can be read at trial. Because the opposing party had the chance to question the witness, the procedure satisfies both the Evidence Code’s hearsay rules and the Confrontation Clause. It is the cleanest solution available, and it is underused. Attorneys who suspect a witness may not be around for trial should file the motion early rather than hoping the person shows up.
What Happens If the Court Gets It Wrong
The stakes cut both ways. If a court rules that a party failed to show reasonable diligence, the witness’s prior statements stay out entirely. In a criminal case, that can mean the prosecution loses its strongest evidence. In a civil case, it can gut a plaintiff’s damages theory.
If a court admits hearsay from an unavailable witness that should not have come in, the verdict is vulnerable on appeal. Defense attorneys routinely challenge unavailability findings, arguing either that the prosecution did not try hard enough to locate the witness or that the statement was testimonial and the defendant never had a chance to cross-examine. A successful challenge can mean a new trial.
For anyone litigating in California with a witness who might not appear, the working rules are the same on both sides: document every attempt to locate and serve the witness, preserve testimony through conditional examination whenever the statute allows it, and identify the specific hearsay exception before walking into court.