Which of the following is not a recognized basis for 'unavailability' under FRE 804?

• A. Refusal to testify.
• B. Absence due to illness or inability to procure attendance.
• C. Former testimony.
• D. Present sense impression statements.

Answer: (D)

Under FRE 804, unavailability of the declarant is a prerequisite for certain hearsay exceptions, such as former testimony and other statements admissible only when the declarant cannot testify. A declarant is considered unavailable if they are exempted from testifying due to privilege, refuse to testify, or are absent because of illness or some other cause, or cannot attend or testify for reasons like lack of memory or procurement issues. Former testimony is admissible only when the declarant is unavailable, and the party had an opportunity to develop the testimony previously.

Present sense impression statements, by contrast, are a separate hearsay exception under FRE 803(1) that does not depend on the declarant’s unavailability. They describe statements made as or immediately after the event, while the perception is fresh, and are admissible regardless of whether the declarant is available to testify later. So they are not recognized as a basis for establishing unavailability, which is why they are the correct choice for not being a basis for unavailability.