unavailability

In law of evidence, on a showing that a witness or his testimony is not available, prior reported testimony of that witness which can be faithfully reproduced is admissible as an exception to the hearsay rule. A witness is unavailable if he is dead, insane or beyond reach of a summons. Unavailability as a witness also includes situations in which the declarant is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement.

See Fed.Evid.R. 804.

Unavailability as defined in rule providing for admission of prior testimony, requires, among other things, either that the witness be beyond the jurisdiction of the court's process to compel his appearance, or that the proponent of the prior statement be unable, despite due diligence, to obtain the attendance of the witness. Sacawa v. Polikoff, 150 N.J.Super. 172, 375 A.2d 279, 283