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State v. Ellis, 2018 UT 2 (Jan. 23, 2018).

Jan 23, 2018

In this appeal from a conviction following a jury trial, the Utah Supreme Court addressed the circumstances required to render a witness unavailable under Rule 804 of the Utah Rules of Evidence.  It held the district court erred in determining a witness who refused to attend trial because she had given birth a week before, several weeks prematurely, and her baby had come home from the hospital just three days before the trial began was “unavailable.”  In order to be “unavailable” under Rule 804(a)(4) based on an illness, the illness must be “of sufficient severity and duration that the witness is unable to be present over a period of time within which the trial reasonably could be held.”  There was no such showing in this case.