Indiana Evidence Rule 804 (a)(2)
• A declarant is considered to be unavailable as a witness if the declarant . . . refuses to testify about the subject matter despite a court order to do so.
Contempt warning
• The court threatened to hold Bennett in contempt, but Bennett still refused to testify. He was held in contempt. The next day, this procedure was repeated and the same result obtained…Once Bennett was advised that the only penalty for refusing to testify was to be held in contempt of court, he again refused to testify. The court then declared Bennett to be unavailable…
Lowery v. Anderson, 225 F.3d 833, 838 (7th Cir. 2000), cert. denied, 532 U.S. 959 (2001)
Examples
• In addition, T.M. was clearly unavailable to testify at trial. Upon taking the stand, T.M. became hysterical, repeatedly asking for her mother. She was unresponsive to both the trial court and the State, and refused to testify about the events of the molestation by Guy. A witness' refusal to testify renders her unavailable for purposes of using her prior testimony. Despite the trial court's order to T.M. to testify, T.M. rose from the stand and repeatedly asked for her mother. It is apparent from the record that the State became aware of T.M.'s emotional state during pre-trial preparation several days before the State presented its case-in-chief. Therefore, we hold that T.M. was unavailable as a witness under Indiana Evidence Rule 804(a)(2).
Guy v. State, 755 N.E.2d 248, 254-55 (Ind. App. 2001), reh’g denied, trans. denied
• Howland and Sandra were "unavailable" by reason of the invocation of the Fifth Amendment privilege against self incrimination.
Kellems v. State, 651 N.E.2d 326, 328 (Ind. Ct. App. 1995)
• In addition, T.M. was clearly unavailable to testify at trial. Upon taking the stand, T.M. became hysterical, repeatedly asking for her mother. She was unresponsive to both the trial court and the State, and refused to testify about the events of the molestation by Guy. A witness' refusal to testify renders her unavailable for purposes of using her prior testimony.
Guy v. State, 755 N.E.2d 248, 254 (Ind. Ct. App. 2001), reh’g denied, trans. denied