Forgetful Witness Can Be "Unavailable," SJC says
New Evidentiary Rule Opens Door to Hearsay Exceptions
The Massachusetts Supreme Judicial Court ruled that a witness in a civil case may be deemed "unavailable" if he or she testifies to a lack of memory about a subject matter in the Hedberg, et al. v. Wakamatsu case.
Attorney Daniel Small agreed that the Massachusetts Supreme Judicial Court's decision "does send a message that lawyers can and should be on the lookout for other gaps in the common law." "But at the same time, it evinces the need for a code of evidence," Mr. Small argued. "The law of evidence is too important to be doing it ad hoc like this."
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