Which of the following statements best describes when a declarant is considered unavailable as a witness?

• A. If privilege applies to the subject matter, the declarant is unavailable.
• B. If the declarant testifies to remembering the subject matter, the declarant is unavailable.
• C. If the declarant is present but refuses to testify, the declarant is unavailable.
• D. If the declarant is merely absent for a brief period, the declarant is unavailable.

Answer: (A)

The key idea is that a declarant is unavailable when the law blocks them from testifying about the subject matter. A privilege does that blocking: if the subject matter is protected by a privilege (for example, the privilege against self-incrimination or another recognized privilege), the declarant cannot be compelled to testify on that topic. Because they cannot testify on that matter, they are treated as unavailable for purposes of applying the rules that rely on unavailability.

This is the clearest, most straightforward ground for unavailability among the options. Merely remembering the subject matter means the declarant can still testify; a brief absence isn’t by itself unavailability without the proper grounds, and being present but refusing to testify isn’t automatically unavailability unless a privilege applies or a court has ordered testimony.