For purposes of the hearsay exceptions created by Federal Rule of Evidence 804 or a comparable State rule, a declarant is "unavailable" within the meaning of Rule 804(a) or a comparable State rule if the declarant persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; but a declarant is not "unavailable" if the declarant's refusal is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

Shanklin v. Norfolk Southern Railway Co., 369 F.3d 978, 990 (6th Cir. 2004) (holding, in plaintiff wife's wrongful death action against defendant railroad company, that the trial court properly admitted the officer's video deposition....Although the statement of a "speaking agent" can be imputed to an employee's employer or an agent's principal and can be a vicarious admission that is exempt from the prohibition against hearsay, such an employee or agent must in fact have been authorized by the employer or principal to speak on behalf of the employer or principal. This is necessary if the basis of the imputation of the employee's or agent's statement to the employer or principal is that the employee or agent was a "speaking agent."

Fed. R. Evid. 801(a)(2) ("A 'statement' is ... (2) nonverbal conduct of a person, if it is intended by the person as an assertion.").Nonverbal conduct can be a "statement" for purposes of the federal prohibition against hearsay and, thus, nonverbal conduct can be "hearsay."

Hirst v. Gertzen, 676 F.2d 1252, 1263 (9th Cir. 1982) (holding, in civil rights action against county, city, and government officials for prisoner's death in jail, that evidence of deputy's prior acts of violence which was introduced to establish the identity of the murderer, was inadmissible because even...The negligent or incompetent character of an agent or employee is an essential element of a negligent entrustment claim. If the negligent character or incompetence of the agent or employee is at issue, evidence about the negligence or incompetence of the agent or employee is not barred by the rule prohibiting the use of a person's character to show the person's conduct.