Criminal Law

Testimony from “Unavailable” Witnesses

By Janet Portman, Attorney
If a criminal defendant can't cross-examine a witness against him, will the judge keep that testimony from the jury? You might think so, but not always.

Trial courts everywhere abide by this simple, short rule: The jury should hear spoken or written evidence only from witnesses who are present at trial, who can be cross-examined by the other side. But like all rules, this one has some important exceptions. Below, you’ll read about the reason for the rule, and the common exceptions to it.

Why We Keep Out-of-Court Statements…Out of Court

Under the Confrontation Clause of the Sixth Amendment, criminal defendants have the right to confront (cross examine) witnesses who testify against them. If a witness’s out of court statement were admitted at trial, the defendant would have no chance to challenge it, for example by asking about bias (“Isn’t it true that you’re engaged to the victim’s brother?”) or inability to perceive the events (“You were a full one-hundred yards from the incident, weren’t you?). The framers of the Constitution recognized that without the chance to hear challenges to testimony, juries could be seriously misled. Thus, defendants have a fundamental right to cross-examine, which is missing when the speaker himself is not in court.

A second reason for excluding out-of-court statements comes from the law concerning hearsay statements. The “rule against hearsay” is a rule of evidence that excludes statements that were made out of court, that are offered to prove the truth of what they say. Rules of evidence exclude them because they are not trustworthy – they may not have been made under oath, and they are not subject to cross-examination. But this rule has many exceptions, too.

How Out-of-Court Statements Come In: The Unavailable Witness

Despite the seeming finality of the Constitutional and evidentiary rules just described, each has exceptions. If the side that wants to introduce the statements can convince the judge that the speaker is unavailable, the judge may decide that the offered testimony fits within one of them. The balance of this section explains what the term “unavailable” means, according to the Federal Rules of Evidence. Next, we’ll look at the exceptions.

  • Taking the Fifth. A witness can refuse to take the stand by invoking the privilege against self-incrimination. Under the Federal Rules (Rule 804(a)), this makes the witness unavailable, even if the government offers immunity in exchange for testimony.
  • Invoking the spousal privilege. Federal and state laws allow spouses to refuse to testify against one another.
  • Refusing to testify concerning the subject matter of the statement. Witnesses sometimes simply refuse to testify, despite the court’s order to do so, and without claiming any recognized privileges. When this happens, they are often held in contempt of court, but in addition, they become an “unavailable witness” for purposes of introducing their out-of-court statements.
  • Lack of memory. Under certain circumstances, a witness can be deemed unavailable when he or she simply cannot remember the subject of the offered statement.
  • Death, illness, or infirmity. A person who is dead is obviously unavailable, but so too is someone who is physically or mentally incapable of testifying as to the subject matter of the out-of-court statement.
  • Failure or refusal to come to court. Some witnesses can’t be found, or can’t be reached with a subpoena that would order them to court. An out-of-court statement from someone like this could be admitted if the judge is convinced that the side offering the statement did everything reasonably possible to secure that person’s appearance at trial.

Which Statements from an Unavailable Witness Will Be Admitted?

Once a criminal defendant has convinced the judge that the person who made the statements at issue is legally unavailable, the defendant must fit the statement within one of the recognized exceptions to the dictates of the Confrontation Clause or the hearsay rule.

The Confrontation Clause

A court may decide to admit an out-of-court statement from an unavailable witness, offered by the prosecution against the defendant, if it is convinced that the statement is sufficiently reliable. (Ohio v. Roberts, 448 U.S. 56 (1980).) Judges look for “indicia of reliability,” which means that the statement must have been made in circumstances that point to its truthfulness. For example, earlier testimony under oath by someone in another proceeding may be reliable if the speaker was subject to cross-examination at the time, by a cross-examiner whose interests were similar to those of the defendant in the current case.

The Hearsay Rule Exceptions

No matter what side attempts to introduce an out-of-court statement from an unavailable witness, that proponent must also fit the statement into one of several exceptions to the blanket rule against them. Here are the federal exceptions, as spelled out in Federal Rule of Evidence 804(b).

  • Former testimony. Testimony given under oath, and subject to cross-examination, can be admitted at a subsequent trial if the speaker becomes unavailable. The reason is that the circumstances under which the statement was made point to its reliability, especially when cross-examination touched on issues also present in the current case.
  • A statement under the belief of impending death. Courts admit statements made by people who are facing death, or reasonably think they are. Even if the speaker doesn’t die (and becomes unavailable for another reason), the court will admit it on the theory that people at life’s end rarely lie. Some may take issue with that assumption.
  • A statement against interest. Here, the speaker has said something that runs counter to his or her self-interest, and would expose him to civil or criminal liability. If that person becomes unavailable, the court might admit it on the grounds that people rarely lie when they say something that is not in their own interest.
  • A statement of personal or family history. Statements about one’s lineage or background, including birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, are admitted under the Federal rules.

Questions for Your Attorney

  • If a judge says that admitting an out-of-court statement violates my Constitutional right to confront witnesses in a criminal case, can it still come in through an exception to the hearsay rule?
  • Why are statements regarding family history presumed to be trustworthy?
  • How does a judge decide whether a person who claims lack of memory is truly not remembering, and not just faking it?
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