What Constitutes “Unavailability”?
What constitutes “unavailability”?
1. A witness who is present in the witness box and responds (provides responsive answers) to questions is available for Confrontation Clause purposes, regardless of the content of the witness’s answers. A witness will usually be considered “unavailable” for Confrontation Clause purposes if the witness is unavailable under M.R.E. 804(a), except regarding lack of memory (M.R.E. 804(a)(3)). See, e.g, United States v. Owens, 484 U.S. 554 (1988), supra at II.A.(Lawfare)
2. United States v. Lyons, 36 M.J. 183 (C.M.A. 1992). Appellant convicted of
raping the deaf, mute, mentally retarded, 17-year-old daughter of another service
member. The victim appeared at trial, but her responses during her testimony
were “largely substantively unintelligible” because of her infirmities. In light of
her inability, the government moved to admit a videotaped re-enactment by the
victim of the crime. The military judge admitted the videotape as residual
hearsay over defense objection. Appellant asserted that his right to confrontation
was denied because the daughter’s disabilities prevented him from effectively
cross-examining her. The lead opinion assumed that the victim was unavailable
and decided the case on the basis of the admission of a videotaped re-enactment.
Chief Judge Sullivan, Judges Cox and Crawford did not perceive a confrontation
clause issue because the victim testified. See also, United States v. Russell, 66
M.J. 597, 601-602 (Army Ct.Crim.App. 2008) (implicitly accepting trial judge’s
ruling that a child victim who was “too young and too frightened to be subject to
a thorough direct or cross-examination” was unavailable).
3. The Government must first make a “good faith” effort to produce a witness in
order for that witness to be “unavailable” for Sixth Amendment purposes. United
States v. Cabrera-Frattini, 65 M.J. 241, 245-246 (C.A.A.F. 2007). See also, Ohio
v. Roberts, 448 U.S. 56, 74-75 (“The law does not require the doing of a futile
act….[b]ut if there is a possibility, albeit remote, that affirmative measures might
produce the declarant, the obligation of good faith may demand their
effectuation.”); United States v. Crockett, 21 M.J. 423 (C.M.A. 1986) (good faith
does not extend to changing venue from Germany to Florida).