Wednesday, January 23, 2008
Blind Faith: Tennessee Court Finds Proseuction Failed To Prove Witness Unavailability Through Reliance On Mother's Promise
The Court of Criminal Appeals of Tennessee's recent opinion in State v. Brown, 2008 WL 141128 (Tenn.Crim.App. 2008), provides an interesting discussion of what it takes to prove declarant unavailability under Federal Rule of Evidence 804 and state counterparts such as Tennessee Rule of Evidence 804. Tommy Brown, Jr. was indicted on counts of aggravated rape with a weapon and aggravated kidnapping. At a preliminary hearing, the alleged victim, David Clark, testified that he was attacked at knife-point and raped by the defendant on May 7, 2006.
The defendant thereafter waived his right to a jury trial, and a bench trial was set for August 29, 2006. On August 1, 2006, the prosecution informed the court that it had issued a subpoena to compel Clark's attendance at trial. Clark thereafter did not appear at trial, and the prosecution moved for a continuance until September 8, 2006 on the ground that Clark had moved to Missouri to live with his mother. At the subsequent hearing on September 8, the prosecution said that it had spoken to Clark's mother, who told the state that her son was enrolled in school in Missouri and undergoing counseling. The prosecution also claimed that Clark's mother promised them that her son would appear at trial.
The court then re-scheduled trial for October 30, 2006 and informed the prosecution that it would dismiss the case if Clark failed to appear. The prosecution responded, "If it please the Court, we will also go through the Interstate Act to make sure that he is properly served in the state of Missouri. But we'll -- we will dismiss if he's not here on October 30." On October 30, however, Clark did not appear, and the prosecution admitted that it did not issue an out-of-state subpoena to Clark in Missouri, instead relying on his mother's promise that he would appear at trial.
Nonethless, the prosecution attempted to prove that Clark was "unavailable" pursuant to Tennessee Rule of Evidence 804(a)(5) because he was absent at trial, and the prosecution was unable to procure his "attendance by process." Assuming that it could thus establish his unavailability, it sought to introduce his preliminary hearing testimony under Tennessee Rule of Evidence 804(b)(1) as former testimony. The trial court, however, found that the prosecution had failed to prove that Clark was "unavailable," leading the prosecution to appeal to the Court of Criminal Appeals of Tennessee.
That court found that the proponent of the evidence under Tennessee Rule of Evidence 804(a)(5) bears the burden of proving that it made a "good faith" effort to obtain the declarant's presence at trial; a good faith effort means a "reasonable" effort. The court then found that issuing a subpoena to Clark in Tennessee but thereafter not issuing a subpoena to him in Missouri and simply relying on his mother's promise that he would attend was not a "good faith" effort, rendering his former testimony inadmissible. This seems to me to be a fair conclusion, especially in light of the fact that the prosecution failed to live up to its promises made at the October 30the hearing.