EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Sunday, September 27, 2009

Still Haven't Found What I'm Looking For: Court Of Appeals Of Texas Finds Prosecution Made Reasonable Attempt To Locate Witness In Murder Retrial For Former Testimony Purposes

Like its federal counterpartTexas Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for 

testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

And, like its federal counterpartTexas Rule of Evidence 804(b)(1) only applies when the proponent can prove declarant unavailability under Rule 804(a), which includes situations in which the declarant 

is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means.

But what constitutes reasonable means? That was the question presented to the Court of Appeals of Texas, Houston, in Reed v. State, 2009 WL 3050825 (Tex.App.-Houston [1 Dist.] 2009).

In Reed, Keaaron Reed was convicted of the murder of Fred Porter. This conviction, however, cam at the end of Reed's second trial; his first trial ended in a mistrial despite the eyewitness testimony of Samantha Stewart. Stewart did not testify at Reed's second trial, but the prosecution was able to present her testimony from the first trial to the jury pursuant to Texas Rule of Evidence 804(b)(1).

Reed subsequently appealed, claiming that the trial court erred in admitting this former testimony. Of course, he did not dispute that he had an opportunity and similar motive to develop the testimony of Stewart at his first trial; however, he did claim that the prosecution failed to establish that it was unable to procure Stewart's attendance or testimony by process or other reasonable means. The Court of Appeals disagreed, noting that an investigator for the D.A.'s office made unsuccessful attempts to locate Stewart that were

sufficient to show the State made good-faith efforts to obtain Stewart for trial. The record shows repeated efforts by Jones to produce Stewart for trial. Jones exhausted his contacts among Stewart's family and friends and had no knowledge of her whereabouts, except for the speculation she might be in Chicago. Any further efforts could reasonably have been deemed futile by the trial court. Because Jones could not determine where Stewart could be located, a writ of attachment would have been futile because the writ would not have brought the witness to trial. 

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/09/former-testimonyreed-v-state----sw3d------2009-wl-3050825texapp-houston-1-dist2009.html

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