EvidenceProf Blog

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

Monday, October 19, 2009

Pregnant Pause: District Of Idaho Finds Declarant Unavailable Based Upon Late Stage Pregnancy

In 2004, the Supreme Court found in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. In its recent opinion in McKinney v. Fisher, 2009 WL 3151106 (D. Idaho 2009), the United States District Court for the District of Idaho had to decide whether a declarant in the latter stages of an at-risk pregnancy was "unavailable" for Confrontation Clause purposes. The court answered the question in the affirmative, and I agree.

In Fisher, Randy McKinney was convicted of murder in the first degree, robbery, conspiracy to commit murder, and conspiracy to commit robbery. Despite evidence that McKinney's girlfriend, Dovey Small, was involved in these crimes as well, the State did not charge her initially, "but she was nevertheless held in custody as a material witness until she agreed to be deposed in exchange for her release....Her deposition was taken in McKinney's presence and subject to his counsel's cross-examination." At McKinney's trial, Small did not testify, but the prosecution did introduce her deposition testimony. After a complicated procedural history in both state and federal courts, the United States District Court for the District of Idaho finally heard McKinney's petition for writ of habeas corpus, in which he alleged, inter alia, that the admission of the deposition testimony violated his rights under the Confrontation Clause because the prosecution failed to prove Small's unavailability (which is required under both Crawford and its predecessor, Ohio v. Roberts).

The court disagreed, finding "that Small was not available to testify because she was in the latter stages of an at-risk pregnancy, and her doctor was treating her 'for fear she may have a miscarriage.'" As support for this conclusion, the court cited to the Ninth Circuit's opinion in United States v. McGuire, 307 F.3d 1192 (9th Cir. 2002). In McGuire, the court found that a witness in the seventh month of a pregnancy under Federal Rule of Evidence 804(a)(4), which states that a witness is unavailable if she "is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity." According to the Ninth Circuit, "[t]hese risks in late pregnancy, when attested to by a physician, are an ‘infirmity’ within the meaning of the Rule." The  United States District Court for the District of Idaho agreed with the Ninth Circuit, concluding that "[a]lthough the Federal Rules of Evidence were at issue in McGuire rather than the Confrontation Clause, there is no reason why the Ninth Circuit's conclusion as to what constitutes unavailability would be any different under the Constitution."



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