EvidenceProf Blog

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

Monday, December 12, 2011

Are You Available: Per Curiam Supreme Court Opinion Addresses Confrontation Clause Unavailability Question

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that 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 declarantCrawford overruled Ohio v. Roberts, which held that held that the admission of a hearsay statement against a criminal defendant violates the Confrontation Clause unless (1) the hearsay declarant is "unavailable," and (2) the statement has adequate indicia of reliability in that it (a) falls within a firmly rooted hearsay exception or (b) bears particularized guarantees of trustworthiness. 

But when exactly is a declarant unavailable for Crawford/Roberts purposes? That was the question addressed by the United States Supreme Court today in Hardy v. Cross.

In Hardy v. Cross

Irving Cross was tried for kidnaping and sexually assaulting A.S. at knifepoint. Cross claimed that A.S. had consented to sex in exchange for money and drugs. Despite her avowed fear of taking the stand, A.S. testified as the State's primary witness at Cross' trial in November 1999 and was cross-examined by Cross' attorney. According to the trial judge, A.S.'s testimony was halting. The jury found Cross not guilty of kidnaping but was unable to reach a verdict on the sexual assault charges, and the trial judge declared a mistrial. The State decided to retry Cross on those counts, and the retrial was scheduled for March 29, 2000.

On March 20, 2000, the prosecutor informed the trial judge that A.S. could not be located. A week later, on March 28, the State moved to have A.S. declared unavailable and to introduce her prior testimony at the second trial.

According to the State, while  A.S. said after the first trial that she was willing to testify at the retrial, he later changed his tune and then ran away from home. The State claimed that it took, inter alia, the following measures to track down A.S.:

•Constant personal visits to the home of [A.S.] and her mother, at all hours of the day and night. This is where the victim has lived since the sexual assault occurred.

•Personal visits to the home of [A.S.'s] father. This is where the victim lived when the sexual assault occurred.

•Personal conversations, in English and in Spanish, with the victim's mother, father, and other family members.

•Telephone calls, in English and in Spanish, to the victim's mother, father, and other family members.

•Checks at the Office of the Medical Examiner of Cook County.

•Checks at local hospitals.

•Checks at the Cook County Department of Corrections.

•Check at the victim's school.

•Check with the family of an old boyfriend of the victim.

•Check with the Illinois Secretary of State's Office.

•[Department of] Public [A]id check.

The trial court deemed A.S. "unavailable" and allowed for the admission of his former testimony against Cross over her Confrontation Clause objection, with Cross eventually being convicted of two counts of criminal sexual assault. After Cross unsuccessfully appealed in the Illinois state courts (with the Illinois Court of Appeals characterizing the State's efforts to track down A.S. as "superhuman"), he unsuccessfully filed a filed a petition for a writ of habeas corpus with the United States District Court for the Northern District of Illinois. On appeal, however, the Seventh Circuit reversed, finding that "the Illinois Court of Appeals was unreasonable in holding that the State had made a sufficient effort to secure A.S.'s presence at the retrial."

Today, the United States Supreme Court disagreed with the Seventh Circuit in a per curiam opinion, finding that one circumstance in which a witness is "unavailable" for Confrontation Clause purposes is when the State makes an unsuccessful good-faith effort to obtain his presence at trial. And, in Ohio v. Roberts,

"'The lengths to which the prosecution must go to produce a witness,'" the Court made clear,"'is a question of reasonableness.'"We acknowledged that there were some additional steps that the prosecutor might have taken in an effort to find the witness, but we observed that "[o]ne, in hindsight, may always think of other things."... But "the great improbability that such efforts would have resulted in locating the witness, and would have led to her production at trial, neutralizes any intimation that a concept of reasonableness required their execution."

According to the Court, "[w]hether or not the state court went too far in characterizing the prosecution's efforts as 'superhuman,' the state court identified the correct Sixth Amendment standard and applied it in a reasonable manner." The Court then turned aside the three reasons that the Seventh Circuit gave for finding that the State's efforts to procure A.S.'s attendance were unreasonable:


The Seventh Circuit found that the State's efforts were inadequate for three main reasons. First, the Seventh Circuit faulted the State for failing to contact "A.S.'s current boyfriend—whom she was with just moments before the alleged assault—or any of her other friends in the Chicago area."...But the record does not show that any of A.S.'s family members or any other persons interviewed by the State provided any reason to believe that any of these individuals had information about A.S.'s whereabouts.


Second, the Seventh Circuit criticized the State because it did not make inquiries at the cosmetology school where A.S. had once been enrolled, ibid., but the court's own opinion observed that the information about A.S.'s enrollment at the cosmetology school after the mistrial was not "noteworthy" or "particularly helpful."...Since A.S. had not attended the school for some time, Exh. K, at E–42, there is no reason to believe that anyone at the school had better information about A.S.'s location than did the members of her family.


Finally, the Seventh Circuit found that the State's efforts were insufficient because it had neglected to serve her with a subpoena after she expressed fear about testifying at the retrial. A.S., however, had expressed fear about testifying at the first trial but had nevertheless appeared in court and had taken the stand. The State represented that A.S., although fearful, had agreed to testify at the retrial as well....We have never held that the prosecution must have issued a subpoena if it wishes to prove that a witness who goes into hiding is unavailable for Confrontation Clause purposes, and the issuance of a subpoena may do little good if a sexual assault witness is so fearful of an assailant that she is willing to risk his acquittal by failing to testify at trial.



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