Thursday, September 14, 2017
Similar to its federal counterpart, Idaho Rule of Evidence 804(b) contains hearsay exceptions that apply if the declarant is "unavailable." In turn, Idaho Rule of Evidence 804(a)(4) states that a declarant is unavailable when she "is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity." Usually, courts apply Rule 804(a)(4) in situations where declarants are unavailable due to death or serious physical illness. But when is a declarant "unavailable" due to mental illness? This was the question of first impression addressed by the Supreme Court of Idaho in its recent opinion in State v. Anderson, 2017 WL 4016692 (Idaho 2017).
In Anderson, Darol Anderson was charged with felony domestic battery and misdemeanor domestic battery. The alleged victim testified at the preliminary hearing, but she later checked into the Kootenai Behavioral Health Center. A doctor at the Center subsequently diagnosed her with Substance Use Disorder and Post-Traumatic Stress Disorder. At a pre-trial hearing in the case, another doctor at the center testified that it would not be appropriate for the victim to testify at trial:
She has a very fragile, if you will, mental health state, and it is our belief that it would re-traumatize her at this point in time. Our—we would prefer for her to stabilize from a mental health standpoint. Our—our goal for her is to increase her ability to stay mentally well and psychiatrically stabilized, and it's too soon in her very early recovery from [sic] her mental health.
So we talk about in—in recovery, mental health and substance abuse, the first 90 days being a really important time in a person's early recovery. So I wouldn't go near any kind of revisiting this in the next 90 days. That would be my professional—and then—and then to evaluate, but have the psychiatrist evaluate her mental health professionals evaluate her to see what in 90 days it looks like for her.
The trial judge agreed, declared the victim "unavailable," and deemed her preliminary hearing testimony admissible under the "former testimony" hearsay exception.
After he was convicted, Anderson appealed, arguing that the trial judge erred in deeming the victim "unavailable." The Supreme Court of Idaho noted that there was a paucity of precedent on the issue outside of Idaho on the issue and no prior precedent in the Gem State. The main case it found was Burns v. Clusen, 798 F.2d 931 (7th Cir. 1986), in which the Seventh Circuit found that
As to severity, mental illness itself may not automatically render a witness unavailable. The judge must consider the symptoms, what tasks a witness is then capable of. While all victims of violent crimes may suffer emotional trauma, some victims may suffer far greater anguish than normally accompanies court appearances.
Applying this standard, the Supreme Court of Idaho found that the trial judge's analysis fell short of the mark:
The crux of this case is whether the district court acted consistent with applicable legal standards. We hold that the district court did not. Specifically, we hold that the district court abused its discretion in admitting the motion in limine because the State failed to produce sufficient evidence to demonstrate that Messerly was unavailable to testify at the time of trial. The affidavit from Dr. Eric J. Heidenreich and the testimony of Lisa Bunker are insufficient to establish that Messerly was physically, emotionally, or mentally precluded from testifying at trial. Dr. Heidenreich opined that "testifying would put Ms. Messerly at substantial risk for relapse on controlled substances and pose a significant risk to her mental health." Bunker testified that "[Messerly] has a very fragile, if you will, mental health state, and it is our belief that it would re-traumatize her at this point in time." While this Court is sensitive to the adverse emotional effects associated with providing testimony of a traumatic event, the aforementioned testimony does not demonstrate that Messerly was unavailable. In this case, the concern was regarding a possible relapse due to her fragile mental state. As noted by the court in Burns, the severity of the mental illness itself may not automatically render a witness unavailable. The judge must consider the symptoms, what tasks a witness is then capable of....Indeed, Messerly was able to provide testimony, albeit with breaks, at the preliminary hearing.
Because Dr. Heidenreich's affidavit and Bunker's testimony are not sufficient evidence to establish that Messerly's mental illness made her unavailable to testify, the district court erred when it granted the motion in limine to allow her prehearing testimony to be read at trial.
I'm not sure that I agree with the court's analysis. Let's say, for instance, that a declarant had surgery on a sports hernia and her doctor testifies that forcing her to travel to the courthouse and testify from the witness stand could cause re-aggravation of the hernia. Would a court find the declarant available or unavailable to testify?