What Constitutes “Unavailability”?

The right to confrontation in military court

What constitutes “unavailability” under the right to confrontation?

A witness who is present in the witness box and responds (provides responsive answers) to questions is available for Confrontation Clause purposes, regardless of the content of the witness’s answersA witness will usually be considered “unavailable” for Confrontation Clause purposes if the witness is unavailable under M.R.E. 804(a), except regarding lack of memory (M.R.E. 804(a)(3)). See, e.g, In the case of the United States v. Owens, 484 U.S. 554 (1988), supra at II.A.(Lawfare)

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United States v. Lyons, 36 M.J. 183 (C.M.A. 1992).

In the case of the United States v. Lyons, 36 M.J. 183 (C.M.A. 1992). Appellant convicted of raping the deaf, mute, developmentally disabled, 17-year-old daughter of another service member. The victim appeared at trial, but her responses during her testimony were “largely substantively unintelligible” because of her infirmities. In light of her inability, the government moved to admit a videotaped re-enactment by the victim of the crime.

Videotape as residual hearsay over defense objection

In that case, the military judge admitted the videotape as residual hearsay over defense objection. Appellant asserted that the trial court and the military judge denied his right to confrontation because the daughter’s disabilities prevented him from effectively cross-examining her. The lead opinion assumed that the victim was unavailable and decided the case based on the admission of a videotaped re-enactment.

No confrontation clause issue because the victim testified

Chief Judge Sullivan, Judges Cox, and Crawford did not perceive a confrontation clause issue because the victim testified. See also, In the case of the United States v. Russell, 66 M.J. 597, 601-602 (Army Ct.Crim.App. 2008) (implicitly accepting trial judge’s ruling that a child victim who was “too young and too frightened to be subject to a thorough direct or cross-examination” was unavailable).

Government must first make a “good faith” effort to produce a witness

The government must first make a “good faith” effort to produce a witness for that witness to be “unavailable” for Sixth Amendment purposes. In the case of the United States v. Cabrera-Frattini, 65 M.J. 241, 245-246 (C.A.A.F. 2007). See alsoOhio v. Roberts, 448 U.S. 56, 74-75 (“The law does not require the doing of a futile act….[b]ut if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation.”). In the case of the United States v. Crockett, 21 M.J. 423 (C.M.A. 1986) (good faith does not extend to changing the venue from Germany to Florida).

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