Availability and Unavailability for Confrontation and Hearsay Purposes
The words “available” and “unavailable” are used regularly when referring to witnesses whose out-of-court statements parties would like to admit into evidence. However, in working with Timothy Heinle to revise and update the Superior Court Judges’ Benchbook chapter on Evidence Issues in Criminal Cases Involving Child Victims and Child Witnesses (publication forthcoming!), I came to realize that the meaning of these words can be slippery and variable depending on the context. In this post, I discuss the various ways the terms “available” and “unavailable” are used in the context of the Sixth Amendment Confrontation Clause as well as the hearsay rules.
One meaning of “unavailable” where the state is unable to produce a witness
Under Crawford v. Washington, 541 U.S. 36 (2004), if a statement is determined to be testimonial and the declarant does not testify at trial, the statement may not be admitted unless the declarant is unavailable and there has been a prior opportunity to cross-examine. Thus, sometimes the state is the party arguing that a witness is “unavailable” to fulfill this exception and introduce an out-of-court statement. In this situation the witness is not present in court and the state must show that good faith efforts have been made to locate the witness but to no “avail” (pun intended). See State v. Clonts, 254 N.C. App. 95, 128 (2017), aff’d, 371 N.C. 191 (2018). This situation is relatively rare, since the Crawford exception for testimonial statements comes up only where the defense has had a prior opportunity to cross-examine the witness. As depositions virtually never happen in criminal cases (see G.S. 8-74 for the circumstances when they may occur), prior opportunity for cross-examination is relatively uncommon (I blogged about a case involving a recorded probable cause hearing, and Phil blogged about one involving a recorded 50C hearing; Phil cites to other cases involving prior court proceedings such as prior trials or juvenile transfer hearings).
When a witness is physically unavailable, meaning dead or seriously ill, this constitutes being unavailable for confrontation purposes. See Clonts, 254 N.C. App. 95, 128. Recalcitrance, meaning a persistent refusal to testify despite the court ordering the witness to do so, is also grounds for deeming a witness unavailable for the purposes of the Confrontation Clause. See, e.g., State v. Martinez-Diaz, 528 P.3d 1042, 1053 (Kan. App. 2023). This would also constitute unavailability for the purposes of the hearsay rules, as stated in the text of Rule 804(a)(2). See State v. Linton, 145 N.C. App. 639, 643-47 (2001). In addition, assertion of a valid privilege supports a finding of unavailability, as was the case in Crawford, 541 U.S. at 40.
Crucially, the burden to present the witness is on the state. The United States Supreme Court has rejected the argument that a defendant waives his confrontation rights by failing to call or subpoena a witness. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009) (“the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court”); see also, D.G. v. Louisiana, 559 U.S. 967 (2010) (vacating and remanding a decision from a Louisiana appellate court finding no confrontation violation where the witness was present in court but not called to the stand by the state). Though older cases such as State v. Brigman, 171 N.C. App. 305, 310 (2005), concluded that a defendant could waive his confrontation rights by failing to call a witness, such statements are likely no longer good law after Melendez-Diaz. However, “notice and demand” statutes can in some circumstances relieve the State of the obligation to produce certain witnesses such as drug analysts and breath or blood analysts in DWI cases. See G.S. 90-95(g); G.S. 20-139.1(e2); G.S. 20-139.1(c1).
Another meaning of “unavailability” where witness takes the stand
In the above examples, the state is asserting that a witness is unavailable in an effort to introduce the witness’s out-of-court statement. In a wholly different context, sometimes the defense argues that a witness who is present in court and called to the witness stand is “unavailable” because the defense is unable to cross-examine the witness in a meaningful way (and thus the defendant cannot exercise his confrontation rights). This may be the case where the witness refuses to answer questions (as in recalcitrance, discussed above), is too emotionally overwhelmed to respond, or is otherwise incapable of responding to the defendant’s line of questioning on cross-examination. This situation could arise where the witness is “available” to the state’s questions but not “available” to the defense’s questions.
Witness with memory loss. Interestingly, where a witness is called to the stand but asserts that he has no memory of the incident in question, the question of whether such a witness is deemed “unavailable” depends on whether the question arises in the context of confrontation analysis or hearsay analysis. Rule 804(a) specifically contemplates that “lack of memory of the subject matter of his statement” is one “situation” in which the witness may be deemed unavailable in the hearsay context.
In contrast, when a witness takes the stand and testifies that she lacks memory of the subject at hand, courts have generally rejected the defendant’s argument that the witness should be considered unavailable for confrontation purposes. See, e.g., State v. Price, 146 P.3d 1183 (Wash. 2006 ) (en banc) (child witness’s out-of-court statements properly admitted where child testified she lacked memory of the events in question; no confrontation violation), citing United States v. Owens, 484 U.S. 555-56 (1988) (Confrontation Clause did not bar admission of a prior statement where the declarant was unable to explain the reason behind the statement due to memory loss; “the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish,” id. at 559 (cleaned up)); State v. Hopkins, 154 P.3d 250, 255 (Wash. Ct. App. 2007) (“Even if [the child] cannot recall and relate her previous allegations of [the defendant’s] sexual assault when she was two-and-a-half years old, her being called as a witness at trial, subject to questioning about the event, would satisfy… the Sixth Amendment.”).
The difference in how lack of memory is treated in the confrontation context as compared to the hearsay context may be explained by the different purposes of the doctrines. The core right protected by the Confrontation Clause guarantees the defendant the opportunity to face his accusers. Though the “ultimate goal” is reliability, it is a “procedural rather than substantive” guarantee requiring that reliability be tested “in the crucible of cross-examination.” See Crawford, 541 U.S. 36, 61. Despite the witness’s lack of memory, the defendant is still afforded the chance to engage with the witness through cross-examination. The defendant may later argue to the jury that the witness’s inability to recall details is a reason not to trust the witness’s prior statement. The defendant may also stress that the prior statement was not held up to the scrutiny it deserved.
However, in the context of the hearsay rules, reliability is still paramount, but other interests come into play. These include how probative the evidence is, the ability of the party to procure the evidence through other means, and the interests of justice. See Rule 803(24) and Rule 804(b)(5) (codifying “residual” hearsay exceptions). Thus, under Rule 804, when a witness is “unavailable,” the Rules allow for admission of certain statements considered to have inherent indicia of trustworthiness (such as dying declarations or statements against interest), despite the fact that the witness cannot be meaningfully cross-examined due to lack of memory. The Rules also allow certain statements to be admitted under residual hearsay exceptions where a witness is unavailable.
Somewhat strangely and perhaps counterintuitively, these contrasting definitions of “unavailable” in the confrontation and hearsay context actually work together to push toward admissibility of prior statements of a witness who lacks memory. The Confrontation Clause does not bar introduction of the evidence because the witness is considered “available” by virtue of being called to the witness stand, and the witness’s memory loss lends weight to the argument that the prior statement should be admitted due to lack of alternate ways to obtain the evidence under the hearsay analysis.
Wholly nonresponsive witness. In contrast to the situation where a child witness lacks memory, courts have held that a witness who is totally nonresponsive to questioning is not “available” for confrontation purposes. See State v. Chandler, 324 N.C. 172, 178-81 (1989) (4-year-old child victim unavailable for confrontation purposes where she was so overcome with fear that she was unable to respond to the prosecutor’s questions). Compare In re T.T., 384 Ill. App. 3d 147, 156 (Ill. App. Ct. 1st Dist., 5th Div. 2008) (“Child witnesses are considered unavailable if it is demonstrated to the trial court that the children were unwilling or unable to testify because of fear, unable to communicate in the courtroom setting, or declared incompetent because they were incapable of expressing themselves concerning the matter so as to be understood”; the child witness in the case at hand answered preliminary questions about family and school, but froze when asked about the alleged sexual abuse and was deemed unavailable for cross-examination; confrontation violation found under Crawford where out-of-court testimonial statement was introduced without meaningful opportunity for cross-examination), with Pantano v. State, 138 P.3d 477, 482 (Nev. 2006) (although several of the child witness’s answers on cross-examination were nonresponsive, child was not considered unavailable for confrontation purposes), cert. denied, 127 S. Ct. 957, 166 L. Ed. 2d 728 (2007).
Where a witness testifies for the state, but shuts down and is unable to respond to cross-examination, or if a witness begins to testify but freezes up during direct examination (as was the case in In re T.T., above; see also, State v. Phachoumphone, 257 N.C. App. 848 (2018), below), defenders may consider asking for a recess to see if the witness can recover and respond to questions. If this fails, the defense may move to strike the witness’s testimony under the Confrontation Clause of the Sixth Amendment or request a mistrial. If such remedies are denied, the issue may be addressed on appeal if well-preserved.
Witness subject to mental or emotional harm. Although North Carolina courts do not appear to have addressed the question directly, the Florida Supreme Court has held that emotional trauma caused by testifying can render a child witness unavailable. See State v. Contreras, 979 So. 2d 896, 906–08 (Fla. 2008) (“[w]e agree . . . that a child witness can be ‘unavailable’ under Crawford due to mental or emotional harm that testifying can cause…).
Remote testimony may be warranted where the child witness would suffer “serious emotional distress” from testifying in the defendant’s presence and yet the child would be able to testify remotely. See G.S. 15A-1225.1(b)(1). This option should be considered before declaring a witness wholly unavailable due to mental or emotional harm. The substantive and procedural requirements for remote testimony under G.S. 15A-1225.1(b)(1) and Maryland v. Craig, 497 U.S. 836 (1990), are discussed further in the Benchbook. See State v. Phachoumphone, 257 N.C. App. 848, 853-61 (2018) (upholding use of remote testimony despite trial court’s failure to follow requirements of G.S. 15A-1225.1).
This blog adapts and updates prior work in this area by Jessica Smith, Phil Dixon, Timothy Heinle, and John Rubin. The issues are discussed further in the revised Benchbook chapter, available soon.
