Under the new Crawford confrontation clause test, testimonial hearsay statements by declarants who do not testify at trial may not be admitted unless the declarant is unavailable and there has been a prior opportunity to cross examine. I’ve previously blogged about the meaning of the key term testimonial and about what it means to have a prior opportunity to cross examine. But what about unavailability under the Crawford test—what does that mean? In other publications, such as the one here exploring the new Crawford test, I’ve suggested that a witness is not unavailable unless the state has made a good faith effort to obtain the witness’s presence at trial. In its recent decision in Hardy v. Cross, 565 U.S. __ (Dec. 12, 2011), the U.S. Supreme Court confirmed that to be the correct standard and helps us along in our understanding of what constitutes a good faith effort to obtain the witness’s presence. In Hardy, the defendant was tried in state court for kidnaping and sexual assault and the victim testified at trial. After a mistrial, a retrial was scheduled for March 29, 2000. Nine days before the retrial, the prosecutor informed the trial judge that the victim could not be located. On the day before the trial, the State moved to have the victim declared unavailable and to introduce her prior testimony at the retrial. The State represented that it had remained in constant contact with the victim and her mother and that every indication had been that the victim, [...]
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