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Failure to Show Witness's Unavailability Results in Exclusion of Testimony

By Sara E. Costello, Litigation News Associate Editor – September 17, 2010

A recent decision [PDF] by the U.S. Court of Appeals for the First Circuit reminds all attorneys that they must satisfy a “relatively high” standard when seeking to introduce a statement from a witness that is not available to testify.

A “Relatively High” Standard
In United States v. Weekes, the First Circuit upheld the district court’s decision to exclude key testimony in a criminal case because only minimal efforts were made to procure a witness’s attendance at trial. The First Circuit’s opinion, written by Justice David H. Souter, former associate justice of the U.S. Supreme Court, examined Weekes’s conviction.

Shortly before his arrest, Weekes and Kelvin Brown argued with another customer at a bar and were thrown out. Gunshots were then heard coming from their direction. The security guard at the bar, an off duty police officer, pursued Weekes and Brown. Weekes was arrested immediately after trying to jump a fence. The police found Weekes’s cell phone and a loaded gun near where he landed along with two spent shell casings.

After a jury trial, Weekes was found guilty on one count of being a felon in possession of a firearm and sentenced to 15 years in prison under the Armed Career Criminal Act. He then appealed his conviction to the First Circuit.

Weekes challenged the district court’s refusal to allow him to testify regarding statements made by Brown. Weekes planned to testify that Brown told him that he had picked up the gun after it was dropped from a passing vehicle. Relying on Federal Rule of Evidence 804(b)(3), Weekes contended that Brown’s statement was not excludable under the hearsay rule because Brown was unavailable to testify at trial and the statement was against penal interest.

According to the First Circuit, however, the “sticking point” was the “required showing of Brown’s unavailability.” In keeping with its past precedent, the court upheld the district court’s finding that Weekes had not “show[n] at least a good faith effort to procure the witness’[s] attendance.” The First Circuit emphasized that this “good faith” standard is “relatively high” and cannot be met with “perfunctory” efforts.

While acknowledging that Weekes did make a limited attempt to find Brown through his friends and family, the First Circuit highlighted several steps he failed to take. The court noted that Weekes “neither subpoenaed Brown at his last known address nor sought help from the district court, local law enforcement, or, curiously, Brown’s counsel in the state court action in which the two were co-defendants.”

Reactions to the First Circuit’s Decision
Christina L. Dixon, Denver, cochair of the ABA Section of Litigation’s Trial Evidence Committee, believes the First Circuit reached the correct decision. “As practitioners, we have to always keep our eye on making and preserving the record.” She notes that it is “extremely important to have live witness testimony” at trial or at a hearing, especially on major issues in a case.

“It comes down to reliability,” says Lance E. Leffel, Oklahoma City, vice-chair of the Section’s Trial Evidence Committee. He notes that, in the interest of fairness, the court could not permit Weekes’s planned testimony.

The First Circuit also criticized Weekes’s failure to establish “corroborating circumstances” that would indicate the trustworthiness of the statements he was trying to introduce under Rule 804(b)(3). Without those circumstances or the demonstrated showing of unavailability, Weekes could not simply point “to evidence that Brown made the statement,” according to the opinion.

Making a Good Faith Effort to Procure a Witness’s Attendance
The Weekes decision serves as a reminder to both civil and criminal litigators to double-check the evidentiary basis of each piece of testimony they plan to use at trial.

“Understand the importance of each witness’s testimony to your case,” recommends Dixon. She encourages attorneys to “use all procedural mechanisms to compel witnesses to come to trial” noting that “you can always cancel or withdraw a subpoena.” “Think about the rules of evidence throughout the pretrial phase of your case,” Dixon recommends.

Leffel also advises attorneys to take depositions of all witnesses, especially out-of-state witnesses, who will support testimony that they are interested in using at trial.

He further stresses that attorneys should also document any and all steps that they have taken and be prepared to make their case to the court with specific details regarding their efforts to ensure that a witness will be available to testify.

Keywords: Litigation, U.S. Court of Appeals, witness availability, exclusion of testimony


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