Reasonable Means: Unavailable Declarants After United States v. Yida

by

Damon Brinson

 

The Sixth Amendment preserves the right of criminal defendants to confront the witnesses against them. One application of this right is through the hearsay provisions of the Federal Rules of Evidence. The Rules describe circumstances in which testimony from unavailable witnesses may be introduced at trial against defendants. The Rules also provide that defendants who cause the unavailability of witnesses through wrongdoing forfeit the right to confront those witnesses. Likewise, prosecutors who cause the unavailability of witnesses through wrongdoing forfeit the hearsay exception allowing admission of the witnesses’ statements. But what if the declarant is absent due to simple negligence?

 

In United States v. Yida, the Ninth Circuit Court of Appeals considered whether the good faith, though negligent, deportation of a material witness constituted grounds for barring that witness’s testimony from a prior trial. The court held that the requirement to use reasonable means applies to conduct both before and after the witness is absent and that the deportation, though made in good faith, was negligent. The court held that this conduct was sufficient to fail the reasonable-means test and bar the testimony as inadmissible hearsay.

 

This Comment discusses the effect of Yida on the application of the Federal Rules of Evidence and Criminal Procedure, the federal material witness statute, and the interrelation between these provisions and the Confrontation Clause. This Comment argues that the Ninth Circuit’s legal analysis is based on a strained interpretation of precedent that results in a flawed, overly broad response to a narrow legal issue. Finally, this Comment proposes an alternative rationale that is consistent with existing statutes, case law, and the fundamental constitutional rights of confrontation and liberty.