Thursday, August 29, 2019

D.C. Circuit to government: if you want to use the witness's statements, don't deport the witness

Image result for unavailable witnessBefore the government may present an absent witness's testimonial statements at trial, it must make two independent showings: (1) unavailability, and (2) a prior opportunity for confrontation.

In United States v. Burden, the government failed to show that a witness the government had deposed and then deported was unavailable:

"In a case such as this one, in which the government knew or should have known of the potential need for the witness’s testimony before he was deported, the government’s duty to make good-faith, reasonable efforts to ensure the witness’s presence arises before the witness leaves the United States."

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"Before his deportation, the government did not give Yindeear-Rom a subpoena, offer to permit and pay for him either to remain in the U.S. or to return here from Thailand, obtain his commitment to appear, confirm his contact information, or take any other measures."

So sayeth the D.C. Circuit. Conviction reversed.

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