Approximately one year ago, the victim returned to her home country of China for medical treatment and so she could be close to her family.
Before leaving, the government took the victim’s video testimony, anticipating that she may not be able to return for trial.
On Sept. 2, 2009, the commonwealth attempted to enter this video into evidence, and the defendant objected on the grounds that it was hearsay.
Hearsay is a statement that is made outside of court, and is offered by a party to prove an aspect of its case.
In this case, the deposition was taken outside of trial, and provided the victim’s account of the attack.
The commonwealth nevertheless attempted to use the video under two different hearsay exceptions, both of which incorporate the constitutional requirement that government establish the victim’s unavailability to testify in court before it can consider the evidence.
The first rule, Commonwealth Rule of Evidence 804(a)(4), states that the testimony may be admitted if the person is mentally or physically impaired and cannot be present in court.
As evidence, the commonwealth provided a letter from a neurologist written seventeen months ago outlining the victim’s condition.
The Supreme Court, relying on established and widely accepted case law, found that this evidence was too remote, and did not demonstrate whether she was currently impaired in such a way that she could not make the trip back to Saipan.
“The commonwealth has not provided evidence that the declarant’s condition has worsened in the 17 months since the medical report was compiled. She was able travel to China approximately one year ago, and the commonwealth has not shown that she would be unable to travel back to Saipan today. As such, the commonwealth has not met its burden of establishing unavailability due to physical impairment under Commonwealth Rule of Evidence 804(a)(4).”
The second exception that the commonwealth attempted to incorporate was Commonwealth Rule of Evidence 804(a)(5).
This rule states that the out-of-court testimony may be admitted into evidence if the government has made a reasonable attempt to obtain the victim’s attendance, but has been unsuccessful.
The U.S. Supreme Court has stated that the government must make a “good-faith effort” to secure the witness’s presence for this exception to apply.
The Commonwealth Supreme Court found that the government merely assumed the victim would not be able to come, and therefore it did not make a good-faith effort to bring her to Saipan as required by law.
Accordingly, the Supreme Court found that the commonwealth did not meet its burden of demonstrating the victim’s unavailability.
The court stated that “[t]here are few subjects, perhaps, upon which this court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal…. For this reason, there is a stringent requirement to establish actual unavailability before depositions are admitted in lieu of live testimony.”
Because the government failed to establish actual unavailability, the out-of-court testimony was inadmissible.
