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Habeas Review – Confrontation – Admissibility of Prior Testimony, Showing of Witness Unavailability

Hardy v. Irving L. Cross, USSC No. 11-74, 12/12/11, reversing Cross v. Hardy, 7th Cir No. 09-1666

The Seventh Circuit grant of habeas relief, on the ground “the state failed to demonstrate that it employed good faith efforts to locate the complainant” before declaring her “unavailable” and allowing her prior testimony to be read to the jury, is reversed:

The Antiterrorism and Effective Death Penalty Act of1996 (AEDPA), 28 U. S. C. §2254, “imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Felkner v. Jackson, 562 U. S. ___, ___ (2011) (per curiam) (slip op., at 4) (internal quotation marks omitted). In this case, the Court of Appeals departed from this standard, and we therefore grant certiorari and reverse.

As we observed in Roberts, when a witness disappears before trial, it is always possible to think of additional steps that the prosecution might have taken to secure the witness’ presence, see 448 U. S., at 75, but the Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising. And, more to the point, the deferential standard of review set out in 28 U. S. C. §2254(d) does not permit a federal court to overturn a state court’s decision on the question of unavailability merely because the federal court identify additional steps that might have been taken. Under AEDPA, if the state-court decision was reasonable, it cannot be disturbed.

The Court clearly intends to send a message with this wave-of-the-hand reversal of a fact-specific, otherwise (legally) insignificant grant of habeas relief: “highly deferential” review is not only expected, but demanded. The particulars won’t be discussed here, because they don’t much matter. (The complainant testified at Cross’s first trial, which resulted in partial acquittal and hung jury. At retrial, her first-trial testimony was read to the jury because she couldn’t be located, and Cross was found guilty on two of the remaining counts, acquitted on the third. A close case, in other words.) The operative principle is that for purposes of confrontation, the prosecution must make a “good-faith effort” to produce its witness in-person, before that witness may be declared “unavailable.” The Seventh, stressing the centrality of the missing complainant’s testimony, held that “the state was obligated to exert great effort to locate her.” The Court now rejects, albeit sub silentio, that embellishment of “good-faith effort.” Instead, “the state court identified the correct Sixth Amendment standard and applied it in a reasonable manner.” The Court cites, as apparent Confrontation Clause antipodes, Barber v. Page, 390 U. S. 719 (1968) (violation where “absolutely no effort” made) and Ohio v. Roberts, 448 U. S. 56 (1980) (no violation where effort made was reasonable, even if hindsight revealed additional steps that could have been taken). Meta-message: so long as at least some effort is made, then the AEDPA regime of “highly deferential” review leads to affirmance as a near-certainty.

Richard Friedman offers a quick take, here. (Roughly: while skeptical that the state exhausted its sources, he acknowledges that assessing good-faith “is very fact-intensive,” and generally not subject to bright-line rules. Moreover, the context – deferential, habeas review – probably dictated the result.)

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{ 1 comment… add one }
  • Andrew M. Morgan December 12, 2011, 6:23 pm

    I wonder where this will leave State v. King, 2005 WI App 224 ¶¶ 6 and 17, 287 Wis.2d 756, 706 N.W.2d 181:

    ¶ 6. Unavailability for confrontation purposes requires both that the hearsay declarant not appear at the trial and, critically, that the State make a “good-faith effort” to produce that declarant at trial. Barber v. Page, 390 U.S. 719, 724-725 (1968); Roberts, 448 U.S. at 74 (“[I]f there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. `The lengths to which the prosecution must go to produce a witness . . . is a question of reasonableness.'”) (italics in Roberts; quoted source omitted); State v. Gollon, 115 Wis.2d 592, 600, 340 N.W.2d 912, 916 (Ct.App. 1983). Further, Wisconsin has retained for non-testimonial hearsay the now-limited approach to the hearsay/confrontation interplay set out in Roberts, 448 U.S. at 65-66 (hearsay may only be admitted against a defendant in a criminal trial if the declarant is unavailable and the hearsay assertion has sufficient “`indicia of reliability'”) (quoted source omitted). Manuel, 2005 WI 75, ¶¶ 60-61, 281 Wis. 2d at 586-587, 697 N.W.2d at 826-827; see Crawford, 541 U.S. at 68 (states may use the Roberts approach for non-testimonial hearsay). Thus, and significantly here, the State had to show
    that Shelia J. was truly unavailable before her nontestimonial hearsay could constitutionally be received into evidence against King. See Roberts, 448 U.S. at 65-66, 74-75 (burden on State to show unavailability).

    [ … ]

    ¶ 17. To quote Gollon’s reflection in a related context, whether a hearsay declarant is constitutionally unavailable “is too important” to be satisfied by going-through-the-motions efforts; rather, the efforts must be adapted to the circumstances and must be unstinting. See id., 115 Wis. 2d at 601, 340 N.W.2d at 916. Indeed, even under the lower non-constitutional standard of WIS. STAT. RULE 908.04(1)(e), the party seeking to introduce an out-of-court declarant’s hearsay assertions “must `specify the facts showing diligence’ and not rely on `a mere assertion of perfunctory showing of some diligence.'” State v. Williams, 2002 WI 58, ¶ 63, 253 Wis. 2d 99, 127, 644 N.W.2d 919, 933 (quoted source omitted).

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