U.S. v. Cabrera-Frattini, 65 M.J. 241

First Principles: Constitutional Matters: Confrontation

1. the Confrontation Clause of the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him
2. before testimonial statements may be admitted, the Confrontation Clause requires that the accused have been afforded a prior opportunity to cross-examine the witness, and that the witness be unavailable
3. in order for a witness to be unavailable for Sixth Amendment purposes, the government must first make a good faith effort to secure the witness’s presence at trial; the lengths to which the prosecution must go to produce a witness is determined under a reasonableness standard; the test for unavailability focuses on whether the witness is not present in court in spite of good-faith efforts by the government to locate and present the witness
4. some of the factors that should be considered to determine the unavailability of a witness for Sixth Amendment purposes include the importance of the testimony, the amount of delay necessary to obtain the in-court testimony, the trustworthiness of the alternative to live testimony, the nature and extent of earlier cross-examination, the prompt administration of justice, and any special circumstances militating for or against delay; where the absence of the witness results from illness, a court should also consider the nature of the illness and the probable duration of the illness

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. before testimonial statements may be admitted, the Confrontation Clause requires that the accused have been afforded a prior opportunity to cross-examine the witness, and that the witness be unavailable

Core Criminal Law Subjects: Witnesses: Confrontation

1. the Confrontation Clause of the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him
2. before testimonial statements may be admitted, the Confrontation Clause requires that the accused have been afforded a prior opportunity to cross-examine the witness, and that the witness be unavailable
3. in order for a witness to be unavailable for Sixth Amendment purposes, the government must first make a good faith effort to secure the witness’s presence at trial; the lengths to which the prosecution must go to produce a witness is determined under a reasonableness standard; the test for unavailability focuses on whether the witness is not present in court in spite of good-faith efforts by the government to locate and present the witness
4. some of the factors that should be considered to determine the unavailability of a witness for Sixth Amendment purposes include the importance of the testimony, the amount of delay necessary to obtain the in-court testimony, the trustworthiness of the alternative to live testimony, the nature and extent of earlier cross-examination, the prompt administration of justice, and any special circumstances militating for or against delay; where the absence of the witness results from illness, a court should also consider the nature of the illness and the probable duration of the illness
5. the military judge did not abuse his discretion by concluding that the government had made good faith efforts to procure a thirteen-year-old witness’s presence for trial and by finding that the witness, who suffered from bipolar disorder and post-traumatic stress syndrome, was unavailable for Confrontation Clause and MRE 804(a)(4) purposes based on the witness’s medical records and the testimony of a board-certified child psychiatrist that testifying would be detrimental to the witness’s mental and physical health, including possible suicide at both the time of trial and the foreseeable future; in this case, (1) the government had subpoenaed the witness, issued her travel orders, and made arrangements to fly them to the court-martial, (2) the witness’s hospitalization prevented her from complying with the subpoena, (3) the witness had two significant psychiatric illnesses and was taking a brain protectant/antipsychotic drug and a mood stabilizer drug, and (4) the psychiatrist not only testified that it would be detrimental to witness’s mental and physical health now and in the foreseeable future to testify at the court-martial or any hearing regarding the charges that were before the court, but that any court appearance would re-traumatize her and would worsen her mental and physical health to include her possible suicide
6. there is ample precedent for finding a witness, even a critical one, unavailable where the act of testifying in court is determined to be detrimental to the witness’s physical or mental well-being; unavailability is clear when the witness is not expected to improve

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Generally

1. in order for a witness to be unavailable for Sixth Amendment purposes, the government must first make a good faith effort to secure the witness’s presence at trial; the lengths to which the prosecution must go to produce a witness is determined under a reasonableness standard; the test for unavailability focuses on whether the witness is not present in court in spite of good-faith efforts by the government to locate and present the witness

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a military judge’s determination of a witness’s unavailability and the antecedent question of the government’s good-faith efforts are reviewed for abuse of discretion; findings of fact are affirmed unless they are clearly erroneous; conclusions of law are reviewed de novo; so long as the military judge understood and applied the correct law, and the factual findings are not clearly erroneous, neither the military judge’s decision to admit evidence, nor his unavailability ruling, should be overturned
2. in order for a witness to be unavailable for Sixth Amendment purposes, the government must first make a good faith effort to secure the witness’s presence at trial; the lengths to which the prosecution must go to produce a witness is determined under a reasonableness standard; evaluation of reasonableness or good-faith effort requires an appellate court to consider all the circumstances rather than to apply a per se rule; the test for unavailability focuses on whether the witness is not present in court in spite of good-faith efforts by the government to locate and present the witness
3. when reviewing a decision of a CCA on a military judge’s ruling, CAAF typically pierces through that intermediate level and examines the military judge’s ruling and then decides whether the CCA was right or wrong in its examination of the military judge’s ruling