Massachusetts Supreme Judicial Court Clarifies when an Unavailable Witness’ Prior Testimony is Admissible at Trial

In reversing a defendant’s criminal convictions, the Massachusetts Supreme Judicial Court yesterday clarified the situation in which the prior testimony of an unavailable witness can be read to the jury.  The name of the case is Commonwealth v. Housewright. 

The defendant was convicted of numerous gun crimes after a jury concluded that he had shot a handgun at the second floor of a New Bedford building in 2010.  The residents of the second floor were witnesses in a criminal case pending against the defendant’s friend.  A woman in her 70s, who lived on the first floor of the building, witnessed part of the incident and testified at a pretrial detention hearing.  However, by the time of the trial, the woman provided a note from her doctor confirming that she suffered from a number of serious medical conditions.  The doctor offered his opinion that if the woman was required to testify at trial, the resulting stress might be detrimental to her health.  Relying on the doctor’s letter, the trial judge did not require the woman to appear in court and instead allowed the Commonwealth to submit her prior testimony that had been given at the detention hearing.

The Confrontation Clause of the Sixth Amendment to the United States Constitution says that every defendant has the right to confront the witnesses against him in court.  Confrontation means that the witness ordinarily must be physically present in the courtroom and be subject to questions (cross-examination) by the defendant’s attorney.  An exception exists when (1) the witness is unavailable to testify at trial; and (2) the defendant previously had the opportunity to cross-examine the witness.  In this case, the defendant argued that the Commonwealth had not satisfied either of the test’s two prongs.

The Supreme Judicial Court ruled that the defendant in this case was previously able (through his attorney) to cross-examine the witness.  This requirement is met where: (1) the testifying witness was under oath when she previously testified at a court hearing; (2) an attorney was representing the defendant at the previous court hearing; (3) the previous hearing was conducted in front of a judicial tribunal and the tribunal was able to provide a record of the hearing; and (4) the previous hearing dealt with substantially the same issues as the trial and the defendant had an opportunity and similar motivation to cross-examine the witness at the previous hearing.  In this case, following his arrest, the defendant was the subject of a dangerousness hearing.  The Commonwealth conducted a hearing, in front of a judge, to determine if the defendant was too dangerous to be released on bail.  At the dangerousness hearing, the elderly woman testified about her observations on the date of the shooting.  Because the hearing occurred in open court and the defendant’s attorney had the opportunity to cross-examine the witness about her observations, his confrontation rights would not have been violated if her testimony was introduced at trial – but only if she was unavailable (as defined by the law) to testify.

The Supreme Judicial Court said that when the Commonwealth claims its witness is unavailable due to illness, it has the burden of showing that there is an unacceptable risk that the health of the witness would be seriously jeopardized if he or she were required to testify in court.  The Commonwealth must establish reliable, current information about the witness’ health that includes specific diagnoses.  The judge will then need to balance the potential health consequences of the witness with the importance of the testimony.  The judge may take alternative measures, such as ordering a video-taped deposition to be shown to the jury.  The Commonwealth is also obligated to make a good-faith effort to find the witness and get the witness to court.  In this case, the Court concluded that the doctor’s letter was not recent enough or specific enough for the trial judge to have ruled that the witness was legally unavailable.  Therefore, the SJC reversed the defendant’s convictions and remanded the case to the district court for a new trial.

There are enormous practical consequences related to this issue.  The Commonwealth often conducts dangerousness hearings where alleged victims testify.  Those alleged victims sometimes disappear before trial, but the Commonwealth can attempt to admit their prior testimony at trial.  It’s a very dangerous situation for defendants.