The victim of a sexual assault testified against the defendant in a trial that was later declared a mistrial. The government decided to retry the defendant the following year, but the victim could no longer be found despite constant efforts to locate her. The government asked to have her declared “unavailable for trial” so that her prior testimony could be introduced at the subsequent assault trial.
Whether the government can use prior testimony of a witness it can no longer locate?
Yes. If the government has made a good faith effort to locate the witness and the defendant had a prior opportunity to cross-examine that witness, the prior testimony can be admitted.
As a matter of constitutional procedure, the defendant has a right to confront those that bear witness against him. The defendant has a right to cross-examine those witnesses. However, if the defendant has previously confronted the witness, and that witness later becomes unavailable for trial, the Court has held that the prior testimony can be admitted into evidence. The government’s responsibility to demonstrate that a witness is unavailable for trial is the duty of good faith to inquire about the location of the witness. The Court noted that “the Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising.”
565 U.S. 65, 132 S. Ct. 490 (2011)