Yesterday, a panel of the United States Court of Appeals for the Ninth Circuit issued its decision in United States v. Yida, 2007 WL 2325143. This case generated some anticipation because after oral argument the panel issued an order inviting amicus briefs from any interested person. The court's opinion is a good one, and has several interesting aspects to it.
Yida was tried on drug charges, but the jury hung. A key witness against Yida was Reziniano, an Israeli. The Government allowed Reziniano to be deported to Israel, accepting Reziniano's solemn promise that he would return to testify at a retrial. But soon after reaching Israel, on the eve of the retrial, surprise, surprise, Reziniano said he would not return, supposedly for medical reasons. The district court held that Reziniano's testimony from the first trial could not be admitted at the retrial. The Government appealed that ruling, but the Ninth Circuit has now affirmed. Judge Gould wrote the opinion for a unanimous panel, resting the decision squarely on a holding that Reziniano was not unavailable within the meaning of Fed. R. Evid. 804(a). He also added a brief concurrence (rather unusual, isn't it, the same judge issuing majority and concurring opinions at the same time?), emphasizing the constitutional significance of unavailability.
The main opinion has a discussion that I think is quite useful on the advantages of live testimony at a second trial as compared to the transcript of testimony from the first trial. (Some self-interest there, I suppose, because this discussion quotes approvingly from my amicus brief.) The most obvious advantage, of course, is that live testimony gives the jury the chance to observe the demeanor of the witness. Beyond that, requiring the presentation of live testimony when possible gives a defendant a second crack at the witness, and thus a chance to develop inconsistencies; it gives the defense an opportunity to cross-examine on the basis of all information available at the time of the second trial; and it deprives the prosecution of the opportunity to "stand pat" on the transcript when it has reason to believe that the witness would come off worse in live examination. An accused is not guaranteed a second chance to examine a witness, of course, but these are beneficial by-products of holding a second trial, and they should not be forsaken if the witness is available to testify live.
The principal issue at stale in Yida is whether the Government used "reasonable means," within the meaning of Fed. R. Evid. 804(a)(5), to procure Reziniano's attendance at trial. The court's discussion strikes me as very sound. (Same self-interest, same reason.) The court examined alternative choices that the Government might have made, even apart from keeping Reziniano in custody pending a second trial. It might have taken Reziniano's passport away or held him in electronic detention, or done both, to ensure his appearance. Or before deporting Reziniano it might at least have taken a video deposition, which would have offered most of the advantages of live testimony. To the Government's argument that a deposition would have been of no avail, because it could be admitted only if Reziniano was deemed unavailable, the court properly responded that taking a deposition would have altered the calculus of whether the Government's conduct in deporting Reziniano was reasonable.
More generally, the court squarely rejected the Government's contention – which did not have a lot to be said for it – that reasonableness ought to be determined within a time frame beginning shortly before trial. The measure of reasonableness should not be confined by artificial boundaries, and prosecutors should be charged with the ability to think and plan ahead. I hope this same principle will be applied in the somewhat related context of determining whether, for purposes of applying forfeiture doctrine, the accused should be deemed to have rendered a witness unavailable. It sometimes happens that a witness who otherwise would have been able to testify at trial is prevented from doing so by the accused's misconduct – most frequently intimidation or homicide – but if at an earlier time the prosecution had taken reasonable steps (such as holding a deposition) the witness could then have testified subject to confrontation. In this context, as in Yida, it should not be enough for the prosecution to focus on the time immediately before trial and proclaim that there was nothing it could then do to bring the witness to trial.
