Federal Evidence Review

In felon in possession of a firearm trial, excluding under FRE 804(b)(3) the defendant’s testimony that an associate “had told him" that it was the associate who had found and "picked up" the the charged gun that officers attributed to the defendant, because the defendant failed to use reasonable means to obtain the associate's presence as a witness, in United States v. Weekes, 611 F.3d 68 (1st Cir. July 9, 2010) (No. 07-2209, 08-2308)

One foundational element required for statements admitted under the FRE 804 hearsay exceptions is that the proponent of the evidence show that the hearsay declarant was "unavailable." The rule provides a definition of unavailability by listing several examples of unavailable witnesses. On top of this, the courts have further defined how rigorous the proponent's showing of the declarant's unavailability must be in order for FRE 804 to apply. Recently, Former United States Supreme Court Associate Justice Souther, sitting with the First Circuit, indicated the scope of a showing of unavailability under the hearsay exception.

In the case, defendant Weekes was arrested after the security guard at a bar, upon expelling the defendant and an associate (Brown), heard gunshots from the direction of the defendant. The guard "called for backup, and gave chase." The guard caught Brown and the defendant "was arrested by another officer a moment later. A search turned up Weekes's cell phone and a loaded gun near where he had landed [after scaling a fence with Brown], and two spent shell casings in the area from which [security guard] Darrah believed the sounds of shooting had come." During trial for being a felon in possession of a firearm, the defendant took the stand in his own behalf and sought to testify that he did not have the charged weapon, but that it had been "picked up" by Brown. The defendant proffered "that Brown had told him that he (Brown) had picked up the gun after it was dropped from a passing vehicle from which the two had been fired" and apparently mistakenly attributed to the defendant. In appealing his conviction, the defendant argued that the Brown statement was admissible hearsay because it was a statement "against penal interest and Brown was unavailable to testify at trial" under FRE 804(b)(3).

Writing for the First Circuit, Justice Souter succinctly affirmed the exclusion of the statement of Brown. "The sticking point," explained the Justice, "is the required showing of Brown's unavailability, and we do not think Weekes has demonstrated" the requisite 'good faith effort to procure the witness'[s] attendance,' a standard we have described as 'relatively high.'” Weekes, 611 F.3d at 71 (citing United States v. Mann, 590 F.2d 361, 367 (1st Cir. 1978) (good faith standard “cannot be satisfied by perfunctory efforts”)).

It was not that the defendant did not try to facilitate the appearance of Brown at trial, but rather the defendant did not try hard enough to avoid the unavailability of Brown:

He apparently did try to find Brown through Brown's friends and family, but he neither subpoenaed Brown at his last known address nor sought help from the district court, local law enforcement, or, curiously, Brown's counsel in the state court action in which the two were co-defendants.

It was not only that the defendant did not try hard enough to ensure against Brown's unavailability at trial. The circuit also found that even had Brown been unavailable, the evidence could still not be admitted because the defendant failed to "establish[] that 'corroborating circumstances clearly indicate the trustworthiness of the [out-of-court] statement.' It is not enough to point, as Weekes does, to evidence that Brown made the statement; 'there must be indicia of trustworthiness of the specific, essential assertions' to be repeated, and Weekes points to none." Weekes, 611 F.3d at 71 (citing FRE 804(b)(3); United States v. Mackey, 117 F.3d 24, 29 (1st Cir. 1997)).

While the Weekes case breaks no new ground, it serves as a useful reminder of the proponent's burden under FRE 804 in general and FRE 804(b)(3) in particular. The case serves as a useful complement to the usual case in which it is the government that is trying to introduce the statement against interest. In those cases, the showing is similar. The unavailability of the declarant must be shown for the evidence to be admitted as a hearsay exception. For a recent case that examines the unavailability showing in the context of witnesses removed from the country, see United States v. Yida, 498 F.3d 945 (9th Cir. 2007).