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Absent Witness was Unavailable So State Could Use Prelim Testimony Despite Crawford

By Shari Allison

Malone v. Six, 07-3268 (10/31/08) (unpub'd) - In a habeas case applying de novo review [because the state court did not rule on the issue but instead found any error harmless], the 10th held Crawford's unavailability requirement was met so as to allow the admission of an absent witness's preliminary hearing testimony. Two criteria favored the petitioner---(1) the witness was a very important witness; and (2) the charge was serious, even though the petitioner received "only" 44 months, since he could have received 40 years. But the state had made sufficient efforts to subpoena the witness. She was apparently trying to evade service and the state believed she may have been living again with the defendant. An officer knew where the witness lived but no one ever answered the door or answered her phone, despite repeated attempts...continue to full post

Full post as published by Tenth Circuit Blog on November 04, 2008 (boomark / email).