Unavailability of Witness – TRE 804(b)(6)

Unless otherwise indicated, all indented material is copied directly from the court’s opinion.

Decisions of the Tennessee Supreme Court 

State v. Jones, No. W2015-02210-SC-DDT-DD, 568 S.W.3d 101, 129 (Tenn. 2019).

In order to satisfy the right to confrontation when the State seeks to admit prior testimony of an unavailable witness, the State must show that the witness is truly unavailable after good faith efforts were made to obtain the witness’s presence. See State v. Sharp, 327 S.W.3d 704, 709, 712 (Tenn. Crim. App. 2010) (citing State v. Henderson, 554 S.W.2d 117, 120 (Tenn. 1977); State v. Armes, 607 S.W.2d 234, 236–37 (Tenn. 1980) ). “The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness.” Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), overruled on other grounds by Crawford, 541 U.S. 36, 124 S.Ct. 1354. “Good faith” contemplates “ ‘[t]he lengths to which the prosecution must go to produce a witness … [and] is a question of reasonableness.’ ” Id. (quoting California v. Green, 399 U.S. 149, 189 n.22, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) ). We review a trial court’s determination regarding the absent witness’s unavailability for an abuse of discretion. Sharp, 327 S.W.3d at 712 (citing Hicks v. State, 490 S.W.2d 174, 179 (Tenn. Crim. App. 1972) ).

Decisions of the Tennessee Court of Criminal Appeals