unavailability standard in District of Columbia

2017Laumer, 409 A.2d at 199 .

2009Laumer, 409 A.2d at 199 .

2012Oct. 7, 2010) ("Even though Cook [v. McKune, 323 F.3d 825 (10th Cir.2003) ] relied upon Ohio v. Roberts, [ 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980)], for its holding on unavailability, Crawford does not affect the unavailability analysis.”). 9 .

2012Oct. 7, 2010) ("Even though Cook [v. McKune, 323 F.3d 825 (10th Cir.2003) ] relied upon Ohio v. Roberts, [ 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980)], for its holding on unavailability, Crawford does not affect the unavailability analysis.”). 9 .

2017See Thomas v. United States, 978 A.2d 1211 , 1228 n.42 (D.C. 2009) ("[I]f the declar-ant is a co-defendant in a criminal trial in which the government seeks to introduce his statement in its case-in-chief, the unavailability requirement is satisfied because the government cannot call him to the witness stand, even though the co-defendant might later elect to testify in his defense.”). 50 .

1993Because the error could not have been harmless, cf Alston, supra, 383 A.2d at 315 (reversible error to exclude directly exculpatory, “facially exonerating” evidence), we remand the case to the trial court to make a finding on unavailability. 20 Further, because there is no Confrontation Clause barrier at issue here, 21 the unavailability requirement only imposes a general duty of reasonableness and good faith efforts on the part of the defense to secure the witness’ presence at trial. 22 The defense was not afforded the opportunity to develop a record on the extent of its efforts to locate Osc

1993Because the error could not have been harmless, cf Alston, supra, 383 A.2d at 315 (reversible error to exclude directly exculpatory, “facially exonerating” evidence), we remand the case to the trial court to make a finding on unavailability. 20 Further, because there is no Confrontation Clause barrier at issue here, 21 the unavailability requirement only imposes a general duty of reasonableness and good faith efforts on the part of the defense to secure the witness’ presence at trial. 22 The defense was not afforded the opportunity to develop a record on the extent of its efforts to locate Osc

1992A prerequisite for any forum non conveniens dismissal, however, is the availability of an alternate forum in which the plaintiff's action "may more appropriately be entertained." Mills v. Aetna Fire Underwriters Insurance Co., 511 A.2d 8, 13 (D.C.1986) (citations omitted); accord, Kaiser Foundation Health Plan of Mid-Atlantic States, Inc. v. Rose, 583 A.2d 156, 160 (D.C.1990).

1992A prerequisite for any forum non conveniens dismissal, however, is the availability of an alternate forum in which the plaintiff’s action “may more appropriately be entertained.” Mills v. Aetna Fire Underwriters Insurance Co., 511 A.2d 8, 13 (D.C.1986) (citations omitted); accord, Kaiser Foundation Health Plan of Mid-Atlantic States, Inc. v. Rose, 583 A.2d 156, 160 (D.C.1990).

1992A prerequisite for any forum non conveniens dismissal, however, is the availability of an alternate forum in which the plaintiff's action "may more appropriately be entertained." Mills v. Aetna Fire Underwriters Insurance Co., 511 A.2d 8, 13 (D.C.1986) (citations omitted); accord, Kaiser Foundation Health Plan of Mid-Atlantic States, Inc. v. Rose, 583 A.2d 156, 160 (D.C.1990).

1992A prerequisite for any forum non conveniens dismissal, however, is the availability of an alternate forum in which the plaintiff’s action “may more appropriately be entertained.” Mills v. Aetna Fire Underwriters Insurance Co., 511 A.2d 8, 13 (D.C.1986) (citations omitted); accord, Kaiser Foundation Health Plan of Mid-Atlantic States, Inc. v. Rose, 583 A.2d 156, 160 (D.C.1990).

1991According to the Court, such statements “are usually irreplaceable as substantive evidence,” and thus their admission “actually furthers the ‘Confrontation Clause’s very mission’ which is to ‘advance the “accuracy of the truth-determining process in criminal trials.” ’ ” Id. at 396, 106 S.Ct. at 1126 (citations omitted). 7 This rationale was sufficiently distinct that the Court was not forced to limit the unavailability rule to prior testimony situations; perhaps another situation falling somewhere between the Roberts line of cases and the Inadi co-conspirator ruling would provide good reason

1991According to the Court, such statements "are usually irreplaceable as substantive evidence," and thus their admission "actually furthers the `Confrontation Clause's very mission' which is to `advance the "accuracy of the truth-determining process in criminal trials."'" Id. at 396, 106 S.Ct. at 1126 (citations omitted). [7] This rationale was sufficiently distinct that the Court was not forced to limit the unavailability rule to prior testimony situations; perhaps another situation falling somewhere between the Roberts line of cases and the Inadi co-conspirator ruling would provide good reason

1981The courts in both cases have done so by interpreting codified rules of evidence defining medical unavailability to include, in California, a “then existing physical or mental illness or infirmity,” 11 and in New York, inability to attend “by reason of .. . insanity, sickness or infirmity.” 12 In People v. Gomez, 26 Cal.App.3d 225, 230 , 103 Cal.Rptr. 80, 83-84 (1972), the California statute was interpreted to require a showing that “the illness or infirmity must be of comparative severity; it must exist to such a degree as to render the witness’ attendance, or his testifying, relatively impos

1981The courts in both cases have done so by interpreting codified rules of evidence defining medical unavailability to include, in California, a “then existing physical or mental illness or infirmity,” 11 and in New York, inability to attend “by reason of .. . insanity, sickness or infirmity.” 12 In People v. Gomez, 26 Cal.App.3d 225, 230 , 103 Cal.Rptr. 80, 83-84 (1972), the California statute was interpreted to require a showing that “the illness or infirmity must be of comparative severity; it must exist to such a degree as to render the witness’ attendance, or his testifying, relatively impos

1981Id. at 228 , 103 Cal.Rptr. 82 . [13] The decision in People v. Lombardi, 39 App.Div.2d 700, 701, 332 N.Y.S.2d 749, 750-51 (1972), aff'd, 33 N.Y.2d 658 , 348 N.Y.S.2d 980 , 303 N.E.2d 705 (1973), cert. denied, 416 U.S. 906 , 94 S.Ct. 1611 , 40 L.Ed.2d 111 (1974), upheld a lower court finding that it would endanger the witness' health to testify again, where testimony by the witness' husband and her psychiatrist could reasonably have satisfied the court that had the witness "been required to appear and testify in person ... her mental and physical health would have been seriously jeopardized" an

1981Id. at 228 , 103 Cal.Rptr. 82 . 13 The decision in People v. Lombardi, 39 App.Div.2d 700, 701, 332 N.Y.S.2d 749, 750-51 (1972), aff’d, 33 N.Y.2d 658 , 348 N.Y.S.2d 980 , 303 N.E.2d 705 (1973), cert. denied, 416 U.S. 906 , 94 S.Ct. 1611 , 40 L.Ed.2d 111 (1974), upheld a lower court finding that it would endanger the witness’ health to testify again, where testimony by the witness’ husband and her psychiatrist could reasonably have satisfied the court that had the witness “been required to appear and testify in person . . . her mental and physical health would have been seriously jeopardized” an