Can the Prosecution use a Witness Statement at Trial if the Witness is NOT Present to Testify?

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When a subpoenaed witness does not appear for trial, it puts the prosecution in a bind.  The defendant has the right to confront and cross examine all witnesses testifying against them.  When a witness does not appear for trial, or refuses to testify at trial, the prosecutor can be hard-pressed to get the witness’ out of court statements into evidence.  This blog will examine the two hurdles the State must overcome to use a witness’ out of court statements as evidence in a trial in which the witness does not testify.

Hurdle #1: Hearsay

Generally, many statements made by a witness outside of court are considered hearsay and are inadmissible at trial.  However, there are several exceptions to the hearsay rule.  Often, the State can utilize a hearsay exception to admit an out of court statement into evidence.  For example, if the out of court statement is deemed an “excited utterance,” where the witness was under stress due to a startling event, the judge will allow the statement to be admitted at trial.  If the out of court statement is deemed a “present sense impression,” where the witness was relaying information as they perceived an event in real time, the judge will allow the statement into evidence. 

Another extremely important hearsay exception applies when a judge determines that the witness is unavailable to testify at trial.  Indiana Rule of Evidence 804(a) explains that a witness is “unavailable” when the witness:

(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;

(2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter;

(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure the witness’ availability.

Usually, overcoming the hurdle of hearsay is easier for the State to accomplish when admitting an out of court statement.  The far more complicated issue that arises for the prosecutor is the remaining hurdle, which is the Confrontation Clause of the 6th Amendment.   

Hurdle #2:  6th Amendment

If the State can satisfy the court on the issue of hearsay, the prosecutor must next overcome the Defendant’s 6th Amendment right to confront and cross examine any witnesses against them.  The landmark Supreme Court decision of Crawford v. Washington holds that a prior testimonial statement is admissible against the defendant in a criminal prosecution only if the person who makes the statement is available for cross examination either before the trial or at the trial.  Crawford v. Washington, 541 U.S. 36 (2004).  In plain language, the State must satisfy the court that the witness making the out of court statement, if testimonial, was subject to cross examination at some point in time.

What is a testimonial statement?

Any statements made under circumstances that would lead an objective witness to reasonably believe the statement would be used at a later trial are considered testimonial.  Crawford at 52.    For example, an interview given to police is considered testimonial.  Likewise, a sworn affidavit is considered testimonial.  A 911 call is very likely testimonial.  So, if the out of court statement is “testimonial,” the State must next prove that the statement was subject to cross examination.

What is “Subject to Cross Examination?”

Cross examination is the formal interrogation of a witness called by the opposing party to challenge the testimony that was given on direct examination.  Typically, defense attorneys cross examine witnesses called by the prosecution at trial to advance the defense’s theory of the case.  But witnesses can also be subject to cross examination prior to trial at depositions, or taped statements, where the witness is sworn to tell the truth under oath.   In the context of a criminal case, the 6th Amendment right to confront and cross examine witnesses is satisfied when the witness is under oath and available for questioning by both the prosecution and defense.  

To summarize, the State must overcome major hurdles to introduce an out of court statement at trial made by a witness that is not present to testify.  First, the State must prove that a hearsay exception applies.  This may also include the State having to prove that the witness is unavailable, and that the State could not reasonably procure the witness’ attendance at trial.  The next challenge awaiting the State is proving that the out of court statement does not violate the Defendant’s 6th Amendment right to confront and cross examine witnesses.  If the out of court statement is testimonial and was never subject to cross examination, then the prosecution is out of luck, regardless of any hearsay exceptions, and the statement will not come in as evidence at trial.

Clearly, whether or not an out of court statement is admissible at trial is a complicated legal issue.  The Indianapolis criminal defense attorneys at Banks and Brower are all former prosecutors, and all have experience dealing with hearsay, witness unavailability, and the right to cross examine witnesses.  Contact us anytime at or at (317) 995-2212.