United States v. Hsu
439 A.2d 469 (1981)
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Rule of Law:
A witness who feigns a lack of memory at a subsequent proceeding is considered 'unavailable' for the purpose of the prior cross-examined testimony exception to the hearsay rule. Admitting such testimony does not violate the Sixth Amendment's Confrontation Clause, even if the defendant was pro se during the initial cross-examination, provided the record demonstrates that the cross-examination was sufficiently effective to ensure the testimony's reliability.
Facts:
- Dr. Hsu was prosecuted for perjury.
- At his first trial, Hsu represented himself (pro se).
- A government witness, James Johnson, testified against Hsu at this trial.
- Hsu personally cross-examined Johnson during the proceeding.
- Hsu's subsequent conviction was reversed on appeal because his waiver of the right to counsel was found to be invalid.
- In preparation for Hsu's retrial, Johnson claimed he had no present memory of the events about which he had previously testified.
- The government sought to introduce the transcript of Johnson's testimony from the first trial as evidence in the retrial.
Procedural Posture:
- A jury found Hsu guilty of perjury in a trial where he represented himself.
- Hsu appealed his conviction to the D.C. Court of Appeals.
- The D.C. Court of Appeals reversed the conviction, holding that Hsu's waiver of counsel was not voluntary and intelligent, and remanded for a new trial.
- Prior to the retrial, the government moved in the trial court to admit the prior trial testimony of a witness who now claimed memory loss.
- The trial court denied the government's motion, ruling the witness was not unavailable and that admitting the testimony would violate Hsu's Sixth Amendment rights.
- The government filed an interlocutory appeal of the trial court's pretrial evidentiary ruling to the D.C. Court of Appeals.
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Issue:
Does the admission of a witness's prior trial testimony at a retrial violate the hearsay rule or the Sixth Amendment's Confrontation Clause when the witness now feigns memory loss and the defendant conducted the original cross-examination pro se due to an invalid waiver of counsel?
Opinions:
Majority - Kern, J.
No. The admission of the witness's prior trial testimony does not violate the hearsay rule or the Sixth Amendment's Confrontation Clause. A witness who asserts a lack of memory, even if feigned, is deemed 'unavailable' for the purposes of the hearsay exception for prior testimony. Furthermore, the Confrontation Clause is satisfied if the prior testimony bears sufficient indicia of reliability, which is established by an adequate opportunity for cross-examination. A defendant's pro se cross-examination is not per se ineffective; rather, courts must scrutinize the record to determine if the cross-examination was effective in form and purpose. Here, the court reviewed the transcript and found Hsu's cross-examination was replete with leading questions and effectively challenged the witness's bias, perception, and memory. Because the cross-examination met its principal purposes, the prior testimony was sufficiently trustworthy to be admitted at the retrial without violating the Sixth Amendment.
Analysis:
This decision clarifies two significant points in evidence and constitutional law. First, it aligns with the federal rule that a witness's feigned amnesia renders them 'unavailable,' preventing witnesses from obstructing justice by simply claiming memory loss at a retrial. Second, and more importantly, it establishes that a pro se defendant's cross-examination is not automatically deemed ineffective for Confrontation Clause purposes, even if the waiver of counsel was later found invalid. This holding requires a case-specific, substantive review of the trial record to assess the adequacy of the cross-examination, thereby balancing the defendant's confrontation rights against the state's interest in presenting reliable, previously tested evidence.
