When is a Declarant “Unavailable” for Hearsay Purposes Due to Mental Illness?

Like its federal counterpart, Idaho Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for former testimony by an “unavailable” declarant. And, like its federal counterpart, Idaho Rule of Evidence 804(a)(4) states that a declarant is “unavailable” if he “is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity.” Obviously, if a declarant is deceased, he is unavailable. And, obviously, if the declarant has a severe ailment such as the flu that is expected to exceed the duration of the trial, he is “unavailable.” But when is a declarant “unavailable” due to mental illness? That was the question of first impression addressed by the Supreme Court of Idaho in its recent opinion in State v. Anderson, 2017 WL 2952458 (Idaho 2017).

In Anderson, Darol Anderson was charged with felony domestic battery and misdemeanor domestic battery. At a preliminary hearing, the alleged victim, Erica Messerly,

testified that on September 6, 2014, Anderson had punched and choked her, that he had briefly knocked her unconscious, that he had swung a long metal pipe at her head and then jabbed it into her side, that he had held a knife to her throat, and that he had bitten her neck. At times during her testimony, Messerly stated that Anderson’s presence in the courtroom was distressing to her. She needed to take multiple breaks in order to complete her testimony. Following her direct testimony, Anderson cross examined Messerly.

After the hearing and before trial, “the State filed a motion in limine seeking to declare Messerly unavailable to testify at trial and seeking to admit a transcript of her testimony at the preliminary hearing.” In support of this motion, the State submitted (1) the affidavit of Dr. Eric J. Heidenreich; and (2) testimony by  Lisa Bunker, the clinical manager of the chemical dependency unit where Messerly was being treated. The trial court granted the State’s motion, and Anderson was convicted.

He subsequently appealed, claiming that the trial court erred by finding Messerly “unavailable.” In response, the Supreme Court of Idaho noted that “unavailability due to mental illness is an issue of first impression for this Court. Likewise, despite the importance of the Confrontation Clause, relatively little federal clarification has been provided with respect to what makes a witness unavailable.”

Ultimately, the court sided with the defense, concluding that

The crux of this case is whether the district court acted consistent with applicable legal standards. We hold that the district court did not. Specifically, we hold that the district court abused its discretion in admitting the motion in limine because the State failed to produce sufficient evidence to demonstrate that Messerly was unavailable to testify at the time of trial. The affidavit from Dr. Eric J. Heidenreich and the testimony of Lisa Bunker are insufficient to establish that Messerly was physically, emotionally, or mentally precluded from testifying at trial. Dr. Heidenreich opined that “testifying would put Ms. Messerly at substantial risk for relapse on controlled substances and pose a significant risk to her mental health.” Bunker testified that “[Messerly] has a very fragile, if you will, mental health state, and it is our belief that it would re-traumatize her at this point in time.” While this Court is sensitive to the adverse emotional effects associated with providing testimony of a traumatic event, the aforementioned testimony does not demonstrate that Messerly was unavailable. In this case, the concern was regarding a possible relapse due to her fragile mental state. As noted by the court in Burns, the severity of the mental illness itself may not automatically render a witness unavailable. The judge must consider the symptoms, what tasks a witness is then capable of…. Indeed, Messerly was able to provide testimony, albeit with breaks, at the preliminary hearing.

Because Dr. Heidenreich’s affidavit and Bunker’s testimony are not sufficient evidence to establish that Messerly’s mental illness made her unavailable to testify, the district court erred when it granted the motion in limine to allow her prehearing testimony to be read at trial.

-CM