When is a witness unavailable for purposes of admitting prior testimony? State v. Goins Explained

In State v. Goins, the Utah Court of Appeals clarified the standards for determining when a witness is “unavailable” under Rule 804 of the Utah Rules of Evidence, allowing admission of prior testimony from preliminary hearings.

Background and Facts

Defendant confronted two homeless men about a stolen cell phone, ultimately stabbing one victim and threatening another with a knife. Prior to the preliminary hearing, police located both homeless witnesses through distinctive physical characteristics. The prosecution maintained contact through a trusted pastor who served both men. However, weeks before trial, one witness was jailed, fell out with his companion, and disappeared upon release. Despite the prosecution’s efforts to locate him through the pastor, victim, and jail contacts, the witness could not be found for trial.

Key Legal Issues

The court addressed two critical questions: (1) whether the prosecution made sufficient efforts to establish the witness was unavailable under Rule 804(a)(5), and (2) whether the defendant’s opportunity to cross-examine the witness at the preliminary hearing satisfied Rule 804(b)(1)(B)’s requirements for admitting prior testimony.

Court’s Analysis and Holding

The Court of Appeals applied an abuse of discretion standard for evidentiary rulings and correctness for confrontation clause issues. The court emphasized that reasonable efforts, not “everything humanly possible,” satisfy Rule 804’s unavailability requirement. The prosecution’s use of police patrols, a pastor intermediary, regular follow-ups, and jail inquiries constituted reasonable efforts given the witness’s homeless status and transient nature.

Regarding the similar motive requirement, the court rejected defendant’s argument that preliminary hearing cross-examination differs from trial examination. Following State v. Brooks, the court held that counsel’s motive remains the same in both settings: establishing the client’s innocence. The mere opportunity to cross-examine, not its actual utilization, satisfies constitutional and evidentiary requirements.

Practice Implications

This decision reinforces that Utah courts will not require prosecutors to exhaust every conceivable lead when establishing witness unavailability. For defense counsel, Goins serves as a reminder to conduct thorough cross-examination at preliminary hearings when dealing with potentially transient witnesses. The court specifically noted that witnesses who are homeless, terminally ill, mentally ill, or military personnel subject to deployment may become unavailable, making preliminary hearing examination crucial for preserving the defense perspective for trial.