Rebecca Kavanagh+ Your Authors @DrRJKavanagh Criminal Defense & Civil Rights Attorney, Writer, Legal & Media Analyst. @theappeal @nyulaw @sydneylawschool @sydney_uni. Sydney ✈️ NYC. she/her. Views my own. Oct. 09, 2019 1 min read + Your Authors

When a person is scheduled to testify at trial & they are killed, but have already been called as a witness in a prior proceeding, their testimony can be read into the record.

If whoever killed Joshua Brown, did it to prevent him testifying, they failed. 

This applies both to a civil trial, but perhaps more critically in the case of a potential re-trial, if Amber Guyger is successful in any appeal.

When a witness dies, they become an "unavailable witness." Their prior testimony is hearsay.

So the issue is admitting his prior testimony under an exception to the hearsay rule, because the defense lawyer does not have a chance to cross-examine him as a witness.

This would be much more of an issue here if Mr. Brown had been killed before the first trial and the prosecutor were trying to admit his grand jury testimony, because that testimony was not subject to any cross examination.

But in this case, Mr. Brown actually testified at trial. He was cross-examined by defense counsel. So I do not see how defense counsel could make a convincing argument as to why it should be excluded.

The definition of an "unavailable witness" does not just include a witness who has died. It can include a witness, for instance, in a domestic violence case, who is terrified to testify because they have received threats from the defendant.

If part of the goal in killing Mr. Brown was to scare other prosecution witnesses into not testifying, and they are subjected to similar threats, it may be that they could be declared unavailable witnesses and also have their testimony read into the record.

I say all of this not to say, truth and justice will prevail, because we know the system does not work like that, just that if the thinking was that simplistic, then they failed.

I talked a bit more about this in a thread with @thejournalista that she includes here. 

You can follow @DrRJKavanagh.


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