result would mock the very system of justice the confrontation clause was designed to protect." United States v. Mastrangelo, supra, 693 F.2d at 273.
Moreover, most courts have agreed that a waiver of confrontation rights under these circumstances also waives any hearsay objection to the admissibility of the evidence. See United States v. Aguiar, supra, 975 F.2d at 47 ("A defendant who procures a witness's absence waives the right of confrontation for all purposes with regard to that witness, not just to the admission of sworn hearsay statements."); United States v. Thevis, supra, 665 F.2d at 630 ("waiver of [defendant's] right to confrontation in these circumstances also constituted a waiver of any hearsay objection"). Compare United States v. Carlson, supra, 547 F.2d at 1360 n.14 ("We need not go so far in this case as to hold that, when an accused threatens a potential witness into not testifying at trial, all extrajudicial statements of that witness, however unreliable or unbelievable, may be admitted in evidence at trial.").
In Steele v. Taylor, supra, the Sixth Circuit explored at length the issue of whether a waiver of confrontation rights also waives any otherwise available hearsay objections. For many of the same public policy reasons set forth in the preceding paragraphs, the Steele court concluded that the hearsay rule must be substantially relaxed when the defendant has caused a witness's unavailability. 684 F.2d at 1201. The court in that case gathered and summarized a substantial history of both English and American cases supporting the proposition that a defendant who procures the absence of a witness waives his right to object to extra-judicial statements admitted at trial. Id. & n.10. This Court finds compelling the rationale set forth in Steele and each of the other cases discussed above. Therefore, the Court agrees that if any defendant was responsible for the absence of Arvell Williams from the trial in this case, that defendant will be deemed to have waived his confrontation rights and hearsay objections with respect to statements made by Arvell Williams.
Procedures For Determining Waiver of Confrontation Rights
Based upon the foregoing statement of the law, the Court determined that it would be necessary to conduct a two-stage preliminary hearing in order to make determinations with respect to which defendants, if any, were responsible for the absence of Arvell Williams and which statements made by Mr. Williams would be admitted at trial.
First, the government was required to present evidence in support of its contention that any or all of the defendants were instrumental in procuring the absence of Arvell Williams from these proceedings. See United States v. Mastrangelo, supra, 693 F.2d at 273. Second, the government was required to identify specifically those statements it intended to introduce at trial, and the defendants were given an opportunity to cross-examine those police officers to whom Mr. Williams made the statements with respect to the reliability of the statements and the circumstances under which they were made and recorded.
A. Procurement of Witness's Unavailability
Under the procedures outlined by the Court, the government was first required to present evidence with respect to whether any or all of the defendants were responsible for the absence of Arvell Williams from these proceedings. Prior to beginning this phase, the Court advised the parties of the factors it would consider in making this threshold determination. The instructions included (1) the evidentiary procedures for the hearing, (2) the level of participation or knowledge of a particular defendant required for out-of-court statements to be admitted against him, and (3) the government's burden of proof.
1. Evidentiary Procedure
Because of serious witness security concerns, evidence with respect to the cause of the unavailability of Arvell Williams was presented exclusively through testimony provided by Detective Joseph Schwartz, a homicide detective with the Metropolitan Police Department. Detective Schwartz testified with respect to a number of witness statements and identifications gathered in connection with the investigation of the Williams murder. Throughout this testimony, the witnesses were referred to only by previously arranged designations such as Witness #1, Witness #2, etc.
The government was also required to bring out on direct examination any prior convictions of the unidentified witnesses and any "deals" such witnesses may have made with the government to allow the Court to consider the credibility of the absent witnesses and any bias the absent witnesses might harbor in favor of the government.
The defendants protested with respect to this procedure based largely upon their assertion that it was essential for the Court to view the demeanor of each witness in order to make an accurate assessment of their credibility. The Court noted, however, that other courts have repeatedly held that hearsay testimony may be accepted in hearings held for the instant purpose. See, e.g., United States v. Aguiar, supra, 975 F.2d at 47 (evidence of reason for unavailability presented through prior unsworn statements made by unavailable witness); United States v. Mastrangelo, supra, 693 F.2d at 273 (evidence of reason for unavailability to be presented under Fed. R. Evid. 104(a), which allows hearsay evidence); United States v. Balano, supra, 618 F.2d at 628-29 (evidence of reason for unavailability presented through government agents; often the only evidence available); United States v. Carlson, supra, 547 F.2d at 1353 (evidence of reason for unavailability presented through testimony of DEA Agents).
Obviously, once the Court determines that hearsay testimony will be allowed, the defendants' concern regarding the Court's inability to view the demeanor of the out-of-court declarant is essentially moot. Inherent in the concept of hearsay testimony is the fact that the fact-finder has no opportunity to observe the demeanor of the declarant. See United States v. King, 713 F.2d 627, 632 n.8 (11th Cir. 1983), cert. denied, 466 U.S. 942 (1984); In re American Export Lines, Inc., 73 F.R.D. 454, 459 (S.D.N.Y. 1977). Moreover, the Court found no compelling reason to require disclosure of the names of the absent witnesses given the requirement that the government disclose the criminal record and any agreements such unidentified witnesses had made with the government -- especially in light of the security concerns previously mentioned. The Court would have gained no insight from such a disclosure and the defendants were not entitled to the information under the discovery rules. Finally, the defendants were each given ample opportunity to cross-examine Detective Schwartz regarding the statements made to him by the absent witnesses.
2. Participation Requirement
The next bone of contention addressed at the hearing was the question against whom statements made by Arvell Williams could be used. The government appeared initially to take an expansive view on this issue, relying largely upon the instructions to the District Court on remand in United States v. Mastrangelo, 693 F.2d 269 (2d Cir. 1982). In that case, the Second Circuit instructed that
If the District Court finds that Mastrangelo was in fact involved in the death of [the unavailable witness] through knowledge, complicity, planning or in any other way, it must hold his objections to the use of [the unavailable witness's] testimony waived. Bare knowledge of a plot to kill [the unavailable witness] and a failure to give warning to the appropriate authorities is sufficient to constitute a waiver.