Available Relief for the Unavailable Witness

United States v. Jonassen | 13-1410

August 2014

In United States v. Jonassen, the Seventh Circuit found that a defendant who causes the unavailability of a witness does not reap the benefits of his own misconduct. Jonassen was charged with kidnapping his adult daughter, taking her from Missouri, and then sexually assaulting her in Indiana. The daughter escaped under harrowing circumstances. Police were called. The daughter made statements to the investigating officers. Jonassen was arrested, and then faced federal charges. Up to the eve of trial, his daughter had cooperated with authorities. However, during this same time period, Jonassen used a number of techniques to dissuade his daughter from testifying against him – including 75 calls, 20 letters, and the use of an intermediary – over a 7 month period.

At trial, the daughter took the stand, only to claim that she did not remember, she did not know, and did not “know what you are talking about” to the prosecutor’s questions – including questions about her age, date of birth, and other personal information. Following this testimony, the district court held a hearing to determine whether the daughter’s statements were admissible under Federal Rule of Evidence 804(b)(6), which permits hearsay evidence to be admitted against a party who wrongfully procured the unavailability of the witness. The district court found the witness unavailable under FRE 804(a) because she could not remember the subject matter. The district court further found that Jonassen had procured his daughter’s unavailability based on a slew of evidence presented by the government of intimidation, persuasion, and coercion. The Seventh Circuit easily affirmed the district court’s ruling, finding that the record fully supported the district court’s conclusion that the defendant procured the witness’s unavailability.

When confronted with a similar issue under Rule 804(b), Jonassen is good comparative support for what the government must show to establish unavailability. The conduct in Jonassen by the defendant was egregious. Thus, Jonassen may support an argument that the government’s showing of procuring unavailability in other cases is not sufficient.