Opportunity to Cross and Transitory Unavailability

This wikilog article is a draft, it was not published yet.

by: Ryan • November 2, 2013 • no comments

One of the best ways to educate yourself about an issue -- and to simultaneously learn how courts across the country have dealt with it -- is to read a petition for cert. On his blog, Richard Friedman (the Obi-Wan to Jeff Fisher's Luke Skywalker) posted links to a couple of cert petitions, one of which addresses both the issues in the title of this post.

The link to the blog post is here.

Here's his quick summary:

One is my own, in Berkman v. Indiana, No. 12-10691, seeking review of Berkman v. State of Indiana, 976 N.E.2d 68 (Ind. Apps. 2012), transfer denied, 984 N.E.2d 221 (Ind. 2013). The petition raises two issues: (1) The Indiana courts hold that a discovery deposition provides an opportunity for cross-examination sufficient to satisfy the Confrontation Clause. I think this is wrong, and there is a clear conflict among states on this point. (2) In this case, the trial and appellate courts applied what I contend amounted to a per se rule that a transient disability is sufficient for a determination of unavailability. Numerous courts have done the same, but the rule properly followed by most jurisdictions is that a determination of unavailability requires consideration and articulation of various factors, including the likely duration of the disability.