Defense Digest

An Available Witness Or An Unavailable Witness? That Is The Question

Rule 804(a) of the Pennsylvania Rules of Evidence outlines the exception to the hearsay rule as it applies to an unavailable declarant. It is understood that a witness is unavailable if exemption, refusal, claim of loss of memory, inability, or absence due to procurement or wrongdoing of a statement for the purpose of preventing the witness from attending and testifying.

Recently, the Superior Court of Pennsylvania in the matter of Consolidated Rail Corporation v. Delaware River Port Authority, 2005 Pa.Super 247 (2005), delved into Rule 804(a) to set forth with particularity the requirements of Rule 804(a)(5). Rule 804(a)(5) provides that the "unavailability as a witness" includes situations in which the declarant "is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance . . . by process or other reasonable means."

Consolidated Rail Corporation entered into an agreement with the Delaware River Port Authority wherein the Port Authority would provide intermodal services to Conrail. Intermodal services consist of removing cargo containers of material from railroad cars and placing them in a storage facility until such time as they are to be retrieved. At some point, six cargo containers were stolen from a storage facility, complete with their cargo. A seventh cargo container was damaged, and a portion of its cargo was stolen and damaged. Conrail paid the owners of the cargo for their losses and sought indemnification from the Port Authority. Criminal and civil actions arose out of this occurrence.

Following the criminal trial, a witness, who testified as to the contents of the cargo containers, was placed in the witness protection program. In the civil trial brought by Conrail for breach of contact, the court accepted the transcript testimony of the witness. A judgment was entered in favor of Conrail in excess of $700,000. The Port Authority appealed to the Superior Court and eventually to the Pennsylvania Supreme Court, which vacated the judgment and remanded the case for consideration on the issue of whether a hearsay declarant is "unavailable" for purposes of Pa.R.E. 804 merely by virtue of his membership in a witness protection program, and if not, whether proof sufficient to otherwise satisfy the definition of "unavailability" was offered by the proponent of the declarant's testimony.

The Superior Court held that a witness is not unavailable under Rule 804 solely by virtue of participation in a witness protection program. The proponent of the statement must establish the "reasonable measures" taken to procure the witness's attendance. The court refused to speculate as to what efforts would satisfy this requirement but underscored that a mere assertion is not sufficient to establish unavailability.

In its analysis, the court compared the instant situation to that in the matter of Commonwealth v. Lebo, 2002 Pa.Super. 76, 795 A.2d 987 (Pa.Super 2002), wherein the witness was participating in a boot camp program in South Carolina. In Lebo, the court found the Commonwealth lacked evidence to show it acted to procure the witness's attendance to establish unavailability. Likewise, in Spicer v. Metropolitan Dade County, 458 So. 2d 792 (Fla. Dist. Ct. App. 1984), the Florida District Court of Appeals found that, although a witness was in a witness protection program, the proponent continued to bear the burden of establishing that it took reasonable steps to procure the witness's attendance prior to declaring him unavailable.

As a result of Conrail's failure to establish the necessary requisite to procure the witness's appearance before declaring him unavailable, the testimony was admitted in error by the trial court. Therefore, it is important to remember that a witness will not be deemed to be unavailable upon the bare assertion by counsel. Counsel must attempt to procure the witness's attendance, regardless of the circumstances.

Additionally, the Superior Court addressed the issue of whether the contract between Conrail and the Port Authority required the Port Authority to indemnify Conrail for its losses that occurred during storage. The court observed the well-settled rule that when interpreting a contract, one must look to the parties' intentions as set forth in the terms of the agreement.

In the instant case, the agreement provided:

The agreement further provided that the Port Authority shall release, indemnify, protect, save harmless and defend Conrail and its officers, agents, servants and employees from and against any liability, claim, loss, damage, cost and expense, including reasonable legal expense and reasonable attorneys' fees; . . . except to the extent that such damages are caused by the actions of Conrail, its officers, agents, servants or employees.

The court held that based on the four corners of the agreement, it was unreasonable to conclude that the parties intended the indemnification to extend only to cargo containers while they were attached to the railroad cars. Therefore, the court held that the Port Authority must indemnify Conrail for the losses incurred while the cargo containers were in storage.

Although the Superior Court found that the Port Authority must indemnify Conrail for its losses, the amount of indemnification was based on the improperly admitted testimony of the "unavailable" witness. Therefore, the judgment was vacated, and the case was remanded for a new trial on damages.

*Peggy is an associate in our Harrisburg, PA office. She can be reached at (717) 651-3517 or pmorcom@mdwcg.com.