Regarding the issue of witness unavailability, the trial court has the discretion to decide whether a sufficient showing of unavailability has been made. State v. Martinez, 102 N.M. 94, 97 (Ct. App.1984). The issue when determining if a witness should be declared unavailable is whether, taking into consideration the totality of the circumstances, the prosecution exercised "due diligence" in its efforts to secure the witness' attendance. State v. Lopez, 1996-NMCA-101, ¶24.
Prior Opportunity for Cross-Examination
Examples of "prior opportunity for cross-examination" include testimony provided in other cases under oath or statements given under oath in a preliminary hearing on a criminal case. In those examples, if the defendant in the stalking or harassment case had the prior opportunity to cross-examine the witness/declarant on the same statement at issue in the case at hand and the witness/declarant is not available for the stalking or harassment case, the admission of the testimonial hearsay is proper. See State v. Henderson, 2006-NMCA-059, ¶16. That is because under those circumstances, there are no concerns about the defendant's inability to confront and question the declarant in the later proceeding.
Given the definition of "testimonial evidence," the most commonly seen type of testimonial statement to which the Crawford analysis would apply in stalking and harassment cases are those made to law enforcement officers regarding information about past alleged criminal activity. In contrast to a 911 emergency call basically communicating "this is happening," statements made to law enforcement detailing alleged past criminal actions basically communicate "this is what happened."
Regarding the Crawford holding, and in summation:
- It applies only to testimonial hearsay offered into evidence for the truth of the matter asserted. If the hearsay is not offered into evidence for the truth of the matter asserted in the statement but rather for other purposes, the Crawford analysis does not apply.
- If testimonial hearsay is offered into evidence for the truth of the matter asserted, the following Crawford analysis applies:
- The declarant of the testimonial hearsay must be unavailable to testify at the stalking or harassment trial; and
- The party against whom the testimonial hearsay is being offered into evidence must have had a prior opportunity to cross-examine the declarant about the same testimonial hearsay attempted to be introduced in the stalking or harassment trial.
- If the declarant of the testimonial hearsay is unavailable and there was a prior opportunity for cross-examination, the testimonial hearsay can be admitted into evidence.