Brooks v. United States, 39 A.3d 873

Brooks was indicted for first-degree murder while armed and related weapons offenses arising from the 9/16/2003 shooting death of Brian Taylor in DC.
His first trial ended in mistrial due to a hung jury; at a second trial, the jury convicted on all counts.
The core issue on appeal is the admissibility of Harling’s prior recorded testimony from the first trial in lieu of live testimony at the second trial.
Harling was the sole eyewitness whose testimony identified Brooks and connected him to the murder.
The trial court admitted the prior testimony after finding Harling unavailable, but the defense argued the government failed to prove unavailability with reasonably diligent efforts.
The DC Court of Appeals reversed and remanded for a new trial, holding the admission of the prior testimony was error and not harmless beyond a reasonable doubt.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Harling unavailable to testify at the second trial?	Brooks: government failed to show unavailability.	State had to prove unavailability through reasonable, good-faith efforts.	No; court abused discretion; unavailability not shown.
Did defense preserve error or waive it by acquiescence?	Acquiescence did not waive the objection.	Objection waived by acquiescence in reading prior testimony.	Appellant preserved error; not waived.
Did the government’s efforts to secure Harling’s presence meet the reasonable, good-faith standard?	Efforts were adequate given circumstances.	Efforts insufficient; more diligent search required.	No; efforts were inadequate and did not demonstrate unavailability.
Whether admission of prior testimony violated the Confrontation Clause and was prejudicial beyond harmless error.	Live testimony is essential; demeanor observation cannot be conveyed by transcript.	Hearing the prior testimony from the first trial should be sufficient.	Constitutional error; not harmless beyond a reasonable doubt; reversal warranted.

Coppedge v. United States, 114 U.S.App.D.C. 79, 311 F.2d 128 (1962 (DC Cir)) (prosecution must show witness unavailable; burden on government)
Lynch, 163 U.S.App.D.C. 6, 499 F.2d 1011 (1974 (DC Cir)) (unavailability requires reasonable, good faith, diligent efforts)
Barber v. Page, 391 U.S. 719, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968 (Supreme Court)) (duty to use reasonable means to procure witness presence; absence triggers unavailability inquiry)
Warren v. United States, 436 A.2d 821, 825 (D.C.1981) (1981 (DC Cir)) (four-part test for admissibility of former testimony; witness unavailable)
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004 (Supreme Court)) (Confrontation Clause governs admissibility of testimonial statements)