Bedney v. United States

MACK, Senior Judge,

dissenting:

I part company with my colleagues when they reason that the prior recorded testimony of Reginald Morris, given under oath, was inadmissible because the government, at the time of the recording, was prevented from cross-examining the witness about activities other than on the date of March 19, 1992. The issue at appellant’s trial was precisely that of her guilt or innocence of drug distribution on March 19,1992, and as counsel for appellant argues, “the probative value of the [recorded] statement [exonerating her] could not have been greater.” See Alston v. United States, 383 A.2d 307 (D.C.1978). Prejudice to the government, if any, was minimal, as well as speculative.¹

In my view, the appellant met all the requisites necessary for invocation of the recorded testimony exception to the hearsay rule. See Feaster v. United States, 631 A.2d 400, 405 (D.C.1993).

I would reverse and remand for a new trial.

1 . Any evidence of past non-incriminatory association between the witness and the defendant might or might not have undermined the defense.