## Facts

- Over roughly eight months in 1972–73, multiple women reported kidnappings and sexual assaults by assailants using a green Chevrolet Vega or similar car.
- Morris J. Warren and John Davis were tried jointly in 1973; Warren was convicted on multiple counts involving several incidents.
- In 1976, Warren’s convictions were reversed due to prejudicial misjoinder with Davis, and the case was set for retrial.
- Before retrial, the government sought to introduce transcripts of prior trial testimony from several complaining witnesses, including Marilyn Reed.
- Two psychiatrists examined Reed and concluded that compelling her to testify again would likely cause extreme psychological harm, described as severe psychiatric deterioration.
- The trial court found Reed unavailable to testify at retrial, excused her from appearing, and admitted the transcript of her testimony from the first trial.
- Warren objected that using Reed’s transcript instead of live testimony violated his Sixth Amendment right to confront the witnesses against him.
- Warren was convicted at retrial on multiple offenses, including kidnapping while armed, rape while armed, armed robbery, assault with intent to commit sodomy while armed, and assault with a dangerous weapon, and received lengthy concurrent sentences.

## Issues

1. Whether a witness may be deemed “unavailable” when credible psychiatric evidence shows that testifying would likely cause severe psychological harm.
2. Whether admitting a witness’s prior trial testimony at a retrial satisfies the Sixth Amendment Confrontation Clause when the defendant previously had an opportunity and similar motive to cross-examine the witness.

## Decision

- The court upheld the trial court’s finding that Marilyn Reed was unavailable based on expert psychiatric evidence that testifying would likely cause severe mental harm.
- The court held that admitting Reed’s prior trial testimony did not violate the Confrontation Clause because Warren had a prior opportunity and similar motive to cross-examine her at the first trial.
- The court reversed some convictions on other grounds and remanded, while affirming the evidentiary ruling admitting Reed’s prior testimony.

## Legal Principles

- “Unavailability” for Confrontation Clause purposes is not limited to physical absence; it can include circumstances where compelling testimony would pose a serious medical or psychological risk supported by competent evidence.
- The government’s obligation to make a good-faith effort to secure a witness’s presence does not require insisting on live testimony when doing so would be unreasonable in light of substantial health risks to the witness.
- Prior testimony may be admitted when the witness is unavailable and the defendant previously had an adequate opportunity and similar motive to cross-examine the witness in the earlier proceeding.

## Conclusion

The court recognized psychiatric harm as a valid basis for witness unavailability and permitted the use of prior trial testimony at retrial where the defendant previously cross-examined the witness, while reversing other parts of the judgment for unrelated errors and remanding for further proceedings.


Warren v. United States, 436 A.2d 821 (D.C. 1981)