Kubsch v. Neal

Dist. Ct. did not err in denying defendant’s habeas petition challenging his murder conviction on grounds that trial court improperly excluded recorded out-of-court statement made by 9-year-old potential witness that supported defendant’s alibi defense. Said evidence was excludable under hearsay rule since defendant wanted to use it on substantive basis, and such exclusion did not violate defendant’s constitutional right to put on defense under Chambers, 410 US 284, where: (1) witness’ hearsay statement was not corroborated on critical facts by other evidence; and (2) said witness was never subjected to cross-examination as she could not vouch for her statement at time of trial and was subjected to no meaningful cross-examination at time she made statement as to critical day and time she allegedly saw victim or about possibility that her memory had confused events of two different days. Fact that instant detailed statement was recorded and concerned recent event by disinterested witness did not require different result. (Dissent filed.)