The “Songer Standard” – Mandatory Proof of Witness Unavailability Before Playing Preserved Testimony

Introduction

State v. J. Songer, 2025 MT 176, is a multi-issue decision from the Montana Supreme Court (SCM) that simultaneously (i) strengthens defendants’ confrontation rights by creating a bright-line rule requiring a contemporaneous demonstration of a witness’s unavailability before a recorded deposition may be played to the jury, (ii) re-affirms Montana’s settled “particularized suspicion” doctrine governing investigative stops, and (iii) clarifies the threshold for substituting appointed counsel under State v. Johnson. Although Songer obtained partial relief—a new trial on attempted-murder counts and resentencing on all matters—the Court left intact his drug convictions, the denial of his suppression motion, and the decision refusing to appoint new counsel.

Summary of the Judgment

• Facts. While on probation for earlier felonies, Jory Songer was stopped in a motel parking lot that police recognized as a criminal-activity hotspot. Observation of apparent drug use inside a BMW, the presence of a wanted individual, and subsequent flight led to Songer’s arrest; his backpack yielded drugs and a skull mask linked to an earlier double shooting.
• Procedural posture. Three simultaneous district-court matters: (1) revocation of 2018 suspended sentences; (2) 2022 drug prosecution; (3) 2022 attempted-homicide/assault prosecution. All culminated in a consolidated sentencing hearing.
• Appellate issues.
  1. Admission of a key witness’s video deposition without proof of trial-day unavailability (Confrontation Clause).
  2. Denial of motion to suppress evidence from the backpack (validity of initial Terry stop).
  3. Denial of motion to substitute appointed counsel (breakdown of attorney-client relationship).
• Holdings.
  1. Issue 1: Reversible error. A preserved deposition cannot be played unless, at trial, the proponent first shows the witness is in fact unavailable. Failure requires a new trial on attempted homicide and assault counts.
  2. Issue 2: No error. Totality of circumstances furnished particularized suspicion; backpack search valid under probation condition.
  3. Issue 3: No abuse of discretion. Defendant’s dissatisfaction with trial strategy did not equal an irreconcilable conflict warranting new counsel.
• Disposition. Attempted-homicide and assault convictions reversed and remanded for retrial; drug convictions and probation revocation affirmed but resentencing ordered because the now-vacated convictions impacted the original sentence.

Detailed Analysis

1. Precedents Cited and Their Influence

• State v. Norquay, 2011 MT 34 – establishes need for “good-faith effort” to secure witness’s presence before using prior testimony. The Court extends Norquay by requiring proof of ongoing unavailability at the moment of trial.
• State v. Hart, 2009 MT 268 – identified limited circumstances justifying recorded testimony; Songer tightens the standard.
• State v. Johnson, 2019 MT 34 – provides three grounds for substituting counsel (actual conflict, irreconcilable conflict, complete communication breakdown). Songer reaffirms Johnson and illustrates its application.
• State v. Loberg, 2024 MT 188 & State v. Stanley, 2024 MT 271 – articulate the “particularized suspicion” test; Songer applies these to validate the Terry stop.
• Bauer v. State, 1999 MT 185 – vacated convictions can taint later sentencing. Songer invokes Bauer to order global resentencing after partial reversal.

2. Court’s Legal Reasoning

Confrontation / Unavailability (Issue 1)
The Court emphasized that the Sixth Amendment’s confrontation guarantee “typically requires live testimony.” While pre-trial depositions are permissible, the State must:

1. Show a “good-faith effort” to secure live testimony before trial; and
2. Demonstrate, at trial, that the witness is then unavailable.

Because the prosecution never updated the record when trial began, playing the video deposition violated both Montana Rule of Evidence 804 and constitutional confrontation principles.

Particularized Suspicion (Issue 2)
Examining the “totality of the circumstances,” the justices found ample objective data: prior CFS describing a stolen BMW used in drug activity, a high-crime motel lot, three occupants hunched over, the presence of a wanted fugitive, paraphernalia visible, and evasive behaviour. Even if mistaken about the BMW’s stolen status, these facts sufficed to ground the initial stop.

Substitution of Counsel (Issue 3)
Applying Johnson, the Court concluded that Songer’s complaints—disagreement with strategy, refusal to meet—stemmed from his own choice, not counsel’s inadequacy. The record lacked evidence of an irreconcilable conflict or communication breakdown impairing defence performance. Hence, denying new counsel was within the district court’s discretion. Justice McKinnon’s concurrence stresses that courts must probe breakdown claims fully, but the majority found the Johnson standards satisfied.

3. Impact of the Decision

• The “Songer Standard.” Montana prosecutors must now put live, trial-day proof of unavailability on the record before playing preserved testimony. Failure is structural error requiring reversal.
• Sentencing ripple effects. When convictions underpinning a multi-count sentence are later reversed, resentencing on all counts is mandatory—fortifying Bauer’s fairness doctrine.
• Law-enforcement guidance. The decision validates the use of contemporaneous knowledge (CFS reports, fugitive warrants) and contextual cues (high-crime area, behaviour) in forming particularized suspicion.
• Defence-counsel disputes. Songer underscores that mere client dissatisfaction, absent objective facts, will not satisfy the Johnson test—encouraging early, documented attempts to resolve disagreements.

Complex Concepts Simplified

• Confrontation Clause. The constitutional right letting defendants see, hear, and question people who testify against them.
• Unavailability. A witness is “unavailable” only if, despite reasonable efforts, they cannot testify live due to death, illness, privilege, or absence beyond the court’s control.
• Terry Stop / Particularized Suspicion. A brief detention based on specific, articulable facts pointing to possible criminal activity—more than a hunch, less than probable cause.
• Probationary Search. Individuals on probation often sign conditions allowing warrantless searches; evidence found is admissible if the underlying stop was lawful.
• Gallagher Hearing. Montana’s procedure (from State v. Gallagher) to assess requests for new counsel before trial.

Conclusion

State v. Songer draws a clear constitutional line: before a recorded deposition can substitute for live testimony, the State must contemporaneously prove the witness truly cannot attend. This “Songer Standard” adds procedural rigor and protects defendants from erosion of their confrontation rights. Concurrently, the Court re-endorses robust yet balanced policing under the particularized-suspicion doctrine and confirms that substitution of counsel remains an exceptional remedy, not a tactic to delay trial. Finally, by ordering global resentencing, the Court reinforces the principle that sentences must stand on uncompromised convictions. Songer is poised to influence Montana criminal practice—dictating how prosecutors handle witness preservation, how courts evaluate counsel disputes, and how sentencing must be revisited after partial appellate victories.