I didn't do well in evidence class in law school, but I believe that any depositions and statements he made would be admissible given that he's an unavailable witness. Maybe someone like
Addie can confirm?
Yeah, dead is unavailable for hearsay purposes.
The issue is the Confrontation Clause. Dead's still unavailable, but the Sixth Amendment still applies to even reliable statements of unavailable declarants through
Crawford. There are
exceptions to
Crawford for those
purposes too, but the gist is: for a testimonial statement to be admitted as testimonial evidence (meaning, it can be admitted for other reasons), the statements must have been made subject to cross-examination. The wrinkle is if the defendant, through criminal action, caused the death of the declarant: you can't prevent someone's testimonial evidence from being introduced by killing them.
Ordinarily, depos would be fair game.
Here, I'm not sure. There's no criminal prosecution. This is pure investigation, and I don't know if, say, Mueller's team invited John Dowd or whoever to sit in on Cohen's questioning. The key is whether Cohen was "available for cross-examination"
at some point.
(Of course, to sum up, this only goes to the introduction of testimonial statements. That's "a solemn declaration or affirmation made for the purpose of establishing or proving some fact," under
Davis v. Washington.)
