Friday, April 07, 2006

Later-arising evidence and adequacy of the opportunity for cross

Crawford, quite properly, gives prosecutors incentive to take the testimony of witnesses before trial, under oath and subject to confrontation, in case the witness is unavailable at the time of trial. It appears to me that prosecutors should do so far more often than they do now and that procedural rules making it difficult to hold such a pretrial examination should be amended. But pretrial examinations inevitably raise the question of whether the opportunity for cross-examination was adequate. One problem is whether counsel had adequate time to prepare. Another, to some extent the other side of the same coin, is whether the earlier opportunity should be deemed inadequate because some information that might have been used in cross and that is available at trial was not available at the time of the earlier proceeding.

In People v. Jurado, 2006 WL 870936, a capital case decided yesterday, the California Supreme Court weighed in. There, the prosecution had taken the "conditional examination" – basically, as I understand it, a deposition held for purposes of preserving testimony – of a key witness, who became unavailable by the time of trial. The prosecution offered the prior examination over the objection that the opportunity for cross was inadequate because the witness had subsequently made an important statement that would have been valuable in cross-examination. The state supreme court rejected this argument, pronouncing flatly, "Absent wrongful failure to timely disclose by the prosecution, a defendant's subsequent discovery of material that might have proved useful in cross-examination is not grounds for excluding otherwise admissible prior testimony at trial."

This issue is a difficult one, posing the question of what is the baseline against which to measure adequacy of the opportunity for cross. On the one hand, it appears that if the trial been held at the time of the prior examination there would have been no basis to contend that the opportunity for cross was inadequate; furthermore, later-arising evidence, such as a new statement by the witness, would not likely require a new trial. On the other hand, if the witness had testified at trial – which is when we expect most witnesses to testify – then the defense would have had the benefit of cross-examining on the basis of the later statement. It may be that the accused could still impeach the witness effectively, even without the witness being present for cross, but it is doubtful that this would eliminate altogether the differential between earlier and later cross.

I am inclined to think that the later time – the time of the trial – is the more appropriate baseline, and that the court should consider how serious is the lost opportunity to cross-examine on the basis of the later-received evidence. This would leave matters rather indeterminate in this area, but that might be better than the broad decision by the California Supreme Court.


David B. Chontos said...

In Pennsylvania, the opportunity to cross-exam the witness at a preliminary hearing is limited. Matters that go to traditonal attacks on credibility are not allowed because the magistrate is prohibited from making a credibility determination at the preliminary hearing. Hard to see how this limited chance to cross is satisfactory.

Marissa B. Bluestine said...

Another Pennsylvania practitioner here.

There have been a few attempts by district attorneys to admit preliminary hearing testimony of child witnesses who are unable to testify at trial. However, so far, judges have not allowed it as the opportunity to confront - particularly on the statements which prosecution wants to offer under our "tender years" statute - was so limited at the preliminary hearing.

Where we have been able to show that the statements were not provided until after the preliminary hearing, judges have not allowed the prior testimony. However, most have generally allowed other statements of the child in evidence under "tender years" as non-testimonial.

Anonymous said...

The Connecticut Supreme Court has weighed in on the subject.

“It cannot be the law that, under Crawford, evidence that did not even exist at the time of the prior opportunity for cross-examination can somehow render that opportunity inadequate, and therefore render the prior testimony inadmissible. Put another way, whether the prior opportunity for cross-examination was adequate, within the meaning of Crawford, must be gauged on the basis of evidence that was, at the least, in existence at that time; evidence that did not come into existence until years later, such as the letter in the present case, is simply irrelevant to the adequacy of the prior cross-examination.”

State v. Estrella, 277 Conn. 458, 491 (2006) (Borden, J., concurring).

Richard D. Friedman said...

I wonder what readers think about the flat rule enunciated by the Connecticut Supreme Court. It seems too broad to me. If the state chooses to take some time to prepare a trial, why should an opportunity for cross that was offered immediately after the incident be deemed automatically significant? If the baseline is one time or the other, it seems to me it should more likely be the time of trial.

Paul Vinegrad said...

As long as the defendant is given the opportunity at trial to use the post-preliminary hearing material to impeach the absent declarant's preliminary hearing testimony, the defendant's confrontation right has been satisfied.

Hasn't the Court stated that confrontation is a "trial" right. And, isn't that right adaquately safeguarded by allowing the hearsay declarant's preliminary hearing testimony to be impeached at trial with the newly discovered material?

Richard D. Friedman said...

The first sentence of Paul's comment simply states a conclusion.

As for the second sentence, it seesm to me that if anything the conception of the confrontation right as a "trial right" indicates that the baseline for judging adequacy of cross is the cross that the accused would have if it were held at the time of trial.

Suppose a crime is allegedly committed on Day 0, and on that same day a witness makes an accusation, the accused is arrested on the basis of that accusation, and the accused is offered an opportunity to cross-examine the accuser. Suppose further that on that day defense counsel would not possibly have in hand considerable information useful for cross that she would have in hand if cross were held at the time of trial. I don't think we can say that the opportunity for cross is per se adequate. Is the critical question whether (1) the crucial information existed at the time of the deposition or hearing but could not then be ascertained by counsel, or (2) the information did not exist? That seems too metaphysical for me.

Paul Vinegrad said...

Prof. Friedman, under your analysis there will never be an "adequate" opportunity for cross at any pre-trial proceeding.

Clearly, with the passage of time between the pre-trial proceeding and trial, defense counsel will have an opportunity to gather more information that could be useful in impeaching the declarant's pre-trial testimony. The mere fact that this newly discovered material was not available earlier should not preclude the prosecution from introducing the declarant's cross-examined testimony.

As the Court has stated, there are no "perfect" trials -- the Constitution only requires that they be "fair.". Boiled down to it's core, your argument demands perfection at pre-trial proceedings.

Richard D. Friedman said...

Paul raises a valid concern, but I don't think his conclusion follows. I'm just suggesting that the baseline for measuring adequacy seems to me to be the cross the accused would have had at trial. That doesn't mean that any deficiency, no matter how trivial, is sufficient to say the right has been denied.

Consider first the situation in which the witness has become unavailable through no fault of the accused. Then the prosecutor should bear the risk of unavailability. It probably makes sense in that situation to say that if the opportunity for cross is substantially impaired as compared to what it would have been at trial the prosecution bears that risk. The accused would have to show what the substantial impairment is, and it would be a judgment call as to how bad it is. Also, in some circumstances the problem might be mitigated if the accused is allowed to introduce later-discovered impeachment evidence; the prosecution might bear the risk that the witness is unavailable to explain that away.

The situation is much different if the witness is unavailable by virtue of the accused's wrongdoing. Then the accused presumptively forfeits the confrontation right, but I believe the prosecution should still be held responsible for mitigating the problem to the extent it reasonably can, such as by providing an opportunity for cross at a time while the witness is still available, if that is reasonably possible to do. But if the prosecution does that, it shouldn't ordinarily be held accountable for providing that opportunity too soon -- better too soon than too late, and except in extraordinary cases it shouldn't have to provide two opportunities.

I'll admit my thinking on these questions is tentative, but it does seem clear to me that there shouldn't be a per se rule that an early opportunity for cross is sufficient, no matter how unprepared counsel may be and no matter what may happen between that time and the time that the state chooses to try the accused.

Jeff Fisher said...

For what it's worth, the Connecticut Supreme Court ruling isn't as broad as these comments suggest. The anonymous comment quotes the concurrence. But the majority ruled more narrowly, "assum[ing] without deciding that [later discovered] evidence is relevant to the adequacy of the prior cross-examination" and holding that the prior opportunity there was adequate because the defendant already "readily could have challenged [the witness's] credibility even without the [new evidence]." The court distinguished cases in which "the defendant learned of [new] evidence demonstrating facts that could have been used to impeach the witness' testimony, but the defendant had no basis for knowing those facts at the time of the hearing. See, e.g., People v. McCambry, 218 Ill.App.3d 996, 1001-1002, 161 Ill.Dec. 578, 578 N.E.2d 1224 (defendant unaware of suggestive lineup from which accuser identified defendant at time accuser testified at preliminary hearing), cert. denied, 142 Ill.2d 661, 164 Ill.Dec. 924, 584 N.E.2d 136 (1991); People v. Reed, 98 Misc.2d 488, 488-90, 414 N.Y.S.2d 89 (1979) (defendant deprived of adequate opportunity at preliminary hearing to cross-examine person who accused him of robbery when accuser died four days before indictment was filed, victim's death certificate listed cause of death as chronic alcoholism and that condition was not known to defendant at time of hearing); Commonwealth v. Bazemore, 531 Pa. 582, 588-89, 591, 614 A.2d 684 (1992) (prior testimony of unavailable witness not admissible at trial when defendant unaware at time of preliminary hearing that witness accuser had made prior inconsistent statement to police, that witness had criminal record, and that district attorney was, at that time, contemplating filing criminal charges against witness for homicide and conspiracy in connection with same incident giving rise to complaint against defendant)."

Rankin Johnson IV said...

The adequacy of cross might depend on other procedures surrounding the pre-trial testimony. For example, could counsel in Jurado have asked for a continuance of the conditional examination in order for counsel to investigate more thoroughly? If not, then the cross-examination was not adequate, just as cross-examination at a trial taking place on that date would not be. Surely the right to cross-examination, and related rights like counsel and due process, include the opportunity to prepare adequately for the cross-examination.

Advokaat said...

Defense counsel requests a continuance of the preliminary hearing because he has not received all tapes of witness' statements, cannot cross examine, and cites Crawford, and voices his fear that witness will later be unavailable. Continuance denied
Witness testifies at the PX and is cross examined. Later her taped statement to 911 operator is provided to counsel. Witness is unavailable at trial. Both her prelim testimony and her 911 tape introduced at trial over objection. Now can it be denied that defense did not have an adequate opportunity to cross at the prelim? The prelim. is clearly the moment in time under these facts to determine whether there was an adequate opportunity to cross. Her 911 tape contains fruit for cross - merely pointing out contradictions to the jury is not even close to the impact the cross examination possible had counsel had the 911 at the prelim.