Wednesday, August 29, 2007

Opportunity for Cross-Examination at Preliminary Proceedings

I am writing this post to invite readers' comments on this set of questions: California v. Green, 399 U.S. 149 (1970), holds that an opportunity to cross-examine at a preliminary hearing satisfies the confrontation right. How, if at all, does this principle affect the conduct of lawyers and courts at preliminary hearings and other pre-trial evidentiary proceedings (such as depositions taken for discovery purposes) not held for the primary purpose of preserving testimony? For example, how often do defense lawyers conduct a full cross-examination – knowing that if they do not and the witness is unavailable to testify at trial, it may be that the court will admit the earlier testimony and reject a claim of the confrontation right by ruling that the defense already had an opportunity for cross-examination? And how willing are courts to allow a full cross-examination given this possibility?

My own slightly educated guess is that usually the prospect of trial admissibility does not cause defense lawyers to conduct extensive cross-examinations at preliminary proceedings, and that if they tried to do so the courts would constrain them. Preservation of testimony is not the purpose of these proceedings, and if the defense protected itself (though at the potential cost of losing benefits of surprise) by making extensive cross-examinations these proceedings would become much more time-consuming. But I would like to know more than I do now from those who deal with these situations regularly. Thanks!


Marissa Bluestine said...

Our preliminary hearings are fairly quick proceedings, and no judge with a list of 60 or so hearings will entertain extensive cross-examination. As one who is in that situation regularly, I generally make it a point to ask the witness (1) whether they've ever been arrested (we don't have discovery pre-preliminary hearing) and (2) questions that go beyond a prima facie case. Each will always be objected to, and each show that a full and fair oppportunity to cross-examine was not accomplished at the preliminary hearing. Generally, where the Commonwealth seeks to preserve testimony, the situation is much different with notice and discovery provided before the hearing.

Life's trials said...

Prior to the hearing and on the record, I was asking the presiding Justice if I am limited to questioning the witness to the issues before the court or if I am permitted to conduct an examination consistent with trial. The court always limits me and I feel that I protected my client under the Sixth Amendment.

Rich Mantei said...

In Florida, one of the few places to have full discovery including depositions, the appellate courts have ruled that even a full-blown discovery deposition is not enough to satisfy the "prior opportunity" standard.

Seems rather inconsistent with any rational position, but there it is.

Richard D. Friedman said...

The first two comments highlight a flaw in the Green doctrine. A defense lawyer who is prepared can effectively nullify the rule by confirming with the trial court at the preliminary proceeding that the court is unwilling to allow the lawyer to do a full cross-examination.

Usually the court would be justified in so ruling. In the usual case, the prosecution has not given notice that it wants to preserve testimony, because it anticipates that the witness will be able to testify at trial. Given this, the benefits of preservation are not worth the extra time added to a proceeding held for another purpose.

Now of course if the prosecution does give notice that it wants the proceeding to preserve testimony, the defense must exercise the opportunity or take the risk that it will not have another. But the Green rule only takes effect if the prosecution doesn't do so, and in that context the only way the rule is likely to have any impact is if the defense lawyer fails to mutter the proper form of words. It is, in short, nothing more than a trap for the unwary.

As to Rich Mantei's comment: I believe this issue has not yet been resolved by the Florida Supreme Court. I don't agree that a rule denying preservation effect to a discovery deposition is irrational. Again, the hypothesis is that the prosecution has not given notice of its intention to preserve testimony. Given that the prosecution anticipates that the witness will appear for trial, I don't think it makes sense to require defense counsel to take the deposition on the assumption that the witness won't appear. Certainly depositions would become a lot longer that way. It is easy enough for the prosecution to preserve the testimony if it perceives the need to do so.

Rocky Sharwell said...

Florida law allows for discovery depositions by court rule which excludes the defendant from the deposition unless good cause is shown for his/her presence. Florida has a separate rule for depositions to perpetuate testimony where it is anticipated that the witness might become unavailable which requires an application to the court ahead of time---and allows for the presence of the defendant.

The issue of whether a discovery deposition is a prior opportunity for cross-examination is currently pending at the Florida Supreme Court--It has been over a year since the oral argument. There is a split amongst the District Courts of Appeal.

Glen Graham said...

I too have struggled with the question of whether the defendant is currently being afforded his/her full right to cross examination under the 6th amendment and state constitutional rights.

I agree with the suggestion of informing the court at the outset that the defendant requests the right to full "trial" constitutional right to cross-examination and the intent to object to the admission of this the transcript of the preliminary hearing at trial without those rights. I wonder if a written notice form or motion would better express the idea?

Glen Graham said...

Here is an unpublished case saying the court's failure to allow the defendant to call a witness at preliminary hearing and limitations of preliminary hearing violated 6th amend. rights. Upheld the dismissal of the case.

A good case to show the preliminary hearing judge when attempting to call defense witnesses at a preliminary hearing.
State v. Favors, DeAngelo, COCA Case No. S-2005-1067 (August 18, 2006)
(Evidence, General; Sixth Amendment) Because the defense was denied opportunity to fully confront (6th Amendment Right of Confrontation at Preliminary Hearing) victim’s testimony at preliminary hearing, trial court properly precluded use of that prior recorded testimony at a later proceeding.

Judge Klein over-ruled the defense request to call a defense witness at the end of the preliminary hearing but defense attorney Sherry Boyce made a record and made offer of proof of what witness would testify to if it had been allowed.

Subsequently, at the time of trial the state’s witnesses failed to appear and the defense witnesses also failed to appear with material witness warrants being issued. State had tried to introduce the preliminary hearing transcript at trial in place of the witness but the court over-ruled the request.

Judge Thornbrugh dismissed the case and the state appealed and the COCA in an unpublished case sustained the dismissal upon the grounds of the violation of the 6th amendment right of confrontation and the right to call witnesses and preserve witness testimony. Held state could not use preliminary hearing transcript in lieu of actual witness testimony when defendant was denied the right to call witnesses at preliminary hearing.

Mike Whalen said...

I take it a step further. After ach question at a prelim that is objected to as outside the scope of probable cause, I ask, "For the record, my cross examination of this witness is being limited?"

Our case law talks about the Defense having the same opportunities and the same motivation to develope a defense. This is most often within 10 days of the event. We have NO discovery before the prelim.

Its rare to see a witness become unavailable. When it happens I want my motion to include a long list of questions, objections and insistance that the court is limiting me.

Someday, someone may listen.

Debera said...

I have a preliminary hearing tomorrow (assistant public defender)on a first-degree murder case (Tennessee) and our judge cuts us off at the knees with the grand statement that this is not a discovery hearing. I have enjoyed reading the comments and taking notes. "Wide latitude" he may not understand, but our appellate judges most certainl understand Sixth Amend. and Confrontation. Thanks.

Anonymous said...

In the Murray trial the prosecution, not being able to locate a witness, has requested the witness's transcript in the preliminary hearing be offered at trial. The judge has asked the prosecutor to show how he has attempted to find the witness.

Is something like this allowed when the defense can't cross examine at trial?

I don't believe in CA they take depositions and the defense did little cross examination at the preliminary. I have never heard of something like this before and have been involved with the law as a police officer for 30 years. Can you help?