Cert denied in Shields. What should counsel do at preliminary hearing?

    This morning, the Supreme Court denied certiorari in Shields v. Kentucky, No. 22-450, on which I have previously posted, here and here.  As usual, the Court did not give any explanation; there were no dissents from the denial.

    In Shields, the prosecution presented an elderly witness at preliminary hearing, without giving notice to the defense, making the discovery that would be required before trial, or indicating that it was presenting her in the thought of preserving her testimony in case she became unavailable by the time of trial.  As it happened, she did indeed die before the scheduled trial date, and the issue was whether the prosecution should therefore be able to present her testimony form the hearing.  The Kentucky Supreme Court said yes, and the U.S. Supreme Court has now declined to review that ruling.

    The Court may have believed that this case was a bad vehicle for considering the issue of whether, or when, a preliminary hearing gives an adequate opportunity for confrontation; the evidence against the defendant, though not without some difficulties, was very strong.  But it could well be that the Court is simply disinclined for now to consider the issue.

    The uncertainty puts defense counsel in a difficult position.  Ordinarily, counsel is not expected to cross-examine aggressively at a preliminary hearing, because usually it is a foregone conclusion that the accused will be bound over for trial, and in some states cross addressed to credibility issues is not even permitted.  But if counsel holds back at the hearing and the witness becomes unavailable before trial, the courts might hold that the hearing gave an adequate opportunity for cross and the testimony from there is admissible.

    I believe, therefore, that defense counsel should make it a regular practice to present the conundrum to the court:

        (a) If counsel is prepared to conduct a full cross, she can ask the court whether it will allow that, noting that if it is allowed she will have to do so or risk being held later to have had her opportunity if the witness becomes unavailable before trial.  Most often, I believe, the court will say that the full cross is not allowed; neither the court, nor the prosecution, nor the defense is likely to want to have cross conducted then.   

    If, however, the prosecution wishes the hearing to serve a preservation function, in case the witness becomes unavailable before trial, then it would have to so indicate to the court, and then the defendant should be given a full opportunity for cross.  In my amicus brief in support of the petition in Shields, I laid out conditions that I think ought to be required if preliminary-hearing testimony is to satisfy the confrontation right.  One of them is that the prosecution should indicate that it wants the hearing testimony to serve a preservation function.  What I am suggesting here would essentially require the prosecution to make that declaration if it wants the testimony to serve that function. 

        (b) If counsel has been given inadequate opportunity to prepare for cross -- inadequate time, inadequate opportunity to consult with the accused, incomplete discovery -- she should so state on the record, and ask the court either to confirm that or to postpone the hearing so that she will have an adequate opportunity.  Once again, in most cases neither the court nor the prosecution is likely to want to complicate matters, but if the prosecution wants to maintain the preservation function it will have to so indicate.

    I'd be very grateful to learn of readers' responses to these suggestions, and of the experience any counsel have in this situation.