Jonathan Ellis and Gregory DuBoff of the McGuire Woods firm have filed an excellent cert petition in Shields v. Kentucky, No. 22-450. The question is whether, or in what circumstances, testimony of a prosecution witness at a preliminary hearing may be used at trial if the witness is then unavailable. This is an issue on which the Supreme Court has not given any guidance since Crawford, and the petition ably shows that the lower courts are in clear dispute.
Shields was charged with murdering his uncle, and the prosecution presented the testimony of Shields's elderly aunt, the decedent's widow, at the preliminary hearing. It did so without advance notice, or any indication that it was seeking to preserve the aunt's testimony for trial, and without making disclosures of exculpatory evidence that would have been required by trial. Cross-examination was perfunctory. The Commonwealth never attempted to take a deposition. The aunt died before the time scheduled for trial. Shields entered a conditional plea of guilty, allowing him to appeal the trial court's ruling that the preliminary-hearing testimony was admissible. The Kentucky Supreme Court affirmed.
My own view is that preliminary-hearing testimony of a prosecution witness who has become unavailable by the time of trial should be allowed if and only if certain conditions (apart from the obvious ones that the accused has a right to be present, to be represented by counsel, and to have the witness testify under oath) are satisfied. The purposes of a preliminary hearing and of trial, and defense counsel's goals, are very different -- it is usually, as it was here, a foregone conclusion that the defendant would be bound over for trial. Accordingly, preliminary-hearing testimony cannot be a substitute for trial testimony unless (1) the prosecution has given the accused notice that it intends to use the testimony, if necessary, for preservation; (2) the notice is given in sufficient time to allow adequate preparation; (3) the prosecution has made relevant disclosures that would be required by the time of trial, at least those that would be constitutionally required; and (4) there were no limitations beyond those that would apply at trial. In addition, I think that probably, if the accused is able to show that developments subsequent to the preliminary hearing would have opened up significant lines of cross-examination, that would justify a holding that the earlier testimony is not adequate.
I've expressed these views in an amicus brief in support of the petition. You can find the papers filed so far in the case -- including the petition, my amicus brief, and two other amicus briefs filed in support of the petition, by clicking here.