As blog readers well know, the new Crawford confrontation clause rule provides that absent an exception or a waiver of rights, testimonial hearsay statements of a declarant who does not testify at trial may not be admitted unless the witness is unavailable and there has been a prior opportunity for cross-examination. This is a tough rule for the prosecution because even if it can show unavailability (e.g., the witness is now dead), without a prior trial the prosecution rarely can show a prior opportunity for cross examination. But under a new court of appeals decision in State v. Ross, that just changed. In Ross, the court held that a victim’s testimony at a probable cause hearing provided a prior opportunity for cross-examination that satisfied the Crawford rule.
Ross involved the following facts. Early one morning Pedro Amaro and his wife, Angelica Besies, were awoken by a knock at the door. Amaro found the defendant at the door and recognized the defendant as the person who had sold him a shotgun a day or two earlier. Shortly after Amaro let the defendant inside, he heard a gunshot, felt heat at the back of his head, and his vision began to blur. He then heard his wife scream from the bedroom and heard another gunshot. The defendant had entered the bedroom and pointed his gun at Besies’ head. Besies struggled with the defendant and ended up shot in the hand. Amaro eventually subdued the defendant by holding him on the floor while Besies called 911. Four officers then arrived and secured the defendant, who claimed that he went to the residence to collect money that Amaro owed him from a drug deal. Amaro and Besies were brought to the hospital for treatment and upon their release were themselves arrested on numerous drug-related charges.
In addition to being charged with various offenses in connection with the Amaro/Besies home invasion, the defendant also was charged with several offenses, including first-degree murder, that occurred a few days earlier. None of these other charges involved Amaro or Besies. All of the charges against the defendant were later joined for trial. But before that happened, Besies, who was in custody on the drug charges, testified at the defendant’s probable cause hearing on the home invasion charges. Some months later Besies posted bond and was released from jail. When the defendant’s case came on for trial, Besies’ lawyer did not know her whereabouts. Amaro, who was still in custody, said she was in Mexico. In Besies’ absence, the prosecution offered, and the trial judge admitted, her statements at the probable cause hearing. The defendant was convicted of, among other things, attempted first degree murder, felony assault, and attempted armed robbery, all in connection with the home invasion. He was acquitted on the murder and other charges that were joined with the home invasion charges for trial.
On appeal, the defendant argued, in part, that the trial court violated the Crawford rule when it admitted Besies’ probable cause hearing testimony. Conceding that Besies was unavailable, the defendant argued that the probable cause hearing did not afford him an adequate prior opportunity to cross-examine her. Specifically, he asserted that his opportunity for cross-examination was inadequate for three reasons: (1) that all of the charges had not yet been joined for trial; (2) that his lead trial counsel had not yet been appointed; and (3) that at the time of the hearing, defense counsel had not yet had an opportunity to review all of the discovery. As to the joinder issue, the court noted that the probable cause hearing took place with respect to the home invasion charges, the only charges for which the defendant was ultimately found guilty. Thus, it concluded “with respect to the charges on appeal, defendant’s motive to cross-examine Ms. Besies would have been the same as his motive at trial.” It went on to note that the defendant failed to identify any topics that defense counsel did not address at the probable cause hearing that would have been covered in cross-examination at trial. As to the issue of lead counsel, the court noted that the lawyer who represented the defendant at the probable cause hearing served as co-counsel at the defendant’s later trial. And finally, as to the discovery issue, it noted that “our courts have never held that discovery must be complete for a cross-examination opportunity to be adequate.” It did not further explore this issue. The court then concluded:
Here, defendant was represented by counsel at the probable cause hearing (who was one of his trial counsel), he had the same motive to cross-examine Ms. Besies as at trial, and his counsel did in fact cross-examine Ms. Besies. These circumstances are sufficient to establish an adequate opportunity to cross-examine Ms. Besies. The trial court, therefore, did not err in admitting Ms. Besies’ probable cause hearing testimony.
After string of disappointments in the Crawford arena, Ross is sure to please the prosecution. Aside from holding that probable cause hearings can constitute an adequate prior opportunity for cross-examination, the case opens the door to arguments that similar pre-trial examinations—such as depositions—serve the same purpose. Of course, Ross is a court of appeals decision and as we’ve seen with regard to other aspects of the Crawford analysis, litigation tends to continue beyond the intermediate appellate courts. Thus, while Ross is the law, the prosecution’s aggressive use of it is not without risk. As for the weakest link in the Ross analysis, I’d say it’s the way with the court dealt with the discovery issue. But I’d love to hear your thoughts. Post away!