Petition for Writ of Certiorari — Gregory Shields, Sr., Petitioner v. Kentucky

No. ______

IN THE

GREGORY SHIELDS,

Petitioner,

v.

COMMONWEALTH OF KENTUCKY,

Respondent.

_______________

On Petition for a Writ of Certiorari to

the Supreme Court of Kentucky

_______________

PETITION FOR A WRIT OF CERTIORARI

_______________

Gregory J. DuBoff

APPELLATE JUSTICE

INITIATIVE AT

MCGUIREWOODS LLP

800 East Canal St.

Richmond, VA 23219

Aaron R. Baker

DEPARTMENT OF PUBLIC

ADVOCACY

5 Mill Creek Park

Frankfort, KY 40601

Jonathan Y. Ellis

Counsel of Record

Francis J. Aul

APPELLATE JUSTICE

INITIATIVE AT

MCGUIREWOODS LLP

888 16th St. N.W.

Suite 500

Washington, D.C. 20006

(202) 828-2887

jellis@mcguirewoods.com

i

QUESTION PRESENTED

In Crawford v. Washington, 541 U.S. 36 (2004),

this Court explained that, under the Confrontation

Clause, an unavailable witness’s prior testimony “is

admissible only if the defendant had an adequate opportunity to cross-examine.” Id. at 57. But the Court

has provided no further guidance on what an “adequate opportunity” requires. And the States are now

openly divided over when, if ever, a preliminary hearing meets the constitutional standard. Some state

high courts hold that a preliminary hearing never provides such an adequate opportunity. Others hold that

any opportunity to cross-examine at a preliminary

hearing is enough. Still others apply a case-by-case

approach that falls somewhere in the middle. The

question presented is as follows:

When, if ever, does a preliminary hearing provide

an “adequate opportunity” for cross-examination under the Confrontation Clause?

ii

STATEMENT OF RELATED PROCEEDINGS

The following proceedings are related:

•

•

•

Shields v. Commonwealth of Kentucky,

2020-SC-0060-MR (Ky. 2022) (opinion issued Feb. 24, 2022; petition for rehearing

denied June 16, 2022);

Shields v. Commonwealth of Kentucky, Nos.

17-CR-00339 & 17-CR-00340 (Warren Cir.

Ct.) (supplemental order denying motion in

limine to exclude prior testimony issued

May 7, 2019);

Shields v. Commonwealth of Kentucky, Nos.

17-CR-00339 & 17-CR-00340 (Warren Cir.

Ct.) (order denying motion in limine to exclude prior testimony issued May 6, 2019).

There are no additional proceedings in any court

that are directly related to this case within the meaning of this Court’s Rule 14.1(b)(iii).

iii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

RELATED PROCEEDINGS ..................................... ii

APPENDIX ................................................................ v

TABLE OF AUTHORITIES ..................................... vi

INTRODUCTION ...................................................... 1

OPINIONS BELOW .................................................. 4

JURISDICTION ........................................................ 4

RELEVANT CONSTITUTIONAL

PROVISION .................................................... 4

STATEMENT OF THE CASE .................................. 5

A.

Legal Background ................................ 5

B.

Factual and Procedural History .......... 7

REASONS FOR GRANTING THE WRIT .............. 12

I.

State Courts Are Deeply and Openly

Divided on the Question Presented.............. 13

A.

Colorado and Wisconsin hold that

a preliminary hearing never

affords an adequate opportunity

to cross-examine a witness ................ 13

B.

Illinois, Hawaii, Idaho,

Pennsylvania, and Nevada apply

a case-by-case approach to

determine whether a defendant

had an adequate opportunity to

cross-examine at a preliminary

hearing ................................................ 15

iv

C.

Kansas, California, and Utah

hold that the mere opportunity to

cross-examine a preliminaryhearing witness satisfies the

Confrontation Clause ......................... 20

D.

The decision below deepens the

conflict ................................................ 22

II.

The Decision Below Conflicts with This

Court’s Precedent .......................................... 23

III.

The Question Presented Is

Exceptionally Important and

Frequently Recurring. .................................. 28

IV.

This Case Is an Ideal Vehicle for

Resolving the Conflict. .................................. 30

CONCLUSION ........................................................ 31

v

APPENDIX

Appendix A Opinion in the Supreme Court of

Kentucky

(February 24, 2022) . . . . . . . . . . . App. 1

Appendix B Order in the Commonwealth of

Kentucky Warren Circuit Court,

Division 2

(May 6, 2019) . . . . . . . . . . . . . . . App. 54

Appendix C Supplemental Order in the

Commonwealth of Kentucky Warren

Circuit Court, Division 2

(May 7, 2019) . . . . . . . . . . . . . . . App. 56

Appendix D Order Denying Petition for Rehearing

in the Supreme Court of Kentucky

(June 16, 2022) . . . . . . . . . . . . . . App. 66

vi

TABLE OF AUTHORITIES

Cases

Barber v. Page,

390 U.S. 719 (1970) ........................... 5, 24, 25, 28

Brady v. Maryland,

373 U.S. 83 (1963) ............................................... 3

California v. Green,

399 U.S. 149 (1970) ................................... passim

Capstraw v. Commonwealth,

641 S.W.3d 148 (Ky. 2022) ................................ 26

Chavez v. State,

213 P.3d 476 (Nev. 2009) ............................ 18, 22

Commonwealth v. Bazemore,

614 A.2d 684 (Pa. 1992) ........................ 18, 19, 20

Commonwealth v. Wortman,

929 S.W.2d 199 (Ky. Ct. App. 1996) ..... 14, 25, 29

Crawford v. Washington,

541 U.S. 36 (2004) ..................................... passim

Delaware v. Fensterer,

474 U.S. 15 (1985) ............................................. 27

Giglio v. United States,

405 U.S. 150 (1972) ............................................. 3

State ex rel. Huser v. Rasmussen,

267 N.W.2d 285 (Wis. 1978).............................. 14

vii

King v. Venters,

595 S.W.2d 714 (Ky. 1980) ................................ 15

Knapper v. State,

473 P.3d 1053 (Okla. Ct. Crim. App.

2020) .................................................................. 29

Mackin v. State,

387 P.3d 986 (Utah 2016) ................................. 21

Mattox v. United States,

156 U.S. 237 (1895) ............................. 5, 6, 24, 29

Ohio v. Roberts,

448 U.S. 56 (1980) ..................................... passim

People v. Andrade,

238 Cal. App. 4th 1274 (2015) .......................... 21

People v. Draughn,

No. 351688, 2021 WL 1515491 (Mich. Ct.

App. Apr. 15, 2021)............................................ 29

People v. Duncan,

78 Cal. App. 4th 765 (2000) .............................. 21

People v. Fry,

92 P.3d 970 (Colo. 2004).................... 1, 13, 15, 22

People v. Jurado,

131 P.3d 400 (Cal. 2006) ................................... 21

People v. Torres,

962 N.E.2d 919 (Ill. 2012) ........................... 16, 19

People v. Wilson,

484 P.3d 36 (Cal. 2021) ..................................... 21

viii

Pointer v. Texas,

380 U.S. 400 (1965) ................................... passim

Schmidlin v. City of Palo Alto,

157 Cal. App. 4th 728 (2007) ............................ 20

State v. Aaron,

218 S.W.3d 501 (Mo. Ct. App. 2007) ................. 23

State v. Contreras,

979 So.2d 896 (Fla. 2008) .............................. 2, 23

State v. Ellis,

417 P.3d 86 (Utah 2018) ................................... 22

State v. Garrido,

314 P.3d 1014 (Utah Ct. App. 2013) ................. 21

State v. Gleason,

329 P.3d 1102 (Kan. 2014) ............................ 6, 23

State v. Goins,

423 P.3d 1236 (Utah 2017) ............................... 22

State v. Jackson,

2022 WL 1836930 (Tenn. Ct. Crim. App.

June 3, 2022) ..................................................... 29

State v. Mantz,

222 P.3d 471 (Idaho Ct. App. 2009) .................. 23

State v. Nofoa,

349 P.3d 327 (Haw. 2015) ............... 16, 19, 23, 25

State v. Richardson,

328 P.3d 504 (Idaho 2014) .................... 17, 18, 23

ix

State v. Rimmer,

623 S.W.3d 235 (Tenn. 2021) ............................ 29

State v. Rozell,

508 P.3d 358 (Kan. 2022) .................................. 20

State v. Stuart,

695 N.W.2d 259 (Wis. 2005)........................ 14, 15

State v. Wilson,

223 P.3d 838 (Kan. Ct. App. 2010) ................... 20

State v. Young,

87 P.3d 308 (Kan. 2004) .................................... 20

Tyler v. Commonwealth,

2022 WL 3031277 (Va. Ct. App. Aug. 2,

2022) .................................................................. 29

Constitutional Provision

U.S. Const. amend VI ......................................... 5, 24

Rules

Ky. R. Crim. P. 7.10 ............................................ 9, 26

Ky. R. Crim. P. 7.12 ............................................ 9, 26

Ky. R. Crim. P. 7.14 ............................................ 9, 26

Utah R. Evid. 804(b)(1) .......................................... 22

x

Other Authorities

Christopher B. Mueller, Cross-Examination

Earlier or Later: When Is It Enough to

Satisfy Crawford?, 19 Regent U. L. Rev.

319 (2007) .......................................................... 23

1

INTRODUCTION

In Crawford v. Washington, 541 U.S. 36 (2004), the

Court returned Confrontation Clause jurisprudence to

the Clause’s original meaning. The Court explained

that this “bedrock procedural guarantee” demands

that the reliability of testimonial statements against

an accused “be assessed in a particular manner: by

testing in the crucible of cross-examination.” Id. at 42,

61. When the prosecution seeks to introduce such

statements through anything other than live, in-court

testimony, the Sixth Amendment thus requires both

“unavailability and a prior opportunity for crossexamination.” Id. at 68. And the Court confirmed

that any prior opportunity must be “adequate” to test

the statements. Id. at 57.

Since Crawford, however, the Court has provided

no further explanation of when a prior opportunity for

cross-examination is “adequate.” State courts of last

resort are now openly divided over when, if ever, a

particularly common form of prior opportunity for

cross-examination—a preliminary hearing—meets

that constitutional standard. See People v. Fry, 92

P.3d 970, 978 (Colo. 2004) (noting split).

Two States hold that a preliminary hearing never

provides a constitutionally adequate opportunity. In

those courts’ view, the limited purpose and inherent

limitations of those proceedings prevents a defendant

from receiving a full and fair opportunity for crossexamination. By contrast, three States hold that any

opportunity to cross-examine a witness at a preliminary hearing is enough—regardless of the defendant’s

realistic ability to test the testimony’s reliability

through cross-examination. At least five States fall

somewhere in the middle. Those States apply a case-

2

by-case approach, considering, for example, the defendant’s motive to cross-examine at the preliminary

hearing, whether discovery or other information available to the defendant allowed for meaningful cross-examination, and the extent of cross-examination that

occurred.

This case provides an excellent opportunity to resolve this conflict and to provide lower courts the guidance they desperately need. See State v. Contreras,

979 So.2d 896, 909 (Fla. 2008) (“[W]e have no guidance from the Supreme Court as to [what satisfies] the

Crawford cross-examination requirement . . . .”). It

also illustrates the abuses that flow from the “mere

opportunity” approach.

Petitioner Gregory Shields was arrested for his uncle’s murder in February 2017. His aunt, Maude Murrell, was the only eyewitness. One week later, Ms.

Murrell testified at petitioner’s preliminary hearing.

The prosecutor would later admit that he called Ms.

Murrell only to “preserve her testimony for trial” after

realizing that “she was of such an advanced age.” MIL

Vid. 13:20-13:47. 1 But petitioner received no notice

that Ms. Murrell would testify. And the Commonwealth provided no discovery before the hearing because the prosecutor “did not deem it appropriate at

that stage.” MIL Vid. 15:57-16:12. The discovery

withheld at that time included notes from Ms. Murrell’s interviews with police (in which she identified a

Kentucky state courts videorecord hearings in lieu of transcripts. References to “PH Vid.” and “MIL Vid.” refer to

timestamps in the videos of petitioner’s preliminary hearing and

the hearing on his motion in limine to exclude Ms. Murrell’s testimony, respectively.

1

3

different assailant), the medical examiner’s preliminary finding (which listed a cause of death inconsistent with Ms. Murrell’s testimony), and petitioner’s

recorded statement to police. The Constitution would

require disclosure of all that evidence before Ms. Murrell could testify at trial. See Brady v. Maryland, 373

U.S. 83, 87 (1963); Giglio v. United States, 405 U.S.

150, 154 (1972). Defense counsel had none of it at the

preliminary hearing.

Ms. Murrell testified on direct examination for

about 20 minutes, implicating petitioner in her husband’s death. On cross-examination—which lasted

under 90 seconds—petitioner’s counsel asked six perfunctory questions that “barely touched on the facts of

the underlying incident.” App., infra, 36.

Over the next 16 months, the Commonwealth

never sought to preserve the testimony of its key witness by deposition. Instead, after Ms. Murrell died in

June 2018, the Commonwealth revealed its intent to

rely on the preliminary-hearing testimony. The trial

court denied petitioner’s motion to exclude her preliminary-hearing testimony. A divided Supreme Court of

Kentucky affirmed, holding that “the[se] circumstances cannot be viewed as denying the defense the

opportunity to confront the witness.” Id. at 29.

The Kentucky Supreme Court’s decision is wrong.

Petitioner never enjoyed an adequate opportunity to

cross-examine the State’s principal witness against

him. And the Kentucky court’s decision powerfully

demonstrates the need for this Court’s guidance on

the Confrontation Clause’s demands.

Had petitioner been tried in Colorado, Wisconsin,

or likely several other States, he could not have been

4

convicted on the basis of Ms. Murrell’s untested testimony. Unlike Kentucky, those States would have

found that the Confrontation Clause prohibited the introduction of Ms. Murrell’s preliminary-hearing testimony at trial. And yet petitioner faces a 25-year sentence because the Kentucky Supreme Court has

adopted a different reading of the Confrontation

Clause and this Court’s precedents.

A defendant’s enjoyment of bedrock Sixth Amendment rights should not turn on the happenstance of

geography. The petition for a writ of certiorari should

be granted.

OPINIONS BELOW

The opinion of the Supreme Court of Kentucky

(App., infra, 1-53) is reported at 647 S.W.3d 144. The

underlying orders of the Warren Circuit Court (App.

infra, 54-65) are unreported.

JURISDICTION

The Supreme Court of Kentucky issued its judgment on February 24, 2022. The same court denied a

petition for rehearing on June 16, 2022 (App., infra,

66). On September 6, 2022, Justice Kavanaugh extended the time to file a petition for a writ of certiorari

until November 11, 2022. This Court has jurisdiction

under 28 U.S.C. § 1257(a).

RELEVANT CONSTITUTIONAL PROVISION

The Sixth Amendment provides in relevant part:

“In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses

against him.”

5

STATEMENT OF THE CASE

A. Legal Background

The Sixth Amendment guarantees a criminal defendant’s right “to be confronted with the witnesses

against him.” U.S. Const. amend. VI. That protection

“commands . . . that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Crawford, 541 U.S. at 61. Thus, an unavailable witness’s prior testimony is admissible “only if

the defendant had an adequate opportunity to crossexamine” at an earlier proceeding. Id. at 57.

The Court has grounded this prior-testimony rule

on the notion that “the right of cross-examination having been once exercised, it [is] no hardship upon the

defendant” to admit such testimony at a later trial.

Mattox v. United States, 156 U.S. 237, 243 (1895). In

line with that premise, the Court has limited admission of prior testimony to cases when cross-examination at trial would provide only an “incidental benefit

. . . to the accused.” Id. at 243.

Before Crawford, the Court had twice held that the

admission of preliminary-hearing testimony at trial

violated the Confrontation Clause. See Pointer v.

Texas, 380 U.S. 400, 406 (1965); Barber v. Page, 390

U.S. 719, 725 (1970). In both cases, the Court emphasized that a preliminary hearing is not “a full-fledged

hearing.” Pointer, 380 U.S. at 407. And it explained

that the confrontation right is satisfied only when the

earlier testimony is “taken at a time and under circumstances affording . . . counsel an adequate opportunity to cross-examine.” Id. In Barber, the Court assumed that the defendant had waived his right to

cross-examination at the preliminary hearing. 390

6

U.S. at 722. But that waiver did not extend to “the

right of confrontation at a subsequent trial” because

“[a] preliminary hearing is ordinarily a much less

searching exploration into the merits of a case.” Id. at

725.

Conversely, the Court has approved the admission

of preliminary-hearing testimony at a later trial on

only two occasions—both also before Crawford. See

California v. Green, 399 U.S. 149 (1970); Ohio v. Roberts, 448 U.S. 56, 73 (1980). Both cases involved thorough cross-examination at the earlier hearing. The

witness in Green was “subjected to extensive cross-examination” at the preliminary hearing and actually

testified at trial. 399 U.S. at 151. And although the

witness in Roberts was unavailable for trial, defense

counsel “tested [the witness’s] testimony” at the preliminary hearing “with the equivalent of significant

cross-examination.” 448 U.S. at 70, 73. The Court admitted the testimony only after concluding, moreover,

that the defendant had not been “significantly limited

in any way in the scope or nature of his cross-examination.” Id. at 71.

In Crawford, the Court confirmed that prior testimony is admissible “only if the defendant had an adequate opportunity to cross-examine” at the earlier

hearing. 541 U.S. at 57. But as many lower courts

have observed, “Crawford . . . provides no guidance for

how much cross-examination is required to afford the

defendant an adequate opportunity.”

State v.

Gleason, 329 P.3d 1102, 1134 (Kan. 2014) (quotation

omitted). And the Court has not addressed the question since.

7

B. Factual and Procedural History

Petitioner Gregory Shields lived with his uncle and

aunt, Samuel and Maude Murrell. App., infra, 2. In

February 2017, police responded to a report that Mr.

Murrell had been murdered in his home. Id. Ms. Murrell told police two versions of events that day. Id.

She first claimed that an unknown intruder killed Mr.

Murrell. Id. She later accused petitioner of that

crime. Id. Officers arrested petitioner and charged

him with murder. Id. One week later, petitioner appeared at a preliminary hearing with appointed counsel. Id. at 3.

1. At the time of the preliminary hearing, the

Commonwealth had failed to provide defense counsel

with any discovery in its possession. As the prosecutor later explained, he “did not deem it appropriate at

that stage to provide that information.” MIL Vid.

15:57-16:12. As a result, all defense counsel had was

an arrest citation with a single-paragraph description

of the charged offenses. App., infra, 2-3.

The withheld discovery included critical pieces of

evidence. There were notes of Ms. Murrell’s several

interviews with police, in which she at first identified

a home intruder as Mr. Murrell’s killer. PH Vid.

23:15-23:40. The Commonwealth also had the medical examiner’s preliminary findings, which listed

strangulation as a cause of death. PH Vid. 27:2027:48. Finally, the Commonwealth had an audio recording of petitioner’s statement to police when they

arrived at the house. PH Vid. 23:45-24:06.

With no notice to defense counsel, the prosecutor

called Ms. Murrell, then 82 years old, to testify at the

8

preliminary hearing. MIL Vid. 15:05-15:20. The prosecutor would later admit that it was “unusual” to call

a non-police witness at a preliminary hearing, App.,

infra, 57, and defense counsel noted that she had

never seen it done in her eight years as a public defender, id. at 6. After Ms. Murrell testified, the prosecutor called a detective whose testimony, he acknowledged, would have been enough on its own to establish

probable cause. MIL Vid. 18:10-18:21.

Though undisclosed to the trial court or defense at

the time, the prosecutor later admitted that his “purpose in calling Ms. Murrell was to preserve her testimony.” App., infra, 57. After the prosecutor “realized

she was of such an advanced age,” he “made the decision to call her as a witness at the preliminary hearing

. . . . to preserve her testimony for trial.” MIL Vid.

13:20-13:47.

2. Ms. Murrell testified for nearly 20 minutes on

direct examination. PH Vid. 1:40-19:00. She alleged

that petitioner entered the Murrell bedroom after

midnight “yelling and complaining” about various

grievances. App., infra, 3. After petitioner ripped off

the bed covers, he allegedly cut Mr. Murrell on the

arm and chest with a knife. Id.

Ms. Murrell testified that she and petitioner then

went to the garage to smoke a cigarette together. Id.

She stated that, as they reentered the house, Mr. Murrell asked them to change the bedsheets. Id. After

which, petitioner helped Mr. Murrell to his walker

and also treated his cuts. Id. at 3-4. Some time later,

Mr. Murrell fell forward, hitting his head on a dresser.

Id. at 47. After petitioner helped Mr. Murrell to his

feet, he fell again. Id.

9

Ms. Murrell explained that petitioner then

checked Mr. Murrell’s pulse, which was strong. Id. at

4. But, she stated, when he checked again a few

minutes later, Mr. Murrell had died. Id. Petitioner

then called the police. Id.

3. Defense counsel cross-examined Ms. Murrell for

less than 90 seconds. PH Vid. 19:40-21:05. Her questions “barely touched on the facts of the underlying

incident.” App., infra, 36. The entire cross-examination consisted of six questions:

(1) Now, you said that [petitioner] had lived with

you all for about four years?

(2) How long have you known [petitioner]?

(3) The night that this happened, did this seem

out of character for him?

(4) Did he seem like he was acting unusual?

(5) Did it make sense that he was mad? Did you

understand why he was mad?

(6) And you told [the prosecutor on direct examination] that [petitioner] took you all to doctors’

appointments and ran errands for you, is that

correct?

Id. at 35.

Defense counsel later explained that she was

“caught off guard” by the prosecutor’s decision to have

Ms. Murrell testify. MIL Vid. 39:15-39:20. So with no

preparation, the cross-examination was “sort of lastminute, just whatever I could think of to ask her at

the time.” MIL Vid. 5:55-6:05. Defense counsel also

10

explained that she limited her questioning because a

preliminary hearing is “limited in scope to probable

cause,” and in her experience courts do not allow questions “beyond th[at] scope.” MIL Vid. 6:10-6:35.

4. After the preliminary hearing, the Commonwealth served discovery on defense counsel, including

notes from Ms. Murrell’s interviews with police, the

medical examiner’s report, and petitioner’s recorded

statement. MIL Vid. 16:55-17:05. But at no time in

the ensuing 16 months did the prosecutor seek to preserve Ms. Murrell’s testimony by deposition.

Like most States, Kentucky permits depositions in

criminal cases “[i]f it appears that a prospective witness may be unable to attend . . . trial.” Ky. R. Crim.

P. 7.10(1). Such depositions must “fully protect the

rights of personal confrontation and cross-examination of the witness by the defendant.” Id. at 7.12(1).

Among those protections, the defendant must receive

adequate notice of the deposition, id. at 7.14, and he

must be provided any “books, papers, documents or

tangible objects” relevant to the witness’s testimony,

id. at 7.10(1). Kentucky declined to invoke those procedures to preserve Ms. Murrell’s testimony here.

Ms. Murrell died in June 2018, and petitioner later

moved to exclude her testimony. App., infra, 5. At the

hearing on petitioner’s motion, the trial court asked

the prosecutor, “Why not provide them discovery and

then give them notice that you were preserving trial

testimony and [depose her] sometime after the preliminary hearing?” MIL Vid. 18:32-18:54. The prosecutor

gave no explanation, other than to note that defense

counsel had not objected to Ms. Murrell’s testimony at

the preliminary hearing. MIL Vid. 19:50-20:07.

11

The trial court denied petitioner’s motion. App.,

infra, 54-65. It noted that it was “risky for the Commonwealth to fail to provide notice and discovery” in

this situation. Id. at 64. But “[u]nder the facts of this

particular case and witness, and in this limited circumstance,” the court “d[id] not find that the defendant was denied a meaningful opportunity to cross-examine Ms. Murrell.” Id.

Petitioner entered a conditional guilty plea to firstdegree manslaughter and was sentenced to 25 years

in prison. Id. at 9. As allowed by his plea agreement,

petitioner appealed the trial court’s ruling on Ms.

Murrell’s preliminary-hearing testimony.

5. The Supreme Court of Kentucky affirmed on a

divided vote. App., infra, 1-53. The majority stressed

that cross-examination at the preliminary hearing

was “self-limited,” even as it acknowledged that this

was likely because defense counsel “felt ill prepared

due to not having pre-hearing notice that Mrs. Murrell would testify” and “anticipated objections” to any

questions going beyond probable cause. Id. at 28-29.

It also acknowledged that “the paucity of discovery” at

the time of the preliminary hearing may have limited

defense counsel’s ability to cross-examine. Id. at 29 &

n.13. Even so, the majority found petitioner’s argument that “he was not afforded an adequate opportunity to cross-examine Mrs. Murrell . . . of little

weight.” Id. at 29.

Three justices dissented. They disagreed with the

majority’s holding “that because defense counsel

properly confined her questions to the scope of a preliminary hearing—probable cause—[petitioner’s] constitutional right to confront the witnesses against him

was satisfied.” Id. at 36. That approach, they said,

12

would “allow a defendant’s Confrontation Clause right

to hinge on whether his attorney asks improper questions and whether the trial court prohibits those improper questions.” Id. at 49-50.

The dissenting justices also emphasized how much

more limited the cross-examination of Ms. Murrell

was than in cases like Green and Roberts. Id. at 4142. In that vein, they highlighted areas of Ms. Murrell’s testimony “that likely would have become issues

at trial but were not explored in defense counsel’s

cross-examination at the preliminary hearing.” Id. at

46-47. These included Ms. Murrell’s odd claim that

she left to smoke a cigarette during petitioner’s alleged attack on Mr. Murrell, petitioner’s efforts to

treat Mr. Murrell’s wounds, and the inconsistencies

between Ms. Murrell’s testimony and the medical examiner’s findings. Id. 47.

Finally, the dissent insisted that the prosecutor

“could have, and should have, moved to conduct [Ms.

Murrell’s] deposition to preserve her testimony.” Id.

at 51. And that there had been ample time to do so

“after the case had been fully investigated and discovery had been provided to defense counsel.” Id.

REASONS FOR GRANTING THE WRIT

This Court’s guidance is desperately needed on the

scope of the Confrontation Clause’s bedrock guarantee

of cross-examination. Since Crawford righted the

ship on the doctrine, the Court has not returned to

what constitutes an “adequate opportunity” to crossexamine an unavailable witness’s prior testimonial

statements. As a result, the States are deeply and

openly divided on the Constitution’s demands. The

decision below deepens that conflict and cannot be

13

squared with this Court’s precedents. The question is

preserved and squarely presented in this case. And

the potential approaches have been extensively explored by lower courts. The time to intervene is now.

I.

State Courts Are Deeply and Openly

Divided on the Question Presented.

This Court should grant review to resolve the competing and irreconcilable interpretations of the Confrontation Clause among state courts of last resort.

These courts’ divergent approaches lead to different

outcomes in factually similar cases. And those outcomes cannot be explained by differences in state law,

but only a disagreement among the States over what

the Confrontation Clause requires.

A. Colorado and Wisconsin hold that a

preliminary hearing never affords an

adequate opportunity to cross-examine a

witness.

Two state supreme courts hold that the nature of a

preliminary hearing never affords defendants an “adequate opportunity” to cross-examine witnesses.

1. The leading example is People v. Fry, 92 P.3d

970 (Colo. 2004). While acknowledging that “[o]ther

states are split on” the question, the Supreme Court

of Colorado held categorically that a “preliminary

hearing does not provide an adequate opportunity to

cross-examine sufficient to satisfy the Confrontation

Clause requirements.” Id. at 978. The court explained that preliminary hearings “are restricted to a

determination of probable cause,” which is “a low

standard.” Id. at 977. In that setting, a judge cannot

even “engage in credibility determinations unless the

14

testimony is incredible as a matter of law.” Id. Thus,

“once a prima facie case for probable cause is established, there is little defense counsel can do” to show

otherwise. Id. And so defense counsel may rightly

“decline to cross-examine witnesses at the preliminary hearing, understanding that the cross-examination would have no bearing on the issue of probable

cause.” Id.

Wisconsin follows a similar approach, holding that

when “the State attempts to use the preliminary hearing testimony at a later trial, a Confrontation Clause

problem arises.” State v. Stuart, 695 N.W.2d 259, 266

(Wis. 2005). As in Fry, the Supreme Court of Wisconsin has emphasized that “[t]he preliminary hearing is

not the proper forum to debate and determine issues

as to credibility . . . once essential facts as to probability have been established.” State ex rel. Huser v. Rasmussen, 267 N.W.2d 285, 292 (Wis. 1978) (quotation

marks and citation omitted). And because that “ingredient of meaningful cross-examination” is missing, the

preliminary hearing does not provide an adequate opportunity under the Confrontation Clause. Stuart,

695 N.W.2d at 266.

2. Because Colorado and Wisconsin categorically

prohibit the introduction of preliminary-hearing testimony at trial, neither would have admitted Ms. Murrell’s testimony here. As in those States, “[t]he sole

purpose of a preliminary hearing” in Kentucky “is to

determine whether there is probable cause.” Commonwealth v. Wortman, 929 S.W.2d 199, 200 (Ky. Ct.

App. 1996). It is “not a mini-trial, nor is it a discovery

tool for the defense.” Id. So once “the prosecution has

enough evidence to warrant a trial, the protection to

15

the defendant is more shadow than substance.” King

v. Venters, 595 S.W.2d 714, 715 (Ky. 1980).

Kentucky also recognizes the same limitations on

cross-examination at a preliminary hearing. There

was no dispute below that had defense counsel asked

questions beyond the scope of probable cause, it could

have “draw[n] a justified objection and the ire of [the]

trial court.” App., infra, 49. So in practice, the scope

of cross-examination at a preliminary hearing depends on whether counsel “asks improper questions

and whether the trial court prohibits those improper

questions.” Id. at 49-50. Colorado cited the same dynamic as justification for its categorical rule. It noted

that “the opportunity for cross-examination” at a preliminary hearing “exists only to the extent that an attorney persists in asking questions that have no bearing on the issues before the court, and such irrelevant

questioning is not prohibited by the court.” Fry, 92

P.3d at 977. And on that basis it concluded that a preliminary hearing, by its nature, “does not . . . satisfy

the Confrontation Clause requirements.” Id. at 978.

B. Illinois, Hawaii, Idaho, Pennsylvania, and

Nevada apply a case-by-case approach to

determine whether a defendant had an

adequate opportunity to cross-examine at

a preliminary hearing.

Several States take a case-by-case approach in deciding whether a preliminary hearing provided an

“adequate opportunity” for cross-examination, under

which petitioner would have had a constitutional

right to exclude Ms. Murrell’s preliminary-hearing

testimony at trial.

16

1. Illinois’s approach is representative. In determining whether the defendant had an adequate opportunity to cross-examine, Illinois courts consider:

(1) “the motive and focus of the cross-examination”; (2)

whether the defendant “had the benefit of ‘unlimited

cross-examination’”; and (3) “what counsel knows

while conducting the cross-examination.” People v.

Torres, 962 N.E.2d 919, 931-34 (Ill. 2012).

As to the third consideration, the Supreme Court

of Illinois noted that “the absence of discovery” and

“the limited nature of the evidence which may be introduced at a preliminary hearing” may “impact counsel’s ability and opportunity to effectively cross-examine the witness at the prior hearing.” Id. at 932 (quoting People v. Horton, 358 N.E.2d 1121, 1124 (Ill.

1976)). In that context, the adequacy question “may

not depend in its entirety on what transpired” at a

preliminary hearing. Id. at 932-33. Rather, Illinois

courts also consider what undisclosed evidence or information “counsel might have used to confront” the

witness. Id. at 933.

In State v. Nofoa, 349 P.3d 327 (Haw. 2015), the

Supreme Court of Hawaii expressly adopted the Illinois approach, while rejecting Colorado’s categorical

rule. Id. at 339-40. Hawaii courts thus look to essentially the same considerations: (1) “the motive and

purpose of the cross-examination”; (2) “whether any

restrictions were placed on . . . cross-examination during the preliminary hearing”; and (3) whether the defendant “had access to sufficient discovery at the preliminary hearing to allow for effective cross-examination.” Id. at 340.

17

In Nofoa, the Supreme Court of Hawaii found that

“[t]he first two questions weigh[ed] in favor of admissibility.” Id. at 340. Even so, it held preliminaryhearing testimony inadmissible because the defendant “did not have access to relevant discovery materials”—including witness statements—“that would

have assisted in the cross-examination.” Id. Lack of

access to that information “denied the opportunity for

meaningful cross-examination,” which “cannot be full

and thorough unless counsel is permitted access to . . .

previous statements on matters on which the witness

is testifying.” Id. (quotation omitted).

The Supreme Court of Idaho takes a similar tack.

In State v. Richardson, 328 P.3d 504 (Idaho 2014), the

court noted that “Crawford did not specifically address what constitutes an ‘adequate’ opportunity for

cross-examination.” Id. at 508. But it distilled “three

indicators of an adequate opportunity for cross-examination” that it applies “on a case-by-case basis”:

(1) “representation by counsel”; (2) limitation “in the

scope or nature of counsel’s cross-examination”; and

(3) “any new and significantly material line of crossexamination that was not at least touched upon in the

preliminary hearing.” Id. at 508-09 (quotation omitted). In Richardson, the preliminary-hearing witness

was “questioned . . . on all relevant issues” and defense counsel offered “nothing more than speculation

and conjecture” about other lines of inquiry. Id. at

509. On those facts, the court held there was “an adequate opportunity to cross-examine . . . at the preliminary hearing.” Id.

Other States couch the standard in simpler terms

but follow a similar analysis. In Pennsylvania, “the

18

standard to be applied is that of full and fair opportunity to cross-examine.”

Commonwealth v.

Bazemore, 614 A.2d 684, 687 (Pa. 1992). The Supreme

Court of Pennsylvania excluded preliminary-hearing

testimony in Bazemore, noting that defense counsel

knew neither that the witness “had given a prior

inconsistent statement to the police,” nor of the witness’s “prior criminal record.” Id. It was no answer,

therefore, that defense counsel was not formally “restricted from delving into” those matters at the preliminary hearing. Id. As the court observed, “[o]ne is

hard pressed to find just how defense counsel was ‘not

restricted’ when the Commonwealth failed to provide

this information to the defense.” Id.

Nevada considers “the adequacy of the opportunity

on a case-by-case basis, taking into consideration such

factors as the extent of discovery that was available to

the defendant at the time of cross-examination” and

whether a “judge allowed the defendant a thorough

opportunity to cross-examine the witness.” Chavez v.

State, 213 P.3d 476, 484 (Nev. 2009). The Supreme

Court of Nevada emphasizes “the extent of discovery

that was available to the defendant at the time of

cross-examination” because “discovery is a component

of an effective cross-examination.” Id. at 483-84. And

it held preliminary-hearing testimony admissible in

Chavez because “nearly all the discovery was complete” before the hearing, and most of the 240 crossexamination questions were “based upon statements

[the victim] had made . . . to authorities.” Id. at 485.

2. Petitioner would likely have prevailed in most,

if not all, of these jurisdictions. Most importantly,

these States view a lack of discovery as an important,

19

if not dispositive, factor weighing against the adequacy of a preliminary hearing. See, e.g., Nofoa, 349

P.3d at 340-41 (lack of access to witness’s prior statements meant defense counsel “was unable to engage

in effective cross-examination”); Chavez, 213 P.3d at

483-84 (“[W]e have explained that discovery is a component of an effective cross-examination.”); Torres,

962 N.E.2d at 932 (“Beyond the freedom to fully question the witness . . . , what counsel knows while conducting the cross-examination may, in a given case,

impact counsel’s ability and opportunity to effectively

cross-examine the witness at the prior hearing.”).

And yet petitioner’s counsel received no discovery before the preliminary hearing despite the existence of

constitutionally significant material in the State’s

possession. See pp. 7, 10, supra.

Petitioner would have likely also prevailed in

Pennsylvania, which defines “adequate opportunity”

as “a full and fair opportunity to cross-examine” for

similar reasons. Bazemore, 614 A.2d at 687 (emphasis

removed). The majority below did not dispute “the

paucity of discovery” provided to defense counsel, including notes from Ms. Murrell’s several statements

to police. App., infra, 29 n.13. Yet it refused to characterize defense counsel’s cross-examination as “limited in any way” because there were no questions

“which the trial court disallowed.” Id. at 28-29.

Pennsylvania courts would take the opposite approach. In their view, it blinks reality to say that “defense counsel was ‘not restricted’ when the Commonwealth failed to provide [relevant] information to the

defense.” Bazemore, 614 A.2d at 687. In that situation, the witness’s testimony cannot be “fully tested”

and the defendant has not been provided the “full and

20

fair opportunity” for cross-examination that the Confrontation Clause requires. Id.

C. Kansas, California, and Utah hold that

the mere opportunity to cross-examine a

preliminary-hearing witness satisfies the

Confrontation Clause.

Finally, three States hold that the mere opportunity to cross-examine at a preliminary hearing will

satisfy the Confrontation Clause, without regard to

whether the opportunity was meaningful in any

sense.

Kansas holds, for example, that an unavailable

witness’s preliminary-hearing testimony is admissible if the defendant “was represented by counsel . . .

and had an opportunity to cross-examine” the witness.

State v. Young, 87 P.3d 308, 316 (Kan. 2004). That is

true even though, as in Colorado, not only do those

judges “not pass on credibility,” but “when evidence

conflicts, the judge must accept the version of the testimony most favorable to the State.” State v. Rozell,

508 P.3d 358, 366 (Kan. 2022). Lower courts in Kansas note the “dilemma” this rule creates for a defendant, especially given that a preliminary hearing typically “occur[s] prior to the time the defendant has completed his or her own investigation.” State v. Wilson,

223 P.3d 838, at *5 (Table) (Kan. Ct. App. 2010). But

the mere-opportunity rule “appears to be the law.” Id.

California courts apply a similar categorical rule.

As in Colorado, California judges are generally prohibited from “resolv[ing] questions of credibility or

conflicts in the evidence” at a preliminary hearing.

Schmidlin v. City of Palo Alto, 157 Cal. App. 4th 728,

21

768 (2007). And because preliminary hearings in California are “limit[ed] . . . to the single issue of the existence of probable cause,” the “right to cross-examine

witnesses has been significantly restricted.” People v.

Duncan, 78 Cal. App. 4th 765, 775 (2000). Nevertheless, to determine the admissibility of prior testimony,

California courts ask only whether a witness “previously testified against the defendant and was subject

to cross-examination at that time.” People v. Wilson,

484 P.3d 36, 59 (Cal. 2021).

California courts’ standard “permits an unavailable witness’s preliminary hearing testimony to be admitted at trial,” with no inquiry into the meaningfulness of the prior opportunity. Id. at 60. The fact that

“defense counsel did not have access to [the victim’s]

written statement to the police” at the time of the preliminary hearing is irrelevant. People v. Andrade, 238

Cal. App. 4th 1274, 1295 (2015). And even the “subsequent discovery of material that might have proved

useful in cross-examination is not grounds for exclu[sion].” People v. Jurado, 131 P.3d 400, 429 (Cal.

2006).

Lastly, according to the Supreme Court of Utah, it

is “the opportunity to cross-examine the witness, not

the actual undertaking of cross-examination, that satisfie[s]” the Confrontation Clause. Mackin v. State,

387 P.3d 986, 999 (Utah 2016). Under that rule, Utah

courts have admitted preliminary-hearing testimony

even when defense counsel made the “logical and routine choice” to conduct no cross-examination. State v.

Garrido, 314 P.3d 1014, 1022 (Utah Ct. App. 2013). 2

2 As a practical matter, Utah now generally excludes prelimi-

nary-hearing testimony at trial, but on evidentiary rather than

22

D. The decision below deepens the conflict.

The Supreme Court of Kentucky’s decision below

deepens the conflict among State courts and warrants

review.

The Kentucky decision echoes the minimalist approach of mere-opportunity States. The majority expressly declined to consider whether petitioner’s opportunity to cross-examine Ms. Murrell was “meaningful.” App., infra, 12. Instead, it characterized defense counsel’s questioning of Ms. Murrell as “self-limited” and emphasized that there was no “cross-examination which the trial court disallowed.” Id. at 29. On

that basis, the court found petitioner’s argument “that

he was not afforded an adequate opportunity to crossexamine . . . of little weight.” Id.

Even before the decision below, lower courts recognized the need for this Court’s intervention. Several

expressly acknowledged the conflict among them. See,

e.g., Fry, 92 P.3d at 978 (“Other states are split on

whether a preliminary hearing provides an adequate

opportunity for cross-examination.”); Chavez, 213

constitutional grounds. In States v. Goins, 423 P.3d 1236, 1241

(Utah 2017), the Supreme Court of Utah considered the admissibility of preliminary-hearing testimony under Utah’s identical

version of Federal Rule of Evidence 804. That rule admits prior

testimony against a party who had “an opportunity and similar

motive” for cross-examination. Utah R. Evid. 804(b)(1). Goins

held that because preliminary hearings in Utah are limited to

“determining whether probable cause exists,” it would be “rare”

for defense counsel to have “the same motive and . . . a full opportunity for cross-examination at the preliminary hearing.” 423

P.3d at 1241, 1243. Since Goins, however, the Supreme Court of

Utah has not revisited its holding that the admission of preliminary-hearing testimony does not violate the Confrontation

Clause. See State v. Ellis, 417 P.3d 86, 89 (Utah 2018).

23

P.3d at 484 (rejecting the Colorado and Wisconsin categorical approach); State v. Aaron, 218 S.W.3d 501,

514 (Mo. Ct. App. 2007) (acknowledging the “split as

to whether . . . cross-examination at the preliminary

hearing [is] an insufficient substitute for cross-examination at trial”); see also Nafoa, 349 P.3d at 339-40

(similar); State v. Mantz, 222 P.3d 471, 477 (Idaho Ct.

App. 2009) (similar).

And courts and commentators recognize the need

for guidance from this Court on the specific question

presented. See Christopher B. Mueller, Cross-Examination Earlier or Later: When Is It Enough to Satisfy

Crawford?, 19 Regent U. L. Rev. 319, 364 (2007) (“It

is high time to revisit the meaning of the constitutional standard” because “the doctrine of ‘full and effective’ cross-examination has not been adequately developed.”); see also, e.g., Richardson, 328 P.3d at 508

(“Crawford did not specifically address what constitutes an ‘adequate’ opportunity for cross-examination[.]”); Contreras, 979 So. 2d at 909 (“[W]e have no

guidance from the Supreme Court as to whether the

Crawford cross-examination requirement would be

satisfied [in various scenarios].”); Gleason, 329 P.3d at

1134 (“Crawford . . . provides no guidance for how

much cross-examination is required to afford the defendant an adequate opportunity.”).

II.

The Decision Below Conflicts with This

Court’s Precedent.

The deep divisions in the lower courts would warrant review even if Kentucky’s approach were correct.

But the decision below in fact contravenes this Court’s

precedent and vitiates the Confrontation Clause’s core

purpose.

24

The Sixth Amendment protects a criminal defendant’s right “to be confronted with the witnesses

against him.” U.S. Const. amend. VI. “It commands,

not that evidence be reliable, but that reliability be

assessed in a particular manner: by testing in the crucible of cross-examination.” Crawford, 541 U.S. at 61.

That method is “the greatest legal engine ever invented for the discovery of truth.” Green, 399 U.S. at

158.

The Court’s prior-testimony rule is linked to the

right itself. It has been “justified on the ground that

the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement.” Barber, 390

U.S. at 722 (emphasis added). The Court has never

admitted prior testimony without that predicate. See

Mattox, 156 U.S. at 242.

The witnesses in Pointer and Barber were available for cross-examination at preliminary hearings.

See Pointer, 380 U.S. at 1066; Barber, 390 U.S. at 720.

But the Court excluded each witness’s testimony because it was not given “at a time and under circumstances affording . . . counsel an adequate opportunity

to cross-examine.” Pointer, 380 U.S. at 407. And the

Court has only admitted preliminary-hearing testimony when the witness underwent “extensive crossexamination,” Green, 399 U.S. at 151, that was not

“significantly limited in any way in [its] scope or nature,” Roberts, 448 U.S. at 71.

This case falls well outside the narrow allowance

the Court has previously afforded for prior testimony.

See Crawford, 541 U.S. at 58 (considering whether the

outcome of the Court’s prior cases “hew[ed] closely” to

the Court’s rule). Ms. Murrell was not “subjected to

25

extensive cross-examination.” Green, 399 U.S. at 151.

Defense counsel asked six perfunctory questions that

“barely touched on the facts of the underlying incident.” App., infra, 36.

Importantly, it could hardly have been otherwise.

Defense counsel had no notice that Ms. Murrell would

testify. MIL Vid. 15:05-15:20. And she had no discovery or other evidence from which to prepare an effective examination. MIL Vid. 15:57-16:12; see Nofoa,

349 P.3d at 340 (noting the impossibility of “meaningful cross-examination” without access to a witness’s

prior statements).

Beyond that, defense counsel understood that

“[t]he sole purpose of a preliminary hearing” in Kentucky “is to determine whether there is probable cause

to believe that the defendant committed a felony.”

Wortman, 929 S.W.2d at 200. So even if she were

equipped to cross-examine Ms. Murrell at the preliminary hearing, defense counsel’s experience informed

her that broad cross-examination would not be permitted. MIL Vid. 6:05-6:35; see Wortman, 929 S.W.2d

at 200 (“The preliminary hearing is not . . . a discovery

tool for the defense.”).

That was all by design. The prosecutor’s unannounced purpose in calling Ms. Murrell was to preserve her testimony for trial. MIL Vid. 13:20-13:47.

There is no dispute that the prosecutor could have deposed Ms. Murrell after the preliminary hearing. See

Ky. R. Crim. P. 7.10(1). That procedure is designed to

“fully protect the rights of personal confrontation and

cross-examination,” id. at 7.12(1), by requiring reasonable notice and the production of all relevant evidence, id. at 7.10(1), 7.14. Yet the prosecutor did nothing in 16 months following the preliminary hearing to

26

preserve Ms. Murrell’s testimony “in any way that

[would] secure confrontation.” Green, 399 U.S. at 16162.

As noted by the dissent below, there is no shortage

of areas that could have been explored with Ms. Murrell had there been an “adequate opportunity” for

cross-examination. App., infra, 46-47. Of course, Ms.

Murrell’s initial statement to police that an intruder

killed her husband was highly exculpatory. PH Vid.

23:15-23:40. And several other topics, while perhaps

not proving petitioner’s innocence, could have been

used to rebut the charge against him. Ms. Murrell

claimed that she smoked a cigarette with petitioner

right after the alleged attack. App., infra, 3. That

testimony raises questions about the nature of the attack as well as Petitioner’s intent. But Ms. Murrell

was not asked any questions about why she felt comfortable smoking a cigarette with petitioner just after

he allegedly stabbed her husband. Ms. Murrell also

testified that petitioner rendered various forms of aid

to Mr. Murrell. Id. at 47. Defense counsel could have

developed that testimony to show that Mr. Murrell’s

injuries were inflicted accidentally, but no questions

were asked.

At the time of Ms. Murrell’s testimony, defense

counsel was also unaware that the medical examiner

had identified strangulation as a cause of Mr. Murrell’s death. Id. Strangulation provides uniquely

powerful evidence of intent. See Capstraw v. Commonwealth, 641 S.W.3d 148, 156 (Ky. 2022). Ms. Murrell said nothing about strangulation at the preliminary hearing, but her testimony was ambiguous as to

whether (or for how long) petitioner was alone with

Mr. Murrell. PH Vid. 9:15-9:35. Had defense counsel

27

known about the medical examiner’s findings, crossexamination could have been used to confirm that petitioner had no opportunity to strangle Mr. Murrell.

Defense counsel also could have asked whether Mr.

Murrell displayed any signs of strangulation before

his death.

Finally, defense counsel was not even provided

with petitioner’s own statement to police. PH Vid.

23:45-24:06. That fact alone severely hampered her

ability to cross-examine Ms. Murrell. Without petitioner’s statement, defense counsel did not know

whether any testimony she elicited from Ms. Murrell

might inadvertently undermine her client’s own account of the incident. And it is the rare defense counsel who would dare embark on such a blind cross-examination of a pivotal witness.

The record leaves little doubt that refusing to exclude Ms. Murrell’s testimony violated the Confrontation Clause and that error prejudiced petitioner. In

short, Ms. Murrell testified “at a time and under circumstances” that foreclosed meaningful questioning.

Pointer, 380 U.S. at 407. As a result, petitioner was

deprived of the “full and fair opportunity” for crossexamination that the Confrontation Clause secures.

Delaware v. Fensterer, 474 U.S. 15, 22 (1985). Without such an opportunity to exercise that right, it is impossible to determine that it would present “no hardship upon the defendant to allow the testimony” into

evidence. Mattox, 156 U.S. at 242. The Supreme

Court of Kentucky’s erroneous conclusion to the contrary provides additional reason for this Court’s review.

28

III.

The Question Presented Is Exceptionally

Important and Frequently Recurring.

The scope of the Confrontation Clause is vitally important. “There are few subjects, perhaps, upon which

this Court and other courts have been more nearly

unanimous than in their expressions of belief that the

right of confrontation and cross-examination is an essential and fundamental requirement for the kind of

fair trail which is this country’s constitutional goal.”

Pointer, 380 U.S. at 405. This Court has itself described the right as a “bedrock” constitutional guarantee in all federal and state prosecutions. Crawford,

541 U.S. at 42.

The specific contours of the prior-testimony rule,

moreover, is an important aspect of that right. The

Confrontation Clause, after all, “is basically a trial

right,” whose intent is to allow “the jury to weigh the

demeanor of the witness.” Barber, 390 U.S. at 725.

The admission of prior testimony without a live witness at trial—even if sometimes valid—thus necessarily deprives defendants “of the advantage of that

personal presence of the witness . . . which the law has

designed for his protection.” Mattox, 156 U.S. at 243.

It is therefore critical for this Court to clarify the scope

of the prior-testimony rule so that “[t]he right of confrontation may not be dispensed with . . . lightly.”

Barber, 390 U.S. at 725.

Practitioners, moreover, need this Court’s guidance as much as the courts. Prosecutors need to know

whether a preliminary hearing will suffice, or whether

they must take further steps to preserve vital testimony. After all, “[a]s with other evidentiary proponents, the prosecution bears the burden of establishing” that a defendant had an adequate opportunity to

29

cross-examine an unavailable witness. Roberts, 448

U.S. at 74-75. And defense counsel must understand

the stakes when a witness testifies at a preliminary

hearing.

The States themselves would benefit from further

guidance as they structure their criminal procedures.

The majority below, for example, faulted defense

counsel for her “self-limited” cross-examination, none

of which “the trial court disallowed.” App., infra, 29.

But as with most States, Kentucky law makes clear

that “[t]he preliminary hearing is not . . . a discovery

tool for the defense.” Wortman, 929 S.W.2d at 200.

Under Kentucky’s current procedures, defense counsel could not have properly questioned Ms. Murrell

more broadly. If the Confrontation Clause requires

certain procedures, the States themselves have an interest in clarity—even apart from their role prosecuting or adjudicating individual cases.

Finally, the admissibility of preliminary-hearing

testimony is often litigated. The decision below is at

least the seventeenth post-Crawford decision in a

state court of last resort addressing that precise question. Other lower courts routinely grapple with the

same issue, see, e.g., Tyler v. Commonwealth, 2022 WL

3031277, at *6 (Va. Ct. App. Aug. 2, 2022); State v.

Jackson, 2022 WL 1836930, at *13 (Tenn. Ct. Crim.

App. June 3, 2022); State v. Rimmer, 623 S.W.3d 235,

290-91 (Tenn. 2021); People v. Draughn, No. 351688,

2021 WL 1515491, at *3 (Mich. Ct. App. Apr. 15,

2021); Knapper v. State, 473 P.3d 1053, 1067-68 (Okla.

Ct. Crim. App. 2020), while specifically noting a lack

of guidance from this Court on the subject, see p. 23,

supra.

30

IV.

This Case Is an Ideal Vehicle for Resolving

the Conflict.

This case is an ideal vehicle to determine when, if

ever, a preliminary hearing provides an “adequate opportunity” for cross-examination under the Confrontation Clause.

The question is cleanly presented on direct review.

It is the only issue petitioner preserved when he entered a conditional guilty plea. App., infra, 9. There

can be no plausible claim that the error was harmless,

due both to petitioner’s conditional guilty plea and because the prosecutor acknowledged that Ms. Murrell

was a “pivotal witness” without whom “the Commonwealth’s case-in-chief would be difficult.” MIL Vid.

45:25-45:42. And the facts provide this Court with a

clear opportunity to address the constitutional question. In short, if this was an “adequate opportunity”

for cross-examination, then any preliminary-hearing

will satisfy the constitutional predicate.

There is no reason for the Court to defer addressing this important constitutional question. More than

a dozen state courts of last resort have considered the

question presented, and the doctrinal lines are clearly

drawn. See pp. 13-23, supra. The time has come for

this Court to answer the question presented and ensure that defendants in every jurisdiction enjoy the

full protection of the Confrontation Clause.

31

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Gregory J. DuBoff

APPELLATE JUSTICE

INITIATIVE AT

MCGUIREWOODS LLP

800 East Canal St.

Richmond, VA 23219

Aaron R. Baker

DEPARTMENT OF PUBLIC

ADVOCACY

5 Mill Creek Park

Frankfort, KY 40601

November 10, 2022

Jonathan Y. Ellis

Counsel of Record

Francis J. Aul

APPELLATE JUSTICE

INITIATIVE AT

MCGUIREWOODS LLP

888 16th St. N.W.

Suite 500

Washington, D.C. 20006

(202) 828-2887

jellis@mcguirewoods.com