Amicus Curiae Brief — Gregory Shields, Sr., Petitioner v. Kentucky

No. 22-450

IN THE

Supreme Court of the United States

GREGORY SHIELDS, SR.,

Petitioner,

v.

COMMONWEALTH OF KENTUCKY,

Respondent.

On Petition for Writ of Certiorari to

the Supreme Court of Kentucky

BRIEF OF AMICUS CURIAE THE

RUTHERFORD INSTITUTE IN SUPPORT OF

PETITION FOR CERTIORARI

STEVEN A. ENGEL

JOHN W. WHITEHEAD

Counsel of Record

WILLIAM E. WINTERS

D

ECHERT

LLP

THE RUTHERFORD

1900 K Street, NW

INSTITUTE

Washington, DC 20006

109 Deerwood Road

(202) 261-3369

Charlottesville, VA 22911

steven.engel@dechert.com

(434) 978-3888

legal@rutherford.org

PETER J. MCGINLEY

BRIAN A. KULP

CHRISTOPHER J. MERKEN

DECHERT LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

Counsel for Amicus Curiae

December 15, 2022

i

QUESTION PRESENTED

When, if ever, does a preliminary hearing provide

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

ii

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES ...................................... iv

INTEREST OF AMICUS CURIAE.............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................1

ARGUMENT ................................................................3

I. Since Crawford, Lower Courts Continue To

Depart From The Original Understanding Of

The Confrontation Clause ......................................3

A. The Framers Adopted The Confrontation

Clause To Enshrine A Fundamental Trial

Right Of Criminal Defendants .........................6

B. Exceptions To The Right To Cross-Examine

One’s Accusers At Trial And Before The

Jury Were Strictly Limited ............................10

C. The Decision Below Is Inconsistent With

The Original Understanding Of The

Confrontation Clause......................................14

II. The Court Should Grant Certiorari And Confirm

That The Theoretical Opportunity For CrossExamination At A Preliminary Hearing Will

Seldom Satisfy The Confrontation Clause ..........18

A. Although Prior Cross-Examination May

Justify An Exception To The Trial Right Of

Confrontation, That Exception Should Be

Narrow ............................................................18

iii

B. Cross-Examination At A Preliminary

Hearing Will Only Rarely Satisfy The

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

CONCLUSION ..........................................................24

iv

TABLE OF AUTHORITIES

Cases

Barber v. Page,

390 U.S. 719 (1968)...................................... 6, 16, 21

Bullcoming v. New Mexico,

564 U.S. 647 (2011).................................................. 5

California v. Green,

399 U.S. 149 (1970).................... 8, 17, 18, 20, 21, 22

Commonwealth v. Davis,

777 S.E.2d 555 (Va. 2015) ..................................... 22

Coy v. Iowa,

487 U.S. 1012 (1988)................................................ 7

Crawford v. Washington,

541 U.S. 36 (2004)............ 2, 4, 5, 7-13, 15, 18-20, 24

Davis v. Washington,

547 U.S. 813 (2006).................................................. 5

Douglas v. Alabama,

380 U.S. 415 (1965)................................................ 15

Dutton v. Evans,

400 U.S. 74 (1970).................................................. 15

Finn v. Commonwealth,

26 Va. (5 Rand.) 701 (1827) ................................... 13

Ford v. Wainwright,

477 U.S. 399 (1986).................................................. 7

Giles v. California,

554 U.S. 353 (2008)............................ 5, 6, 10, 11, 14

Hemphill v. New York,

142 S. Ct. 681 (2022)............................................ 3, 5

v

House v. Balkcom,

725 F.2d 608 (11th Cir. 1984)................................ 22

Kentucky v. Stincer,

482 U.S. 730 (1987).......................................... 14, 19

King v. Dingler,

2 Leach 561, 168 Eng. Rep. 383 (1791) ................... 8

King v. Paine,

5 Mod. 163, 87 Eng. Rep. 584 (1696)....................... 8

King v. Venters,

595 S.W.2d 714 (Ky. 1980) ...................................... 6

King v. Woodcock,

1 Leach 500, 168 Eng. Rep. 352 (1789) ................... 8

Mattox v. United States,

156 U.S. 237 (1895)................................ 8, 11, 14, 15

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009).................................................. 5

Michigan v. Bryant,

562 U.S. 344 (2011).................................................. 5

Ohio v. Clark,

576 U.S. 237 (2015).................................................. 5

Ohio v. Roberts,

448 U.S. 56 (1980).......................................... 4, 5, 20

Pointer v. Texas,

380 U.S. 400 (1965)...................... 4, 9, 14, 15, 17, 19

Reynolds v. United States,

98 U.S. 145 (1879).......................................... 2, 6, 14

Shields v. Commonwealth,

647 S.W.3d 144 (Ky. 2022) .......................... 6, 20, 23

vi

State v. Atkins,

1 Tenn. (1 Overt.) 229 (1807) ................................ 14

State v. Thomas,

64 N.C. 74 (1870) ............................................. 10, 11

Strickland v. Washington,

466 U.S. 668 (1984)................................................ 22

Tennessee v. Street,

471 U.S. 409 (1985)................................................ 15

Williams v. Illinois,

567 U.S. 50 (2012).................................................... 5

Constitutions and Statutes

U.S. CONST. amend. VI ......................................... 3, 10

Delaware Declaration of Rights § 14 (1776) .............. 9

Maryland Declaration of Rights § XIX (1776) ........... 9

Massachusetts Declaration of Rights § XII

(1780) ........................................................................ 9

New Hampshire Bill of Rights § XV (1783) ............... 9

North Carolina Declaration of Rights § VII

(1776) ........................................................................ 9

Pennsylvania Declaration of Rights § IX

(1776) ........................................................................ 9

Vermont Declaration of Rights Ch. I, § X

(1777) ........................................................................ 9

Virginia Declaration of Rights § 8 (1776) .................. 9

Va. Code § 19.2-243 .................................................. 22

vii

Other Authorities

Laura Berend, Less Reliable Preliminary

Hearings and Plea Bargains in Criminal

Cases in California: Discovery Before and

After Proposition 115, 48 AM. U. L. REV. 465

(1998) ...................................................................... 23

1 J. BISHOP, CRIMINAL PROCEDURE (2d ed.

1872) ......................................................................... 8

3 W. BLACKSTONE, COMMENTARIES ON THE

LAWS OF ENGLAND (1768)................................... 7, 14

Douglas L. Colbert, Prosecution Without

Representation, 59 BUFF. L. REV. 333 (2011) ........ 23

THOMAS M. COOLEY, CONSTITUTIONAL

LIMITATIONS (6th ed. 1890) .................................... 10

Essay of Brutus XIV (Mar. 6, 1788),

reprinted in 1 BERNARD SCHWARTZ, THE

BILL OF RIGHTS: A DOCUMENTARY HISTORY

(1971) ............................................................ 9, 12, 16

M. HALE, HISTORY AND ANALYSIS OF THE

COMMON LAW OF ENGLAND (4th ed. 1792)............... 7

WILLIAM HENING, THE NEW VIRGINIA JUSTICE

(Richmond, Nicolson 1795) .................................... 13

Frank R. Herrmann & Brownlow M. Speer,

Facing the Accuser: Ancient and Medieval

Precursors of the Confrontation Clause, 34

VA. J. INT’L L. 481 (1994) ......................................... 7

Daniel Huff, Confronting Crawford, 85 NEB.

L. REV. 417 (2006) ............................................ 15, 17

viii

Randolph N. Jonakait, The Origins of the

Confrontation Clause: An Alternative

History, 27 RUTGERS L.J. 77 (1995) ...................... 13

Robert Kry, Confrontation Under the Marian

Statutes: A Response to Professor Davies, 72

BROOK. L. REV. 493 (2007) ............................... 13, 16

Robert Kry, Forfeiture and CrossExamination, 13 LEWIS & CLARK L. REV.

577 (2009) ............................................................... 12

Letter IV from the Federal Farmer to The

Republican (Oct. 12, 1787), reprinted in

THE ESSENTIAL DEBATE ON THE

CONSTITUTION (Robert J. Allison &

Bernard Bailyn eds., 2018) ................................ 9, 16

2 ROBERT JOSEPH POTHIER, A TREATISE ON

THE LAW OF OBLIGATIONS, OR CONTRACTS

(William David Evans trans., 1806)................ 12, 16

2 EDMUND POWELL, THE PRACTICE OF THE

LAW OF EVIDENCE (1856) ....................................... 13

Jenny Roberts, Too Little, Too Late:

Ineffective Assistance of Counsel, the Duty

to Investigation, and Pretrial Discovery in

Criminal Cases, 31 FORDHAM URB. L.J.

1097 (2004) ....................................................... 22, 23

2 THOMAS STARKIE, THE LAW OF EVIDENCE

(1826) ...................................................................... 13

1 JOSEPH STORY, COMMENTARIES ON THE

CONSTITUTION OF THE UNITED STATES

(1833) ........................................................................ 8

ix

2 JOHN HENRY WIGMORE, EVIDENCE (Little,

Brown & Co. 1904) ................................................... 4

5 JOHN HENRY WIGMORE, EVIDENCE

(J. Chadbourn rev. 1974)) ........................................ 7

1

INTEREST OF AMICUS CURIAE 1

The Rutherford Institute is a nonprofit civil

liberties

organization

headquartered

in

Charlottesville, Virginia. Founded in 1982 by its

President, John W. Whitehead, the Institute provides

legal assistance at no charge to individuals whose

constitutional rights have been threatened or violated

and educates the public about constitutional and

human rights issues affecting their freedoms. The

Rutherford Institute works tirelessly to resist tyranny

and threats to freedom by seeking to ensure that the

government abides by the rule of law and is held

accountable when it infringes on the rights

guaranteed by the Constitution and laws of the United

States.

INTRODUCTION AND SUMMARY OF

ARGUMENT

By allowing the admission of testimony based on a

woefully inadequate opportunity for confrontation, the

decision below violates the original understanding of

the Sixth Amendment. The Framers recognized that

there was no better method for the discovery of truth

than live cross-examination before the jury as trier of

fact. And nowhere was that method more critical than

in a criminal trial—which placed in jeopardy the

Pursuant to Rule 37.6, amicus curiae affirms that no

counsel for a party authored this brief in whole or in part and

that no person other than amicus curiae, its members, and its

counsel made a monetary contribution to its preparation or

submission. Counsel of record for all parties received notice at

least 10 days prior to the due date of the intention of amicus

curiae to file this brief. All parties consented to the filing of the

brief.

1

2

accused’s life or liberty. The Framers understood

English history and the evil that might follow from the

absence of this fundamental right. So they ratified the

Confrontation Clause to protect an accused’s “right to

a trial at which he should be confronted with the

witnesses against him.” Reynolds v. United States, 98

U.S. 145, 158 (1879).

To the founding generation, this right of

confrontation served as an indispensable bulwark for

the preservation of liberty. And it was scrupulously

protected from diminution. Only a few firmly rooted

common-law exceptions were recognized, and even

those were strictly circumscribed. One such exception

that had developed in England was for cases where the

accused had “a prior opportunity for crossexamination.” Crawford v. Washington, 541 U.S. 36,

46 (2004). But the Framers knew well of abuses posed

by such an exception and cabined it accordingly: Only

where the defendant could fully and effectively crossexamine the witness against him—in a manner

equivalent to the trial right—would the Framers have

tolerated the admission of prior testimony.

The decision below cannot be squared with this

principle. Nor can it be squared with this Court’s

command that the scope of a defendant’s confrontation

rights be measured by “the original meaning of the

Confrontation Clause.” Id. at 60. The Kentucky

Supreme Court sanctioned the admission of

testimonial hearsay simply because petitioner had an

opportunity to cross-examine his accuser at a

preliminary hearing.

But that opportunity was

patently inadequate. Petitioner had no notice that the

witness would testify, no meaningful discovery or

3

chance to investigate the prospective testimony, and—

due to the very limited nature of the state law

proceeding—no real motive to engage in the sort of

fulsome cross-examination that he would conduct

before the jury, the ultimate finder of fact.

As petitioner argues persuasively, lower courts

have disagreed over how to reconcile this Court’s

return to the original understanding of the Sixth

Amendment in Crawford with its earlier endorsement

of the potential use of testimony from preliminary

hearings. What’s more, the decision below falls on the

wrong side of that divide. The Court should grant

certiorari to confirm that the theoretical opportunity

to cross-examine one’s accusers at a preliminary

hearing is not, standing alone, sufficient to satisfy the

Confrontation Clause.

The Kentucky Supreme

Court’s contrary ruling deprives the petitioner of a

right secured by the original understanding of the

Sixth Amendment. And the lower courts’ confusion on

this matter warrants this Court’s intervention.

ARGUMENT

I.

Since Crawford, Lower Courts Continue To

Depart From The Original Understanding Of

The Confrontation Clause.

“One of the bedrock constitutional protections

afforded to criminal defendants is the Confrontation

Clause of the Sixth Amendment, which states: ‘In all

criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against

him.’” Hemphill v. New York, 142 S. Ct. 681, 690

(2022) (alteration in original) (quoting U.S. CONST.

4

amend. VI). 2 At its core, the Confrontation Clause

protects a defendant’s fundamental right to crossexamine his accusers at trial. The Framers viewed the

“right to cross-examination as indispensable, and that

right was involved in and secured by confrontation.” 2

JOHN HENRY WIGMORE, EVIDENCE § 1397, p. 1754

(Little, Brown & Co. 1904).

Until recently, though, this Court’s Confrontation

Clause jurisprudence “depart[ed] from the historical

principles” underlying the right. Crawford, 541 U.S.

at 60. The Court viewed the Confrontation Clause as

reflecting only “a preference for face-to-face

confrontation at trial.” Ohio v. Roberts, 448 U.S. 56,

63 (1980) (emphasis added). And it thus permitted the

introduction of testimonial hearsay at criminal

trials—without

any

opportunity

for

crossexamination—if an unavailable witness’s statement

bore “adequate ‘indicia of reliability.’” Crawford, 541

U.S. at 40 (quoting Roberts, 448 U.S. at 66).

In Crawford, this Court changed course,

emphatically rejecting a “malleable” approach and

“revis[ing] [its] doctrine to reflect more accurately the

original understanding of the Clause.” Id. at 60. As

the Court explained, the Confrontation Clause

“reflects a judgment” by the Framers, “not only about

the desirability of reliable evidence,” but also “about

how reliability can best be determined”—that is, “by

testing in the crucible of cross-examination.” Id. at 61.

To that end—and consistent with text and history—

2 The Confrontation Clause is “made obligatory on the States

by the Fourteenth Amendment.” Pointer v. Texas, 380 U.S. 400,

403 (1965).

5

the Crawford Court stressed that the Sixth

Amendment generally prohibits the prosecution from

introducing “testimonial” hearsay absent “an

adequate opportunity to cross-examine” the witness.

Id. at 57. Such was the nature of the confrontation

right as it was understood in 1791. See id. at 54–57.

Since Crawford, this Court has invariably looked

to the text and history of the Confrontation Clause to

discern the scope of the right. See Hemphill, 142 S. Ct.

at 690–92; Ohio v. Clark, 576 U.S. 237, 248–49 (2015);

Williams v. Illinois, 567 U.S. 50, 67–69, 82–83 (2012)

(plurality op.); Bullcoming v. New Mexico, 564 U.S.

647, 658–59, 662 (2011); Michigan v. Bryant, 562 U.S.

344, 353–54, 358–59 (2011); Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 309–11 (2009); Giles v.

California, 554 U.S. 353, 358–65, 369–73 (2008);

Davis v. Washington, 547 U.S. 813, 823–26 (2006).

But Crawford itself did not disturb the Court’s

earlier endorsement of the “prior testimony” exception

in Roberts. Roberts had not grounded its analysis in

the original understanding of the Sixth Amendment.

Still, Crawford suggested that the outcome of that

decision—which admitted preliminary hearing

testimony “tested” by “the equivalent of significant

cross-examination,” Roberts, 448 U.S. at 70—was

consistent with the common-law exception for prior

testimony where the defendant had an “adequate

opportunity” for cross-examination. See Crawford,

541 U.S. at 57–58.

Yet the decision below illustrates how the lower

courts have failed to take seriously the requirement

that any derogation from the fundamental trial right

be “adequate” in fact. The Kentucky Supreme Court

6

held that petitioner’s confrontation right was not

violated because he “was allowed the opportunity to

cross-examine the witness at [a] preliminary hearing.”

Shields v. Commonwealth, 647 S.W.3d 144, 161 (Ky.

2022). The court reached this conclusion despite no

prior notice that the witness would testify, see id. at

149; despite no prior discovery from the

Commonwealth, see id. at 162, 169 (Keller, J.,

dissenting); and despite the preliminary hearing’s

extremely narrow purpose, which was “to determine

whether there [was] sufficient evidence to justify

detaining the defendant,” King v. Venters, 595 S.W.2d

714, 714 (Ky. 1980).

The Kentucky court’s approach is not consistent

with the original understanding of the Confrontation

Clause, which protects a fundamental trial right of

criminal defendants. The few exceptions to this right

were narrow and circumscribed. And the Framers

were particularly familiar with the threat that

pretrial testimony might present to the confrontation

right. Thus, the mere theoretical opportunity for prior

cross-examination would not support the admission of

testimonial hearsay.

To qualify for the priortestimony exception, the opportunity must have been

materially equivalent to the right to crossexamination at trial.

A. The Framers Adopted The Confrontation

Clause To Enshrine A Fundamental Trial

Right Of Criminal Defendants.

This Court has long regarded the Sixth

Amendment’s right of confrontation as providing a

“trial right[]” for the accused. Giles, 554 U.S. at 375;

see also, e.g., Barber v. Page, 390 U.S. 719, 725 (1968);

7

Reynolds, 98 U.S. at 158. That understanding is

firmly rooted in history and tradition. Indeed, the

right of confrontation in criminal trials has “a lineage

that traces back to the beginnings of Western legal

culture.” Coy v. Iowa, 487 U.S. 1012, 1015 (1988). See

generally Frank R. Herrmann & Brownlow M. Speer,

Facing the Accuser: Ancient and Medieval Precursors

of the Confrontation Clause, 34 VA. J. INT’L L. 481

(1994). “The founding generation’s immediate source

of the concept, however, was the common law.”

Crawford, 541 U.S. at 43.

At common law, the admissibility of testimonial

statements varied sharply between civil and criminal

proceedings. The civil law “condone[d] examination in

private by judicial officers” for later use at trial. Id.

But where life or liberty were at stake, the

“confronting of adverse witnesses” in open court and

before the factfinder was generally viewed as the

“only” acceptable “way of giving testimony” against

the accused. 3 W. BLACKSTONE, COMMENTARIES ON

THE LAWS OF ENGLAND 373–74 (1768). After all, it was

well understood that “great opportunities are gained”

through confrontation “for the true and clear discovery

of truth.” M. HALE, HISTORY AND ANALYSIS OF THE

COMMON LAW OF ENGLAND 291 (4th ed. 1792). And the

stakes in criminal trials were too high to trust any

method other than cross-examination—“the greatest

legal engine ever invented for the discovery of truth.”

Ford v. Wainwright, 477 U.S. 399, 415 (1986) (quoting

5 JOHN HENRY WIGMORE, EVIDENCE § 1367 (J.

Chadbourn rev. 1974)). Accordingly, the “core” of the

confrontation right that developed was a guarantee

that, in all criminal prosecutions, the accused would

have a meaningful opportunity to cross-examine the

8

witnesses against him “at the time of trial” and

“‘compel[] [them] to stand face to face with the jury.’”

California v. Green, 399 U.S. 149, 157–58 (1970)

(quoting Mattox v. United States, 156 U.S. 237, 242

(1895)); see 1 J. BISHOP, CRIMINAL PROCEDURE § 1090,

p. 686 (2d ed. 1872) (“[T]he true construction of the

ancient common law, [is] that, on the trial of a prisoner

accused of any crime whatever, the witnesses against

him must be produced in open court, meeting him face

to face, and the opportunity given him to crossexamine them there.”).

As Crawford observed, the Crown did not always

respect this right of confrontation. See 541 U.S. at 43.

For example, several “notorious instances of civil-law

examination occurred in the great political trials of the

16th and 17th centuries.” Id. at 44. But those

departures from the confrontation right only

underscored its importance. The common-law courts

recognized the “abuses” that “the civil-law mode of

criminal procedure” had spawned in the past, and they

responded by zealously guarding criminal defendants’

rights to confront—and most importantly, crossexamine—their accusers. Id. at 44, 50; see, e.g., King

v. Dingler, 2 Leach 561, 168 Eng. Rep. 383, 383–84

(1791); King v. Woodcock, 1 Leach 500, 168 Eng. Rep.

352, 353 (1789); King v. Paine, 5 Mod. 163, 87 Eng.

Rep. 584, 584–85 (1696).

That crucial procedural safeguard carried over to

the New World. American colonists were steeped in

the English legal tradition. See, e.g., 1 JOSEPH STORY,

COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES §§ 163, 165, pp. 147–49 (1833). And they

similarly regarded “confrontation [as] a fundamental

9

right essential to a fair trial in a criminal prosecution.”

Pointer v. Texas, 380 U.S. 400, 404 (1965). The

colonists accordingly enshrined that right in many of

their state constitutions in the years leading up to the

founding. See Virginia Declaration of Rights § 8

(1776); Pennsylvania Declaration of Rights § IX

(1776); Delaware Declaration of Rights § 14 (1776);

Maryland Declaration of Rights § XIX (1776); North

Carolina Declaration of Rights § VII (1776); Vermont

Declaration of Rights Ch. I, § X (1777); Massachusetts

Declaration of Rights § XII (1780); New Hampshire

Bill of Rights § XV (1783).

So, when a similar guarantee was not included in

the federal Constitution, it provided an easy target for

the Antifederalist opposition.

For example, one

influential essay stressed that “[n]othing can be more

essential than the cross examining [of] witnesses, and

generally before the triers of the facts in question.”

Letter IV from the Federal Farmer to The Republican

(Oct. 12, 1787), reprinted in THE ESSENTIAL DEBATE ON

THE CONSTITUTION 94, 99 (Robert J. Allison & Bernard

Bailyn eds., 2018). And another emphasized that “[i]t

is of great importance in the distribution of justice that

witnesses should be examined face to face,” and “that

the parties should have”—not just any opportunity—

but “the fairest opportunity of cross examining them in

order to bring out the whole truth.” Essay of Brutus

XIV (Mar. 6, 1788), reprinted in 1 BERNARD SCHWARTZ,

THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 435

(1971) (emphasis added).

“The First Congress

responded by including the Confrontation Clause in

the proposal that became the Sixth Amendment.”

Crawford, 541 U.S. at 49.

10

B. Exceptions To The Right To CrossExamine One’s Accusers At Trial And

Before The Jury Were Strictly Limited.

Nothing in the Sixth Amendment’s text permits

“open-ended exceptions from the confrontation

requirement to be developed by the courts.” Id. at 54.

Rather, the accused’s “‘right . . . to be confronted with

the witnesses against him,’ is most naturally read as

a reference to the right of confrontation at common

law, admitting only those exceptions established at

the time of the founding.” Id. (emphasis added)

(quoting U.S. CONST. amend VI). Those exceptions,

which were “far from numerous,” always involved

“peculiar circumstances.”

THOMAS M. COOLEY,

CONSTITUTIONAL LIMITATIONS 387 (6th ed. 1890). And

consistent with the common-law tradition, the

Framers strictly limited their scope. 3

Perhaps the most prominent exception was for

“declarations made by a speaker who was both on the

brink of death and aware that he was dying.” Giles,

554 U.S. at 358; see Crawford, 541 U.S. at 56 n.6. But

the exception was a narrow one, “restricted to

indictments for homicide against the party who

caused the death.” State v. Thomas, 64 N.C. 74, 76

(1870).

In those limited circumstances, dying

declarations had “from time immemorial . . . been

treated as competent testimony,” due to the unique

“necessities of the case,” the need “to prevent a

manifest failure of justice,” and the common law’s

3 Indeed, “there is scant evidence that exceptions were

invoked to admit testimonial statements against the accused in

a criminal case.” Crawford, 541 U.S. at 56 (emphasis omitted).

11

belief that “the sense of impending death is presumed

to remove all temptation to falsehood.” Mattox, 156

U.S. at 243–44; see also Thomas, 64 N.C. at 76

(grounding the rationale for the exception in “the

maxim, ‘no man shall take advantage of his own

wrong’”).

The common law similarly departed from the trial

right of confrontation in cases of “forfeiture by

wrongdoing.” Giles, 554 U.S. at 359. But that

exception was equally narrow. It did not apply

whenever the defendant’s wrongdoing “caused a

person to be absent” from trial; rather, it “applied only

when the defendant engaged in conduct designed to

prevent the witness from testifying.” Id. at 359, 361.

Short of those exceptions, this Court has

recognized only one other common-law departure from

the requirement for live, in-court testimony at trial.

And that is where the defendant had a “prior

opportunity for cross-examination” of the declarant.

Crawford, 541 U.S. at 46. History shows, however,

that to the extent the Sixth Amendment incorporated

this exception at all, it was very limited. Not all prior

opportunities—even those from pretrial proceedings—

would have sufficed. Instead, the Framers would have

tolerated testimonial hearsay only where the

defendant was previously afforded an “adequate

opportunity to cross-examine” the declarant, such that

the “‘substance of the constitutional protection [was]

preserved.’” Id. at 57 (quoting Mattox, 156 U.S. at

244).

Indeed, one of the “principal evil[s] at which the

Confrontation Clause was directed” was the Crown’s

exploitation of testimony gathered from pretrial

12

examinations. Id. at 50. “In England, pretrial

proceedings in criminal cases were governed by the socalled Marian statutes,” which were passed in the

1550s and “offered the prisoner at least a theoretical

opportunity to confront and cross-examine his

accusers.”

Robert Kry, Forfeiture and CrossExamination, 13 LEWIS & CLARK L. REV. 577, 580, 583

(2009). It is “doubtful” that the Marian statutes were

enacted “to produce evidence admissible at trial.”

Crawford, 541 U.S. at 44. Nevertheless, testimony

obtained from such proceedings eventually “came to be

used as evidence in some cases” in the early English

courts. Id.

But this practice was met with considerable

resistance on both sides of the Atlantic. For example,

one contemporary treatise criticized the use of Marian

depositions as “very unsatisfactory,” because the

defendant “ha[d] not those assistances for analy[zing]

the proofs which are adduced against him, which exist

upon a solemn trial.” 2 ROBERT JOSEPH POTHIER, A

TREATISE ON THE LAW OF OBLIGATIONS, OR CONTRACTS

232 (William David Evans trans., 1806).

The

depositions were “taken under circumstances[] in

which the adverse party had not a fair opportunity of

cross-examination, or in which such an examination,

being unusual, could not reasonably be expected to

have taken place.” Id. Notably, that criticism echoed

the Antifederalist argument, which called for “the

fairest opportunity of cross examining” witnesses “in

order to bring out the whole truth.” Essay of Brutus

XIV, supra. Meanwhile, another English treatise

called for strict limitations on the admissibility of

pretrial examinations, stressing that even though “[i]t

[was] true that the prisoner has had the power to

13

cross-examine the witness,” it “was at a time and

under circumstances very disadvantageous to the

prisoner.” 2 THOMAS STARKIE, THE LAW OF EVIDENCE

487 (1826). 4 And, in the United States, “a 1795

Virginia manual decried the rule of admissibility”

altogether “on the ground that ‘the accused party has

not the same advantage of cross examination’” that he

would otherwise. Robert Kry, Confrontation Under

the Marian Statutes: A Response to Professor Davies,

72 BROOK. L. REV. 493, 535 (2007) (quoting WILLIAM

HENING, THE NEW VIRGINIA JUSTICE 148 (Richmond,

Nicolson 1795)).

These sources reflect the importance of a robust

confrontation right to the founding generation, which

sought to distance itself from the abuses “that the

Marian statutes invited.” Crawford, 541 U.S. at 50.

More so than in England, “cross-examination was at

the heart of the new trial process” that developed in

the colonies. Randolph N. Jonakait, The Origins of the

Confrontation Clause: An Alternative History, 27

RUTGERS L.J. 77, 116 (1995).

And some early

American decisions held that a defendant’s right of

confrontation was violated even if he had a prior

opportunity to cross-examine the witness in a fullblown trial. See Finn v. Commonwealth, 26 Va. (5

Around the founding, the criteria for admitting pretrial

examinations steadily tightened in England. As one treatise

notes, prosecutors eventually bore the “affirmative” burden to

show that the defendant “had a full opportunity of crossexamining the witness” and, at least where the defendant was

uncounseled, that the court had “allowed the prisoner sufficient

time to consider what questions he would put.” 2 EDMUND

POWELL, THE PRACTICE OF THE LAW OF EVIDENCE 255 (1856).

4

14

Rand.) 701, 708 (1827); State v. Atkins, 1 Tenn. (1

Overt.) 229, 229 (1807) (per curiam).

In short, the Framers were well aware of the risks

presented by pretrial English proceedings. They

adopted the Confrontation Clause to protect an

indispensable right to cross-examine one’s accusers—

a right that was “designed to promote reliability in the

truth-finding functions of a criminal trial.” Kentucky

v. Stincer, 482 U.S. 730, 737 (1987). And they

recognized that not just any chance for questioning

could serve that end. Only if the witness’s testimony

were “taken at a time and under circumstances”

affording an opportunity for cross-examination

equivalent to that provided by a trial, Pointer, 380

U.S. at 407, would “[t]he substance of the

constitutional protection [be] preserved,” Mattox, 156

U.S. at 244. Only then might the defendant have a

fair “opportunity of obtaining a clear discovery” for the

factfinder, “which can never be had upon any other

method of trial.” 3 BLACKSTONE, supra, at 373. And

so only then might the Confrontation Clause permit

an exception to the defendant’s “right to a trial at

which he should be confronted with the witnesses

against him.” See Giles, 554 U.S. at 372 (quoting

Reynolds, 98 U.S. at 158).

C. The Decision Below Is Inconsistent With

The Original Understanding Of The

Confrontation Clause.

The Kentucky Supreme Court’s decision is

contrary to the original understanding of the

Confrontation Clause.

It all but ignores the

defendant’s right to confront his accusers at trial. And

it unduly expands the “prior opportunity” exception to

15

that otherwise “categorical constitutional guarantee[]”

beyond what the history can bear. Crawford, 541 U.S.

at 61, 67. This Court’s review is warranted to correct

course in the state courts and to provide clear

guidance regarding the meaning and scope of the

Confrontation Clause.

The decision below endorses a hollow right that

neglects the Framers’ understanding of “confrontation

[as] a fundamental right essential to a fair trial in a

criminal prosecution.” Pointer, 380 U.S. at 404.

Where, as here, an accuser is sprung upon a defendant

with no notice and before discovery at a preliminary

hearing, the defendant lacks any meaningful

opportunity to subject the accuser’s testimony to

“testing in the crucible of cross-examination.”

Crawford, 541 U.S. at 61. Cross-examination under

those circumstances is no cross-examination at all,

and it neither “preserve[s]” “the substance of” nor

vindicates the confrontation right. Mattox, 156 U.S.

at 244; cf. Douglas v. Alabama, 380 U.S. 415, 419–20

(1965) (holding that admission of statement where

declarant could not be meaningfully cross-examined

because he invoked his Fifth Amendment right

violated the Confrontation Clause).

Moreover, the decision below is “at odds with the

Confrontation Clause’s very mission—to advance ‘the

accuracy of the truth-determining process in criminal

trials.’” Tennessee v. Street, 471 U.S. 409, 415 (1985)

(quoting Dutton v. Evans, 400 U.S. 74, 89 (1970)). For

“at a pretrial hearing, where different strategic

calculations dull the motive to cross-examine, even the

Framers would agree that it is an ineffective tool of

ensuring reliability.”

Daniel Huff, Confronting

16

Crawford, 85 NEB. L. REV. 417, 438 (2006); see also

Barber, 390 U.S. at 725 (“A preliminary hearing is

ordinarily a much less searching exploration into the

merits of a case than a trial, simply because its

function is the more limited one of determining

whether probable cause exists to hold the accused for

trial.”).

Instead, the Framers understood the paramount

importance of a robust confrontation right that could

not so easily be stripped away. See Letter IV from the

Federal Farmer to The Republican, supra; Essay of

Brutus XIV, supra.

Here, the circumstances

surrounding the witness’s testimony and petitioner’s

supposed ability to cross-examine her belie any claim

that petitioner had “the fairest opportunity” to crossexamine his accuser and “bring out the whole truth.”

Essay of Brutus XIV, supra. Quite the opposite.

Petitioner was given no notice or discovery to allow his

counsel to prepare a cross-examination, and the

testimony was given in a proceeding seeking to

determine only whether the Commonwealth had

probable cause to charge him. A “fair opportunity of

cross-examination” under such circumstances “could

not reasonably be expected to have taken place.” 2

POTHIER, supra, at 232.

The Kentucky court’s decision departs from the

basic requirement of the Confrontation Clause,

opening the door to prosecutorial abuses akin to those

perpetrated under the Marian statutes. See id.; Kry,

Confrontation Under the Marian Statutes, supra, at

535. It leaves criminal defendants vulnerable to

similar gamesmanship by deeming the right

vindicated by any theoretical opportunity to cross-

17

examine the witness—despite no notice of the

witness’s testimony, no discovery, no opportunity for

prior investigation, and no real motive for full crossexamination similar to that at trial. 5

In sum, the founding generation understood the

confrontation right to encompass more than the empty

opportunity for cross-examination offered here.

Consistent with that original understanding, the

Kentucky court should have recognized that the

witness’s testimony was not “taken at a time and

under circumstances affording petitioner through

counsel an adequate opportunity to cross-examine,”

Pointer, 380 U.S. at 407, and held that introduction of

the testimony at trial would violate petitioner’s

confrontation right.

This Court should grant

certiorari to correct the Kentucky court’s error, to

rectify the split petitioner has identified, see Pet. at

13–23, and to reinforce its commitment to restoring

the Sixth Amendment to its original meaning.

5 As Justice Brennan recognized, there are also compelling

tactical reasons for counsel not to engage in extensive crossexamination at such an early stage in the prosecution. See Green,

399 U.S. at 197 (Brennan, J., dissenting) (noting that “neither

defense nor prosecution is eager before trial to disclose its case by

extensive examination at the preliminary hearing” and

“thorough questioning of a prosecution witness by defense

counsel may easily amount to a grant of gratis discovery to the

State”); see also Huff, supra, at 438 (observing that “in practice,”

defense counsel should “avoid preparing witnesses and

government lawyers for what is to come,” and that because

“witness credibility is considered a trial issue,” “efforts to

impeach will meet with little success”; “even a persuasive

rebuttal is unlikely to preclude a finding of probable cause”

(citation omitted)).

18

II.

The Court Should Grant Certiorari And

Confirm

That

The

Theoretical

Opportunity For Cross-Examination At A

Preliminary Hearing Will Seldom Satisfy

The Confrontation Clause.

The Confrontation Clause demands that criminal

defendants have more than a theoretical opportunity

to cross-examine a witness at a preliminary hearing.

And the practical realities of those hearings show why

they will rarely afford an “adequate opportunity” for

cross-examination that is functionally equivalent to

the trial right.

Indeed, the circumstances and

motivations at preliminary hearings are such that it is

exceptionally difficult to vindicate a defendant’s

confrontation right.

This Court should grant

certiorari to acknowledge these realities and confirm

that the Confrontation Clause requires that the priortestimony exception be narrowly and appropriately

construed.

A. Although Prior Cross-Examination May

Justify An Exception To The Trial Right

Of Confrontation, That Exception Should

Be Narrow.

The categorical nature of the confrontation right

requires that any departure from the opportunity at

trial to cross-examine adverse witnesses be narrowly

construed. See Crawford, 541 U.S. at 54 (the Sixth

Amendment does not permit courts to fashion “openended

exceptions

from

the

confrontation

requirement”). That rule is consistent with the

Court’s precedents. See Green, 399 U.S. at 158 (outof-court statements “historically” allowed under the

Confrontation Clause only where the declarant is

19

“subject to full and effective cross-examination”

(emphasis added)); Pointer, 380 U.S. at 407 (rejecting

admission of crucial witness’s preliminary hearing

testimony at trial because no “complete and adequate

opportunity to cross-examine” the witness (emphasis

added)). It is also consistent with the Court’s view

that “only those exceptions [to the confrontation right]

established at the time of the founding” can support

the admission of testimonial hearsay. Crawford, 541

U.S. at 54. And each of those broadly recognized

exceptions, as explained above, was strictly

circumscribed. See supra Section I.B.

As an original matter, then, the exception for prior

testimony cannot and should not apply any time there

was a theoretical opportunity for cross-examination.

Instead, this exception should be confined to instances

where the prior opportunity was functionally

equivalent to the trial right. To that end, the

Confrontation Clause enshrined an indispensable

“functional right designed to promote reliability in the

truth-finding functions of a criminal trial.” Stincer,

482 U.S. at 737 (quotation marks omitted). So

whenever the circumstances and procedures

accompanying cross-examination at a preliminary

hearing do not closely track the procedures,

circumstances, motivations, and safeguards afforded a

criminal defendant at trial, courts should reject prior

testimony for failing to satisfy the Confrontation

Clause.

20

B. Cross-Examination At A Preliminary

Hearing Will Only Rarely Satisfy The

Confrontation Clause.

Instead of examining the original understanding of

the Confrontation Clause, the court below rooted its

decision primarily in two pre-Crawford precedents—

Roberts and Green. See Shields, 647 S.W.3d at 155–

59. Neither case supports the admission of the

preliminary hearing testimony here.

Start with Roberts. There, this Court held that

“prior testimony at [a] preliminary hearing bore

sufficient ‘indicia of reliability’” to support admission,

because the declarant had been subjected to the

“equivalent of significant cross-examination” at the

hearing. 448 U.S. at 70. But neither the law nor facts

of Roberts support the decision below. After all,

Crawford expressly overruled the “indicia of

reliability” test from Roberts. See 541 U.S. at 60–68.

And on the facts, “the cross-examination at bar is more

akin to ‘de minimis questioning,’” which Roberts

specifically “declined to analyze under the

Confrontation Clause.” Shields, 647 S.W.3d at 164–

65 (Keller, J., dissenting) (quoting Roberts, 448 U.S. at

70).

Green stands even further afield. In Green, the

Court considered whether to admit, over a Sixth

Amendment challenge, testimony from an earlier

hearing. The Court held that admitting the testimony

would not violate the Sixth Amendment where the

witness was both “present to testify” at trial and

“subject[] to extensive cross-examination” at the prior

hearing. Id. at 151, 162; see Crawford, 541 U.S. at 59

n.9 (“[W]hen the declarant appears for cross-

21

examination at trial, the Confrontation Clause places

no constraints at all on the use of his prior testimonial

statements.”). Here, by contrast, the witness was

neither subject to extensive cross-examination nor

present at trial.

And that makes all the difference. Dissenting from

Green, Justice Brennan predicted the kinds of

constitutional deprivations patent in the decision

below. He posited that introducing preliminary

hearing testimony at trial would “unconstitutionally

restrict[] the right of the accused to challenge

incriminating evidence in the presence of the

factfinder who will determine his guilt or innocence.”

Green, 399 U.S. at 191 (Brennan, J., dissenting).

Along the way, Justice Brennan cogently explained

how the “nature and objectives” of a preliminary

hearing and a trial “differ significantly.” Id. at 195

(citing Barber, 390 U.S. 719).

By its very nature, cross-examination at a

preliminary hearing “pales beside that which takes

place at trial.” Id. at 197. That is first and foremost

because “the objective of the hearing is to establish the

presence or absence of probable cause, not guilt or

innocence proved beyond a reasonable doubt.” Id.

Thus, “if evidence suffices to establish probable cause,

defense counsel has little reason at the preliminary

hearing to show that it does not conclusively establish

guilt.” 6 Id. Equally problematic is the fact that “the

6 Even if evidence does not suffice to establish probable cause,

defense counsel in some states might have little motivation to

prevail at a preliminary hearing—and certainly not the same

motivation as she would at trial. In Virginia, for example, the

prosecution may seek an indictment from a grand jury even after

22

defense and prosecution have generally had

inadequate time before the hearing to prepare for

extensive examination.” Id. “In short, it ignores

reality to assume that the purposes of the

Confrontation Clause are met during a preliminary

hearing.” Id. And it ignores history to believe that the

Framers would have thought otherwise.

The Kentucky Supreme Court’s contrary rule is not

only unconstitutional, it also conflicts with the

practical realities of the preliminary hearing. For one

thing, “the schedules of neither court nor counsel can

easily accommodate lengthy preliminary hearings.”

Id. And the decision below puts defense counsel in an

untenable position.

Defense counsel has a

constitutional “duty to investigate” her client’s case.

Strickland v. Washington, 466 U.S. 668, 690 (1984).

That duty “rests on the recognition of pretrial

investigation as ‘perhaps, the most critical stage of a

lawyer’s preparation.’” Jenny Roberts, Too Little, Too

Late: Ineffective Assistance of Counsel, the Duty to

Investigation, and Pretrial Discovery in Criminal

Cases, 31 FORDHAM URB. L.J. 1097, 1105 (2004)

(quoting House v. Balkcom, 725 F.2d 608, 618 (11th

Cir. 1984)).

But Kentucky’s rule unrealistically forces

overworked and underfunded defense attorneys to

conduct all their investigation before the preliminary

dismissal of the same charge at a preliminary hearing. See

Commonwealth v. Davis, 777 S.E.2d 555, 559–60 (Va. 2015). In

such cases, defendants may be disadvantaged by having to pay

additional bond, losing credit for time served on the dismissed

charge, or having their statutory timeline for a speedy trial reset.

See Va. Code § 19.2-243.

23

hearing—which generally occurs mere days after

arrest—lest they lose the opportunity to meaningfully

cross-examine a key witness that may, as here,

unexpectedly testify. See Shields, 647 S.W.3d at 168

(Keller, J., dissenting). Simply put, “[c]onducting

sufficient investigation to cross-examine a witness as

one would prepare for trial, especially without

discovery provided by the [prosecution] is practically

impossible within th[e] short time period” before a

preliminary hearing. Id.; see also Roberts, supra, at

1121 (“A right to effective assistance of counsel that

truly recognizes the duty to investigate rings hollow

without access to discovery.”); cf. Douglas L. Colbert,

Prosecution Without Representation, 59 BUFF. L. REV.

333,

387–88

(2011)

(“A

lawyer’s . . . early

investigation, and evaluation of the State’s case

allow[s] a detainee to believe in an assigned counsel’s

dedication to the case and to consider a trial option.”).

These practical realities only underscore the

violation of petitioner’s confrontation right. Crossexamination may be “one of the most effective tools

available to test the reliability of information,” yet it

is “effective only to the degree that the crossexamining party has access to relevant information

and sufficient time with which to prepare to use it.”

Laura Berend, Less Reliable Preliminary Hearings

and Plea Bargains in Criminal Cases in California:

Discovery Before and After Proposition 115, 48 AM. U.

L. REV. 465, 472 (1998).

Here, petitioner received no genuine discovery and

no time to prepare. Prior to the preliminary hearing,

petitioner’s counsel had not received the police notes

from the interview of the witness or the medical

24

examiner’s report that contradicted the witness’s

preliminary hearing testimony. With just a week

between arrest and preliminary hearing, and no

discovery related to the witness, defense counsel was

not, and could never be, prepared to effectively crossexamine the witness.

Petitioner thus lacked a

constitutionally “adequate opportunity to crossexamine” his accuser. Crawford, 541 U.S. at 57. The

Kentucky Supreme Court’s decision to the contrary

was erroneous, and it reflects an uncertainty among

lower courts that only this Court may resolve.

CONCLUSION

For the foregoing reasons, amicus curiae

respectfully urges this Court to grant the petition for

certiorari.

Respectfully submitted,

JOHN W. WHITEHEAD

WILLIAM E. WINTERS

THE RUTHERFORD

INSTITUTE

109 Deerwood Road

Charlottesville, VA

22911

(434) 978-3888

legal@rutherford.org

STEVEN A. ENGEL

Counsel of Record

DECHERT LLP

1900 K Street, NW

Washington, DC 20006

(202) 261-3369

steven.engel@dechert.com

PETER J. MCGINLEY

BRIAN A. KULP

CHRISTOPHER J. MERKEN

DECHERT LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

Counsel for Amicus Curiae

December 15, 2022