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

No. 22-450

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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 RICHARD D. FRIEDMAN

AS AMICUS CURIAE IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------RICHARD D. FRIEDMAN

Counsel of Record

625 South State Street

Ann Arbor, Michigan 48109

(734) 647-1078

rdfrdman@umich.edu

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................... ii

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

FACTUAL BACKGROUND ........................................... 2

SUMMARY OF ARGUMENT ......................................... 3

ARGUMENT..................................................................... 5

I. THE COURTS ARE DIVIDED AS TO

WHETHER, OR WHEN, A PRELIMINARY

HEARING – AND MORE BROADLY A

PRIOR PROCEEDING – OFFERS AN

ADEQUATE OPPORTUNITY FOR

CROSS-EXAMINATION. ........................................... 5

II. THIS COURT SHOULD TAKE THE

OPPORTUNITY THIS CASE OFFERS

TO SET OUT CLEAR REQUIREMENTS

FOR USE OF PRELIMINARY-HEARING

TESTIMONY AGAINST AN ACCUSED. ................ 10

III. THIS IS AN IDEAL CASE TO CREATE

CLARITY ON THE ADEQUACY OF A PRIOR

OPPORTUNITY FOR CROSS-EXAMINATION. ... 18

CONCLUSION ............................................................... 19

i

TABLE OF AUTHORITIES

CASES

Berkman v. State, 976 N.E.2d 68 (2012) .................... 9

Brady v. Maryland, 373 U.S. 83 (1963).................... 14

Chavez v. State, 213 P.3d 476 (Nev. 2009) ............... 14

Coleman v. Alabama, 399 U.S. 1 (1970)................... 11

Commonwealth v. Bazemore,

614 A.2d 684 (Pa. 1992) ................................. 14

Commonwealth v. Harris, No. 1221 EDA 2015,

2016 WL 5719362 (Pa. Super. Ct.

Sept. 30, 2016) ................................................ 17

Crawford v. Washington,

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

Mancusi v. Stubbs, 408 U.S. 204 (1972)............... 9, 17

Mattox v. United States, 156 U.S. 237 (1895) ............ 9

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009) ........................................ 12

Ohio v. Roberts, 448 U.S. 56 (1980) ............................ 6

ii

People v. Fry, 92 P.3d 970 (Colo. 2004) ................ 7, 11

People v. Torres, 962 N.E.2d 919 (Ill. 2012) ............. 14

State v. Allen, 560 N.W.2d 829 (Neb. 1997) ............... 9

State v. Goins, 423 P.3d 1236 (Utah 2017) .......... 8, 11

State v. Lopez, 974 So.2d 340 (Fla. 2008) ................... 9

State v. Nofoa, 349 P.3d 327 (Haw. 2015) ............ 8, 14

State v. Richardson, 328 P.3d 504 (Idaho 2014) ........ 7

State v. Spano, 159 P.3d 931 (Kans. 2007) ................ 7

State v. Stuart, 695 N.W.2d 259 (Wis. 2005) ... 6, 7, 11

Ungar v. Sarafite, 376 U.S. 575 (1964) .................... 13

United States v. Márquez–Pérez,

835 F.3d 153, 162 (1st Cir. 2016) ................... 13

SECONDARY SOURCES

Paul G. Cassell & Thomas E. Goodwin,

Protecting Taxpayers and Crime Victims:

The Case for Restricting Utah's Preliminary

Hearings to Felony Offenses, 2011 Utah. L.

Rev.1377 ........................................................... 7

Thomas Y. Davies, What Did the Framers Know,

and When Did They Know It? Fictional

Originalism in Crawford v. Washington

71 Brook. L. Rev. 105 (2005) ..................... 15-16

iii

WILLIAM WALTER HENING, ed., NEW VIRGINIA

JUSTICE (“entered for publication” 1794,

printed 1795) ................................................. 16

Robert Kry, Confrontation Under the Marian

Statutes: A Response to Professor Davies,

72 Brook. L. Rev. 493 (2007) ..................... 15-16

WAYNE R. LAFAVE, JEROLD H. ISRAEL, et al.,

CRIMINAL PROCEDURE (4th ed. Nov.

2022 update) ........................................... 6, 8, 10

JOHN H. WIGMORE, EVIDENCE IN TRIALS AT

COMMON LAW (Chadbourn rev. 1974) ............ 11

OTHER

Fed. R. Crim. P. 15 .............................................. 10, 13

iv

INTEREST OF AMICUS CURIAE 1

I am a legal academic, and since 1982 I have

taught Evidence law; the Evidence Section of the

Association of American Law Schools has announced

that in January 2023 I will be given the John Henry

Wigmore Award for Lifetime Achievement in the Law

of Evidence and the Process of Proof. Much of my

academic work has dealt with the confrontation right,

and since 2004 I have maintained The Confrontation

Blog, http://confrontationright.blogspot.com, to report

and comment on developments related to that right.

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

author of a law professors’ amicus brief, which was

discussed in oral argument. In 2005-06, I successfully

represented the petitioner in Hammon v. Indiana

(decided together with Davis v. Washington, 547 U.S.

813 (2006)), and in 2009-10 I successfully represented

the petitioners in Briscoe v. Virginia, 559 U.S. 32

(2010). I have submitted numerous amicus briefs to

this Court on behalf of myself in prior Confrontation

Clause cases, both on the prosecution side and on the

defense side, often making some points favoring one

side and some favoring the other. In accordance with

my usual practice, I am submitting this brief on behalf

of myself only; I have not asked any other person or

Amicus has given the parties at least ten days’ notice of his

intention to file this brief, and the parties have consented to the

filing. Part of the cost of preparing and submitting this brief was

paid for by research funds provided by the University of

Michigan Law School to amicus and under his control. The brief

does not necessarily reflect the views of that Law School or of any

of its faculty other than amicus. Except as just noted, no persons

or entities other than the amicus made any monetary

contribution to the preparation or submission of this brief, which

was not authored in any part by counsel for either party.

1

1

entity to join in it. I am doing this so that I can express

my own thoughts, entirely in my own voice. I am

entirely neutral in this case, in the sense that my

interest is not to promote an outcome good for one

party or the other, or for prosecutors or defendants as

a class. Rather, my interest, in accordance with my

academic work, is to promote a sound understanding

of the confrontation right, one that recognizes the

importance of the right in our system of criminal

justice and at the same time is practical in

administration and does not unduly hamper

prosecution of crime.

In this brief, I support the petition for certiorari,

brought by a criminal defendant, because I believe

that this is an ideal case for the Court to begin a

necessary re-examination of the branch of

Confrontation Clause doctrine holding that, when a

prosecution witness is unavailable at trial, prior

testimony of the witness may be admitted so long as

the defendant had an adequate opportunity for crossexamination. This issue arises not only in the context

of preliminary hearings, as in this case, but also with

depositions and prior trials. I believe that the

confusion in this area can be eliminated only by the

intercession of this Court, and that enunciation of a

rather simple set of basic principles will provide all

the protection to which a defendant is entitled without

significantly hindering prosecutors.

FACTUAL BACKGROUND

The petitioner, Gregory Shields, Sr., was charged

with his uncle’s murder. The only eyewitness was the

decedent’s wife, Maude Murrell. Because she was 82

years old, the prosecutor decided to call her as a

witness at the preliminary hearing, with no advance

2

notice and with an undisclosed purpose to preserve

her testimony for trial in case she was then no longer

able to testify. Before Ms. Murrell testified, the

prosecution did not make the disclosures that would

be constitutionally required had she testified at trial.

Defense counsel, caught off guard and conscious of the

usual limited function of a preliminary hearing,

conducted a brief and desultory cross-examination.

Although Kentucky Rules of Criminal Procedure, in

accordance with traditional practice, allow a

prosecutor to take the deposition of a witness for the

purpose of preserving her testimony, the prosecution

never did so.

Ms. Murrell died before trial, and petitioner moved

to exclude her preliminary-hearing testimony. The

trial court denied the motion, and petitioner entered

a conditional plea of guilty, which allowed him to

appeal that denial. The Kentucky Supreme Court

affirmed, by a 4-3 vote, and this petition followed.

SUMMARY OF ARGUMENT

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

reclaimed the meaning of the Confrontation Clause,

recognizing that it sets forth not a substantive rule

designating certain species of evidence as reliable but

a categorical procedural right that prosecution

witnesses testify face-to-face with the accused, subject

to cross-examination, rather than by any other means.

The lower courts are divided in implementing an

aspect of Crawford that is critical to this case, its

holding that if a prosecution witness does not testify

at trial then the witness’s out-of-court testimonial

statements may not be admitted against the accused

for the truth of what they assert unless the witness is

unavailable and the accused has had an adequate

3

opportunity to cross-examine. Id. at 68. Here, there

is no doubt that the witness, Ms. Murrell, is

unavailable by reason of death; nor that the

statements in question, her preliminary hearing

testimony, are testimonial in nature; nor that those

statements were admitted against Petitioner for the

truth of what they asserted. The only question is

whether Petitioner had an adequate opportunity to

cross-examine.

The lower courts are badly divided on the question

of whether, or when, a preliminary hearing offers an

adequate opportunity to cross-examine. Some

jurisdictions recognize that the limited function of a

preliminary hearing effectively (whether as a formal

matter or not) limits the cross-examination that the

accused can conduct. At the other extreme, some

jurisdictions, including Kentucky, treat the absence of

formal limits on cross-examination as virtually per se

sufficient for the opportunity to be deemed adequate.

And yet others make the decision depend on a more

complex assessment of a range of factors.

The particular question of this case, involving

preliminary hearings, is part of the larger question of

the adequacy of prior opportunities for adverse

examination. In particular, some states allow

defendants to take depositions for discovery, and so

the question frequently arises whether such a

deposition can satisfy the confrontation right if the

witness is unavailable at trial. The states are in

irreconcilable conflict on this question as well. The

question is much the same in the deposition and

preliminary-hearing contexts: The accused may have

the formal ability at the earlier proceeding to ask

what questions he wants. But the nature of that a

discovery deposition, in contrast to one conducted for

purpose of preserving testimony, means that almost

4

inevitably the accused will not conduct an

examination anything like the one he would if it

occurred at trial.

The issue in this case is thus an important one,

both for its immediately practical effect in many cases

and for understanding the basic nature of the

confrontation right. The confusion in this area cannot

be relieved without the participation of this Court.

Moreover, this Court could provide that relief by

enunciating a simple and easily administrable set of

requirements that would allow states to use

preliminary hearings to preserve testimony, if they so

chose, but would ensure that the accused has a

genuine opportunity for cross-examination.

This case is an excellent vehicle for clearing up this

important area. It presents the issue cleanly, and

Petitioner is represented by superbly qualified

counsel. The conflict among the lower courts is a

mature one, and nothing would be gained by waiting.

ARGUMENT

I. THE COURTS ARE DIVIDED AS TO

WHETHER, OR WHEN, A PRELIMINARY

HEARING – AND MORE BROADLY A PRIOR

PROCEEDING – OFFERS AN ADEQUATE

OPPORTUNITY FOR CROSS-EXAMINATION.

Crawford

transformed

the

law

of

the

Confrontation Clause, properly restoring its place as

protecting a central procedural feature of our criminal

justice system. The Clause does not attempt to sort

out good evidence from bad. Rather, it provides a

categorical procedural rule governing how prosecution

5

witnesses must testify: under oath, subject to crossexamination, in the presence of the accused, and, if

reasonably possible, in the presence of the trier of fact

as well. Thus, if an out-of-court statement is

testimonial in nature – that is, the type of statement

that a witness makes – it may not (putting aside cases

of forfeiture and of dying declarations) be introduced

against an accused unless the witness is unavailable

to testify at trial and the accused has had “an

adequate opportunity to cross-examine.” Crawford,

541 U.S. at 57; see id. at 68.

Crawford therefore requires re-examination of any

earlier statements regarding the Confrontation

Clause. See State v. Stuart, 695 N.W.2d 259 (Wis.

2005) (reconsidering pre-Crawford ruling in same

case that preliminary-hearing testimony was properly

admitted, and concluding that it was not). Under the

prior regime, articulated in Ohio v. Roberts, 448 U.S.

56 (1980), an opportunity for cross-examination was a

path, not essential, towards the ultimate touchstone,

a determination of reliability of the evidence. Under

Crawford the opportunity for cross-examination is a

large part of the essence of the right. (The opportunity

to be brought face-to-face with the accused is also part

of that essence.)

The question of whether, or when, preliminaryhearing testimony of a prosecution witness who has

become unavailable may be introduced at trial arises

very often – indeed, there have been hundreds of

federal-court opinions, largely unpublished, raising

the issue in the habeas context alone. 4 WAYNE R.

LAFAVE, JEROLD H. ISRAEL, ET AL., CRIMINAL

PROCEDURE (4th ed. Nov. 2022 update) [hereinafter

referred to as CRIM. PROC.], § 14.1(d), hardly

6

surprising given that the vast majority of jurisdictions

routinely hold preliminary hearings. 1

Nor is it surprising that the lower courts have

adopted a wide variety of approaches to the question.

The Petition ably and extensively demonstrates the

split among the jurisdictions, so Amicus will confine

himself to making two points.

First, it should not be thought that the split is

really a mirage, the product of different judicial

responses to different local procedures. Consider first

the issue of whether cross-examination was

constrained. Courts holding that the opportunity for

examination was inadequate will sometimes

emphasize that cross-examination at the preliminary

hearing is limited, e.g., People v. Fry, 92 P.3d 970, 977

(Colo. 2004), State v. Stuart, 695 N.W.2d 259, 265-66

(Wis. 2005), and courts holding that the opportunity

was adequate will sometimes proclaim that cross was

not constrained. E.g., State v. Richardson, 328 P.3d

504, 509 (Idaho 2014); State v. Spano 159 P.3d 931,

945 (Kans. 2007). But the reality is that the purpose

of the preliminary hearing is remarkably consistent

across jurisdictions: It is to determine whether there

is sufficient evidence to bind the defendant over for

trial. Fry, supra, 92 P.3d at 983 (Coats, J., dissenting)

(“Limitations restricting the inquiry to probable cause

and excluding questions of witness credibility . . . do

not make preliminary hearings in this jurisdiction

significantly different from those permitted by many

other states or the federal government.”). And given

this, extensive cross-examination is not ordinarily

See, e.g., Paul G. Cassell & Thomas Goodwin, Protecting

Taxpayers and Crime Victims: The Case for Restricting Utah’s

Preliminary Hearings to Felony Offenses, 2011 Utah L. Rev.

1377, 1383, 1395-1402.

1

7

appropriate, or wise, or welcomed by the court. See,

e.g., State v. Goins, 423 P.3d 1236, 1243 (Utah 2017)

(noting that it would be “rare” for defense counsel to

have “the same motive and [be] provided the same

opportunity to cross-examine as she would have at

trial”). So even if, as in this case, the trial court did

not formally impose limitations on cross, the

limitations were real.

Now consider the matter of discovery. As the

Petition demonstrates, Petition at 7, crucial disclosures were not made to Petitioner before Ms.

Murrell testified at the hearing. But it is clear that in

some other states this denial would have supported a

conclusion that the opportunity for cross was not

adequate. See, e.g., State v. Nofoa, 349 P.3d 327 (Haw.

2015) (holding that, because of lack of discovery,

admission of preliminary-hearing testimony at trial

was a Confrontation Clause violation, despite

conclusions that motive of cross-examination was the

same as it would be at trial and no restrictions were

placed on it).

Second, the question of the adequacy of a prior

opportunity for cross-examination is not limited to

preliminary hearings. About a dozen states allow

criminal depositions to be taken for purposes of

discovery, see 5 CRIM. PROC. § 20.2(e); in some states,

discovery depositions are allowed as a matter of

course, and in others on a discretionary basis. Id.

States allowing such depositions are in sharp conflict

as to whether they can be used to present the

witness’s testimony if the witness becomes

unavailable. 2 See, e.g., State v. Lopez, 974 So.2d 340

This is, of course, precisely the purpose of a deposition to

perpetuate, or preserve, testimony, a device that is discussed

below.

2

8

(Fla. 2008) (holding in the negative); Berkman v.

State, 976 N.E.2d 68, 78-79 (2012) (holding in the

affirmative, and explicitly disagreeing with Lopez).

The dispute is similar to that in the preliminaryhearing context: Courts holding in the negative

emphasize how different the accused’s motives are in

examining a prosecution witness at trial and at a

discovery deposition, see, e.g., Lopez, 974 So.2d at 349

(“the purpose of a discovery deposition is at odds with

the concept of a meaningful cross-examination”), and

courts holding in the affirmative insist that the

motives are “close enough,” Berkman, 976 N.E.2d at

79; see also, e.g., State v. Allen, 560 N.W.2d 829, 839

(Neb. 1997) (“adequate opportunity . . . with similar,

if not exact, interest and motive”). The latter courts –

like the Kentucky Supreme Court in this case and

others allowing use of preliminary hearing evidence

at trial – also emphasize the lack of formal limits

imposed on the questioning. See, e.g., Berkman, supra,

976 N.E.2d at 77-78. 3

3 Occasionally, the question also arises whether a prior trial of

the same case afforded an adequate opportunity for cross

examination. E.g., Mattox v. United States, 156 U.S. 237 (1895);

Mancusi v. Stubbs, 408 U.S. 204 (1972). Most often, the answer

is affirmative, because the functions of the two trials are the

same. But occasionally there may be doubt, if significant

developments occurred between the two trials. See p. 17 n.6

below.

9

II. THIS COURT SHOULD TAKE THE

OPPORTUNITY THIS CASE OFFERS TO SET

OUT CLEAR REQUIREMENTS FOR USE OF

PRELIMINARY-HEARING TESTIMONY

AGAINST AN ACCUSED.

Amicus believes that this Court could, and should,

resolve the confusion in this area by setting out a

clear, rather simple, and easily administrable set of

requirements with which a state should comply if it

wants to use at trial preliminary-hearing testimony of

a prosecution witness who has since become

unavailable.

At the outset, it should be borne in mind that a

prosecutor who wants to preserve the testimony of a

witness who it fears might not be available at trial has

a traditional, clearly constitutional method for

achieving that end: That is precisely the service

performed by the deposition to preserve, or perpetuate

testimony (also sometimes called a de bene esse

deposition), which is available in the vast majority of

American jurisdictions, if not in all. 5 CRIM. PROC. §

20.2(e); see, e.g., Fed. R. Crim. P. 15. The prosecutor

in this case had ample opportunity to take Ms.

Murrell’s deposition, but never did.

One might argue that the availability of the

preservation deposition weighs decisively against

allowing a prosecutor to use preliminary-hearing

testimony for the same purpose. But amicus believes

that there is no reason why a state cannot provide for

such use if it wishes, essentially allowing the hearing

to double duty, so long as the hearing protects the

accused’s confrontation rights, as a preservation

deposition does. Amicus suggests that, to protect

those rights, the following set of requirements is

necessary and would always or virtually always be

10

sufficient (together with the basic requirements that

the accused be present at the hearing and represented

by counsel, Coleman v. Alabama, 399 U.S. 1 (1970),

and that the witness be sworn). 4

First, and in a way the most fundamental

requirement, is simply that the prosecution must give

notice that it is taking the witness’s testimony for

preservation purposes as well as to demonstrate

probable cause. This requirement is essential because

the fundamental prerequisite for adequacy of prior

testimony is that the issues in the two proceedings are

the same. 5 JOHN H. WIGMORE, EVIDENCE IN TRIALS

AT COMMON LAW (Chadbourn rev. 1974) §§ 1386, 1387,

“for otherwise it cannot be supposed that the former

statement was sufficiently tested for crossexamination upon the point . . . in issue [at the later

trial].” Id. § 1387. If the preliminary hearing is only

for determination of probable cause, and the trial is

for determination of guilt, then the issues are not

substantially the same; probable cause can usually be

determined rather easily, on the face of the

prosecution evidence, much of which (as in this case)

would not even be admissible at trial. Thus, as

suggested above, and as some courts have observed,

the defense does not have the same motive to crossexamine if only probable cause is at issue, see Fry,

supra, 970 P.3d at 977; Goins, supra, 423 P.3d at 1243;

– especially if the court, taking account the limited

function of the hearing, imposes limits on cross, see,

e.g., Stuart, supra, but even if not.

If, however, the prosecution gives notice that the

testimony is being taken in part for preservation

purposes, then the accused and the court both know

4 The “or virtually always” qualifier is included to account for

the possibility discussed at p.17 n.6 below.

11

what is at stake. The accused will be motivated to

conduct a full cross-examination, and the court will

realize why that should be allowed.

One might ask whether the accused should

recognize without notice from the prosecution that the

testimony is being taken for preservation purposes,

especially if, as in this case, the witness is aged or ill

and if testimony by such a witness is unusual. A

sufficient answer is that it is not the defense’s job to

take the steps necessary to perfect the presentation of

prosecution testimony; cf. Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 324 (2009) (asserting

that “the Confrontation Clause imposes a burden on

the prosecution to present its witnesses, not on the

defendant to bring those adverse witnesses into

court”). And a related, and also sufficient, answer is

that there is no reason why the matter should be left

to guesswork by the defense, or by the trial court, or

after-the-fact assessment of the probabilities by an

appellate court. The prosecution can take all the

doubt out of the matter by the simple act of giving

notice.

Doing so would allow for complete crossexamination where the prosecution made a judgment

that it needed to take a precaution to preserve the

testimony of its witness – without the waste of

gratuitous cross where the prosecution made no such

judgment. Put very simply: The subject here is

prosecution witnesses. If the prosecutor knows there

is a risk making preservation of the witness’s

testimony worthwhile, then there is no burden for it

to inform the defense and the court of that fact, and

they should be told. And if the prosecutor does not

know that there is such a risk, the defense and the

court should not have the burden of inferring that

there is.

12

Would prosecutors be tempted to give notice

routinely or prophylactically, so that the purpose of

requiring notice would be nullified? Not at all. For

one thing, doing so would greatly lengthen

preliminary hearings, to the detriment of all

concerned. Moreover, as discussed below, designating

the hearing for preservation purposes would trigger a

discovery obligation on the prosecution; prosecutors

would therefore have considerable disincentive to

make

such

designations

without

careful

consideration.

In this case, of course, the prosecution gave no

notice at the time of the hearing that it was taking the

deposition for preservation purposes – even though

the prosecutor self-consciously had that intention.

Second, the notice should be given with sufficient

time to allow adequate preparation. This Court has

made clear that, while the trial court has wide

discretion, adequate time for preparation is an

essential component of due process. See, e.g., Ungar

v. Sarafite, 376 U.S. 575, 589 (1964) (“There are no

mechanical tests for deciding when a denial of a

continuance is so arbitrary as to violate due process.”);

United States v. Márquez–Pérez, 835 F.3d 153, 162

(1st Cir. 2016) (citing Ungar for the proposition that

“[h]aving adequate time to prepare a defense is

implicit in due process and the right to counsel”); cf.

Fed. R. Crim. P. 15(b)(1) (requiring “reasonable

written notice” of a preservation deposition). There is

no need to be precise at this point in how much time

is adequate; courts have long experience in managing

flexible standards in the context of depositions. And

giving no notice before the witness is called to testify

– which is what happened in this case – is plainly

inadequate. Before Ms. Murrell was called to testify,

the defense did not even have reason to guess that it

13

was about to have an opportunity to cross-examine

her.

Third, before the witness testifies, the prosecution

must make appropriate disclosures bearing on the

witness’s testimony. At least the prosecution must

disclose to the defense the materials that it would

have to disclose, under the constitutional standards

flowing from Brady v. Maryland, 373 U.S. 83 (1963),

before such time as the witness testified at trial;

amicus suggests that it should also be required to

disclose any further materials bearing on the

witness’s testimony that governing law would require

be disclosed before such trial testimony. See Nofoa,

supra, 349 P.3d at 327 (holding that defendant “was

denied the opportunity for meaningful crossexamination because he did not have access to

relevant discovery materials that would have assisted

in the cross-examination of [the witness]”);

Commonwealth v. Bazemore, 614 A.2d 684, 687 (Pa.

1992) (“One is hard pressed to find just how defense

counsel was ‘not restricted’ when the Commonwealth

failed to provide [significant impeachment]

information to the defense.”); Chavez v. State, 213

P.3d 476, 483-84 (Nev. 2009) (asserting that

“discovery is a component of an effective crossexamination” and that it is a critical factor in

determining adequacy of an opportunity for cross);

People v. Torres, 962 N.E.2d 919 (Ill. 2012) (“Beyond

the freedom to fully question the witness . . . , what

counsel knows while conducting the crossexamination may . . . impact counsel’s ability and

opportunity to effectively cross-examine the witness

at the prior hearing.”).

The suggestion, of course, is not that the time for

required disclosures be advanced to the preliminary

hearing; if the prosecution is not ready to make the

14

disclosures, it can decide that the time is not yet ripe

to preserve the witness’s testimony, and it can take

her deposition for preservation purposes at a more

propitious time.

In this case, at the time of the preliminary hearing

the prosecution had disclosed none of the material

that it would have been required to had Ms. Murrell

testified at trial – most significantly, neither the

notes of her interviews with the police, in which she

identified a different assailant, nor the medical

examiner’s preliminary finding, which recited a cause

of death inconsistent with her testimony. It did

disclose this material two months later, more than a

year before the date that was originally set for trial

and 14 months before Ms. Murrell died, App. 51, 58;

the prosecution had ample opportunity to take a

preservation deposition after the time it chose to make

the disclosures.

But plainly, given that the information had not

been disclosed at the preliminary hearing, the defense

could not then, whatever motivation it may have had,

have come remotely close to the full cross-examination

that it would have conducted had Ms. Murrell

testified at trial.

Fourth, and finally, the court must not impose any

limitations on cross-examination beyond those that

would apply at trial. This requirement appears to be

universally accepted; 5 as noted above, courts allowing

The extent to which proceedings resembling the modern

preliminary hearing existed at the time of the Framing, and to

which the accused had an opportunity for cross-examination at

them, are matters of academic debate. Compare Thomas Y.

Davies, What Did the Framers Know, and When Did They Know

It? Fictional Originalism in Crawford v. Washington, 71 Brook.

L. Rev. 105 (2005), with Robert Kry, Confrontation Under the

5

15

testimony from a preliminary hearing to be admitted

at trial often emphasize as a justification the absence

of constraints on cross-examination at the hearing. In

this case, there is no way of knowing whether this

requirement would have been satisfied had proper

conditions prevailed – that is, had the defense had

notice, with adequate preparation time, that Ms.

Murrell would be testifying and that the hearing was

being held in part for preservation purposes, and had

appropriate disclosures been made to the defense.

What is manifestly apparent, though, is that if these

Marian Statutes: A Response to Professor Davies, 72 Brook. L.

Rev. 493 (2007). What seems clear is that, though in an earlier

era examinations under the so-called Marian statutes were

conducted without counsel present and without crossexamination, by the time of the Framing there was a growing

sense of the need to provide an opportunity for cross if the

hearing testimony was to be used as a substitute for trial

testimony. The sense of transition may be captured by a passage

from a manual, NEW VIRGINIA JUSTICE, written by William

Waller Hening in 1794 and quoted by Prof. Davies, 71 Brook. L.

Rev. at 186-87:

The doctrine laid down in the books, that the examination of

a witness taken before a magistrate in pursuance of [the

Marian statutes], may be read against a criminal in case of

the death of a witness, or his inability to attend, is liable to

these objections: – that the prisoner may be concluded by

evidence however objectionable the witness may be in point of

interest, guilt, &c. and that the accused party has not the

same advantage of cross examination, which he would posess

before a court, with the assistance of counsel.

More broadly, amicus takes the view that Confrontation Clause

doctrine should not attempt to replicate a snapshot of procedure

as it existed in 1791. Rather, it should recognize that the Clause

was meant to enshrine a basic right that had existed for

centuries, and that the exact particulars of how the right was

applied were in flux as the procedural context evolved.

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conditions had been satisfied the cross-examination of

Ms. Murrell, the key witness in a murder case, would

not have been a perfunctory matter. 6

In sum, a state should be allowed to use a

preliminary hearing for preservation purposes if it

wants to. But it is not enough that, as a formal

matter, defense counsel was not limited by the court

in conducting cross-examination. The absence of

formal constraints has no significance unless the state

gives the defense notice that it intends, if necessary,

to use the hearing for preservation and gives the

defense the preparation time and disclosures

necessary to create an adequate opportunity for crossexamination. See Commonwealth v. Harris, No. 1221

EDA 2015, 2016 WL 5719362 (Pa. Super. Ct. Sept. 30,

2016) (noting that the accused “was informed that the

Commonwealth intended to preserve [the witness's] testimony, was provided with [the witness’s]

statement and criminal extract, and had the

opportunity to cross-examine [the witness] at

the preliminary hearing on the areas of bias, motive

to lie, and lack of credibility,” and concluding that

“[t]herefore” the accused’s confrontation right was

satisfied”).

Amicus believes in addition that if the accused is able to

demonstrate that there is a “new and significantly material line

of cross-examination,” Mancusi, supra, 408 U.S. at 215, that

could not have been explored, because it reflected recent

developments since the witness testified, that might justify a

determination that the prior opportunity for examination

(whether in a preliminary hearing, deposition, or trial) was

inadequate. The burden would be on the accused to demonstrate

such developments, and only rarely could that burden be carried.

In any event, resolution of this case does not require

determination of whether such a possibility should be

recognized.

6

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III. THIS IS AN IDEAL CASE TO CREATE

CLARITY ON THE ADEQUACY OF A PRIOR

OPPORTUNITY FOR CROSS-EXAMINATION.

Crawford fundamentally transformed the law

governing the Confrontation Clause, and it made clear

that a key part of the doctrine is the adequacy of a

prior opportunity for cross-examination of a witness

who has become unavailable by the time of trial. But

since Crawford, the Court has not shed further light

on when a prior opportunity should be deemed

adequate. This case provides an excellent vehicle to

begin that task. Here, the prosecution did not give

notice until well after the fact that it was taking Ms.

Murrell’s testimony at the preliminary hearing at

least in part to preserve it for trial; nor did it give any

advance notice that she would testify at all; nor did it

provide the defense with any discovery. As a result,

the cross-examination was perfunctory. It is clear as

can be that had the proper conditions prevailed the

defense would not have limited itself to an

examination remotely similar to the one that

occurred. This case therefore offers an excellent

opportunity to assess the significance of those

conditions.

Moreover, the case presents the issue with great

clarity. There were no other issues on appeal. Ms.

Murrell’s testimony was obviously crucial to the

prosecution. The Confrontation Clause objection was

properly preserved. The case comes here on direct

review.

And defense counsel is superbly well

qualified.

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CONCLUSION

For the foregoing reasons, the Petition should be

granted.

Respectfully submitted,

RICHARD D. FRIEDMAN

Counsel of Record

625 South State Street

Ann Arbor, Michigan 48109-1215

(734) 647-1078

rdfrdman@umich.edu

DECEMBER 2022

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