Opposition 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 IN OPPOSITION

Office of the Kentucky

Attorney General

700 Capital Avenue

Suite 118

Frankfort, KY 40601

(502) 696-5300

Matt.Kuhn@ky.gov

*Counsel of Record

January 26, 2023

MATTHEW F. KUHN*

Solicitor General

DANIEL J. GRABOWSKI

Assistant Solicitor General

i

QUESTION PRESENTED

If a witness is unavailable at trial, when does a preliminary hearing provide a prior adequate opportunity

for cross-examination under the Confrontation

Clause?

ii

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES ...................................... iii

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

STATEMENT OF THE CASE .................................... 2

ARGUMENT ................................................................ 8

I. There is no conflict with this Court’s precedent. .. 8

II. Any state-high-court split is not as Shields

describes it, and this case does not require

resolving it. ........................................................... 21

CONCLUSION .......................................................... 25

iii

TABLE OF AUTHORITIES

Cases

Barber v. Page,

390 U.S. 719 (1968) ............................................ 9–15

California v. Green,

399 U.S. 149 (1970) ................................ 7, 11–17, 22

Coy v. Iowa,

487 U.S. 1012 (1988) .......................................... 9, 16

Crawford v. Washington,

541 U.S. 36 (2004) .............................. 1, 9–11, 16, 22

Delaware v. Fensterer,

474 U.S. 15 (1985) ...................................... 11, 15, 18

Giles v. California,

554 U.S. 353 (2008) .................................................. 9

Hemphill v. New York,

142 S. Ct. 681 (2022) ................................................ 9

Mackin v. State,

387 P.3d 986 (Utah 2016) ...................................... 24

Mancusi v. Stubbs,

408 U.S. 204 (1972). ........................................... 9, 19

Mattox v. United States,

156 U.S. 237 (1895) ................................ 9, 10, 16, 19

Ohio v. Roberts,

448 U.S. 56 (1980) .................... 10, 11, 13–15, 17, 22

iv

People v. Fry,

92 P.3d 970 (Colo. 2004) (en banc) .................. 21, 22

People v. Jurado,

131 P.3d 400 (Cal. 2006) ........................................ 23

People v. Torres,

962 N.E.2d 919 (Ill. 2012). ..................................... 23

Pointer v. Texas,

380 U.S. 400 (1965) ................................ 9, 11, 12, 14

Reynolds v. United States,

98 U.S. 145 (1878) ................................................ 8, 9

State v. Noah,

162 P.3d 799 (Kan. 2007)....................................... 23

State v. Nofoa,

349 P.3d 327 (Haw. 2015) ...................................... 23

State v. Smogoleski,

953 N.W.2d 118 (Table), 2020 WL 6750487

(Wis. Ct. App. 2020) ............................................... 22

State v. Stano,

159 P.3d 931 (Kan. 2007)................................. 22, 23

State v. Stuart,

695 N.W.2d 259 (Wis. 2005) .................................. 22

Williams v. Bauman,

759 F.3d 630 (6th Cir. 2014) .................................. 15

Constitutional Provisions

U.S. Const. amend VI .................................................. 8

v

Rules

Ky. R. Crim. P. 3.14 ................................................... 17

1

INTRODUCTION

Gregory Shields asks this Court to review whether

his right to confrontation was violated. As he tells it,

the Supreme Court of Kentucky got that question

wrong. That court affirmed the trial court’s decision

allowing into evidence an unavailable witness’s prior

sworn testimony given at a preliminary hearing. Although Shields could—and did—cross-examine the witness at that hearing, according to him that opportunity was inadequate. And as Crawford v. Washington suggests, the prior-opportunity exception requires

an “adequate opportunity” for cross-examination. 541

U.S. 36, 57 (2004). So Shields asks this Court to grant

review to ultimately say that the preliminary hearing

offered an inadequate opportunity.

At bottom, he puts forward two main reasons for

the Court to grant certiorari. First, Shields says that

there is conflict among state courts of last resort on

what constitutes an adequate opportunity. And second, he claims that the Supreme Court of Kentucky’s

decision conflicts with this Court’s precedent. There is

some truth to the former. State high courts do disagree

in some respects yet not nearly as much as Shields

suggests. That disagreement centers on the effect of

information learned through discovery after a preliminary hearing. Even so, this case does not require resolving it: no matter which side the Court takes,

Shields has not shown a confrontation violation. And

Shields’s latter reason is just plain wrong. The Kentucky high court’s decision does not conflict with any

decision of this Court.

2

STATEMENT OF THE CASE

Shields was arrested for murdering his uncle, Samuel Murrell, in February 2017. Pet. App. 2. A week after his arrest, the trial court held a preliminary hearing. Id. at 3. At the hearing, the Commonwealth called

two witnesses: Maude Murrell, Samuel’s wife (and

Shields’s aunt), and a police detective. Id. Maude was

at her home with Samuel and Shields the night Samuel was killed. Prelim. Hr’g 2:02–14. And the detective

was one of the investigating officers. Id. at 22:22–35.

Maude, who was 82 at the time, testified first. Under oath, she explained that Shields came home after

midnight (he lived there with Samuel and Maude). Id.

at 3:15–45. He entered Samuel and Maude’s bedroom,

pulled the covers off the bed, and complained about

the car he had bought from Samuel. Id. at 4:43–5:20.

“He was mad, and it was like he was taking it out on

Sam.” Id. at 4:58–5:07. Then Shields left the room and

came back with two knives. Id. at 5:40–55. He cursed

at Samuel, called him names, and accused him of killing Shields’s mother. Id. at 6:53–7:06. Then Shields

started cutting Samuel. Id. at 8:15–17. He cut him on

his arm, then wrist, then chest—all the while ignoring

Maude and Samuel telling him to stop. Id. at 8:15–

9:15. At one point, when Maude said she would call the

police, Shields put a knife to Samuel’s throat and said

he would slit it if she did. Id. at 10:25–46.

Then Maude said that she was “not going to sit in

here and look at this” and went into the garage to

smoke a cigarette. Id. at 9:21–31. After a time, Shields

came and smoked one too. Id. at 9:32–34. When they

returned to the house, Samuel was calling for Maude.

Id. at 9:36–50. So she went to him, and Samuel said

he would stand so Maude could change the bloody

3

sheets. Id. at 9:51–10:21. He did, with help from

Shields and his walker. Id. at 11:22–47. Samuel stood

for a couple of minutes but then fell face first—hitting

his head on the dresser. Id. at 11:46–12:15. Shields

helped him get up, but Samuel fell again—backwards

this time. Id. at 12:15–39. Shields then bandaged

Samuel’s cuts and checked his pulse twice. Id. at

13:15–44. The second time, it was weak and then

stopped altogether. Id. at 13:49–59. Shields told

Maude to call 911, but she had him do it instead. Id.

at 14:02–20.

Before the police arrived, Shields told Maude to tell

them that a person came into the house and “jumped”

Samuel, that Shields came in and stopped the person,

and that the person got away. Id. at 14:49–15:17. So

when the police arrived, Maude at first told them that.

Id. at 15:20–25. But it wasn’t the truth. Id. at 15:27–

31. And she eventually told the police what really happened. Id. at 18:29–36.

After Maude finished her direct testimony,

Shields’s counsel cross-examined her. Id. at 19:30–

21:10. Shields’s counsel confirmed that Shields had

lived with the Murrells for almost four years and that

he took them to appointments and ran errands for

them. Id. at 19:40–45, 20:30–40. And Shields’s counsel

asked how long Maude had known Shields, whether

Shields’s actions seemed out of character, whether he

was acting unusual, and whether it made sense that

he was mad or whether Maude understood why he was

mad. Id. at 19:45–20:30. At no point during the crossexamination did the trial court interrupt Shields’s

counsel or in any way limit her questioning. Nor did

the Commonwealth object or try to limit the questioning in any way.

4

The detective then testified. Id. at 22:10–20. She

confirmed that Maude had first told police the intruder story before implicating Shields. Id. at 23:15–

44. And the detective testified that, according to the

preliminary findings from Samuel’s medical examination, several things contributed to his death: his old

age, the knife wounds, and a broken hyoid bone and

fracture in his vertebrae. Id. at 27:22–46. Following

her testimony, the court found probable cause to refer

the case to a grand jury. Id. at 29:04–15.

After the preliminary hearing, Maude died in June

2018. Pet. App. 5. That prompted Shields to move to

exclude her preliminary-hearing testimony.

At the hearing on that motion, Shields explained

why he believed he did not have a sufficient opportunity to cross-examine Maude. Mot. Lim. Hr’g at

4:30–32. That included arguing that the hearing was

meant only to determine probable cause, that he was

unaware Maude would testify, that judges often limit

questions that stray too far from probable cause, and

that the Commonwealth had not yet provided discovery. Id. at 4:40–7:45. On the limiting-questions point,

Shields recognized that it did not happen in this case.

Id. at 6:08–23. And on the discovery point, he listed

some questions that he would have asked if given discovery before the hearing. Id. at 8:27–10:25. That included asking about strangulation since the medical

examiner’s report suggested that as a possible cause

of death. Id. at 8:45–9:15. It showed that Samuel’s hyoid bone was broken, which is often caused by strangulation. Id. at 22:13–25. And yet Maude did not testify to seeing any strangulation.

5

The Commonwealth responded that notice Maude

would testify was not required, that it was unsurprising it called the sole eyewitness, that Shields never objected or asked for a continuance, and that it did not

provide discovery because none was ready since the

case was still in the investigatory stage. Id. at 11:40–

12:31, 15:30–35, 15:55–16:12, 18:55–19:02. The prosecutor explained that he met with Maude the day before the preliminary hearing and then decided to have

her testify. Id. at 13:15–40, 14:52–58. His purpose was

twofold: to establish probable cause and to preserve

her testimony for trial due to her advanced age. 1 Id. at

13:22–58.

On probable cause, even though the detective’s testimony likely would have established it, the unique

situation warranted calling Maude. Id. at 13:55–

14:22, 18:20–23. It was a small crime scene with only

one eyewitness who was articulate and well oriented

with the time and place of the crime. Id. at 14:00–19.

So the prosecutor thought it appropriate to call her to

help establish probable cause. Id. at 14:20–23. And

though not the norm, he had called eyewitnesses to

testify before at preliminary hearings. Id. at 20:54–

21:10.

And on the preserving-testimony point, the prosecutor explained that he called Maude to testify as a

precautionary measure out of an abundance of caution. Id. at 19:20–24. Maude was elderly but not terminally ill. Id. at 19:10–15. There was no evidence of

failing health. Id. at 46:02–26. The only reason the

prosecutor thought to preserve her testimony was her

1 Shields incorrectly says that the prosecutor admitted to calling

Maude “only ‘to preserve her testimony for trial.’” Pet. 2 (citation

omitted).

6

advanced age and the possibility that she might become unavailable. Id. at 19:33–41. In other words, the

prosecutor called her to preserve her testimony as a

failsafe. He did not expect Maude to become unavailable. And after the preliminary hearing, the prosecutor

had no reason to think otherwise. The Commonwealth

never learned of any change in her condition or suggestion of failing health until it learned of her passing.

Id. at 46:45–47:00, 47:25–34.

After the hearing, the trial court denied the motion

to exclude. Pet. App. 54. On Shields’s discovery argument, the court explained that even if Shields had the

benefit of the medical report, which suggested the possibility of strangulation, it would not have much

helped asking Maude about whether she had seen any

strangulation. Id. at 60–61. Maude already did not

mention seeing strangulation in her detailed testimony. Id. at 60. And the Commonwealth did not attempt to elicit any such testimony from her. Id. So asking her about it would likely only confirm what her

testimony already showed: that she did not see any

strangulation. Id. at 61. On top of that, the court noted

that Shields could have taken a deposition if he

thought any later discovery suggested “an important

area for cross-examination.” Id. at 64.

In short, it was unclear “that proper notice and

timely discovery pertinent to [Maude’s] testimony

would have helped the defendant or his counsel in any

significant degree.” Id. So Shields was not denied a

sufficient opportunity for cross-examination. Id. at 65.

Shields then entered a conditional guilty plea, allowing him to appeal the trial court’s denial of his motion. Id. at 9.

7

On appeal, the Supreme Court of Kentucky affirmed. After examining this Court’s case law in detail,

it held that Shields was afforded an adequate opportunity to cross-examine Maude at the preliminary

hearing. Id. at 35. The court noted that the trial court

did not limit Shields’s cross-examination of Maude in

any way: “the defense did not advance any cross-examination which the trial court disallowed.” Id. at 29.

Any limitation was self-imposed. Id. And although

Shields’s counsel may have been caught off guard or

not had complete discovery, that did not make the opportunity inadequate. Id. Plus, the Kentucky high

court noted that the trial court properly found that

Shields had not shown how the later discovery would

have made a difference in the questioning “in any significant degree.” Id. at 31.

Three justices dissented. In their view, Shields was

denied an adequate opportunity to cross-examine

Maude. Id. at 35 (Keller, J., dissenting). They focused

on the limited nature of the actual cross and detailed

how it could have been better. Id. at 41, 47. And they

highlighted concerns about the differences between a

preliminary hearing and a trial, echoing Justice Brennan’s dissent in California v. Green, 399 U.S. 149

(1970). Id. at 43–46.

Shields then petitioned this Court for certiorari.

8

ARGUMENT

Shields offers two primary reasons why the Court

should grant review. First, he argues that there is a

conflict between state high courts on what constitutes

an adequate opportunity for cross-examination at a

preliminary hearing. And second, he says that the decision below conflicts with this Court’s decisions. He is

somewhat right on the first but altogether wrong on

the second. And ultimately, neither reason justifies

certiorari.

This case does not require resolving the core of the

disagreement among the States. That disagreement is

over whether information learned through discovery

after a preliminary hearing can make the opportunity

inadequate. But even the States that hold that it can

require a showing of how the information would have

changed things. Yet Shields has not made that showing here. So no matter what the Court might decide as

to the discovery issue, he has not shown a confrontation violation. And Shields’s second reason fares even

worse. Not only is there no conflict with this Court’s

cases, but those cases support the lower court’s decision.

I. There is no conflict with this Court’s precedent.

Consider Shields’s two reasons for review—but

take them in reverse. Shields says that the decision

below conflicts with this Court’s prior cases. That is

incorrect.

1. Start with the basics. The Confrontation Clause

guarantees a defendant the right “to be confronted

with the witnesses against him.” U.S. Const. amend

VI. It is a trial right, Reynolds v. United States, 98 U.S.

9

145, 158 (1878), intended at its core to prevent a prosecutor from using ex parte examinations against a defendant at trial, Crawford, 541 U.S. at 50. To do that,

the right includes several things. First, it ensures that

a defendant can confront a witness face to face. Coy v.

Iowa, 487 U.S. 1012, 1016–19 (1988). Second, it allows

him to cross-examine that witness through counsel.

Pointer v. Texas, 380 U.S. 400, 407 (1965). And third,

it allows the triers of fact to see the witness’s testimony firsthand. Mancusi v. Stubbs, 408 U.S. 204, 211

(1972).

All told, the right generally gives a defendant the

opportunity for “testing the recollection and sifting the

conscience of the witness” while “compelling him to

stand face to face with the jury in order that they may

look at him, and judge by his demeanor upon the stand

and the manner in which he gives his testimony

whether he is worthy of belief.” Mattox v. United

States, 156 U.S. 237, 242–43 (1895).

There are, however, some exceptions to this trial

right—necessarily limited to those established at the

founding. Hemphill v. New York, 142 S. Ct. 681, 690

(2022). The Court has recognized three: dying declarations, forfeiture by wrongdoing, and the prior opportunity to cross-examine an unavailable witness. Giles

v. California, 554 U.S. 353, 358–59 (2008). And it has

done so based on the historical recognition that, in certain instances where its core purpose is met, the trial

right “must occasionally give way to considerations of

public policy and the necessities of the case.” Mattox,

156 U.S. at 243; see also Barber v. Page, 390 U.S. 719,

722 (1968) (“This exception has been explained as arising from necessity and has been justified on the

10

ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement.”).

For example, courts have permitted the admission

of dying declarations from “time immemorial.” Mattox,

156 U.S. at 243. Yet such declarations lack practically

all the Confrontation Clause guarantees. They are but

rarely made in the defendant’s presence, afford no opportunity for cross-examination, and are not given before the triers of fact. Id. Still, they are admitted out

of necessity and because the “substance of the constitutional protection is preserved” by the perceived effect on the witness of believing he is about to die. Id.

at 244.

Likewise, the substance is preserved when the

prior-opportunity exception is met. Id. Crawford of

course is the starting point for unpacking this exception. There, the Court turned away from the reliability

test of Ohio v. Roberts, 448 U.S. 56 (1980), and back to

the original meaning of the Confrontation Clause and

prior-opportunity exception.

The Court explained that the confrontation right

was based on English common law, which developed

in response to ex parte examinations of witnesses being introduced at trial. Crawford, 541 U.S. at 43–46.

By at least 1696, the common law required a prior opportunity for cross-examination before such testimony

could be admitted. Id. at 45–46. And by 1791 when the

Sixth Amendment was ratified, English courts were

consistently applying the prior-opportunity requirement. Id. at 46–47. Likewise, American cases decided

shortly after suggest the requirement. Id. at 49–50.

11

Based on that (and other) historical evidence, the

Court held that to admit prior testimonial evidence,

the Confrontation Clause “demands what the common

law required: unavailability and a prior opportunity

for cross-examination.” Id. at 68. And while the Court

suggested that such an opportunity should be adequate, it did not define what that means. 2 Id. at 57.

The words themselves, however, carry meaning.

There must be an opportunity to cross-examine. That

means the chance or ability to cross—that may or may

not be exercised. And the opportunity must be adequate. That conveys the opportunity need not be perfect. See Delaware v. Fensterer, 474 U.S. 15, 20 (1985)

(“Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination,

not cross-examination that is effective in whatever

way, and to whatever extent, the defense might

wish.”).

And the Court’s pre-Crawford cases shed light on

what constitutes an adequate opportunity. Four times

the Court has considered whether preliminary-hearing testimony could be admitted: in Pointer, Barber,

Green, and Roberts. Crawford approvingly cited Green

and Pointer for requiring a prior adequate opportunity

to cross, Barber for requiring the witness to be unavailable, and even Roberts for its outcome. 541 U.S. at

57–58. All four cases are therefore relevant to determining whether a preliminary hearing provides an adequate opportunity. Consider each.

2 Twice the Court in Crawford noted that its past cases require a

prior “adequate opportunity” to cross-examine. See id. Otherwise,

the language throughout just says “prior opportunity.”

12

First, in Pointer the Court considered whether a

defendant had an adequate opportunity when he was

present at the preliminary hearing but without a lawyer. 380 U.S. at 401–02. It held no. The preliminaryhearing testimony was not “taken at a time and under

circumstances affording [the defendant] through counsel an adequate opportunity to cross-examine.” Id. at

407.

Second, in Barber the Court again considered preliminary-hearing testimony, this time with the defendant’s counsel present. 390 U.S. at 720. But there,

the government did not show that the witness was unavailable. It made no effort to secure the witness’s

presence at trial. Id. at 724. And the Court held that a

good-faith effort to do so is required. Id. at 724–25. But

it did not decide whether the testimony otherwise

would have been admissible—although the Court suggested the possibility. Id. at 725–26. It noted that 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.” Id. at 725. Still, the Court explained

that “there may be some justification for holding that

the opportunity for cross-examination of a witness at

a preliminary hearing satisfies the demand of the confrontation clause where the witness is shown to be actually unavailable.” Id. at 725–26.

Third, in Green the Court held that there was no

confrontation problem from admitting parts of a witness’s testimony at a preliminary hearing to refresh

his recollection. 399 U.S. at 151–52, 164. But it went

further than that. The Court also held that, because

the defendant had an opportunity to cross the witness

13

at the preliminary hearing, the testimony was admissible. Id. at 165. It reasoned that the witness gave his

preliminary-hearing testimony under oath, the defendant was represented by counsel, and his counsel

had “every opportunity to cross-examine.” Id. Because

the statement would be admissible if the witness was

unavailable for trial, the Court determined that it

should also be admissible when the witness was available and testifying. Id.

That first part is key here: if the witness was unavailable for trial, his testimony would have fallen under the prior-opportunity exception. The Court picked

up on Barber’s acknowledgment that there may be justification for allowing preliminary-hearing testimony

even though such a hearing is different from a trial.

Id. at 166. And it explained that the defendant’s counsel did not “appear to have been significantly limited

in any way in the scope or nature of his cross-examination.” Id. So he had a prior opportunity to cross-examine that provided “substantial compliance with the

purposes behind the confrontation requirement.” Id.

Justice Brennan dissented in Green. In his view, a

preliminary hearing could not “compensate for the absence of confrontation at trial, because the nature and

objectives of the two proceedings differ significantly.”

Id. at 195 (Brennan, J., dissenting). He urged that

cross at such a hearing “pales beside that which takes

place at trial” in part because of the difference of objectives, because the defense generally has “inadequate time before the hearing to prepare for extensive

examination,” and because the triers of fact do not see

it firsthand. Id. at 197–98.

And fourth, in Roberts the Court also allowed the

admission of preliminary-hearing testimony. 448 U.S.

14

at 73. It declined to decide whether the mere opportunity to cross-examine or a de minimis cross could

satisfy the exception. Id. at 70. Instead, the Court held

that the “equivalent of significant cross-examination”

satisfied the exception. Id. And that was met: the defendant asked questions without significant limitation

on their scope or nature. Id. at 70–71. So he had (and

made use of) an adequate opportunity to cross-examine. Id. at 73.

2. Now, back to Shields. He argues that the lower

court’s decision conflicts with those cases. He is wrong.

Not only is there no conflict, but the cases refute most

of his arguments.

None of them say that preliminary hearings cannot

provide an adequate opportunity for cross-examination. Pointer excluded such testimony because the defendant was not represented by counsel at the hearing. 380 U.S. at 407. Barber excluded it because the

government had not shown unavailability. 390 U.S. at

724–25. And although Barber noted the differences between a preliminary hearing and trial, it expressly

stated that if a witness were actually unavailable

there might be justification for allowing his prior testimony. Id. at 725–26. Green picked up on that same

point and held that the cross-examination there was

adequate because the defendant was not significantly

limited in the scope or nature of his cross by the trial

court. 399 U.S. at 166. And Roberts says the same. 448

U.S. at 71.

True, Roberts leaves unaddressed whether no or de

minimis cross is enough. Id. at 70. But that just proves

the point. If the Court left the question open, then

even if the cross here qualifies as de minimis, the

15

lower court’s resolving the issue cannot present a conflict. Shields’s only argument otherwise is that de minimis cross-examination cannot amount to substantial

compliance with the purpose behind the right. Pet. 24.

But no case holds that. In other words, Shields is arguing for an extension of this Court’s precedent. Indeed, lower courts have denied habeas relief for cases

like this. See, e.g., Williams v. Bauman, 759 F.3d 630,

635–36 (6th Cir. 2014). There is no conflict with this

Court’s cases.

In fact, they support the lower court’s decision. For

starters, the cases expressly allow preliminary-hearing testimony to satisfy the exception (provided counsel is present and the witness is shown to be unavailable). And they identify only one situation that would

make the opportunity inadequate: if the trial court

were to limit the scope or nature of the questioning.

Green, 399 U.S. at 166; Roberts, 448 U.S. at 71; see also

Fensterer, 474 U.S. at 19 (“[T]he trial court did not

limit the scope or nature of defense counsel’s cross-examination in any way.”). That did not happen here. At

no point did the Commonwealth object during Maude’s

cross or the trial court prohibit a line of questioning.

Shields’s counsel herself recognized that. Mot. Lim.

Hr’g 6:08–23. As the lower court noted, any limitation

was self-imposed. Pet. App. 29.

The four cases also refute Shields’s claim that the

preliminary hearing cannot provide an adequate opportunity because its purpose is to determine probable

cause, not guilt. Pet. 25. Barber notes that very point

but then leaves open whether a preliminary hearing

could still provide an adequate opportunity. 390 U.S.

at 725–26. Then Green holds just that. 399 U.S. at 166.

And it does so with Justice Brennan in dissent making

16

the same point Shields makes here. Id. at 195–97

(Brennan, J., dissenting). Needless to say, if Justice

Brennan dissented, the Court disagreed with him—

and rightly so.

The prior-opportunity exception is not meant to offer the same opportunity for cross as at trial. As with

all the exceptions, it does not guarantee the full scope

of the trial right. The key is whether the “substance of

the constitutional protection is preserved.” Mattox,

156 U.S. at 244. That occurs when there is “substantial compliance with the purposes behind the confrontation requirement.” Green, 399 U.S. at 166. And as

this Court has made clear, the primary purpose is to

prevent ex parte examinations from being used at

trial. Crawford, 541 U.S. at 50.

A preliminary hearing with the defendant present

is not ex parte. A witness must stand face to face with

the person he accuses. That increases the likelihood

for truth telling: “It is always more difficult to tell a lie

about a person ‘to his face’ than ‘behind his back.’” Coy,

487 U.S. at 1019. It ensures the defendant knows the

witness did in fact make the statement. And it allows

the defendant to challenge any assertions to further

the “integrity of the fact-finding process.” Id. at 1020

(citation omitted).

That’s just what occurred here. Maude testified

with Shields sitting right there in the courtroom. She

gave a detailed account of what happened. At any

point during that account, Shields could have turned

to his counsel and told her that Maude was wrong,

that she was lying. And then Shields’s counsel could

have crossed Maude on the point and attempted to expose any dishonesty.

17

It matters not that the focus of the preliminary

hearing is finding probable cause rather than guilt.

Shields had the same ability to expose Maude as lying

and Maude the same pressure to tell the truth. 3 The

substance of the right was preserved.

Likewise, the same goes for Shields’s lack-of-notice argument. Pet. 25. Green resolves that too. Again

in dissent, Justice Brennan explained that the defense

does not have the same time to prepare for cross-examination at a preliminary hearing as at trial. Green,

399 U.S. at 197 (Brennan, J., dissenting). That critique amounts to the same thing as complaining of insufficient notice. But again, it did not persuade the

Court in Green that a preliminary hearing is inadequate. And again, that makes sense. There is substantial compliance with the purposes of the right even

when there is less time to prepare. Shields was still

face to face with his accuser and able to cross-examine

her without limitation from the trial court.

That leaves just two things: Shields’s final argument about not having discovery and what Roberts left

undecided. Start with the latter.

Roberts left open whether a de minimis cross or no

cross can be an adequate opportunity. 448 U.S. at 70.

But the answer is straightforward. It’s baked into the

standard. An opportunity to cross is required, not the

exercise of the opportunity. The same goes for at

3 For what it’s worth, the difference between showing probable

cause and proving guilt is one of degree, not kind. Both determinations go to whether the defendant committed a crime, and similar evidence is used for both. Indeed, Kentucky’s rules allow a

defendant not just to cross-examine witnesses at a preliminary

hearing but also to “introduce evidence in his or her own behalf.”

Ky. R. Crim. P. 3.14(2).

18

trial—a defendant need not cross-examine a witness

then; he just must be able to do so. The Court has already suggested as much. The right “guarantees an

opportunity for effective cross-examination, not crossexamination that is effective.” Fensterer, 474 U.S. at

20. So Shields’s counsel asking only a few questions at

the preliminary hearing and choosing not to raise

many of the questions Shields puts forward after the

fact does not mean he lacked an adequate opportunity.

Indeed, Shields could have asked most of the questions he now lists: Maude testified to the basis of all

but one on direct. Shields says he could have explored

Maude’s initial statement to the police identifying an

intruder as Samuel’s attacker, that Shields went and

smoked a cigarette with her in the garage, and that

Shields helped Samuel after the attacks. Pet. 26. But

Maude testified to each. Prelim. Hr’g 9:32–34, 12:15–

39, 13:15–44, 15:04–31. So Shields easily could have

crossed on them. That his counsel could have asked

about them but chose not to is not a confrontation

problem.

The only line of questioning that Shields now identifies that he could not have asked about is the suggestion that strangulation could have occurred. Pet. 25–

27. The medical report suggested that strangulation

was possible because Samuel’s hyoid bone was broken,

which strangulation often causes. Mot. Lim. Hr’g at

8:45–9:15, 22:13–25. Yet Maude did not testify to seeing any strangulation at the preliminary hearing (the

detective testified to Samuel’s broken hyoid bone after

Maude testified). Prelim. Hr’g at 27:22–46.

Admittedly, this Court’s cases do not directly address whether not receiving discovery before a preliminary hearing could make the opportunity inadequate.

19

But there is still substantial compliance with the

right’s core purpose even if a defendant does not yet

have discovery. Maude still testified in front of

Shields, and Shields could and did cross-examine her

without limitation. That is all the exception requires

to preserve the “substance of the constitutional protection.” Mattox, 156 U.S. at 244.

3. Besides, even if the Court were to hold that later

discovery could make a prior opportunity inadequate,

Shields still has not shown a violation. He would still

have to show that having the discovery earlier would

have changed things. See Mancusi, 408 U.S. at 213–

15. At the very least, Shields has to show some “new

and significantly material line of cross-examination”

that he could not have pursued without the information. Id. at 215. And he hasn’t.

Again, the only thing that Shields could not have

asked Maude about was the possibility of strangulation. Yet asking her about that would not have meaningfully changed anything. In giving a detailed account of what happened, Maude never suggested that

Shields strangled Samuel. And the prosecutor never

tried to elicit any testimony on the point, even while

knowing of the medical examiner’s report. So all that

asking Maude about strangulation would have done

would have been to confirm what was already clear:

Maude did not see any. The trial court was spot on

here. See Pet. App. 60–61.

Shields also suggests that he could have asked

about how long he was alone with Samuel when

Maude went to the garage. Pet. 26. But that hardly

gets him anywhere. Maude was clear in her testimony

that she went to the garage to smoke a cigarette, then

20

Shields joined her. Prelim. Hr’g 9:21–34. It makes little difference if it took him moments or minutes. There

would still have been time when Shields was alone

with Samuel.

And more importantly, at most what Shields could

have elicited was that there was little opportunity for

strangulation. But how does that meaningfully help

him? Does it imply Maude’s whole story is inaccurate

because Samuel’s hyoid bone was broken—an injury

not exclusively caused by strangulation? It is just as,

or more, likely that he broke it some other way, such

as when he fell and hit his head on the dresser. Id. at

11:46–12:15. Shields has not shown how asking

Maude about strangulation would have helped.

One final point related to Shields’s lack-of-discovery argument. He suggests that its effect on his cross

(along with the other limitations) was “all by design.”

Pet. 25. In other words, he suggests that the prosecutor deliberately did not allow the chance for a better

examination. The record does not support that.

The prosecutor did not try to pull a fast one. He met

with Maude the day before the preliminary hearing.

Mot. Lim. Hr’g 13:15–40, 14:52–58. And he decided to

call her both to help establish probable cause as the

sole eyewitness and to preserve her testimony—only

because of her advanced age. Id. at 13:22–58. It was a

precautionary measure done out of abundance of caution, not a gamesmanship attempt.

The prosecutor did not provide notice to defense

counsel because nothing required him to do so and he

had only decided to call Maude the day before. Id. at

11:40–50, 13:15–40. He did not provide discovery because there was no discovery prepared yet to provide.

21

Id. 18:55–19:02. And he did not conduct a later deposition because there was never notice of Maude’s failing health. Id. at 46:45–47:05, 47:25–34.

Finally, it is not as if the Commonwealth was

helped by Maude’s unavailability. She was the sole

eyewitness. She was detailed and articulate. She told

clearly what Shields—her nephew—had done to Samuel. If anything, the Commonwealth would have benefited from the triers of fact seeing Maude’s live testimony. Having to rely on her preliminary-hearing testimony was a failsafe that unfortunately became necessary. But it is the exact failsafe that the prior-opportunity exception allows for.

II. Any state-high-court split is not as Shields describes it, and this case does not require resolving it.

Now, circle back to the first reason Shields gives

for review: that there is a split among state high

courts. To be sure, there is something of a split. But it

is different than Shields describes. And this case does

not require resolving it.

As Shields describes it, there is a three-way split

among the States. Pet. 13–21. Some hold that a preliminary hearing can never be a prior adequate opportunity. Others hold that it is case specific, with factors

like whether the cross is limited or discovery is lacking

being determinative. And still others, Shields says,

hold that any mere opportunity to cross is enough.

That is somewhat right. But the devil’s in the details. Take his first category. Shields puts Colorado

and Wisconsin in it. Id. at 13. Colorado does hold that

a preliminary hearing cannot provide an adequate opportunity. People v. Fry, 92 P.3d 970, 978 (Colo. 2004)

22

(en banc). But that directly conflicts with this Court’s

cases (that Crawford approved of) admitting such testimony. 4 See Green, 399 U.S. at 166; Roberts, 448 U.S.

at 73. Even if a preliminary hearing might sometimes

be inadequate, under binding precedent it cannot always be so. The dissent in Fry was right on that. 92

P.3d at 983 (Coats, J., dissenting).

Shields says that Wisconsin is in the same category. Pet. 13. That is incorrect. Wisconsin does not

have a bright-line rule that a preliminary hearing is

always inadequate. In State v. Stuart, the Wisconsin

Supreme Court held in that case that there was a confrontation problem because the trial judge limited the

scope of the cross. 695 N.W.2d 259, 262, 266, 270 (Wis.

2005). So the defendant “did not have the opportunity

at the preliminary hearing to question [the witness]

about a potential motive to testify falsely.” Id. at 266–

67. Indeed, later Wisconsin cases read Stuart that way

and allow preliminary-hearing testimony. See State v.

Smogoleski, 953 N.W.2d 118 (Table), 2020 WL

6750487, at *2 (Wis. Ct. App. 2020). That leaves one

case in a category in clear conflict with this Court’s

precedent. So put this category to the side.

The more important alleged split is between the

States in Shields’s second two categories. And no

doubt, there is some disagreement there—but not

quite as Shields casts it. The middle category does do

a case-by-case approach. For example, Illinois focuses

chiefly on whether a defendant had the ability to question the witness without limitation and on what the

4 Courts have also noted that Fry turned in part on state-specific

grounds. See State v. Stano, 159 P.3d 931, 945 (Kan. 2007). Unlike some other States, Colorado largely bars credibility questions at preliminary hearings. Id.

23

defendant knew at the time. People v. Torres, 962

N.E.2d 919, 933 (Ill. 2012).

Hawaii does similarly. In State v. Nofoa, although

there was no limitation on the cross, the defendant did

not have relevant discovery, which would have mattered. 349 P.3d 327, 340 (Haw. 2015). The defendant

could not ask about the “central issue of the defense—

[the witness’s] credibility.” Id. So the Hawaii Supreme

Court found a confrontation violation.

Then there is the third category—what Shields

calls the mere-opportunity States. Pet. 20. He puts

three States in it (and would include Kentucky there

too): Kansas, California, and Utah. But Kansas also

approaches the issue on a case-by-case basis. State v.

Noah, 162 P.3d 799, 805 (Kan. 2007). And contrary to

Shields’s label, any mere opportunity is not enough. In

Noah, the court held that a defendant lacked a sufficient opportunity to cross at a preliminary hearing

when it was cut short after the witness became emotional and could not continue testifying. Id. at 801,

805–06.

Still, that does not mean Kansas agrees wholly

with the alleged middle category of States. Instead, it

disagrees on the effect of discovery. Even if a defendant is unaware of certain things at the preliminary

hearing, that does not make the opportunity inadequate. See Stano, 159 P.3d at 943, 945.

California holds similarly. It agrees that usually

“subsequent discovery of material that might have

proved useful in cross-examination is not grounds for

excluding otherwise admissible prior testimony at

trial.” People v. Jurado, 131 P.3d 400, 429 (Cal. 2006).

24

And finally, Utah recognizes that the prior-opportunity exception requires the opportunity, not the undertaking of it. Mackin v. State, 387 P.3d 986, 999

(Utah 2016). But that does not mean an opportunity is

always adequate. And it is unclear in Utah whether

later discovery could make the opportunity not so.

All told, there is some disagreement among the

States. But it is not as Shields describes. Discounting

Colorado (which plainly conflicts with this Court’s

cases), the States seem to agree that whether a preliminary hearing provides a prior adequate opportunity is determined case by case. They also seem to

agree that a court cannot unduly limit the cross-examination. The core of what they disagree on is the effect

of information learned later through discovery. Some

States, such as Hawaii, hold that if the discovery

would have made a meaningful difference, then it

makes the opportunity inadequate. Other States, like

Kansas, hold that an opportunity is adequate regardless of anything learned later.

The problem for Shields is that, either way the

Court might resolve the issue, he loses. If the Court

sides with the discovery States, Shields has not shown

how the discovery about the possibility of strangulation would have mattered. And if it sides with the

other States, then Shields of course loses.

That means this case ultimately does not require

the Court to resolve any split. No doubt, if it were to

grant review, the Court could do so. But it could in

good conscience also leave the question unaddressed,

especially given that the States mostly agree that a

case-by-case approach governs and that a trial court

cannot unduly limit a cross. The States do not need

this Court to confirm what they are already doing. And

25

if the Court wants to resolve the discovery issue, it

should wait for a case in which it matters. Here, either

way, Shields has not shown that admitting Maude’s

testimony violated his rights.

*

*

*

Make no mistake, the question presented is interesting. But that is not enough to warrant review.

There must be compelling reasons. And those are

largely lacking here. The lower court’s decision does

not conflict with any of this Court’s decisions. On the

contrary, the decision below is correct. Add to that, the

disagreement between state high courts, though present, is not as great as Shields suggests. And the core

of that disagreement does not even need to be resolved

here. No matter how the Court might resolve the split,

Shields has not shown a confrontation violation.

CONCLUSION

The Court should deny the petition for a writ of certiorari.

Respectfully submitted,

Office of the Kentucky

Attorney General

700 Capital Avenue

Suite 118

Frankfort, KY 40601

(502) 696-5300

Matt.Kuhn@ky.gov

*Counsel of Record

MATTHEW F. KUHN*

Solicitor General

DANIEL J. GRABOWSKI

Assistant Solicitor General