Testimonial statements may not be admitted at trial if the witness is unavailable and the defendant has not had an adequate prior opportunity to cross-examine the witness. Such statements would violate the defendant’s Confrontation Clause rights if admitted at trial.
What constitutes an adequate prior opportunity to cross examine?
In State v. Ross, the Defendant got to cross examine a witness at a probable cause hearing, but the witness was not available at trial. The State sought to introduce prior statements by the witness at Trial. The defendant objected that those statements were inadmissible because the Defendant had had the opportunity to cross-examine at probable cause.
The Defendant on appeal focused on the fact that he did not have adequate prior opportunity to cross examine the witness, and that therefore his Confrontation Clause rights were compromised.
He noted that his lead trial counsel had not been appointed at the time of the probable cause hearing.
The Court of Appeals held that the testimony at the probable cause hearing did afford the Defendant an opportunity to cross examine, and so the witnesses’ statements at the probable cause hearing were admissible at trial even though the witness was unavailable at trial for the defendant’s trial counsel to cross-examine.