The state also argued that Mr. Noah had the right to confront the declarant at the preliminary hearing. [Apparently, Mr. Noah conceded that the victim was unavailable, the other half of the Confrontation Clause requirement for using out-of-court testimonial statements]. The COA held that the sufficiency of the opportunity to cross-examine was a question of law and, on de novo review. Citing Delaware v. Van Arsdall, 475 U.S. 673 (1986) and Kansas cases applying Van Arsdall, the COA held that where the declarant became emotional and could not complete cross-examination at preliminary hearing, Mr. Noah was prevented from effective cross-examination.
The state also argued that Mr. Noah forfeited the right to Confrontation when his attorney harassed the child at preliminary hearing. The COA held that case law seems clear that in order for forfeiture to apply, the defendant himself or herself must have caused the inability to testify, not defendant's lawyer. And, in any case, the COA held
the record simply does not demonstrate misconduct by defense counsel here. While defense counsel's questioning at the preliminary hearing could not be described as articulate, the record does not permit us to conclude defense counsel intentionally harassed T.C. to the point she was unable to testify. We decline the State's apparent invitation to "read between the lines" to find such egregious misconduct.For other cases in this developing line see here.
[Update: the state (by the Attorney General's office) filed a petition for review on August 14, 2006]
[Further update: the KSC granted review on December 19, 2006. The case will likely be argued in mid-March or possibly late April.]
[Further update: the KSC affirmed the COA on July 27, 2007. Here is the case. And here is my blog entry on that case.]