Real opportunity to cross-examine

Quentin John Boone won in State v. Noah, No. 91,353, (Kan. July 27, 2007), reversing four Rooks County aggravated indecent liberties convictions. The issue involved admission of the victim's preliminary hearing testimony at trial. The KSC majority opinion narrowed the issue noting that the parties agreed the subject testimony was testimonial under Crawford and that the parties did not dispute that the witness was unavailable. The only issue was "whether Noah had a prior opportunity to cross-examine" the witness at preliminary hearing where the witness had become emotional and could not continue testifying.

The KSC noted that SCOTUS case law provides little guidance on what constitutes "an adequate opportunity" to cross-examine that would allow admission of preliminary hearing testimony. The KSC reviewed Fifth Circuit and Ninth Circuit cases and also SCOTUS case law on improper limitation of cross-examination and concluded that the cross-examination in this case was not adequate:

Our review of the entire record under these specific facts leads us to disagree with the State's argument that Noah had a sufficient opportunity to effectively cross-examine T.C. However, in reaching this conclusion, we also reject Noah's argument that the cross-examination is not sufficient until defense counsel determines that it is or unless it is completed. Rather, we adopt the case-by-case approach used by the Acosta and Wilmore courts.

In adopting this approach, we do not grant attorneys license to filibuster, purposely confuse, or harass children or other vulnerable witnesses in an attempt to make an otherwise competent witness unavailable. Nor do we want to give incentive for those same witnesses to be relieved of their obligation to be made "available" by answering only a few questions on cross-examination because it is uncomfortable or intimidating, and thereby defeating a defendant's right to confrontation. In this case, we acknowledge that T.C.'s inability to testify was not created by any intentional motivation to be unavailable. Further, while defense counsel's cross-examination may be characterized as confusing and unclear, we find no purposeful conduct that would rise to the level of intentionally attempting to disqualify T.C. as a competent witness. Applying the Van Arsdall standard to the facts of this case, we conclude that the limitation of Noah's cross-examination caused by T.C.'s inability to continue prohibited Noah from engaging in otherwise appropriate cross-examination aimed at exposing facts from which the jury could have drawn inferences about T.C.'s reliability.

Another case in the ever-evolving world of Confrontation Clause litigation.