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Ineffective assistance and adequacy of a prior opportunity for cross

By Richard D. Friedman

A reader's question raises an interesting issue on which I haven't given much thought: If a witness testifies subject to cross against an accused at a first trial, which ultimately is thrown out, but then is unavailable at the time of the retrial, in what circumstances (if any) can the accused keep the testimony from the first trial out on the ground that the lawyer there did an inadequate job on cross? If I am wrong in what I say below, I hope readers will correct me, but here is the answer I glean from reading United States v. Owens, 448 U.S. 554 n.1, Ohio v. Roberts, 448 U.S. 56, 73 n.1, and Mancusi v. Stubbs, 408 U.S. 204 -- yes, all pre-Crawford cases, but no reason to believe that Crawford overruled any of them on this point:

(1) If a court has not determined on the basis of other conduct that the first counsel was inadequate, the court will not ermine that the accused had an inadequate opportunity to cross on the basis that counsel did a poor job in cross.

(2) If there is an independently-based determination that counsel was inadequate,

(a) that does not automatically mean that the accused had an inadequate opportunity to cross-examine this witness, but

(b) it does mean that the court should examine counsel's actual performance with respect to the witness in question, and if that performance does not meet some minimum level of sufficiency then the prior opportunity should not be deemed adequate for Confrontation clause purposes.

Does that sound right?

Full post as published by The Confrontation Blog on September 28, 2008 (boomark / email).