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Opportunity for Cross-Examination at Preliminary Proceedings

By Richard D. Friedman

I am writing this post to invite readers' comments on this set of questions: California v. Green, 399 U.S. 149 (1970), holds that an opportunity to cross-examine at a preliminary hearing satisfies the confrontation right. How, if at all, does this principle affect the conduct of lawyers and courts at preliminary hearings and other pre-trial evidentiary proceedings (such as depositions taken for discovery purposes) not held for the primary purpose of preserving testimony? For example, how often do defense lawyers conduct a full cross-examination ? knowing that if they do not and the witness is unavailable to testify at trial, it may be that the court will admit the earlier testimony and reject a claim of the confrontation right by ruling that the defense already had an opportunity for cross-examination? And how willing are courts to allow a full cross-examination given this possibility?

My own slightly educated guess is that usually the prospect of trial admissibility does not cause defense lawyers to conduct extensive cross-examinations at preliminary proceedings, and that if they tried to do so the courts would constrain them. Preservation of testimony is not the purpose of these proceedings, and if the defense protected itself (though at the potential cost of losing benefits of surprise) by making extensive cross-examinations these proceedings would become much more time-consuming. But I would like to know more than I do now from those who deal with these situations regularly. Thanks!

Full post as published by The Confrontation Blog on August 29, 2007 (boomark / email).