1684.

Prior testimony West's Key Number Digest West's Key Number Digest, Constitutional Law 268(6) West's Key Number Digest, Criminal Law 662.30

The constitutional right of an accused to be confronted with the witnesses against the accused is denied where the transcript of a witness' testimony given at the preliminary hearing is admitted as evidence and such testimony was taken at a time and under circumstances affording the accused no adequate opportunity to cross-examine the witness through counsel.[FN44] But the accused's right of confrontation is not violated by the admission of preliminary-hearing testimony, whether or not the accused has an effective opportunity at a subsequent trial to confront the declarant who gave such testimony, where the declarant was under oath at the preliminary hearing, the accused was represented at the preliminary hearing by the same counsel who later represented the accused at the trial, the accused had every opportunity at the preliminary hearing to cross-examine the declarant as to the statement, and the proceedings at the preliminary hearing were conducted before a judicial tribunal that was equipped to provide a judicial record of the hearing.[FN45] The defendant is not denied a right of effective confrontation and crossexamination of a witness because the defendant is denied the use of the grand jury testimony of

such witness, where no record of such grand jury testimony was kept and hence such testimony is unavailable, and where the defendant has the examining trial testimony of the witness available for cross-examination and possible impeachment.[ FN46] The confrontation clause is not violated by admitting a declarant's out-of-court statements as long as the declarant is testifying as a witness and is subject to full and effective cross-examination.[ FN47] CUMULATIVE SUPPLEMENT Cases: When declarant appears for cross-examination at trial , Confrontation Clause places no constraints at all on the use of his prior out-of-court testimonial statements. U.S.C.A. Const. Amend. 6. Crawford v. Washington, 124 S. Ct. 1354 (U.S. 2004). Out-of-court statements that qualify as testimonial, and thus that are not admissible, under the Confrontation Clause, unless witness is unavailable and defendant had prior opportunity to cross examine witness, include at a minimum prior testimony at preliminary hearing, before a grand jury, or at a former trial, and statements elicited during police interrogations. U.S.C.A. Const. Amend. 6. Crawford v. Washington, 124 S. Ct. 1354 (U.S. 2004). Out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless witnesses are unavailable and defendants had prior

opportunity to cross-examine witnesses, regardless of whether such statements are deemed reliable by court; where testimonial statements are at issue, only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes, i.e., confrontation; abrogating Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597. U.S.C.A. Const. Amend. 6. Crawford v. Washington, 124 S. Ct. 1354 (U.S. 2004). The Constitution does not permit the admission of a testimonial statement of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination; however, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of her prior testimonial statements. U.S.C.A. Const.Amend. 6. Eustis v. State, 191 S.W.3d 879 (Tex. App. Houston 14th Dist. 2006). Confrontation Clause requirements that a declarant be unavailable and the subject of prior cross-examination for an out-of-court statement by the declarant to be admissible apply only to testimonial statements, not to non-testimonial ones. U.S.C.A. Const.Amend. 6. Smith v. State, 187 S.W.3d 186 (Tex. App. Fort Worth 2006). That trial court took judicial notice of testimony and evidence presented in defendant's murder trial in probation revocation proceeding did not deny defendant due process nor otherwise violate his right to confront and to cross-examine witnesses; the same trial court that presided at the murder trial heard motions to

revoke community supervision, and it was within the province of the trial court to take judicial notice of the evidence from these prior proceedings. U.S.C.A. Const.Amends. 5, 6. Akbar v. State, 190 S.W.3d 119 (Tex. App. Houston 1st Dist. 2005). When a declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. U.S.C.A. Const.Amend. 6. Gomez v. State, 183 S.W.3d 86 (Tex. App. Tyler 2005). Testimonial statements of witnesses absent from trial are admissible over a Confrontation Clause objection only where the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. U.S.C.A. Const.Amend. 6. Marc v. State, 166 S.W.3d 767 (Tex. App. Fort Worth 2005), petition for discretionary review filed, (July 25, 2005). Testimonial statements from absent, unavailable witnesses are not admissible under the Confrontation Clause if the defendant has not had the opportunity to cross-examine the declarant; in contrast, nontestimonial statements of an unavailable declarant who has not been cross-examined may still be admitted as evidence in a criminal case if the statements qualify under an exception to the rule against hearsay. U.S.C.A. Const.Amend. 6. Marc v. State, 166 S.W.3d 767 (Tex. App. Fort Worth 2005), petition for discretionary review filed, (July 25, 2005). Testimonial statements, to which the constitutional right of crossexamination

applies, at a minimum includes police interrogations and prior testimony at a preliminary hearing, before a grand jury, or at a former trial. U.S.C.A. Const.Amend. 6. Bratton v. State, 156 S.W.3d 689 (Tex. App. Dallas 2005). Once an out-of-court statement is determined to be "testimonial," the Sixth Amendment demands that the witness be unavailable and that the defendant had a prior opportunity for cross-examination. U.S.C.A. Const.Amend. 6. Wall v. State, 143 S.W.3d 846 (Tex. App. Corpus Christi 2004), reh'g overruled, (Oct. 7, 2004). Ex parte testimony at a preliminary hearing or statements taken by police officers in the course of interrogations are testimonial and, thus, inadmissible under the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. U.S.C.A. Const.Amend. 6. Lee v. State, 143 S.W.3d 565 (Tex. App. Dallas 2004). For purposes of the Texas evidentiary rules, a witness is considered "unavailable," so as to justify use of the witness's prior testimony in place of live testimony, if the witness is absent from the proceeding and the proponent of the testimony has been unable to procure the witness's attendance or testimony by process or other reasonable means. Tex. R. Evid. 804(a)(5). Ledbetter v. State, 49 S.W.3d 588 (Tex. App. Amarillo 2001), petition for discretionary review refused, (Sept. 12, 2001). Determination of whether the effort to procure attendance or testimony of the absent

witness is sufficient, so as to justify use of the witness's prior testimony in place of live testimony, is a matter within the discretion of the trial court under both the Confrontation Clause and the Tex. R. Evid. U.S. Const. Amend. VI; Tex. R. Evid. 804(a)(5). Ledbetter v. State, 49 S.W.3d 588 (Tex. App. Amarillo 2001), petition for discretionary review refused, (Sept. 12, 2001). State made sufficient good faith efforts to obtain attendance of former sheriff at trial for purposes of both Confrontation Clause and Texas evidentiary rules, so as to justify use of sheriff's prior trial testimony in place of live testimony, even though state did not seek attachment, where state showed that prosecutor told sheriff several weeks before trial that testimony would be necessary and subpoena was issued and served on sheriff more than three weeks before trial date, deputy sheriff testified that it was uncertain when sheriff would be back, if ever, and defendant offered no evidence that state knew that sheriff planned to leave county and fail to return and appear. U.S. Const. Amend. VI; Tex. R. Evid. 804(a)(5). Ledbetter v. State, 49 S.W.3d 588 (Tex. App. Amarillo 2001), petition for discretionary review refused, (Sept. 12, 2001). [END OF SUPPLEMENT]

-------------------------------------------------------------------------------[FN44] Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).

A.L.R. Library Admissibility or use in criminal trial of testimony given at preliminary proceeding by witness not available at trial, 38 A.L.R. 4th 378. [FN45] California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). [FN46] Smith v. State, 464 S.W.2d 855 (Tex. Crim. App. 1971). [FN47] California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970).