The landmark holding Crawford v. Washington, now sixteen years old, changed the framework for challenging hearsay offered against the accused in a criminal case – if the hearsay was “testimonial” in nature it is admissible only under one of two conditions:

  • The declarant will ultimately appear at trial and thus be subject to cross-examination regarding the assertion(s); or
  • The declarant is proved unavailable and the defendant had a prior opportunity to question that witness under oath.

This test embodies the Confrontation “convention” – that a meaningful trial is all about the opportunity for cross-examination, in the moment or when the statement was made. That prior opportunity had to be in some way meaningful – as described in a case that preceded Crawford,

[i]t is sufficient that the defendant has the opportunity to bring out such matters as the witness’ bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination, see 3A J. Wigmore, Evidence § 995, pp. 931-932 (J. Chadbourn rev. 1970)) the very fact that he has a bad memory.

United States v. Owens, 484 U.S. 554, 559, 108 S. Ct. 838, 842, 98 L. Ed. 2d 951, 958, 1988 U.S. LEXIS 940, *11, 56 U.S.L.W. 4160.

Recently, however, the Pennsylvania Superior put a new and erroneous gloss on this “opportunity” requirement, holding that if an accused did not have proper discovery at the time of a preliminary hearing, the hearing testimony could be used at trial because it was not the prosecution that prevented access to the materials.  In effect, a ‘state action’ condition was engrafted onto the Confrontation test.

Here is what happened.  In Commonwealth v. Stokes, 2020 Pa. Super. Unpub. LEXIS 915, *4 (Pa. Super. Ct. March 16, 2020), a prosecution witness appeared at a preliminary hearing and testified.  At some time after the hearing, the witness’ hospital records were obtained, and those records contained a version of the events different from the prior testimony.  By the time of trial the witness could not be located and became unavailable.  The preliminary hearing testimony was read into the record, followed by a stipulation including the different version told at the hospital.

On appeal, Stokes claimed his right of Confrontation was violated.  The Superior Court conflated two tests – the 6th Amendment test there being a meaningful opportunity for cross-examination; and a separate test derived from a Pennsylvania Supreme Court holding that

where as here, the Commonwealth knows, but does not disclose to the defense at any time prior to preliminary hearing cross-examination of a witness, that the witness has made an inconsistent prior statement and that witness then becomes unavailable to testify at trial, the Commonwealth must suffer the consequences in electing not to disclose that information which is necessary to afford defense counsel the opportunity for a full and fair cross-examination.

Commonwealth v. Bazemore, 531 Pa. 582, 590, 614 A.2d 684, 688 (Pa. 1992).

The Superior Court in Stokes applied a limitation found in Bazemore – that the document had to already be in the prosecution’s possession.  “Where, as here, the Commonwealth did not know of or possess Darby’s prior inconsistent statement at the preliminary hearing, the Commonwealth did not deny Stokes access to that statement.”   2020 Pa. Super. Unpub. LEXIS 915, *7   For the Superior Court, this ‘state action’ prerequisite from Bazemore became the constitutional test.

Nothing in Crawford or its predecessor case Owens suggests such a limitation, so to that extent the Stokes decision seems problematic.  But there is an issue separate from the constitutional right-to-cross-examine claim Mr. Stokes pursued – and that is effective advocacy in such a case.  That comes down to the application of Rule 806.

For both federal trials and those in Pennsylvania, the Rule is the same – where hearsay of an absent declarant is introduced, all impeachment material that would be allowed on cross-examination may be introduced extrinsically.  In the language of the Federal Rule,

the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it.

Put simply, Mr. Stokes had the right to use the hospital report to ‘impeach’ the absent witness.  And the witness’s criminal record, if any; bad character; impairment; bias; and any other material a court would deem relevant to assessing credibility.

Of course, the more that such impeachment occurs, any Confrontation error arising from permitting the preliminary hearing testimony to be presented pales, as such errors are assessed under a harmless error standard.  But unless one believes that the only way to search for the truth (or search for the favorable verdict) is by live cross-examination, impeaching a witness who can’t argue back or explain away the problems may be the more effective courtroom tool.

The conventional approach may be to demand face-to-face questioning; but this convention may lead to a less successful attack.  Know the law; and fight for the rights your client has; but don’t forget the power of poking holes in the absent witness’ testimony in a way that can’t be easily refuted.