Court Holds that Probable Cause Hearing Provides a Prior Opportunity to Cross Examine

As blog readers well know, the new Crawford confrontation clause rule provides that absent an exception or a waiver of rights, testimonial hearsay statements of a declarant who does not testify at trial may not be admitted unless the witness is unavailable and there has been a prior opportunity for cross-examination. This is a tough rule for the prosecution because even if it can show unavailability (e.g., the witness is now dead), without a prior trial the prosecution rarely can show a prior opportunity for cross examination. But under a new court of appeals decision in State v. Ross, that just changed. In Ross, the court held that a victim’s testimony at a probable cause hearing provided a prior opportunity for cross-examination that satisfied the Crawford rule. Ross involved the following facts. Early one morning Pedro Amaro and his wife, Angelica Besies, were awoken by a knock at the door. Amaro found the defendant at the door and recognized the defendant as the person who had sold him a shotgun a day or two earlier. Shortly after Amaro let the defendant inside, he heard a gunshot, felt heat at the back of his head, and his vision began to blur. He then heard his wife scream from the bedroom and heard another gunshot. The defendant had entered the bedroom and pointed his gun at Besies’ head. Besies struggled with the defendant and ended up shot in the hand. Amaro eventually subdued the defendant by holding him on the floor while Besies [...]