Am I the only dummy who didn't know that the Rules of Evidence no longer apply to pretrial matters of fact decided by the judge regarding admissibility of evidence, including motions to suppress and Daubert issues? Check out Granados v. State, 85 S.W.3d 217. I just came across this case while looking for a way to get in a statement from a witness who I can't call at pretrial. And I find that since 2002 the Court of Criminal Appeals has said that the rules just don't apply. Are any of you doing your motions to suppress without witnesses?

There was an attempt in the last legislative session to overrule that case and the particular rule of evidence it relied upon. It passed the House but died in the Senate Criminal Justice committee. HB618, 78th Leg., R.S.

Thanks for that info, John. I missed that from last session. We need to stay on top of this and work to keep it from being changed.

I have found the rule particularly useful in proving up the efficacy of scientific, mechanical or electronic processes by way of affidavit at 705(b) hearings where it was inconvenient or cost-prohibitive to fly a person into town. While Crawford speaks to repsonses to interrogation in settings where one can reasonably expect the statements to be used at a later trial, could not the courts extend the case's logic to gut or strike this rule?

I'm not a Crawford expert but wouldn't that mean that you simply could not use the information at trial; rather, you would have to call the expert at trial and develop the testimony that way? The judge is only making a preliminary ruling of admissibility. My friends who practice in federal court tell me that this has long been the rule there.

I agree that Crawford will have something to say about affidavit testimony. It is absolutely "testimonial"--a statement made with the intent to use in court. I think some Texas procedures by which affidavits are admitted provide an "opportunity for cross-examination." For example, a business records affidavit has to be filed in advance, presumably, so a defendant can object to the predicate testimony in the affidavit. Likewise, police lab reports have an advance filing requirement and a process for filing objections. It's arguable that if a defendant fails to timely object the confrontation right is waived. Do your affidavits used at pre-trial hearings have a notice requirement?

I certainly am not bright enough to say where Crawford will lead. It would seem, though, in the interest of judicial economy, a judge could insist upon live testimony on preliminary questions of admissibility (as they can now, in their discretion) following the notion that cx might make what on the face of an affidavit appears admissible inadmissible. By frontloading the cx, they save a second 702/705 challenge.

I am cognizant of the necessity of confrontation under our system but I do occasionally remind myself that this stuff did not come down from the mountain. There are times when it is clear that truth is the last thing a trial produces. How about this heresy: why should a defendant be immune from being called to the stand?

Again, I'm no Crawford expert, but how does the right of confrontation apply to evidence presented prior to trial only to a judge to determine the admissibility of evidence? Let's assume we want to introduce something a witness said that we think fits an exception to the hearsay rule but we can't produce the witness. If you can't show the judge what statement the witness made, how would the judge ever be able to rule on the issue? The right not to testify is a leftover remnant from the days when our founding fathers were worried about a person being beaten and coerced into making statements. Makes no sense in the modern world but listen to the outcry of pure outrage if you suggested it be removed.