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Pre-trials and Confrontation Clause objections

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October 15, 2010, 15:38
AF
Pre-trials and Confrontation Clause objections
Has there been a case that decided this issue?

If not, which direction do you think the Court of Criminal Appeals will take?

Despite what the rules of evidence and rules of criminal procedure say, I am finding more defense attorneys arguing that the Crawford and the confrontation clause apply to pre-trials. They insist on cross-examing state witnesses at pre-trials.

I can't find an easy answer to give the judges holding these hearings.

There seems to be a split among the intermediate appellate courts.
Some courts believe it attaches at trial:
Vanmeter v. Satate, 165 S.W.3d 68, 74-75 (Tex.App.-Dallas 2005, pet. ref'd)
Ford v. State, 268 S.W.3d 620, 621-22 (Tex.App.-Texarkana 2008, pet. granted)

others believe it attaches at pre-trial
Curry v. State, 228 S.W.3d 292, 298 (Tex.App.-Waco 2007, pet.ref'd)
October 15, 2010, 17:05
D.Merritt
Ford v. State, 305 S.W.3d 530 (Tex.Crim.App. 2009) at least implies that confrontation doesn't apply.

The Fifth Circuit hasn't ruled on the issue. Hayes v. Thaler, Slip Copy, 2010 WL 3662195 at *4 (N.D.Tex. September 16, 2010); but see U.S. v. Harris, 458 F.2d 670, 677-78 (5th 1972) (no right to force government witness to identify defendant at pre-trial hearing). The Ninth Circuit has held that confrontation doesn't apply to a pre-trial hearing. Peterson v. California,
604 F.3d 1166, 1170 (9th Cir. 2010)

According to the Kentucky Supreme Court every state that has ruled on the issue has found confrontation does not apply at pre-trial hearings. Oakes v. Com., --- S.W.3d ----, 2010 WL 3374400 at *4 (Ky. August 26, 2010).

The only case cited by the Waco court from the last 30 years has been overruled. State v. Rivera, 192 P.3d 1213 (N.M. 2008).