DO YOU HAVE A CONSTITUTIONAL RIGHT TO CONFRONT WITNESSES AT A PRELIMINARY HEARING?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
State v. Sherry, 667 P.2d 367 (Kan. 1983).
This case answers the following question:
Do you have a constitutional right to confront witnesses at a preliminary hearing?
The issue in this case is whether one has a constitutional right to confront witnesses at the preliminary hearing. Admission of police department laboratory reports in preliminary exam did not violate defendant’s constitutional right of confrontation, as there is no constitutional right to allow accused to confront witnesses against him at a preliminary hearing.
In this case, an undercover narcotics detective had connections with two men to buy marijuana. The detective then set up a buy for cocaine. The two men knew a guy named Sherry who would be able to supply the cocaine. The men were able to obtain a half gram of cocaine from Sherry which they sold to the detective for $75. Several days later, they set up another buy, for two ounces of cocaine. Sherry was only able to get one ounce, for $2,250, but the men assured the detective they would have more cocaine available within the week. The detective met the two men and Sherry at one of the men’s house. Once inside the home, Sherry gave the cocaine to the detective and the two had a conversation about the cocaine. Police officers then arrived on the scene and arrested everyone. Sherry was charged with sale of cocaine and possession with intent to sell cocaine. At the preliminary hearing, the State offered laboratory reports as evidence. The defendant objected because it denied them their right of cross-examination. The court sustained Sherry’s motion to dismiss, finding the law was unconstitutional. The State appealed the dismissal.
Admission of police department laboratory reports in preliminary exam did not violate defendant’s constitutional right of confrontation, as there is no constitutional right to allow the accused to confront witnesses against him at a preliminary hearing. The Sixth Amendment right of confrontation of witnesses against the accused is a protection that exists at the trial of the defendant, not the preliminary hearing. If the defendant wished to confront the forensic examiner, the procedure followed in testing the substance, or the results of the test, he may do so with a subpoena. This would bring the witness to court and allow the defendant to cross-examine the witness. There is good reason for allowing the laboratory reports at the preliminary hearing. The law does not violate any rights of the defendant, but rather places the burden on the defendant to challenge the test results if he so desires. The usual rules of evidence do not apply to a preliminary hearing, and the finding of probable cause may be based on evidence (or hearsay) that may not be admissible at trial. The statute does not violate the due process clause of the Fourteenth Amendment.
The trial court erred when it ruled the defendant’s constitutional right of confrontation at the preliminary hearing was violated because that is not a constitutional right. The Supreme Court of Kansas reversed and remanded with directions to reinstate the complaint against the defendants and to further proceedings.