Exercise 22

In a felony stalking case, the victim is unable to testify due to being hospitalized and in an unconscious state resulting from a severe automobile accident unrelated to the stalking. The prosecutor seeks to introduce into evidence the victim's preliminary hearing testimony, which includes hearsay statements by the victim and questioning of the victim by defense counsel on the hearsay. Defense counsel objects to the introduction of the testimony on the basis of hearsay and the inability to cross-examine the victim before the jury.

How should the judge rule on the objection?

A. Sustain the objection and in the interest of fairness deny the introduction of the preliminary hearing testimony due to the unavailability of the victim for cross-examination purposes at trial.

Answer A is incorrect. While the victim was clearly unavailable for trial, she was available and cross-examined by defense counsel at the preliminary hearing. Therefore, under Crawford v. Washington, 541 U.S. 36 (2004), and State v. Henderson, 2006-NMCA-059, ¶16, the victim's testimonial hearsay from the preliminary hearing is admissible. Please select another answer.

B. Overrule the objection and allow the preliminary hearing testimony given defense counsel's prior opportunity to question the victim at the preliminary hearing.

Answer B is correct! The victim is clearly unavailable for trial given her unconscious state. The statements made by the victim are testimonial in nature. However, the defendant did have a prior opportunity to cross-examine the victim about the hearsay at the preliminary hearing. Therefore, under Crawford v. Washington, 541 U.S. 36 (2004), and State v. Henderson, 2006-NMCA-059, ¶16, the victim's testimonial hearsay from the preliminary hearing is admissible.

C. Sustain the objection, deny the introduction of the preliminary hearing testimony and dismiss the charges against the defendant given the lack of a victim to testify at trial..

Answer C is incorrect. The victim is clearly unavailable for trial, given her unconscious state. The statements made by the victim are testimonial in nature. However, the defendant did have a prior opportunity to cross-examine the victim about the hearsay at the preliminary hearing. Therefore, under Crawford v. Washington, 541 U.S. 36 (2004), and State v. Henderson, 2006-NMCA-059, ¶16, the victim's testimonial hearsay from the preliminary hearing is admissible. The absence of the victim does not automatically translate into the dismissal of the charges against the defendant. Please select another answer.