Elsie Franklin v. Kentucky

In Crawford v. Washington, 541 U.S. 36 (2004), this Court held that, under the Confrontation Clause, an unavailable witness’s prior testimony “is admissible only if the defendant had an adequate opportunity to cross-examine.” Id. at 57. Despite Confrontation Clause issues arising quite often since then and despite lower courts continuing to grapple with trying to figure out what this Court meant by “adequate opportunity,” the Court has yet to define what it means by “adequate opportunity” or to otherwise provide guidance on how to determine what constitutes an “adequate opportunity,” including but not limited to, how to determine if prior cross examination opportunities were adequate when new evidence came to light after the initial opportunity to cross examine that, if known beforehand, would lead an objectively reasonable attorney to have further cross examined the witness using that evidence. With no procedural impediments to the Court’s review, the questions presented that were squarely presented to, and decided by, the lower court are:

1. What does Crawford v. Washington mean by “adequate opportunity” to cross examine, and how shall a lower court go about determining whether a defendant had an “adequate opportunity”?

2. Is a prior opportunity to cross examine not an “adequate opportunity” under Crawford and the Confrontation Clause in the common situation where new information came to light between that opportunity and the eventual trial?

3. When a mistrial occurs during the prior testimony, is the first portion of the cross examination an “adequate opportunity” to cross examine?