Motion to use preliminary exam testimony; Discovery before the preliminary exam; Unavailable witness; Confrontation Clause & cross-examination; People v Farquharson

Finding that the trial court abused its discretion in withholding the testimony, the court reversed the order denying the prosecution’s motion to use preliminary exam testimony at trial, and remanded. Defendant was charged with solicitation of murder. It was alleged that while incarcerated with two other inmates (W and P) he solicited them to murder the complainant in his pending CSC case. At issue was whether the cross-examination of W by defense counsel at the preliminary exam “was sufficient for the purposes of the Confrontation Clause.” The court held that unquestionably, “defense counsel was not able to cross examine [W] on all matters without complete discovery.” The court found that instead, at issue was whether defendant-Shendaj “had a similar motive and opportunity to develop the testimony of [W] at the preliminary examination as he would have at trial.” At oral argument before the court “the prosecutor acknowledged that there may be a situation where the post examination discovery materials would so meaningfully alter the cross-examination that it cannot be said the motive of the examination remains the same.” But from the record here, the court could not “conclude that this is that case. Though the Farquharson factors are not exhaustive, they demonstrate that Shendaj had a similar motive and opportunity to develop [W’s] testimony at the preliminary” exam. Thus, W’s prior testimony fell “within a hearsay exception and is admissible.”