A jury cannot eyeball a witness to determine his or her credibility and demeanor by merely being read the complaining witness’s testimony from a prior proceeding. For a criminal defendant, letting such a transcript into evidence can be a double-edged sword. On the one hand, the defense can argue to the jury that the jury did not have the chance to eyeball the complainant to assess his or her credibility, and might get a chance to argue about why the complainant is missing in the first place (watch out if that opens the door for the prosecutor to argue that perhaps the complainant was fearful of the defendant were the complainant to testify).

On the other hand, a trial transcript cannot be cross-examined. Yes, the transcript from a prior trial already has cross examination, but the remainder of the prosecutor’s arguments and witnesses might merit new avenues of inquiry in cross examination. Moreover, if the prior proceeding was not a trial, the defendant’s approach to cross examination might have been different to a point of being harmful if the transcript were introduced at trial. For instance, the purpose of cross examination by criminal defense lawyers at motions hearings and preliminary hearings often is to ask many open-ended questions, whereas the purpose of cross examination at trial is to ask controlled questions mainly of the type that are calculated to elicit a response of yes or no.

On December 2, 2011, the Supreme Court rejected a habeas corpus challenge to a state sexual assault conviction, where the complainant testified at the original trial, but could not be found to be brought to the retrial, apparently because she was too frightened of the defendant to do so. Hardy v. Cross, ___ U.S. ___ (Dec. 12, 2011). Consequently, on retrial, the complainant’s testimony from the first trial was read into evidence to the jury.

Hardy highlights that federal habeas corpus reviews of state convictions are highly deferential to the state appellate courts’ findings on the issues raised in the federal habeas action. At the state appellate level, the complainant was determined to have been unavailable for the retrial, even though the prosecution did not have her subpoenaed early on for the retrial. 

Hardy is a unanimous per curiam decision.