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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Tuesday, December 21, 2010

Initial Trial Testimony Allowed to Be Reused at Trial on Remand after Witness's Death

A witness from a trial died before the retrial required by jury charge error. Would prosecutors reading the witness's testimony from the first trial at the second trial violate the defendant's right to confront the witnesses against him? The Texas Court of Criminal Appeals ruled that it did not. Judge Charles Holcomb wrote the opinion for every judge on the court except Judge Lawrence E. Meyers, who dissented. This is an original appeal from a death penalty trial. The defendant, Raymond Deleon Martinez, brought seven points of error. He complained of the factual sufficiency of the finding that he would be a future danger and of the finding that he deliberately intended to kill a person. These claims are based on Clewis, which was overruled by Brooks, as readers of this blog know. The legal sufficiency of the evidence of his future dangerousness was manifest. Three other points of error were attacks on the constitutionality of statutes that had been found constitutional before.
So how did they find that a trial transcript didn't violate the rule requiring confrontation? Because he had a chance to confront the witness at the first trial. They didn't find that the different jury charge was a material difference in the trials. I'd be curious to find if the material difference in the jury charges was why Judge Meyers dissented.

1 comment:

  1. The defendant has a right to confront witnesses against him. At his first trial, he confronts the witness against him. The jury charge contains standard instructions as to how to decide the case, definitions of terms, and three questions to answer. An appeals court says that the trial court asked a question it shouldn't have and didn't include a question it should have. The witness against the defendant dies. The State reads the witness's old testimony against the defendant. The defendant objects: no confrontation. Trial court says, there was so confrontation, defendant. You had a chance to confront him at the original trial. The defendant says, that's no good. This trial is different--one of the three questions is different. I need to, I would have needed to, ask different questions at the different trials.

    That is, jury charge error is that error that would have made the retrial the most different from the original trial. And if the retrial was different, then the confrontation at the first trial would not have satisfied the defendant's right to confrontation at the second trial.

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