There’s an interesting petition for writ of certiorari on this issue pending in SCOTUS. As this post from the Confrontation Blog explains: “The question is whether, or in what circumstances, the testimony of a prosecution witness at a preliminary hearing may be used at trial if the witness is then unavailable. This is an issue on which the Supreme Court has not given any guidance since Crawford, and the petition ably shows that the lower courts are in clear dispute.”
According to the cert petition:
In Crawford v. Washington, 541 U.S. 36 (2004), this Court explained 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. But the Court has provided no further guidance on what an “adequate opportunity” requires. And the States are now openly divided over when, if ever, a preliminary hearing meets the constitutional standard. Some state high courts hold that a preliminary hearing never provides such an adequate opportunity. Others hold that any opportunity to cross-examine at a preliminary hearing is enough. Still others apply a case-by-case approach that falls somewhere in the middle
The cert petition identifies Colorado and Wisconsin as the two states holding that a preliminary hearing never affords an adequate opportunity to cross-examine a witness. See People v. Fry, 92 P.3d 970 (Colo. 2004), State v. Stuart, 695 N.W.2d 259, 266 (Wis. 2005), and State ex rel. Huser v. Rasmussen, 267 N.W.2d 285, 292 (Wis. 1978).
Stuart was a split decision written by AWB. If SCOTUS grants this cert petition, Wisconsin law could change.