It’s been a full weekend at Casa CAAFlog, leaving me with insufficient time to offer a thorough analysis of United States v. Cabrera-Frattini, __ M.J. ___, No. NMCCA 200201665 (N-M. Ct. Crim. App. Feb. 28, 2008).
Here’s the most important take-away from Cabrera-Frattini: NMCCA will continue to apply the portions of Ohio v. Roberts, 448 U.S. 56 (1980), and Delaware v. Fensterer, 474 U.S. 15 (1985), that held that the Confrontation Clause is satisfied where the defense had a previous opportunity to cross-examine an absent witness without consideration of the effectiveness of the previous questioning.
In Cabrera-Frattini, charges arose from the accused’s “alleged sexual involvement with a teenage minor, TO.” Cabrera-Frattini, slip op. at 3. TO didn’t testify at the Article 32 and the military judge later ordered that she submit to an oral deposition. Id., slip op. at 203. Both the TC and DC questioned her at the deposition. Id., slip op. at 4. During the actual trial, she was hospitalized and unavailable to testify. Id. A portion of her videotaped deposition was played for the members. Id.
NMCCA held that the defense’s opportunity to cross-examine TO was sufficient, without regards to the effectiveness of that cross-ex. Id., slip op. at 5-6.