Last month in Chavez v. State, the Nevada Supreme Court clarified its position on the 2004 U.S. Supreme Court case Crawford v. Washington, which held that the Sixth Amendment confrontation clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”
In Chavez, the defendant Chavez was charged with sexual assault on a minor in Nevada for allegedly having sexual relations with his daughter, D.C. D.C. had testified at the preliminary hearing, during which Chavez subjected her to extensive cross-examination. However, D.C. passed away before she could appear at Chavez's actual trial, so the judge, in accordance with Crawford, allowed D.C.'s preliminary hearing testimony to come in as evidence.
After Chavez was convicted of sexual assault on a minor in Nevada, he appealed to the Nevada Supreme Court on several grounds, including the Sixth Amendment. In affirming the verdict, the Nevada Supreme Court explained that preliminary hearing testimony can “afford a defendant an opportunity for effective cross-examination.” However, whether the preliminary hearing actually does provide that opportunity is something the Court will determine on a case-by-case basis. In Chavez, the breadth of D.C.'s testimony and Chavez's cross-examination and the fact discovery was nearly complete by the preliminary hearing rendered her testimony admissible in line with Crawford and the Confrontation Clause.