SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT FOR THE
PARISH OF ORLEANS
granted in part and otherwise denied. The district
court's ruling granting issuance of a subpoena for the
alleged victim to appear at a preliminary examination hearing
is reversed. The defendant is charged with attempted first
degree murder of a police officer and aggravated assault with
a firearm upon a peace officer. The defendant requested a
subpoena to compel the alleged victim's attendance at a
preliminary hearing and urged that "good cause" for
subpoenaing the victim exists because the victim's
testimony would be relevant and not consist entirely of
hearsay. The defendant also argues that since the alleged
victim is a police officer, he is accustomed to testifying in
State v. Harris, 2008-2117 (La. 12/19/08), 998 So.2d
55, this Court held:
Even though the Sixth Amendment of the United States
Constitution provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right ... to be
confronted with the witnesses against him[, ]" the
United States Supreme Court has specifically rejected
confrontation clause claims in pre-trial proceedings.
Similarly, although La. Const, art. I, § 13 recognizes
the right of a defendant to confront his accuser, the
confrontation that this article secures is confrontation at
the trial, not prior thereto.
Id. at 55-56.
La. R.S. 46:1844(C)(3) provides that: ..."Before any
victim may be subpoenaed to testify on behalf of a defendant
at any pretrial hearing, the defendant shall show good cause
at a contradictory hearing with the district attorney why the
subpoena should be issued. See also, La. Const. art.
I, § 25 (1974) which enshrined in the Louisiana
Constitution certain rights of a victim of a crime, including
the right to refuse to be interviewed by the accused or a
representative of the accused.
officers, who are victims of crime, are entitled to invoke
the protections afforded by the Crime Victim Witness
Protection Act, LSA-R.S. 46:1841 et seq. Further,
hearsay testimony is explicitly permitted in preliminary
examination hearings pursuant to LSA-C.E. article 1101 B(4).
Thus, the defendant has not demonstrated "good
cause" to subpoena the alleged victim to appear at a
preliminary examination hearing as required by La. Const.
art. I, §25 and La. R.S. 46:1844(C)(3). The state's
request for a stay and the state's request that defendant
be held in contempt of court for asking that the subpoena be
issued, is denied. This matter is remanded to the district
court for further proceedings.
WEIMER, J., dissenting.
I would grant and docket this matter for analysis. Without
mention of the standard of review or the deference afforded
to a trial court's determination of good cause under La.
R.S. 46:1844(C)(3), or the constitutional right to a
preliminary examination afforded by La. Const. art. I, '
14,  or the codal right of a defendant
to subpoena witnesses to the preliminary examination
recognized in La. C.Cr.P. art. 294(A),  the trial court's ruling is summarily
constitution affords rights to victims and we must be fully
cognizant of that constitutional protection. See La.
Const. art. I, ' 25. Concerning the rights of victims,
La. R.S. 46:1844(C)(3) further provides A[b]efore any victim
may be subpoenaed to testify on behalf of a defendant at any
pretrial hearing, the defendant shall show good cause at a
contradictory hearing with the district attorney why the
subpoena should be issued.''
not insensitive to the rights of victims, including police
officers, I would grant and docket this matter to examine and
balance the competing constitutional and codal interests so
as to provide guidance to the lower courts. I also believe that this matter should be
docketed for a determination of what is required under La.
R.S. 46:1844(C)(3) to establish good cause, and the deference
owed-if any-by a reviewing court to the trial court's
good cause determination.
these reasons, I respectfully dissent from the grant with
Hughes, J., ...