Since the Crawford decision reinterpreted the Confrontation Clause in March 2004, out-of-court testimonial statements, including those by children, have been admissible at criminal trials only in the following circumstances: either 1) the declarant testifies at trial, or 2) the declarant is unavailable to do so, and the defendant had an adequate opportunity before trial to cross-examine the declarant.

In a few states, criminal defense counsel may routinely take depositions of complaining witnesses. In some other states, such as Washington, special circumstances can permit such a deposition.

Two intermediate appellate courts in Florida have given conflicting answers to whether a deposition is an adequate opportunity to cross-examine. The cases are Lopez v. State, 2004 WL 2600408 (Fla.App. 1 Dist. 11/17/04), 29 Fla. L. Weekly D2580, and Blanton v. State, 880 So.2d 798 (Fla. 5th DCA 2004).

In the Lopez case, a prosecution for being a felon in possession of a firearm, a witness told police that he had just been abducted at gunpoint by the defendant. At trial, the witness was not available to testify. His statement was admitted as an excited utterance.

The appellate court agreed that his statement qualified as an excited utterance, and so was not barred by the hearsay rule. It found it was also a testimonial statement, though, and so needed to satisfy the Crawford rule.

The defense lawyer had conducted a discovery deposition of the witness. The court held that that was not an adequate opportunity to cross-examine the witness. The court reasoned:

A lawyer taking a discovery deposition of a witness for the state could cross-examine the witness, but that is not what is contemplated by the rule. [The rule] was designed to provide an opportunity for discovery, not an opportunity to engage in an adversarial testing of the evidence against the defendant. Nor is the rule customarily used for the purpose of cross-examination. Most good criminal defense lawyers attempt merely to learn what the testimony will be and, at the most, to limit the testimony.

The court also noted that the Florida rule does not permit the defendant to attend a discovery deposition. It did not believe the Crawford decision contemplated that an adequate opportunity for cross-examination could occur without the defendant's right to attend.

In the Blanton case, a prosecution for child sex abuse and for promoting sexual performances by a child, the child was deemed unavailable to testify at trial due to post-traumatic stress disorder. Defense counsel had taken her deposition as part of discovery; he had not invoked the Florida rule which permits depositions to perpetuate testimony. The trial court still found the deposition an adequate opportunity for cross-examination, under Crawford.

The appellate court agreed. The defendant argued that he could not attend the deposition, but the court answered that there was no showing he had sought to. The court also rejected the contention that defense counsel

was not as zealous in conducting the discovery deposition as his cross-examination would have been at trial. In rejecting this argument, we emphasize that Crawford mandates only the "opportunity" for the examination. Whether and how that opportunity is used is within the control of the accused, and he should not be heard to complain about an opportunity squandered.