August 28th. The Kansas Supreme Court has issued its opinion in State v. Leshay (No. 99,725), an appeal of a dismissal of drug charges in District Court. In a unanimous decision, written by Justice Lee Johnson, the Court held that the Sixth Amendment Right to Confront one’s accusers does not apply at a Preliminary Hearing to a forensic lab report, where Kansas law does not require a lab technician to testify. Note: Court of Appeals Judge Christel Marquardt served on this case, in place of former Chief Justice Kay MacFarland.
Wendell Leshay was accused of possessing Cocaine. After a Preliminary Hearing following his indictment, he moved to dismiss the charges against him on the grounds that the Kansas Bureau of Investigation (KBI) lab technician who had prepared the forensic evidence did not appear for cross-examination at the hearing. The District Court agreed, holding that the United States Supreme Court’s decision in Crawford v. Washington (2004) meant that the Confrontation Clause of the Sixth Amendment required that the technician be present.
The State appealed and the Kansas Supreme Court reversed the decision of the District Court. The court noted the U.S. Supreme Court decision in Melendez-Diaz v. Massachusetts (2009), which made it clear that the confrontation clause applies to forensic evidence reports, but ultimately held that the Sixth Amendment Confrontation Clause does not apply at a Preliminary Hearing, rather it applies at trial. The Preliminary Hearing is a statutory creation, and therefore there is not a Constitutional obligation to allow confrontation regarding testimonial evidence introduced there.
The Court did note that there might be a Due Process argument about the inability to confront an accuser at a Preliminary Hearing. However, Leshay had not raised this argument in the District Court and therefore it was not available within the appeal.
The District Court’s dismissal of the charges was reversed and the charges reinstated. The case was then remanded back to the District Court to proceed.