Background
Robert Escarcega was charged with attempted first-degree murder after an altercation with his girlfriend Jane in Kingman County, Kansas in October 2021. Jane alleged she had been stabbed multiple times; Escarcega maintained her injuries were the result of self-harm related to her mental health history. At the January 2022 preliminary hearing before a magistrate judge, Escarcega immediately invoked his Sixth Amendment right to represent himself. The magistrate denied the request, citing Escarcega’s prior complaint about delays and the adequacy of appointed counsel. When Escarcega persisted in objecting, the magistrate had him removed from the courtroom. The preliminary hearing continued in his absence. Jane testified at length about the attack, and appointed defense counsel cross-examined her—without Escarcega present. The magistrate found probable cause.
Both parties recognized the constitutional error. Escarcega’s attorney filed a motion asserting his right to self-representation; the court later granted it. The State then sought—and obtained—a second preliminary hearing to cure the structural defect, conducted in May 2022 with Escarcega representing himself. Jane did not appear at the second hearing, but the court again found probable cause. The case proceeded to a jury trial in January 2023. Jane also did not appear at trial; she was homeless, living in her vehicle in California, lacked identification, and had not been secured by material witness warrant. The State declared Jane unavailable and moved to admit her testimony from the first preliminary hearing—the one conducted in violation of Escarcega’s rights—under the forfeiture-by-wrongdoing exception to the Confrontation Clause. It pointed to jail phone calls in which Escarcega told Jane the case “doesn’t go anywhere without you” and that he did not want her “anywhere near” his court case.
The district court granted the motion, finding by a preponderance that Escarcega had procured Jane’s absence. Jane’s preliminary hearing testimony was read to the jury. Escarcega testified and disputed Jane’s account. The jury convicted him of the lesser-included offense of attempted second-degree murder.
The Court’s Holding
The Court of Appeals reversed and remanded for a new trial.
The court held on two independent grounds that Jane’s preliminary hearing testimony was inadmissible. First, the Confrontation Clause. Under Crawford v. Washington, 541 U.S. 36 (2004), prior testimony of an unavailable witness is admissible only if the defendant had a prior opportunity for adequate cross-examination. The cross-examination at the first preliminary hearing was conducted while Escarcega had been removed from the courtroom as part of the very violation of his Sixth Amendment right to self-representation—a right the State conceded was denied. Cross-examination that occurs as a consequence of a constitutional violation cannot be “adequate” within the meaning of Crawford. Escarcega could not be required to forfeit his right to self-representation in order to preserve his right of confrontation. The court drew a clear line: the second preliminary hearing—held with Escarcega representing himself—cured the structural error that would otherwise have barred the case from proceeding to trial; it did not retroactively render the cross-examination at the first hearing constitutionally sufficient.
Second, even if the Confrontation Clause analysis were resolved differently, the forfeiture-by-wrongdoing doctrine did not apply. Under State v. Robinson, 293 Kan. 1002, 1024, 270 P.3d 1183 (2012), the doctrine requires the State to prove by a preponderance (1) that the defendant procured the witness’s absence and (2) that the defendant acted with specific intent to prevent the witness from testifying. The district court’s own findings defeated both prongs: it found Escarcega was not the “sole” cause of Jane’s absence, made no finding of direct threats or inducements, and expressly noted that Jane’s personal circumstances—homelessness, fear of travel, lack of identification, and anxiety about law enforcement—independently explained her nonappearance. The four jail phone calls that formed the basis of the ruling were made nearly a year before trial, before any subpoena had been issued, and reflected a general desire that Jane not cooperate with law enforcement—not a specific intent to prevent her testimony at any particular proceeding. State v. Belone, 295 Kan. 499 (2012), and State v. Jones, 287 Kan. 559 (2008), confirm that only wrongdoing specifically aimed at preventing testimony triggers the doctrine.
The error was not harmless. Jane was the sole eyewitness to the incident. Her account that Escarcega stabbed her was directly disputed by Escarcega’s self-harm theory. All other witnesses derived their accounts from Jane. The State failed to demonstrate beyond a reasonable doubt that admission of Jane’s testimony did not contribute to the verdict.
Key Takeaways
- Cross-examination conducted at a preliminary hearing held in violation of a defendant’s Sixth Amendment right to self-representation is not “adequate” cross-examination under Crawford v. Washington; testimony obtained under those circumstances cannot be admitted at trial without violating the Confrontation Clause.
- A second preliminary hearing conducted after recognition of a self-representation violation cures the structural defect that would prevent the case from proceeding to trial, but it does not cure the confrontation-rights problem arising from the first hearing; the tainted preliminary hearing testimony remains inadmissible.
- The forfeiture-by-wrongdoing exception to the Confrontation Clause requires specific proof that the defendant both (1) caused the witness’s absence and (2) acted with specific intent to prevent testimony; generalized discouragement of cooperation with law enforcement nearly a year before trial, without more, does not satisfy the two-part test under State v. Robinson.
Why It Matters
Escarcega is a significant ruling for Kansas criminal practitioners on both sides. For prosecutors, it makes clear that the Sixth Amendment right to self-representation at a preliminary hearing must be taken seriously. Denying a timely, unequivocal assertion of that right—even in the face of what appears to be disruption—creates a structural defect whose downstream consequences may be irreversible. Even if the case is allowed to proceed after a remedial second preliminary hearing, the testimony gathered from the flawed first hearing is permanently unavailable at trial. When the State’s only eyewitness is the complaining witness in a case heading toward an unavailability problem, the cost of the preliminary hearing error is potentially the entire case.
For defense attorneys, Escarcega also reinforces the demanding standard for forfeiture by wrongdoing under Kansas law. The State must prove both causation and specific intent—a general finding that the defendant “did not want” the witness to cooperate, made months before the trial date, is not enough. Prosecutors seeking to invoke the doctrine should document contemporaneous evidence of witness-specific, trial-specific intent; defense counsel facing forfeiture motions should scrutinize the temporal link between the defendant’s conduct and the specific proceeding, the availability of independent explanations for the witness’s absence, and whether the district court has actually made the required two-part finding under Robinson.