Thursday, November 26, 2015

New cert petitions on the "expert witness end-run"

At least two cert petitions are currently before the Supreme Court on the question of whether, or when, a prosecution may present the substance of an out-of-court testimonial statement through an in-court witness who bases an opinion in part on that statement.  One is Griep v. Wisconsin.  The State originally declined to file a brief in opposition to the petition, but the Court requested one.  Here are links to the petition, to the brief  in opposition, and to the reply brief.  The second petition, on which I am counsel of record, is Katso v. United States.   The Government has twice asked for extensions of the time to file a brief in opposition; its time now expires on January 4.  You can read the petition by clicking here

Monday, June 22, 2015

Audio of public radio show on Ohio v. Clark

Joan Meier, who commented last week on this blog, and I appeared on Friday on a Los Angeles public radio show, discussing Ohio v. Clark. If you're interested, you can listen to it by clicking here.  
By the way, Joan cited favorably a recent book by Ross Cheit,  The Witch Hunt Narrative: Politics, Psychology, and the Sexual Abuse of ChildrenHere for comparison is a very different view of the book.

I have insufficient knowledge of the subject matter to engage usefully in a debate over the Cheit book.  I will say, though, that I have great faith in the scholarly fairness and integrity of Sam Gross, my colleague of over a quarter century, and of Steve Ceci, with whom I have partnered on a few projects over the last fifteen years and more.

Friday, June 19, 2015

Ohio v. Clark: Some Initial Thoughts

A few thoughts on the decision in Ohio v. Clark:

1.  The result is totally unsurprising, and I was not even surprised by the unanimity as to the result; it was difficult at argument to perceive that any justice thought the statement was testimonial. 

2.  I don’t think the statement should have been considered testimonial: I don’t think three-year-olds have the capacity to make testimonial statements.  (Steve Ceci and I asserted this position in our amicus brief and in the law review article on which we based it.)  And I wish the Court had left it at that.  On p. 9, the Court does emphasize the age of the victim, saying that statements by very young children “will rarely, if ever, implicate the Confrontation Clause,” because of their cognitive limitations.  All correct, I think.  Future cases are going to have to work out what the boundary is as to when a child is old enough that his or her statements may fall within the Clause.

3.  Justice Scalia objects to Justice Alito’s treatment of Crawford as being just “a different approach” from Roberts, not emphasizing that it was a total repudiation.  But the fact is that the majority opinion deals entirely within the Crawford framework.  That’s good news.

4. At argument, several justices seemed to have doubts about the “primary purpose” test, but now eight of them double-down on it.  Too bad.  It really isn’t a coherent test, because so often purposes are joint and it’s really not possible to tell which is primary.  Consider Justice Alito’s statement, p. 11, that the teachers “undoubtedly would have acted with the same purpose [to protect the child and remove him from harm’s way] whether or not they had a state-law duty to report abuse.”  Well, you could flip that and say that they “undoubtedly would have acted with the same purpose [to aid in law enforcement] whether or not they had a protective purpose in mind” – if, for a gruesome example, the child seemed clearly on the verge of death.  And the “primary purpose” test is easily manipulable; we can anticipate that many statements will be funneled to professionals other than law enforcement and the state will cite some purpose other than law enforcement as primary.  I think there’s really only going to be clarity and a solid basis when the Court uses a test based upon reasonable anticipation, from the point of view of the speaker.  But we seem to be a long way away from that. 

5.  The Court indicates that the “primary purpose” test is a necessary but not always sufficient condition for a statement to be excluded by the Confrontation Clause.  P. 7.  This is, I suppose, dictum, as Justice Scalia says.  It’s potentially dangerous, though.  If it’s limited to the one kind of case Justice Alito mentions – “out-of-court statements that would have been admissible in a criminal case at the time of the founding”  – I suppose it’s not so bad.  What kinds of statements are those?  The only ones mentioned so far are dying declarations, which Crawford says are sui generis.  (I think dying declarations should be treated under forfeiture doctrine, but that’s another matter.)  But if the “not always sufficient” language becomes the excuse for the Court to say that even though the primary purpose of a statement was to create evidence for law enforcement, it still isn’t going to be treated a testimonial because, well the Court doesn’t want to treat it as testimonial, that could be a destructive wedge.  I’m hoping not.

I'll add in here a response to a question asked by Paul Vinegrad -- what do I think about Justice Scalia's comment on the defendant's "burden" to get the benefit of the Confrontation Claue's exclusionary rule.  I think that Justice Scalia sometimes has a tendency to read majority opinions with which he disagrees in what he considers the worst possible light -- which can have unfortunate results for him if his comments tends to be self-fulfilling prophecies.  I hope this is not such an instance.  He says, p. 3, that under the majority opinion future defendants and "confrontation Clause majorities" have a "burden" to provide “evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding."  But gee, I think all the majority said was that neither Crawford nor its progeny "has mounted evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding."  I think all that means is that if it is shown -- presumably by the prosecution or its backers -- that a given type of evidence was regularly admitted at the founding, then the Confrontation Clause presumably was not intended to admit it.  Nothing so dramatic there, and nothing that Justice Scalia should find particularly distasteful.  If evidence was regularly admitted at the founding, it's a pretty good indication that it was not considered testimonial in nature.  And the only type of statement that both (a) is testimonial and (b) was regularly admitted against criminal defendants at the time of the founding -- at least the only type discussed so far by the courts -- is dying declarations.  So I think Justice Scalia should have saved his powder there.

6.  The Court declines to adopt a categorical rule excluding statements not made to law enforcement officers from the reach of the Confrontation Clause.   That’s good.  It says that such statements are “much less likely to be testimonial than statements to law enforcement officers.”  I suppose that’s right.  (Statements to known law enforcement officers describing a crime are highly likely to be testimonial.)  But although the Court says such statements could “conceivably raise confrontation concerns,” I think some almost certainly do.  If we took a case very similar to Clark but made the victim an 13-year-old, as in a hypothetical posed by Justice Kagan at argument, p. 12 (I had mentioned a 18-year-old in a prior post), I think the case would have looked very different.

7.  Justice Alito says, p. 11, “It is irrelevant that the teachers’ questions and their duty to report the matter had the natural tendency to result in Clark’s prosecution.”  For support, he cites Davis and Bryant, in which statements were not testimonial though made to the police.  But “irrelevant” in the sentence I just quoted has got to be too strong; he might better have said “not completely dispositive”.
8.  Following that passage is this curious one:
Thus, Clark is also wrong to suggest that admitting L.P.’s statement would be fundamentally unfair given that Ohio law does not allow incompetent children to testify.  In any Confrontation Clause case, the individual who provided the out-of-court statement is not available as an in-court witness, but the testimony is admissible under an exception to the hearsay rules and is probative of the defendant’s guilt.  The fact that the witness is unavailable because of a different rule of evidence does not change our analysis.
I find this passage very difficult to understand.  (Jeffrey Bellin has also expressed uncertainty on EvidenceProfBlog about the meaning of this passage. What does Justice Alito mean by “any Confrontation Clause case”?  It does not seem that it could mean any case in which there is a violation of the confrontation right, for two reasons: 

(a) It is not true that in all such cases the maker of the statement is not available as an in-court witness.  There was no proof, for example, that those who made the key statements in Hammon v. Indiana, Melendez-Diaz v. Massachusetts, or Bullcoming v. New Mexico were unavailable.  Indeed, availability of the maker of an out-of-court testimonial statement in itself means that the Confrontation Clause renders the statement inadmissible.   Could Justice Alito be using “not available as an in-court witness” to mean “not testifying in court”?  That would not only be a failure to use ordinary terminology properly, but it would not help make any point, given that in Clark the maker of the statement could not be made a witness.

(b) If there is a violation of the confrontation right, then it makes no sense to say “the testimony is admissible under an exception to the hearsay rules.”  (Does he mean “would have been admissible but for the Confrontation Clause”?  But then what does the passage prove?)  If there's a violation of the Confrontation Clause, it doesn't matter what the hearsay rules would otherwise say.

So does “any Confrontation Clause case” refer to a case in which the accused makes a seemingly plausible yet ultimately failed contention under the Clause?  Again, it’s not true that in all such cases the declarant is unavailable; the declarant may be available but ultimately the statement is determined to be non-testimonial

And what of the last sentence in this passage and its reference to "a different rule of evidence"?  I don't think Justice Alito means to suggest that in most cases the maker of the statement is unavailable by virtue of a rule of evidence; that's simply not so.  I suppose "different" is in distinction to the reference to a hearsay exception in the prior sentence.  So maybe the passage is intended to mean something like, "Often, when an accused makes a failed Confrontation Clause argument, the maker of the statement is unavailable and yet that does not stop the statement from coming in.  So it doesn't matter that here the cause of unavailability is a state rule."But there is a very significant difference between the situation in which the maker of the statement is unavailable by reason of circumstances beyond the state's control and that in which a rule created by the state renders the maker unavailable.

9.  The point that the state rendered the child incompetent to be a witness is particularly important because, given the result in Clark, states may have an incentive to declare  broader category of children as incompetent to be witnesses.  If statements made by those children are not testimonial, then the Confrontation Clause provides no constraint on use of their statements, and the state may be delighted not to call the child as a witness nor to allow the defendant to do so.

10.  Due process arguments are not resolved by the case, and I hope that defense lawyers now recognize that they are what is left to them.  Steve Ceci and I have argued that, given that the child is not capable of being a witness, if the statement is to be offered, the accused should have a right to have the child examined out of court by a qualified forensic interviewer.  I believe it is now particularly important that defense lawyers now claim this right.  (The "fundamentally unfair" language quoted above does not stand in the way; our argument is not that it is fundamentally unfair that the statement be admitted given that the child is not competent to be a witness.  Rather, we say that, if the statement is to be admitted, given that the child is not competent to be a witness, it is unfair not to allow the defense the chance to have an out-of-court examination of the child, the source of the evidence, through a qualified forensic interviewer.)

11.  It seems to me that Justice Thomas as actually loosened up a bit.  Instead of talking in terms of formality, he talks about indicia of solemnity.  That seems reasonable, if solemnity is understood to mean understanding the gravity of the consequences of the statement.  I would like to think that perhaps Justice Thomas has second thoughts about the extreme test of formality he applied in Williams v. Illinois.  Time will tell.

Thursday, June 18, 2015

Clerk reversed

The Supreme Court decided Ohio v. Clark today.  You can see the opinions here.  The result is a 9-0 reversal in favor of the State.  No particular surprise there.  Justice Alito wrote the majority opinion.  Justice Scalia, joined by Justice Ginsburg, wrote separately, concurring only in the judgment, and Justice Thomas did the same.  The majority opinion indicates that statements to private persons or by young children will rarely be testimonial for Confrontation clause purposes, but it does not make a categorical holding on either point.  Justice Scalia objects to some of what he regards as anti-Crawford dicta in the majority opinion.  More later, probably this evening.

Tuesday, May 19, 2015

Civil Confrontation

The Confrontation Clause, of course, only applies in favor of a criminal defendant.  But it has long appeared to me that it reflects a broader principle in common-law adjudication, that ordinarily at least a party should have a chance to cross-examine those who testify against the party.  The Supreme Court has recognized that there is a constitutional basis, in due process, for such a right. But I was curious as to the circumstances in which this right has been asserted and what the response of courts has been.  I asked Nick Klenow, a former student of mine, to do some digging.   Nick, who graduated from Michigan Law earlier this month, has produced a Note, Due Process:  Protecting the Confrontation Right in Civil Cases, that I'm pleased to post here.  This memo is Nick's work, and the conclusions are his, not mine; I offered some guidance before he set out and a few very minor editorial suggestions.  I think the Note shows the wide range of circumstances in civil proceedings in which a confrontation right has been asserted, and often upheld, as a matter of due process.

As Nick's Note suggests, just what the bounds of the civil confrontation right are or should be is a difficult, perhaps intractable, issue; the answers seem highly context-dependent.  But I'll offer one comment to provide some theoretical perspective. Let's suppose there is a civil proceeding in which the state proposes to deprive an individual of some valuable right, privilege, or asset.  The state calls a witness and examines her, and at the conclusion of the direct the judge or other presiding official excuses her.  The individual whose rights are at stake protests, saying that he would like to ask some questions as well.  And the adjudicator responds, "No need.  I don't want to take the time.  That testimony was good enough."  It seems clear to me that this has to be, or at least can be in many circumstances, a violation of due process.  This, of course, is a strong case, but it demonstrates that the set of circumstances in which there is a violation of due process for failing to provide a confrontation opportunity in a civil case is not empty.  How much further the right applies -- for example, when instead of presenting a live witness the state instead presents an affidavit prepared for the sole purpose of creating evidence for the proceeding -- is the tricky question.

Saturday, March 28, 2015

Remote testimony

Here's a belated report on a recent development in a long-standing issue.  Last month, the Supreme Court denied certiorari in New Mexico v. Schwartz, No. 14-317.  The petition presented the issue whether the confrontation right bars the presentation, over the accused's objection, of testimony taken, by two-way video, from a witness in a remote location.  But the case was not a good vehicle for presenting this issue, because the opinion of the New Mexico Court of Appeals turned on narrow questions of fact rather than on any broad question of principle.  It's an important issue, and sooner or later I hope the Supreme Court addresses it squarely.  I wrote on it years ago, pre-Crawford, in a piece titled Remote Testimony, 35 U. Mich. J. L. Ref. 695 (2002).  I'm going to want to think about the issue more; for now, I will offer a few thoughts and ask a question on which perhaps readers can shed some light.

The basic question is whether remote video testimony should ever be allowed over the accused's objection.  To take the strongest case, assume that the witness cannot feasibly be brought to or near the place of trial and that the accused cannot be brought to where the witness is; this may happen, for example, if the witness is in custody in a foreign jurisdiction.  Assume also that transmission is done as well as can be:  Crisp video, clear audio, no noticeable delays, the witness and accused each able to see each other, precautions taken to ensure that no one is able to give the witness signals or distract her.  So assuming all this, should the remote testimony be allowed though the accused objects on confrontation grounds?

The Confrontation Clause issue is not, or at least is not primarily, whether the ability of the trier of fact to assess the testimony is impaired by the fact that the witness is not in the courtroom.  It's a longstanding principle that, if the witness is unavailable at trial, testimony taken subject to confrontation at a prior proceeding may be introduced as a second-best substitute -- and of course until relatively recently the method by which the prior testimony was presented was almost always someone reading a transcript of it, which gives the trier of fact no benefit of demeanor evidence at all.

Rather, the question is whether confrontation between the witness on the one hand and the accused and his attorney on the other is undermined.  In 2002 (before Crawford), when the Supreme Court, by a 7-2 vote, declined to transmit to Congress an amendment to Fed. R. Crim. P. 26 that would have authorized remote testimony in some circumstances, Justice Scalia issued a statement that included the wonderful line, "Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones."  I don't think, though, that there is any principle that clearly makes it impossible to count confrontation through video transmission as the equivalent of in-court confrontation, any more than if witness and accused can see each other only through glasses.  I believe the issue should depend on empirical questions.  In my 2002 article, I asked two such questions:  
First, even with two-way transmission, would the distance and sense of insulation diminish the sense of confrontation--not an idly chosen term--that a prosecution witness faces when testifying against an accused? Second, would defense counsel be impaired to any significant degree in cross-examining such a witness by the sense of distance and by the delay in transmission that, even with up-to-date technology, is still noticeable?
I still think those are the questions, except that, unless I am mistaken, in most cases use of good technology will prevent any noticeable delay in transmission.  I think that before assuming that remote testimony is an adequate substitute for in-court confrontation, we should assure ourselves that the answers to both questions are negative.  As of the time I wrote the 2002 article, I was not able to find any studies that bore closely on these issues.  (I cited a few that bore rather distantly on them.) So that's my question:  Does anybody know of any research that helps answer these questions?

If the answers are indeed negative, then I think that remote testimony could be a great thing in some cases, making it far easier to provide confrontation than it otherwise be (and likely making courts more willing to require confrontation).  There would still be three important sets of issues to resolve, and for now I won't add more on these to what I said in my 2002 article:  (1) In what circumstances should the witness be deemed sufficiently unavailable to make remote testimony?  (I argued in the 2002 article that a rule on remote unavailability needs its own standard of unavailability, rather than incorporating the one in Fed. R. Evid. 804(a)). (2) In what circumstances should video confrontation not be deemed satisfactory, even though the witness is unavailable to testify at trial, because the accused  and counsel can be brought face-to-face with the witness.  (3) Assuming remote testimony is to be allowed in the given case, what quality standards must it satisfy?

Whatever the rule with respect to prosecution testimony, it seems to me that courts should be receptive, in appropriate cases, to remote testimony offered by the accused.  The confrontation right is not symmetrical, and it does not constrain the defense's offer of useful evidence.

Friday, March 13, 2015

An Op Ed: How courts should hear from children

Today's Washington Post is publishing an Op Ed piece by Steve Ceci and me, How courts should hear from childrenIt summarizes the views that Steve and I presented in an amicus brief in Clark and in the law review essay on which the brief is based.