Tuesday, May 30, 2017

An issue to be resolved: The treatment of autopsy reports

This blog has remained dormant for some time, it part because I have been distracted by other work and in part because there haven't been all that many developments that I have thought are worth reporting on.  But I will try to begin posting again more frequently.

There is one set of issues in particular that I think is headed for resolution by the Supreme Court, the treatment of autopsy reports in murder cases, and I expect to be writing several posts on it.  There are two basic issues, one specific to autopsy reports and the other common to other types of forensic reports.

First is the question of whether, or when, an autopsy report is testimonial.  Let's bear in mind how this issue comes up.  Almost always, it is the prosecution in a murder case that wants to use the report without producing as a live witness the medical examiner who made the report.  And the report provides some information -- often the cause of death, and sometimes the time as well -- that is helpful to the prosecution.  Almost always it is clear that, at least as of the time the examiner wrote the report, he or she believed that the death was probably a homicide.  And that means that the examiner must have known that he or she was creating evidence for use in a criminal case.  In such a case, I think it is clear that the report (and especially the statements of use to the prosecution) is testimonial in nature.  If it were not, that is akin to saying to the medical examiner, "Write up your report, and send it in to the police and the prosecutor.  You know, and everyone else knows, that you are doing so with the anticipation that it will be used as evidence or the prosecution in a homicide case, but there will be no need for you to take an oath, or appear in court or before the accused, or be subjected to cross-examination."  That goes against the very core of the confrontation right, and it utterly lacks historical foundation.

Some courts have seen it this way.  Others, though, have regarded autopsy reports as non-testimonial, principally on the basis of the proposition that autopsies are frequently performed for public health purposes having nothing to do with prosecution.  That proposition is true but immaterial.  The question should not be resolved by taking a survey of such a large body of reports -- the question in any given case is whether this report is testimonial.  And even if one did think that the question should be resolved by looking at a category of cases, "autopsies" is too broad -- a more appropriate category would be "forensic autopsies" or "medico-legal autopsies", both of which are well-known in the field.  Even assuming we are to look at the "primary purpose" of the statement (I don't think that should be the test, and perhaps the autopsy case will finally cause the Supreme Court to abandon it), and even assuming that there can be only one "primary purpose" of a statement (an unresolved matter), the primary purpose of a forensic autopsy report is to provide information for the criminal justice system leading to the conviction of the perpetrator of a homicide.

It also should not matter whether the autopsy report is directed at a targeted individual -- five justices rejected that idea in Williams v. Illinois, and for reasons I have explained before and won't bother with now, they were right in doing so.

Nor does it matter that autopsy reports are sometimes performed in cold cases, and prosecution may not follow for some years to come.  It is not a general principle of law that when time passes the prosecution can be excused from presenting its witnesses, absent proof that the accused forfeited the confrontation right, and there is no reason to create such a principle with respect to medical examiners.  And indeed, in this context (unlike that of a crucial eyewitness) the state can protect itself to a great degree by ensuring (as is standard practice in at least some jurisdictions) that at least two people competent to testify about what happened in the autopsy are present (and preferably one of them rather young!).  The state could also protect itself to a great degree by taking a continuous film of the autopsy, including the patient's face.

Finally, it does not mater whether the medical examiner is independent of the police or prosecutor. We do not have a system in which the confrontation right applies only to witnesses who have an affiliation with the criminal justice system.

Second is the question of whether one expert witness can offer an "independent" opinion based on factual assertions made by another expert in a testimonial statement.  This issue is not peculiar to autopsy reports; it arises with respect to many types of forensic lab reports, and was present in Williams.  Five justices properly answered the question in the negative, but because of the unusual result in that case -- the four prevailing because Justice Thomas joined them on other grounds -- the matter is still in contention.  I've addressed this matter before, especially in discussing Williams, and may come back to it later, but won't say more here.

There is a case pending before the Pennsylvania Supreme Court, Commonwealth v. Brown, that presents both issues (although with respect to the second it may be that only state-law issues are involved).  The Superior Court opinion, 139 A.3d 208 (Pa. Super. Ct. 2016), held that the autopsy report was testimonial and introduction of it was a Confrontation Clause violation -- but that the error was harmless because another examiner testified to her "independent" opinion (even though that opinion was based in part on facts asserted in the autopsy report).  So the court got one right and one wrong.  Both parties have appealed.  Here is Brown's initial brief; here is the state's initial brief; here is Brown's second brief (reply brief on his appeal, and appellee's brief with respect to the state's appeal).  The state will presumably file a reply brief on its appeal.

More to come on this set of issues.

Wednesday, December 23, 2015

Third petition on surrogate experts

Tim Provis, counsel for the petitioner in Roalson v. Wisconsin, No. 15-6037, which presents an issue similar to Griep and Katso, has kindly provided me with copies of the papers on cert.  Here are links to the Petition, the State's Brief in Opposition, and the Reply Brief supporting the Petition.

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.