Thursday, October 02, 2014

Supreme Court grants cert in a confrontation Clause case involving a child

The Supreme Court granted certiorari today in Ohio v. Clark, a case involving a statement by a three-year-old child.  As it happens, Steve Ceci and I have used this case as the touchstone for discussion in an article soon to be published in the University of Chicago Law Review, The Child Quasi-Witness.  I'll have more to say later about the case! 

Saturday, August 09, 2014

Two new lab report cases from New Jersey

The New Jersey Supreme Court issued a couple of decisions earlier this week on lab reports.  They're worth comment, in part because they show the state of affairs in this still contentious area.

In one, State v. Michaels, a lab supervisor wrote a report based on blood tests performed by other analysts in the lab; he had not observed the performance of the tests.  The supervisor testified at trial; the others did not.  Over one dissent, the court held that there was no confrontation violation, though it acknowledged that the lab report was testimonial.  The majority emphasized that the results of the test were machine generated, that the testifying witness was familiar with the lab's procedures and the particular test at issue in this case, that he had supervisory authority over the performance of the test, and that he had given his own interpretation of the results.
 
The fact that the supervisor gave his own interpretation to the data really shouldn't matter (and I think five justices in Williams v. Illinois indicated that it shouldn't).  There are data and then there is analysis, and those are entirely separate.  The fact that the witness who provides the analysis testifies subject to cross-examination provides no relief from a confrontation problem created by a testimonial statement as to the data. And even though the tests were performed by machine, it does appear that a couple of humans made statements on which the testifying analyst relied (though the opinions are not entirely clear on this point, I don't believe).

The witness's supervisory authority and familiarity with the lab procedures also shouldn't really matter.  It doesn't distinguish this case from Bullcoming, and it does nothing to relieve the problem that the data were provided by others.

There is also a conceptual problem or misunderstanding in the majority opinion, it appears to me, indicated by the court's use at one point of the phrase "testimonial fact."  Facts are not testimonial -- statements are.  There is no plausible contention that anybody who handled the materials or observed the tests must testify.  The only real contention is that anyone who made a testimonial statement that is in some way presented to the trier of fact must testify.  (And it appears that there were at most one or two of those.)  I say "in some way presented" because formal admission of the statement is not necessary to create a confrontation problem.  If, for example, the testifying witness makes clear that he is relying on information provided by others, that is sufficient presentation to put the confrontation right in play, assuming the transmittal of that information was in a testimonial statement.

Having said all that, though, I think the result might have been justifiable given Williams -- which I continue to regard as a very unfortunate decision.   Understandably, the majority threw up its hands in trying to draw anything from Williams, but it does stand for something.   There is only a confrontation problem if the statements on which the testifying analyst relied were testimonial.  I think they should be -- they're statements made in the context of a blood test to determine whether a person was under the influence of drugs, and I think they were clearly made in anticipation of prosecutorial use.  But Justice Thomas presumably would regard those statements -- in contrast to the final report -- as non-testimonial because the analysts did not make them in a formal, certified report.  The plurality plainly would prefer to call those statements non-testimonial -- these are the Melendez-Diaz dissenters, after all -- but I'm not sure that their Williams opinion stands for the proposition that they are not testimonial:  These were statements directed at a targeted individual who was suspected of having committed a crime.  But in any event, the plurality would have concluded that there was no
confrontation problem with respect to these statements, on the basis -- properly rejected by five justices in Williams -- that the statements were not used for the truth because they underlay the opinion of the testifying expert.  In other words, I suppose the rationales of five justices in Williams support the bottom-line conclusion that there was no confrontation violation here.  

The other New Jersey case from this week, State v. Roach, was a prosecution for rape and associated crimes.  One analyst did a DNA test on a swab taken from the victim and wrote a report that included  a male profile.  Some time later suspicion fell on Roach, and a second analyst who had taken over the case when the first moved out of state did a DNA test on a buccal swab taken from him.  At trial, the second analyst testified that the two profiles matched.  This -- apart from the fact that the accused lived near the victim -- was essentially the only evidence of identity.  The prosecution made no attempt to bring the first analyst in.  Roach received a 40-year sentence.  The supreme court majority held that there was no confrontation problem.

A few points.  First, here, it does not appear that Williams could have done the majority any good:  As I understand it, the DNA reports here were certified, so that means that Justice Thomas would have lined up with the other four justices who were in the majority in Melendez-Diaz and Bullcoming.  In fact, the rationales of five justices from Williams clearly support the conclusion that there was a violation here; that's not a holding, though, because four of the five dissented from the result in Williams.  The case is in many respects similar to Williams -- DNA analyst who analyzed the sample taken from the suspect testifies, analyst who analyzed the crime scene sample does not -- but if this had been the one the US Supreme Court had heard presumably the result would have been the other way.

Second, a point emphasized by Justice Alito in Williams holds true here as well:  It would have been an extraordinary coincidence for analysis of the crime scene sample to happen to turn up the profile of a man who lived near the victim unless his DNA was in the sample and analyzed accurately by the lab.  But I think that if this were to be he basis for introducing the evidence without someone from that lab testifying live in court, it would have to be without relying on the proficiency of the lab.  The argument would be that, however bad that lab might be, the only way they could have generated those numbers was if they accurately analyzed a DNA sample from Roach.

Third, the supposed reliance in Michaels on the testifying witness's supervisory authority appears from this case to be rather hollow.  Here we had a non-supervisor tesitfying about a testimonial statement made by another analyst from the same lab, and the majority does not appear to have been particularly disturbed.

Fourth, for all the cries we keep hearing about the necessity of having multiple analysts working on DNA it appears from the state supreme court decision and also from the appellate division opinion that the one analyst who was in charge of the file at the time did all the procedures necessary for the DNA test.  Bravo!  It appears that the New Jersey State Police Forensic Lab -- which was the one involved in this case but not in Michaels -- had integrated vertically, having one analyst work on a case A to Z, and I surmise that they did so for the very purpose of minimizing who would have to testify.  If any readers have any further information on this, I'd be glad to know -- but from what I can tell, New Jersey has shown that this can be done.  If this kind of vertical integration is somewhat less efficient than an assembly line procedure, I think the response still has to be that if a state wants to   comply with the Confrontation Clause without multiple lab witnesses having to testify, then it should adjust its procedures, not that the demands of the Clause should be adjusted to conform to what some crime labs do.

Finally, bear in mind that the defendant got a 40-year sentence, that the DNA evidence is what proved identity, and that one of the two critical witnesses who made a testimonial statement used by the prosecution to prove that identity did not testify subject to confrontation because she had moved from New Jersey to Wisconsin.  There's not much doubt that if the state knew it had to bring the witness in from Wisconsin in order to secure a conviction, it would have found it well worthwhile to do so.  I really don't think it's too much to insist that the state bring such a witness in when it wants to put someone away for decades.

Tuesday, May 27, 2014

Cert denials

The Supreme Court denied cert this morning in Turner, No. 13-127, Brewington, No. 13-504, James, No. 13-632,  Ortiz-Zape, No. 13-633, Galloway, No. 13-761, Yohe, No. 13-885, and Edwards, No. 13-8618.  Some of the case I had earlier listed are still pending, and two Derr, No. 16-637, and Cooper, No. 13-644, are listed for the conference of June 5, but I'd be surprised if the Court would deny outright in all these cases today and then grant in one of those.  I could be wrong; I haven't looked carefully enough at the cases to see if the remaining cases are sufficiently dissimilar to to all of today's to make it plausible that the Court would deny outright in these and then grant in one of those a couple of weeks later.  But for now I'm guessing that, for whatever reason, the Court does not want to revisit just yet the various questions related to how the Confrontation Clause applies to forensic reports. 

Monday, May 19, 2014

The Nostalgia for Reliability Testing

Professor Ben Trachtenberg of the University of Missouri Law School and I recently had an exchange on Confrontation Clause matters published in the University of Florida Law Review.  Here are links to his original article, to my responsive essay, and to his reply.  I’m not going to ask the Law Review for the opportunity to do a surreply.  But I’ll offer a few comments here.

Prof. Trachtenberg’s pieces reflect nostalgia for the “good-old days” of the pre-Crawford era, when reliability testing under Ohio v. Roberts prevailed.  He certainly is right that some of the members of the Supreme Court have indicated that they would like to return to this era.  I think it’s clear – and the majority opinion in Crawford itself makes it clear – that reliability testing did a pretty rotten job of protecting the confrontation right.  Indeed, the fact that the Washington courts came out the other way in Crawford, in what should have been an absurdly easy case, indicates how weak the right was.

One reason, perhaps the principal one, why reliability testing was so limp is that it is indeterminate to the point of incoherence.  What does reliability mean?  It is notable that, for all the extolling of reliability testing by Prof. Trachtenberg and others, they rarely if ever define reliability; I haven’t found any attempt to define the term by Prof. Trachtenberg in this exchange.  I pointed this out in my essay, but his reply did not take me up on the invitation.  I do think a coherent definition of reliability can be framed – but it demonstrates the impossibility of making reliability a useful test.

In my essay, I wrote: “Evidence is reliable proof of a given proposition if and only if, given the evidence, it is highly improbable that the proposition is false.”  The trouble is that virtually no evidence is reliable under this standard.  The live testimony of a live witness with personal knowledge of the subject of the testimony is the epitome of acceptable testimony that, under any theory of the Confrontation Clause of which I am aware, does not pose any problem under the Clause – and yet eyewitness testimony is notoriously unreliable. It seems to me that candor requires us to recognize that trials are full of items of evidence that, taken individually, may not be reliable indicators of the proposition for which they are offered.  Cumulatively, though, they may create compelling proof.

Prof. Trachtenberg and I appear to agree (and with many others) that conspirator statements are unreliable.   So far as Crawford doctrine and I are concerned, that is irrelevant to any Confrontation Clause decision.  But where does this leave Prof. Trachtenberg?  He contends that necessity is the real justification for admitting such statements.  In my essay, I expressed the belief that this contention exposes a weakness of his approach; it is a remarkably weak right that is overcome by the government's need to gain convictions of a crime that is difficult to prove.  In his reply, Prof. Trachtenberg says that in discussing necessity he is only "describing reality, not announcing . . . approval."  But I don't believe that solves his problem.  Does he believe conspirator statements should be barred by the Confrontation Clause or not?  If he believes they should be, then he is adopting a view of the Clause that would not only cause a radical change to traditional law but that has no historical bearings and that, I believe, would not gain the adherence of a single Supreme Court Justice.  And if he believes these statements should not be barred by the Clause, given how unreliable they are, on what plausible basis?  I am still left wondering.

So I think that when judges and commentators speak of reliable evidence, what they may really have in mind is evidence that probably (let's put aside the question of just how probably) will lead to accurate fact-finding.  After all, accuracy is good, and if we put aside systemic and procedural concerns anything that leads to accurate fact-finding is good and anything that leads away from it is bad.

But a big problem, of course, is that it is pretty much impossible to pick out the evidence that will hurt fact-finding.  This is especially true given that there is no real basis for confidence that jurors are unable to discount for the weaknesses of hearsay; empirical evidence suggests that they're pretty good at it, and may even over-discount.  Hearsay, after all, has real probative value, and excluding it denies the jurors potentially useful evidence.

The bigger problem is the qualification I just stated – that we put aside systemic and procedural concerns.  But those are really what the Confrontation Clause is all about.  That's certainly what the language of the Clause suggests – it gives the accused the right "to be confronted with the witnesses against him," which sure sounds like a procedural right with respect to witnesses and not a right to exclude evidence that lacks certain substantive qualities. 

And this procedural concern is clearly what the confrontation right has been about historically.  Prof.  Trachtenberg vigorously assails the merits of taking an originalist view of the Clause.  But the value of history in this area is not limited to determining what the meaning of the Framers would have been understood to be in 1791, and it's not limited to persuading those who put preeminence on that meaning.  (Note that while Crawford itself is quite an originalist opinion, as one would expect given that it was written by Justice Scalia, the majority that joined it included some Justices of very non-originalist orientation, and that has been true as well of Davis v. Washington, Melendez-Diaz v. Massachusetts, and Bullcoming .v New Mexico.)  What the history shows is that for hundreds of years protecting the conditions of testimony under which witnesses against an accused testify – ensuring thath tey do so face to face with the accused, and subject to cross-examination – has been a central aspect of the common-law system of criminal adjudication.

I have found that this is still a principle that resonates with people.  Does anybody doubt that prosecution witnesses should be required (absent forfeiture of the right) to testify face-to-face with the accused?  Or, looking at the matter from the other direction, does anybody think that a prosecution witness should be able to testify by talking to police officers in a closed room in the station-house, or in the witness's living room?  And isn't it clear that if Crawford and Hammon v. Indiana had come out the other way, then we would have a system in which witnesses would be able to testify in precisely those ways?  It was, after all, entirely clear to all participants in those conversations that the witnesses were creating evidence for possible use in prosecution.

In arguing Hammon, I proposed a per se test that would have yielded a different result in its companion case, Davis v. Washington – that a statement made to a known police officer accusing another person of a crime be deemed testimonial.  That was not meant to be a comprehensive definition of  the term "testimonial," as one might think from reading Prof. Trachtenberg's reply, but rather the delineation of a particular type of statement that should be categorically deemed testimonial, a subset of the broader set of testimonial statements.  I do think it's unfortunate that the Court didn't adopt that test; I think if it had some of the muddle that has since arisen would have been avoided (and more of the muddle would have been avoided if the Court had come out the other way in Giles v. California, for if there it had adopted a robust conception of forfeiture doctrine it almos tcertainly would have avoided the very unfortunate reuslt in Michigan v. Bryant.)  But I don't think that test was essential to sound confrontation doctrine.  I think the ultimate test of whether a statement is testimonial should be whether, assuming admissibility, a reasonable person in the declarant's position at the time of the statement would have anticipated likely litigation use of it.  (It doesn't seem to me that it's really difficult to define "testimonial," as Prof., Trachtenberg says, or at least to come up with a serviceable definition; I just don't think the Supreme Court has clealry signed on to the best definition, though in Melendez-Diaz it seemed on the verge of doing so.)  And under one view, not the one that I would have adopted but nonetheless a coherent one, the first part of the 911 conversation is Davis might be deemed to fall outside this, because one might say that in the heat of the moment the complainant would not have been anticipating likely evidentiary use.  (Pretty quickly, though, it became clear that this was what she was doing.  Note that at the end of the call the 911 operator said that the police would go find Davis and then come talk to the complainant – not that hey would come right away to protect her.)

Prof. Trachtenberg suggests that Davis would have "walk[ed]" if the Supreme Court had come out the other way in his case.  I don't know what would have happened in that case, but I think it's important to emphasize that excluding statements of the type involved in Davis does not mean as a general matter that the accused cannot be convicted.  The prosecution might work harder to secure the live (or deposition) testimony of the complainant; it might demonstrate that her unavailability was the result of wrongdoing causing forfeiture of the confrontation right; and it might, as it ordinarily does in a murder case, prove guilt without relying on a statement by the victim.


Nothing today

The Supreme Court did not act today on the Confrontation Clause cases it had listed for last week's conference.  I wonder if it's still waiting for all the papers in another case.  In any event they will presumably be relisted for another conference soon -- the term is almost over!

Wednesday, April 16, 2014

Something brewing?

Papers in three of the cases mentioned in my post of February 27 – Derr v. Maryland, No. 13-637, Galloway v. Mississippi, No. 13-761, and Edwards v. California, No. 13-8618 – have been
distributed for this Friday’s conference.  Derr, incidentally, was Petition of the Day  on SCOTUSBlog on Monday – but Medina v. Arizona was previously Petition of the Day, and that got denied.  (It’s still four Justices, not designation by SCOTUSBlog, required for a grant.)  Two other petitions filed since that post that raise Williams-related issues, Bolus v. Pennsylvania, No. 13-1078, and Marino v. North Carolina, No. 13-1081, are also on for this conference.  (In each of these cases, the state waived its right to respond and the Court has not requested a response.)

Two other Williams-related cases, James v. United States, No. 13-632, and Johnson v. California, No. 13-8705, have been distributed for the following conference, on April 25.

All this activity is worthy of attention; something might happen soon.  But it does not necessarily mean the Court will soon grant one of the petitions.  It doesn’t even necessarily mean that it will soon decide whether to grant one of the petitions.  Turner v. United States, No. 13-127, and Ortiz-Zape v. North Carolina, No. 13-633, have been held for months.  Yohe v. Pennsylvania, No. 13-885, was distributed for the conference of March 28 and is still being held.  And there are other cases in the pipeline.  All the papers are now filed in Brewington v. North Carolina, No. 13-504, but it has not been redistributed.  And in Cooper v. Maryland, No. 13-644, the Court recently requested a response from the state, due May 9.  Also, another petition filed since my post of Feb. 27, in Alger v. California, No. 13-1102, is pending.  I invite readers to tell me about other cases presented to the Court raising Williams-related issues.


Thursday, February 27, 2014

Pending and recent cert petitions on forensic lab reports

    This week, the Supreme Court denied cert in Medina v. Arizona, No. 13-735.  The case presented the question of whether an autopsy report concluding that the death was a homicide caused by blunt force trauma is testimonial.  I sure think that this ought to be an easy question to answer in the affirmative.  I do not know whether the Court is not ready to answer the question, or it believed that the case was not an appropriate vehicle for resolution of the issue.  Another pending autopsy case is James v. U.S., No. 13-632, which was filed on Nov. 22.  (There the autopsy report concluded that the cause of death was acute ammonia poisoning, but it did not otherwise indicate that the cause was homicide.)  The Government has gotten three extensions of time to file its response, which is now due March 17.

    The Court has been sitting on other petitions raising other issues related to forensic reports, and one way or another asking for clarification of Williams v. IllinoisTurner v. U.S., No. 13-127, Ortiz-Zape v. North Carolina, No. 13-633, and Cooper v. Maryland, No 13-644, have all been distributed for conference and held.  After Brewington v. North Carolina, No. 13-504, was distributed, the Court requested a response from the state; that was filed on February 3, and the reply brief on February 13.  And in Yohe v. Pennsylvania, No. 13-885, filed on January 22, the state filed its response on February 24.  So these cases too will soon go on the conference calendar, but the best guess is that they will be held as well, pending completion of the papers in one or more of the other pending cases:  Galloway v. Mississippi, No 13-761, filed Dec. 20, 2013, with the state’s response now due, after extension, on March 7; Edwards v. California, No. 13-8618 (in forma pauperis, seeking review of People v. Edwards, 306 P.3d 1049 (Cal. 2013)), filed Feb. 7, with the state’s response due March 10; and Derr v. Maryland, No. 13-637, which has twice been distributed for conference, resulting in a request from the state for a response, due March 17.  So I am sure that the Court will be impressed by the fact that there is a lot of confusion in the lower courts; whether it will be motivated to step in is of course another question.

    Meanwhile, the Court has denied several petitions raising Williams-related issues.  It denied a few, including the one in New Mexico v. Navarette, which I discussed in a prior blog post, on the first day of term (when, by the way, it also denied my petition in Berkman v. Indiana, raising another confrontation issue), and it has since denied a couple of others, Dyarman v. Pennsylvania, No. 13-611, and Lusk v. United States, No. 13-403.

    I encourage any readers who are aware of other pending (or recent) petitions that might be of interest to let us know.

Tuesday, December 17, 2013

Pending cert petitions seeking clarification of Williams

An anonymous reader has pointed out that the second petition for certiorari in Turner v.  United States, No. 13-127, one of the cases that was GVRed (grant, vacate, remand) in light of Williams v. Illinois, came before the Supreme Court's conference on Friday but the Court did not take any action.  (The case was originally distributed for the conference of September 30, but before hen the Court requested a response form the Government, so the case was relisted.)  It may well be that the Court realizes that it needs to do something in light of the confusion created by the fractured decision in Williams, but it has not yet decided which case to take.  There are several others pending.  The Court has already requested a response from the State in Brewington v. North Carolina, No. 13-504, filed in October, and the State's response is not due until February 3.  Derr v. Maryland, No. 13-637, was filed on Nov. 20, Ortiz-Zape v. North Carolina, No. 13-633, on Nov. 21, and Cooper v. Maryland, No. 13-644,  on Nov. 22.  If readers know of other cases, I'd be glad to learn of them.  It looks like something might be brewing.  Comments welcome! (And I am hoping to post more on this blog in the next several months than I have in the last several!)