Thursday, December 23, 2004

Crawford and Martha Stewart

Though Martha Stewart's case is not a "run-of-the-mill assault prosecution" like Michael Crawford's, it may not be what Justice Scalia had in mind in Crawford when he referred to "politically charged cases like Raleigh's--great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear." In any event, a large part of Stewart's appeal is based on Crawford. As I understand it, the situation is this: The Government introduced against Stewart statements made by Bacanovic, her stock-broker, to the SEC. Under the Government's theory, Bacanovic and Stewart were conspirators, and the statements were made in support of the conspiracy, because Bacanovic was trying to cover it up. But the statements were certainly made in a testionial setting, and the challenged ones were offered to prove the truth of what they asserted. The case thus appears to be one of the "rare instances" to which Deputy Solicitor General Michael Dreeben referred in the argument of Crawford before the Supreme Court "in which the co-conspirators are continuing the conspiracy and speaking to law enforcement" and "those statements were coming in for the truth of the matter asserted"; in that setting, Dreeben said, the statements would be testimonial.

Stewart filed her reply brief yesterday. Walter Dellinger is her lead counsel on appeal. Oral argument, and the Second Circuit's decision, should be interesting.

Tuesday, December 21, 2004

Articles by Robert Mosteller and Thomas J. Reed on

Two new articles on Crawford have been published. One, Robert P. Mosteller, Crawford v. Washington: Encouraging and Ensuring the Confrontation of Witnesses, 39 U. Rich. L. Rev. 511 (2005) [catch that -- a law review publishing aheadof teh nominal date], provides a useful survey of many post-Crawford issues. Prof. Mosteller and I disagree on some issues, as he notes, but his main point -- that Crawfordmay and should encourage a focus not merely on the Confrontation Clause as an exclusionary rule of evidence but as a procedural requirement demanding that testimony be given subject t oadversarial testing -- is an important one with which I entirely agree.

The other article is Thomas J. Reed, Crawford v. Washington and the Irretrievable Breakdown of a Union: Separating the Confrontation Clause from the Hearsay Rule, 56 S. Car. L. Rev. 185 (2004), presents an extensive historical review of Confrontation Clause doctrine from Mattox v. United States, 146 U.S. 140 (1892), through Crawford. It notes accurately that Crawford "ratified" the failure of the "marriage" between hearsay law and the Confrontation Clause. But it proposes "a sliding scale that weighed probative value against prejudice to the accused to determine when the Confrontation Clause would block admission of hearsay in criminal prosecutions." That seems to me to have nothing to do with Crawford, or with the text of the Confrontation Clause or the concerns that prompted it.

Thursday, December 16, 2004

International Journal Issue: Perspectives on Crawford

International Commentary on Evidence has devoted its latest issue to Perspectives on Crawford v. Washington. There is an introduciton by the editors (Craig Callen, Michigan State University College of Law, and John Jackson and Sean Doran, Queen's University Belfast) , and articles giving perspectives from the U.S. (Dale Nance, Case Western Reserve University), the U.K. (Andrew Choo, Brunel University), and the European Continent (Sarah J. Summers, University of Zurich). You can get to this issue here.

Jeff Fisher's Outline of post-Crawford Cases

Jeffrey L. Fisher of Davis Wright Tremaine is the young lawyer who brought, argued, and won not only Crawford but also Blakely v. Washington, the other huge criminal procedure case of last year. Quite a distinguished career right there! As you can imagine, he has been much in demand as a speaker, and he has graciously agreed to post here the up-to-date outline of the talk he gives on Crawford. I have found this outline to be a tremendously helpful resource.

David Feige, a public defender and writer from New York, has written an excellent profile on Jeff that was published in the Los Angeles Times on December 5, and you can read it by clicking here.

I am delighted to say that Jeff is a 1997 graduate of the University of Michigan Law School. Personally, though, I can take absolutely no credit for making him the lawyer he is. He did not take any of my classes, and because -- talented though he is -- he is also modest and self-effacing, I don't believe I ever heard of him until he sent me his cert petition in Crawford in March 2003.

Tuesday, December 14, 2004

Forfeiture and dying declarations

Crawford noted accurately, n.6 and accompanying text, that there is "scant evidence" that at the time of the Sixth Amendment hearsay exceptions were invoked to admit testimonial hearsay against a criminal defendant, and that the "one deviation" involved the exception for "dying declarations," the existence of which at that time "cannot be disputed." The Court then said:
We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.
On Monday, December 13, the California Supreme Court took up this invitation and held, in People v. Monterroso, that the statement of a homicide victim describing his killer was a dying dclaration under California law and that as such it did not violate the confrontation right:
[I]f, as Crawford teaches, the confrontation clause “is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding” (Crawford, supra, 124 S.Ct. at p. 1365, citing Houser [a 19th century case], supra, 26 Mo. at pp. 433-435), it follows that the common law pedigree of the exception for dying declarations poses no conflict with the Sixth Amendment. We therefore conclude the admission of Patel’s dying declaration was not error.
The result, I believe, is appropriate. The stated rationale is unfortunate. Monterroso is, so far as I am aware, the first post-Crawford decision to hold that the dying dclaration exception takes a statement out of the confrontaiton right. Cf. State v. Nix, 2004 WL 2315035 (Ohio App. 1 Dist.) Oct. 15, 2004) (holding that admission of dying declarations made to police and others was not plain error, because it is "extremely doubtful" that the statements were testimonial [! a terrible conclusion] and because Crawford "allowed for the possibility" that testimonial dying dclarations are acceptable under the Confrontation Clause). Other courts have taken a preferable route, reaching the same result by applying the doctrine of forfeiture. See State v. Meeks, 88 P.3d 789 (Kan. 2004); People v. Moore, 2004 WL 1690247 (Col. App. July 29, 2004); People v. Giles, 19 Cal. Rptr.3d 843 (2d Dist. 2004); People v. Jiles, 18 Cal. Rptr.3d 790 (4th Dist. Sept. 16, 2004). Moreover, as I hope will become apparent below, I believe Monterroso is in fact largely guided by the forfeiture idea.

First, consider the dying declaration exception. It is so weird it is an embarrassment to evidentiary law -- and so a signal of the need for a new conceptual approach. The exception removes the hearsay bar from a statement made by a declarant explaining the cause or circumstances of what the declarant believes to be his or her impending death. Traditionally, it was applicable only in homicide cases; in the Federal Rules of Evidence version, FRE 804(b)(2), it is also applicable in a civil case. (The declarant must actually be unavailable at trial; in a homicide case this is true by definition; in a civil case, one could imagine a miraculously recovering declarant who becomes unavailable for some other reason.) So why is there an exception for such statements? The traditional rationale was endorsed not all that long ago (but in the bad old pre-Crawford days) in the majority opinion by Justice O'Connor (one of the two Justices who did not sign on to the Crawford transformation) in Idaho v. Wright, 497 U.S. 805 (1990). She said that in some cases "the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility," and this is one of them: persons making dying declarations "are highly unlikely to lie." And why is that? Quoting a 19th century British trial court opinion, she pronounced that "no person, who is immediately going into the presence of his Maker, will do so with a lie upon his lips."

Wow. Imagine the position of a defense attorney who was given a chance to travel to heaven to depose the victim who had identified the attorney's client as the murderer. Which of the following would more likely be the attorney's reaction?
(1) "Great! Now I can treat the victim as I would the victim of any assault case. I can explore whether she had a grudge against my client amd whether she was really in a position to observe who it was who struck her. And I can try to determnie whether, at the time she spoke, in extremis, her mind was clear and she was able to communicate accurately."
(2) "No need to bother. Couldn't do a thing with her. She was about to meet her Maker, so she would be highly unlikely to lie, and cross-examination would be only of marginal utility."
I think the answer is self-evident. If any readers really feel that the inability in the real world of defense attorneys to cross-examine the maker of a dying declaration is of little consequence because cross would be of marginal utility, please let me know.

Even on its own terms, the dying declaration exception makes no sense: If the fact that a declarant believes she is about to die makes her statement so good, why does the exception not apply to all such statements? Why is it limited to the cause or circumstances of the apparently impending death, and why is the type of case in which it can be used so limited? And what does this have to do with the confrontation right, anyway? Crawford makes clear that the right cannot be defeated by a judicial determination that a particular statement or type of statement is reliable. So even if belief of impending death makes a statement reliable (I wonder whether I'll treat it instead as an opportunity to speak loosely without fear of negative earthly repercussions), why does this take the statement out of the confrontation right?

Now consider forfeiture doctrine.
I explored the nature of this doctrine at some length in Confrontation and the Definition of Chutzpa, 31 Israel L. Rev. 506 (1997), cited by Meeks. (Some readers may be interested in a letter addressing various issues related to forfeiture that I wrote on November 30 to the chair of the Maryland Standing Committee on Rules of Practice and Procedure.) The basic idea is a very old one, and it has been established, for purposes of the Federal Rules of Evidence, in Rule 804(b)(6): The accused has no valid complaint based on the confrontation right or hearsay law about the use against him of a witness's statement if it was the accused's wrongful conduct that prevented the witness from testifying face to face with the accused. The wrongful conduct can take many forms -- such as kidnapping and intimidaiton -- but here we are concerned about homicide. Thus, if a witness is on her way to testify against the accused in a robbery case and the accused kills her, then the accused forfeits the confrontation right and the hearsay objection, and a prior statement made by the witness may be used against him, even though it was testimonial in nature and the accused never had an opportunity to cross-examine her.

There is no reason why forfeiture doctrine is rendered inapplicable just because the witness whom the accused renders unavailable is the victim of the crime with which the accused is charged. I believe it is further true that forfeiture applies even if the wrongful act by which the accused rendered the witness unavailable is the act for which the accused is being tried. Thus, if the accused is charged with murder, and the prosecution wants to introduce a statement made by the victim before she died, I believe it is open to the prosecution to secure admission of the statement by proving that the reason the victim is unable to testify in court is that the accused rendered her unavailable by killing her.

Two objections are often made to this application of forfeiture theory, and on close analysis I don't believe either is strong. The first and most obvious one is the bootstrapping objection: The accused is held to have foreited the confrontation right by a conclusion that he committed the very crime that is the subject of the actin and that, by hypothesis, he denies having committed. But the situation is no different from one dealt with routinely in other contexts, most notably when the prosecution in a conspiracy case offers a statement under the theory that the accused and the declarant were conspirators. The same issue comes into the case twice for two separate reasons -- once on the merits, once in determination of an evidentiary question -- but so what? It is presumably different fact-finders who determine
the issue for the two different purposes -- the jury on the merits, the judge on the threshold issue -- and there is no need for the judge to tell the jury of her determination. The standard of persuasion is different for the two decisions; the jury must determine guilt beyond a reasonable doubt, but forfeiture may be determined by a lesser standard. (Some courts apply a preponderance standard, though I think that it probably should be higher.) And the evidentiary bases for the two decisions are different; the jury hears only admissible evidence, but the judge, under FRE 104(a) and similar rules, can consider anything that is not privileged. (Indeed, for this reason I believe that, in a counterpart to Bourjaily v. United States, 483 U.S. 171 (1987), the judge ought to be able to consider the challenged statement itself in determining the forfeiture issue.)

The second objection is that the homicide presumably wasn't motivated principally, or perhaps at all, by a desire to render the victim unavailable as a witness. But again, I ask so what? The witness is unavailable for cross-examination, and the reason is that the accused has killed her wrongfully; it is fundamentally unacceptable to allow him to complain about a situation created by his wrongful conduct, and that her unavailability as a witness is not what motivated him should not matter. (Thus, I believe that FRE 804(b)(6), depends on the wrongful conduct having been intended to procure the witness's unavailability, does not go as far as it might. But forfeiture doctrine for constitutional purposes is not, of course, limited by the expression of that doctrine in the Federal Rules.) Giles, supra, an excellent and thoughtful opinion, has a good discussion leading to the same conclusion. My one quibble is that the principle is not "that no person should benefit from his own wrongful acts" -- sometimes forfeiture is not necessary to prevent such benefit, and sometimes it is not sufficient -- but rather that no person should be able to complain about the consequences of his own wrongful acts.

The dying declaration exception has not usually been explained in terms of forfeiture -- though it was so explained at least as long ago as 1847, see McDaniel v. State, 16 Miss. 401(Miss. Err. & App. 1847) ("It would be a perversion of [the Confrontation Clause's] meaning to exclude the proof, when the prisoner himself has been the guilty instrument of preventing the production of the witness, by causing his death."). State v. Houser, 26 Mo. 431, cited by Crawford and relied on by Monterroso, also seems to advert to the forfeiture idea in explaining the admissibility of dying declarations; as quoted by Monterroso, the opinion says that to exclude dying declarations because of the assertion of the confrontation right would be "abhorrent" to a "sense of justice." It is notable, in any event, that some features of the dying declaration exception that otherwise seem peculiar become much more understandable when examined through the lens of forfeiture doctrine. As suggested above, the exception is not really one for dying dclarations, though the traditional rationale, if accepted, would support such an exception. Rather, it is an exception for statements by a homicide victim on the apparent verge of death giving information about the fatal attack. Why the limitation as to declarant and subject? Because (if the defendant is in fact guilty) those limitations ensure that the accused's wrongful conduct has rendered the witness unavailable to testify at trial. Why the imminence requirement? If death really was imminent, then it probably would have been impossible to preserve the confrontation right outside of trial by taking a deposition.

Interestingly, in Monterroso itself, forfeiture doctrine would have offered a more straightforward way of admitting the evidence than did the dying dclaration exception. An officer on the scene testified "that at the time the statements were made, Patel knew he had been shot, was in great pain and on the ground in a fetal position, was fearful of dying, and never spoke again." But missing from this is any indication that Patel knew death was imminent -- and in fact it was not, for he lingered for another 11 days. It is therefore something of a stretch to apply the dying declaration exception. But if the court concludes as a preliminary matter that Monterroso shot Patel, then forfeiture presumptively follows as a matter of course. I say presumptively because there should be the issue of whether the prosecution could reasonably have arranged a deposition. Cf. R. v. Forbes, Holt 599, 171 E.R. 354 (1814) (deposition given by a dying victim; only the portion after the accused appeared held admissible). That is a judgment call, of course. Sometimes a deposition would be impractical, and given Patel's condition it may have been here (though one wonders how the officer could have testified from personal knowledge that Patel never spoke again). The dying declaration exception gives the police incentive to take statements from dying victims, but not to give suspects an opportunity to cross-examine, even when that would be feasible and morally acceptable. Properly applied, forfeiture doctrine would give police the incentive to do both.

National Law Journal article

Yesterday's issue of the National Law Journal has an article by Leonard Post called Prosecutors feel broad wake of 'Crawford'. Particularly interesing is the comment of one prosecutor to the effect that social workers, child psychiatrists, and M.D.s must be used as stand-ins for prosecutors and law enforcement officers.

Friday, December 10, 2004

Recent Developments Concerning Excited Utterances

One of the areas in which Crawford clearly has a large potential impact is that of statements that are characterized as excited utterances or spontaneous declarations – typically, 911 calls and statements to responding officers. Under the pre-Crawford regime of Ohio v. Roberts, 448 U.S. 56 (1980), if a statement was considered an excited utterance then it fit within a “firmly rooted” hearsay exception and the Confrontation Clause posed no obstacle to its admission, without regard to whether the declarant testified at trial or was available to do so. Prosecutors, especially in domestic violence cases, frequently took advantage of this doctrine and were allowed to introduce these statements – sometimes without putting the declarant on the stand at trial or accounting for failure to do so, and sometimes, when the declarant did testify at trial, in contravention of her testimony. Bridget McCormack and I wrote about this phenomenon in Dial-In Testimony, 150 U.Pa. L. Rev. 1171 (2002).

Crawford changes the landscape dramatically. If a statement is deemed to be testimonial, then the accused has an unequivocal right to prevent admission of the statement unless he has had an opportunity to cross-examine the witness and the witness is unavailable. The fact that a statement fits within a given exception to the rule against hearsay does not alter its status so far as the confrontation right is concerned. Of course, it might be that most statements that fit within certain exceptions – such as business records – are not testimonial. But the confrontation question is not whether the statement fits within an exception; it is whether the statement is testimonial. Although Crawford declined to provide a comprehensive definition of “testimonial,” it gave a strong hint in footnote 8 of how its doctrine would apply in the context of spontaneous declarations. The Court noted that White v. Illinois, 502 U.S. 346 (1992), which had approved the admission of statements as spontaneous declarations, was "[o]ne case [it cited no others] arguably in tension with the rule requiring a prior opportunity for cross-examination when the proffered statement is testimonial." The Court then explained:
It is questionable whether testimonial statements would ever have been admissible on that ground [i.e., as spontaneous declarations] in 1791; to the extent the hearsay exception for spontaneous declarations existed at all, it required that the statements be made "immediat[ely] upon the hurt received, and before [the declarant] had time to devise or contrive any thing for her own advantage." Thompson v. Trevanion, Skin. 402, 90 Eng. Rep. 179 (K.B.1694).
This historical assertion is correct. In Dial-In Testimony, we show how tightly confined the exception was even well into the latter half of the nineteenth century.

Nevertheless, some post-Crawford courts have acted as if Crawford could not have changed anything very much in this area, and that characterizing a statement as an excited utterance is still tantamount to determining that it poses no confrontation problem; the way they do this, of course, is by holding that such statements are not testimonial. The most notorious case is probably People v. Moscat, decided by a judge of the Bronx Criminal Court on March 25 and appearing to adopt a virtual per se rule that 911 calls are not testimonial. It is now apparent that this decision was a bit of judicial grandstanding, an attempt to write a quick, broad, and attention-getting opinion -- even though the facts assumed by the judge were far different from reality, and the actual facts show the danger of such general categorizations. (The caller was not the victim, and the call was made several hours after the incident.) See Sabrina Tavernise, Legal Precedent Doesn't Let Facts Stand in the Way, N.Y. Times, Nov. 26, 2004, p. A1. Nevertheless, many courts around the country have cited Moscat approvingly, and some have even extended its rationale to statements made to officers responding to 911 calls. E.g., People v. Aubrey, 2004 WL 2378400 (Cal.App. 4 Dist. Oct. 25, 2004).

These are bad decisions. They are based in part on the apparent, and mistaken, perception that only statements made formally can be deemed testimonial. Decisions attempting to render all 911 calls non-testimonial paint with far too broad a brush. And decisions treating statements to responding officers as non-testimonial reach a result that on its face should be plainly unacceptable. A full argument supporting these conclusons may be found in Dial-In Testimony, and I hope to present it in a series of posts over coming weeks -- on the general meaning of "testimonial," on why formality should not be required for a statement to be deemed testimonial, and why a statement should in some circumstances be deemed testimonial even in the absence of police interrogation or other governmental involvement in its creation. For now, though, I will present some developments that suggest greater judicial understanding of the situation.

More recently there seems to be growing recognition by courts that 911 calls are often testimonial and that statements made in person to officers who respond to those calls are almost inevitably testimonial. The decision in State v. Powers, 99 P.3d 1262 (Wash. App. Div. 2 2004), is very useful. That is hardly a surprising conclusion for me to draw, because the opinion quotes extensively, and approvingly, from the Dial-In Testimony article cited above. Without much hesitation or embarrassment, I will quote the opinion quoting our article; these passges express my views, of course, and I hope that judicial endorsement of those views will make them more widely accepted. Actually, what I am going to present here, for sake of completeness, is a little more than what the court quoted; the portions in italics were not quoted in the Powers opinion (and footnotes are omitted).
Now consider statements made in 911 calls and to responding police officers. A reasonable person knows she is speaking to officialdom--either police officers or agents whose regular employment calls on them to pass information on to law enforcement, from whom it may go to the prosecutorial authorities. The caller's statements may therefore serve either or both of two primary objectives--to gain immediate official assistance in ending or relieving an exigent, perhaps dangerous, situation, and to provide information to aid investigation and possible prosecution related to that situation. In occasional cases, the first objective may dominate--the statement is little more than a cry for help--and such statements may be considered nontestimonial, at least to the extent that they are not offered to prove the truth of what they assert. But ... these statements are often more detailed, providing significant information that the police do not need for immediate intervention but that may be useful to the criminal justice system. A reasonable person in the position of the declarant would realize that such information would likely be used in a criminal investigation or prosecution. Accordingly, such a statement should be considered testimonial, and the confrontation right should apply to it.
The more the statement narrates events, rather than merely asking for help, the more likely it is to be considered testimonial.

Thus, if any significant time has passed since the events it describes, the statement is probably testimonial. When, as is often the case, the 911 call consists largely of a series of questions by the operator, and responses by the caller, concerning not only the current incident but the history of the relationship, the caller's statements should be considered testimonial. When O.J. Simpson called 911 to report an assault by his girlfriend, his call was testimonial, not a plea for urgent protection.

Often, of course, a 911 call is such a plea. Even in this type of situation, a court should closely scrutinize the call. To the extent the call itself is part of the incident being tried, the fact of the call presumably should be admitted so the prosecution can present a coherent story about the incident. But even in that situation, the need to present a coherent story does not necessarily justify admitting the contents of the call. And even if the circumstances do warrant allowing the prosecution to prove the contents of the call, those contents generally should not be admitted to prove the truth of what they assert. If the contents of the call are probative on some ground other than to prove the truth of the caller's report of what has happened, then admissibility should be limited to such other ground. To the extent that the contents of the call are significant only as the caller's report of what has happened, such a report usually should be considered testimonial.
Richard Friedman & Bridget McCormack, Dial-In Testimony, 150 U. PA. L. REV. 1171, 1242-43 (2002).
Powers, 99 P.3d at 1265.

After reviewing the transcript of the 911 call at issue, the Powers court concluded, 99 P.3d at 1266:
We reject the State's request for a bright line rule admitting all 911 recordings because such a rule would likely result in the vice Crawford seeks to redress: A "capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude." 124 S.Ct. at 1371. Instead, we hold that the trial court, on a case-by-case basis, can best assess the proposed admission of a 911 recording as testimonial or nontestimonial and whether the statement originates from interrogation. Despite the seriousness of Powers' alleged conduct, T.P.'s call was not "part of the criminal incident itself" or a request for help entitling the State to prove their case without affording Powers the opportunity to cross-examine T.P., the right Crawford protects. Moscat, 777 N.Y.S.2d at 880. Instead, the record shows that T.P. called 911 to report Power's violation of the existing protective order and described Powers to assist in his apprehension and prosecution, rather than to protect herself or her child from his return. Thus, under Crawford, her statements were "testimonial" and were erroneously admitted at trial when she became unavailable.
See also People v. Lee, 2004 WL 2698879 (Cal. App. 2d Dist. Nov. 29, 2004) (rejecting Moscatand one of its follow-on cases, State v. Forrest, 596 S.E.2d 22 (N.C.2004): "Crawford sets forth a broad objective standard to determine if statements are testimonial. A court must decide if they '... were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. ([124 S.Ct. at p. 1364.) Some 911 calls fall within that definition. (See, e.g., [Cal. Penal Code] § 653x, subd. (a) [prohibiting 911 calls made 'with the intent to annoy or harass another person']").

Other recent cases have held that statements to responding police officers are testimonial, notwithstanding characterizations of them as excited utterances. See, e.g., Lopez v. State, 2004 WL 2600408 (Fla. App. Nov. 17, 2004) ("In this situation, the statement does not lose its character as a testimonial statement merely because the declarant was excited at the time it was made"; the declarant "knew that [the audience of the statement] was a policeman who was on the scene in an official capacity to investigate a reported crime."). And, very significantly, the California and Indiana Supreme Courts have both granted review of cases in which appellate courts had concluded that statements made to investigating officers in the field and characterized as excited utterances or spontaneous declarations were not testimonial. People v. Cage, 120 Cal.App.4th 770, 15 Cal.Rptr.3d 846 (Cal. App. 4th Dist. Jul. 15, 2004) (treating statement as non-testimonial because of lack of formality), review granted and opinion superseded, 99 P.3d 2, 19 Cal. Rptr. 3d 824, Oct. 13, 2004; Hammon v. State, 809 N.E.2d 945 (Ind. App. June 14, 2004) ("We . . . hold that when police arrive at the scene of an incident in response to a request for assistance and begin informally questioning those nearby immediately thereafter in order to determine what has happened, statements given in response thereto are not 'testimonial.' . . . We further note that the very concept of an 'excited utterance' is such that it is difficult to perceive how such a statement could ever be 'testimonial.'"), transfer granted Dec. 10, 2004; Fowler v. State, 809 N.E.2d 860 (Ind. App. June 14, 2004) (same court, same day, same language as Hammon), transfer granted Dec. 10, 2004. Predictions are hazardous, of course -- at the same time as it granted review of Cage, the California Supreme Court granted review of a decision, People v. Adams, 16 Cal. Rptr.3d 237, 120 Cal. App.4th 1065, effectively invalidating the notorious California Evidence Code § 1370 , which seems to have been designed precisely to allow admission of unconfronted testimonial statements (more on that, perhaps, in an other post) -- but it is at least encouraging that these state supreme courts are taking a hard look at appellate decisions that would effectively allow witnesses to testify informally to responding officers.

Thursday, December 09, 2004

Another bad decision from Michigan

A really terrible opinion from my home state of Michigan (not the first in this area) is People v. Bechtol, 2004 WL 2726076 (Mich.App. Nov. 30, 2004), mercifully unpublished.

The case involved home invasion, kidnapping, and murder charges. The prosecution theory apparently was that Bechtol and another had invaded the victim’s home once in an attempt to kidnap her and then two days later came back, kidnapped her, and murdered her. The prosecution introduced evidence of a statement made by the victim, between the two incidents, to police investigating the initial home invasion. The appellate court rejected the confrontaiton argument quite summarily:

[Beginning of quotation]
Crawford held that for testimonial evidence to be admissible at trial, the Sixth Amendment demands that the declarant be unavailable and that the defendant have had "a prior opportunity for cross-examination" of the declarant. Id. at 1374. While the Court decided to "leave for another day any effort to spell out a comprehensive definition of 'testimonial[,]" ' the Court did indicate that "it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id.
The only exemplar on this list that arguably applies is the last--police interrogations. Clearly, the victim is unavailable. We conclude, however, that the victim's statement to the police officer was not the product of a structured police interrogation. Thus, the rule of Crawford does not apply.
[End of quotation]

The "logic" appears to be:

1. “Testimonial” under Crawford includes at a minimum interrogation and other entries on a given list.

2. Interrogation includes at a minimum structured questioning. [Crawford certainly doesn’t imply that structured questioning is a prerequisite for an exchange to be deemed interrogation (assuming that has any significance); it says that the statement in the case itself, in response to structured questioning, qualifies “under any conceivable definition.”]

3. This wasn't in response to structured questioning.

4. "Thus," the statement isn’t testimonial under Crawford.

The decision stands in stark contrast to the decision of the Sixth Circuit -- the circuit governing Michigan -- in Cromer, on which I've sent a post earlier and which takes the (correct, in my view) position that a statement can be testimonial even if it was not made in response to governmental interrogation and even if it was not made to government officials at all. Indeed, the contrast is sufficiently stark that one might suppose the Bechtol decision will be nullified on habeas, if not on direct appeal -- except that the Bechtol court says that if admission of the statement was a violation of the confrontation right the error was harmless. The harmless-error issue may prevent another court from getting to the merits of this very bad and illogical ruling.

United States v. Cromer -- an important case from the 6th Circuit

One of the most important post-Crawford cases is U.S. v. Cromer, 2004 WL 2711130 (6th Cir. Nov. 29, 2004). I was thinking of writing a post on it, but Andrew Fine of the Legal Aid Society in New York wrote such a good and extensive message on it to his colleagues the day after the decision came down that, with his permission, I am posting that instead. I will add a brief comment at the end.

Andrew Fine's message

US v. Cromer, 6th Circuit, decided yesterday (11/30); 2004 WL 2711130. This is the most important post-Crawford opinion yet.

The panel unanimously accepted Prof. Friedman's definition of testimonial hearsay (any statement "made in circumstances in which a reasonable person would realize that it likely would be used in investigation and prosecution of a crime;" court quotes directly from Dial-In Testimony). It examined and squarely rejected the more restrictive definition including only "formalized statements ... made directly to the authorities," that was initially proposed by Prof. Akhil Amar, was listed as a possible test in Crawford, and has been latched onto by many post-Crawford courts. Prof. Friedman's broader standard, the court held, is "necessary to ensure that the adjudicative system does not effectively invite witnesses to testify in informal ways that avoid confrontation" (quoting directly from Prof. Friedman's Georgetown Law Journal article that was approvingly cited in Crawford). Explaining further, the court continued,

"We are unable to discern how the greater formalities identified by Professor Amar are necessary components of a testimonial statement. Indeed, the danger to a defendant might well be greater if the statement introduced at trial, without a right of confrontation, is a statement volunteered to police rather than a statement elicited through formalized police interrogation. One can imagine the temptation that someone who bears a grudge might have to volunteer to police, truthfully or not, information of the commission of a crime, especially when that person is assured he will not be subject to confrontation. Professor Friedman's concern becomes especially meaningful in such a context. If the judicial system only requires cross-examination when someone has formally served as a witness against a defendant, then witnesses and those who deal with them will have every incentive to ensure that testimony is given informally."

Needless to say, application of this test would result in many 911 calls, and nearly every on-the-scene police interview, being testimonial. The court also approvingly quoted Prof. Friedman's generalized views that a statement made knowingly to the authorities is almost always testimonial, and a statement made by a person claiming to be a crime victim and describing the crime is usually testimonial, "whether made to the authorities or not."

The factual context of the decision makes it even more useful. At issue was police testimony on direct examination, in a drug case, that their investigation had focused on "Nut," whom they learned was the defendant, and further testimony on redirect that the source of their investigation had been a nontestifying informant who had provided a description matching defendant. This testimony was not objected to, and, in fact, the contents of the informant's description were aggressively explored by the defense on cross-examination of the officer. On appeal, the prosecution argued that (1) the informant's statements to the officer were not testimonial; (2) even assuming that the statements were testimonial, (a) they were not being offered for their truth, but to explain why the investigation had been undertaken, and (b) the defense cross opened the door to the statements testified to on redirect. The Sixth Circuit rejected all claims.

The court ruled that "statements of a confidential informant are testimonial" under Prof. Friedman's standard"Tips provided by confidential informants are knowingly and purposely made to authorities, accuse someone of a crime, and often are used against the accused at trial. The very fact that the informant is confidential * i.e., that not even his identity is disclosed to the defendant * heightens the dangers involved in allowing a declarant to bear testimony without confrontation. The allowance of anonymous accusations of crime without any opportunity for cross-examination would make a mockery of the Confrontation Clause."

Regarding the government's background claim, the court ruled that the direct testimony "implicated Cromer in a way that went 'to the very heart of the prosecutor's case,'" and did not convey any useful information regarding the police investigation; moreover, "there was no dispute as to the subjects of the government's investigation or the reason those subjects were believed to be involved." Therefore, "the purpose of this testimony was to establish the truth of the matter assertedto prove that Cromer was, indeed, involved in the illegal activity." Similarly, the testimony on redirect providing the informant's description had no usefulness other than to establish its truth"that Cromer, who met the description, had participated in the illegal activity."

The court acknowledged that "[a]s a matter of modern evidence law, the district court may well have been correct in admitting [the] redirect testimony about the description since Cromer, on cross-examination, had opened the door to the subject by asking about that description." Nevertheless, the court concluded, the door-opening rationale is trumped by the Confrontation Clause""The pertinent question ... is not whether the [informant's] statements were properly admitted pursuant to 'the law of Evidence for the time being' [quoting from Crawford]. Rather, the relevant inquiry is whether Cromer's right to confront the witnesses against him was violated by [the cop's] redirect testimony. If there is one theme to emerge from Crawford, it is that the Confrontation Clause confers a powerful and fundamental right that is no longer subsumed by the evidentiary rules governing the admission of hearsay statements. Thus, the mere fact that Cromer may have opened the door ... is not sufficient to erase the violation." Only forfeiture by misconduct * defendant improperly procuring the unavailability of the witness * can waive a Crawford claim, the court said. "A foolish strategic decision does not rise to the level of such misconduct and so will not cause defendant to forfeit his rights under the Confrontation Clause."

Obviously, the door-opening portion of this opinion is radical and unlikely to be accepted widely. It should be taken into account, however, when evaluating whether to brief a Crawford claim with a door-opening problem. The opinion's conclusions regarding police background are persuasive and extremely useful, in this context and others, though there is also very good 2d Circuit (pre-Crawford) caselaw on this subject.

Comment by Friedman

I am, of course, delighted on the whole by this opinion, and I hope it gets widespread attention among lawyers litigating Crawford issues; indeed, that hope gave me the idea of this blog. I do want to disassociate myself from one point, however. I have not thought seriously about the door-opening issue in the case. But to the extent that the court relies on me for authority on this issue, I believe the reliance is misplaced. It may be that forfeiture of the confrontation right occurs only when the accused's wrongdoing prevents the witness from testifying subject to cross-examination, but I do not believe I have ever said, and I certainly do not believe, that forfeiture is the only way that the accused may give up the confrontation right. The accused may waive it, for example. It seems to me at least plausible that there are circumstances in which a litigation choice by the accused might create such a misleading impression if the prior testimonial statement were not introduced that the accused should be deemed, consistent with the Confrontation Clause, to have opened the door to admitting the statement. Whether that was so in Cromer itself I have no idea.

Introduction -- and an interesting development from the Supreme Court

Welcome to The Confrontation Blog. There have been so many developments related to Crawford v. Washington, 541 U.S. 36 (2004), and I am so intensely interested in the subject matter, that I have decided to start this blog in hopes of facilitating understanding and communication on the topic. I will make postings as often as I am able and as devlopments warrant. I will not attempt to go back through all of the important developments in the nine months since the Crawford decision, but as time allows I will add postings on some of them.

As a starter, note that on Monday, in Siler v. Ohio, 2004 WL 2339821, the Supreme Court granted certiorari, vacated, and remanded the case to the Court of Appeals of Ohio, Ashland County, for reconsideration in light of Crawford. The chronology is interesting and potentially significant here. The Court of Appeals issued its decision, 2003 WL 22429053, in OCtober 2003. The Ohio Supreme Court denied review on March 24, with one dissent on the hearsay-confrontation issue; presumably Crawford was not presented to that court. There was then a petition for reconsideration -- presumably in light of Crawford, which had been decided on March 8 -- and this was denied in May. It thus appears that the Ohio Supreme Court believed that the case did not warrant further consideration in light of Crawford -- and the Supreme Court of the United States has decided that yes it does.

The case makes for unpleasant reading. Siler is accused of murdering his wife by hanging. Crucial evidence against him was the report of statements made to a police officer by the couple's three-year-old son, after extended and sometimes leading questioning, to the effect that he had seen his father put a rope around his mother's neck. The child did not tesitfy at trial. The court of appeals concluded that the statement was admissible under the excited utterance exception to the hearsay rule, notwithstanding the passage of several hours. Under Crawford, that conclusion, however sound or unsound as a matter of evidence law, has no significance. The question is whether the statement was testimonial; if it was, there is clearly a confrontaiton violation. Had the statement been made by an adult in similar circumstances, I believe it would certainly have been testimonial. The only significant issue, therefore, is whether a different result is called for because the statement was made by a very young child. That is an interesting and to my mind difficult question, but so far the post-Crawford courts seem to be pretty much in accord that the age of a child declarant should not be taken into account in determining whether the statement is testimonial; essentially, they take a "reasonable adult" perspective. In that view, there is a clear violation.