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.


Paul Vinegrad said...

Rich, any comments you could offer on the specific points on which you and Prof. Mosteller disagree would be enlightening. I noted the points of disgreement in the article. However, it would interesting to read further comment (1) why you believe your position is more sound, in a constitutional (and practical) sense; and (2) on whose position (given the current makeup of the Court)is more likely to be the path the Court takes in the future?

I agree, Tom Reed's proposal (to determine the constitutional issue via balancing probative vs. prejudicial -- a routine evidence law exercise) is unlikely to garner any support with any court.


Richard D. Friedman said...

I appreciate Paul's invitaiton to elaborate on differences between Bob Mosteller and me; I have been too busy to comply, and now I am about to go on vacation. I will try to do so before too long! In the interim, I am delighted to post this thoughtful comment by Andrew Fine:

A comparison between Prof. Mosteller’s approach and Prof. Friedman’s published views regarding the all-important issue of how broadly to interpret the term “testimonial” might be a good way to start a policy discussion here, and to evaluate the differential impact on everyday trial practice that would result from a broad, or a narrow, construction of the term.

Like Prof. Friedman, Prof. Mosteller rejects the most restrictive definition offered by the Supreme Court, that would limit its application to statements contained in “formalized” materials. He also agrees with Prof. Friedman that a statement is testimonial when made under circumstances that would lead an objective witness reasonably to believe that it would be available for prosecutorial use, and that under such circumstances, it is immaterial whether the statement is elicited by a government agent or is volunteered by the declarant. However, though Prof. Friedman has written that the intent of a government agent eliciting the statement is generally irrelevant, and that, unless agents are “disguis[ing] their intent gratuitously ... for the purpose of defeating the confrontation right,” the declarant’s non-testimonial state of mind should control even if the government agent has actively solicited the statement for its evidentiary use, Friedman, Adjusting to Crawford: High Court Decision Restores Confrontation Clause Protection, 19 Crim. Just. 4, 9 (Summer, 2004), Prof. Mosteller believes that “the intent of government agents also matters.” 39 U. Rich. L. Rev. at 519 n. 35. Under his view, “when a government officer receives the statement, the perspectives of both the witness and the government officer should matter, and if from the reasonable perspective of either person the statement is clearly for a testimonial purpose, it should be covered by Crawford.” Id. at 572.

Although there are more similarities than differences between Prof. Friedman’s and Prof. Mosteller’s formulations, if the Supreme Court ultimately chooses between them, which one they select will make a significant difference in how radical Crawford’s impact will be. [Of course, it goes without saying that if the most restrictive definition is chosen, the impact will be considerably less profound.] For example, as Prof. Friedman’s discussion of case law on this blog shows, it is already apparent that many courts are eager to conclude that statements made during 911 calls and in response to police follow-up interviews are not testimonial, in part on the ground that the declarant’s motivation was to seek immediate aid rather than to provide the police with evidence that could be used in court. It would be far more difficult to justify this conclusion if the court is additionally required to examine the perspective of the police officer or 911 operator who elicited the statements; it cannot be denied that, at least in part, they are motivated by a desire to make an arrest and assist in prosecuting the arrestee. Similarly, judges may be reluctant to conclude that a very young child informing a police officer, prosecutor, or therapist that she has been sexually abused is capable of understanding that her statements may be used to prosecute the person she has accused. But the government agent eliciting this information is doing so precisely for that purpose. See John F. Yetter, Wrestling With Crawford v. Washington and the New Constitutional Law of Confrontation, 78 Fla. B.J. 26, 29 (Oct. 2004) (under the “declarant-centric” approach, “there are probably many testimonial statements that would not be covered by this formula, particularly those made by children who have not the slightest glimmer of later evidentiary use”). Moreover, the Crawford opinion’s focus on “the involvement of government officers in the production of testimony with an eye toward trial,” 124 S.Ct. at 1367 n. 7, suggests that the Supreme Court may be receptive to an interpretation of “testimonial” in which the motivation of government officials who elicit statements plays some role.

On the other hand, the Supreme Court seemingly excluded “statements in furtherance of a conspiracy” from its universe of testimonial statements, 124 S.Ct. at 1367, which would suggest that a theory that would embrace all statements elicited by government agents for a prosecutorial purpose would not be acceptable. Prof. Mosteller points out, however, that such statements “are actually not hearsay because they constitute verbal acts that advance and form part of the crime.” 39 U. Rich. L. Rev. at 548-549. See Crawford, 124 S.Ct. at 1369 n. 9 (“the Clause ... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted”).

Prof. Friedman has recently suggested a standard that takes into account the expectation of the government official [or private person] receiving a statement, but would not compromise his belief that the motivation of the declarant – who is, after all, the “witness” giving the alleged “testimony” – should be paramount. It would also be consistent with the Crawford opinion’s exclusion of “statements in furtherance of a conspiracy.” He advocates the third standard quoted by the Supreme Court: “statements that 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 1364, but suggests that a statement should also be viewed as testimonial if “[b]efore the statement is made, a recipient of the statement anticipates evidentiary use of the statement, but does not inform the declarant of this anticipation, and (2) the prosecution does not demonstrate that disclosure of anticipation of evidentiary use would have substantially diminished the probability that the declarant would have made the statement.” Friedman, The Confrontation Clause Re-Rooted and Transformed, 2004 Cato Sup. Ct. Rev. 439, 458-459. This would encourage the investigator to disclose his prosecutorial activity to the declarant, if the investigator believes that he could obtain a statement from the declarant anyway. Id. at 459. But it would not transform a reluctant observer or victim into an unwilling “witness” if knowledge of the investigator’s purpose would have inhibited her from speaking. Prof. Friedman’s only hesitation regarding this proposal is that he believes that “it may be too complicated to be applied satisfactorily.” Id.

I’d be extremely interested to read peoples’ viewpoints (obviously including Prof. Friedman’s) on how broadly “testimonial” should be construed and why, the advantages and disadvantages of a “declarant-centric” approach, the significance of the recipient’s motive, and predictions as to how the Supreme Court may ultimately resolve this issue. For example, is there any indication in Crawford that Scalia and Thomas may have backed away from the narrow approach advocated by Thomas (with whom Scalia joined) in White v. Illinois, 502 U.S. 346, 365? If not, what are the chances that the remaining 5 justices in the Crawford majority will adopt a more expansive view?

Paul Vinegrad said...

Andrew, I don't have his article in front of me, however, I believe Prof. Mosteller doesn't embrace the "objective witness" formulation. Also, he would interpret the forfeiture doctrine much more narrowly than would Prof. Friedman.

When all is said and done, and all of Crawford's "clues" are interpreted, isn't it fair to conclude that seven justices (and probably the two concurring justices, now that the Crawford train is on the tracks) are most likely to interpret the term "testimonial" quite narrowly, tethering it to some concept of "government action" while also focusing in on the purpose for which the statement was made?

Wouldn't such narrow interpretation be consistent with a hesitency on the part of the Court to unduly expand the common sense meaning of the term "witness" -- as someone who testifies as a live witness at a government run proceeding?

Sure, the Court has extended the meaning of that term to include a limited class of hearsay declarants (i.e. those who statements are the functional equivalent of testifying in court at a government run proceeding), but at this juncture, isn't it really a pie in the sky hope that the Court will switch gears and embark upon the path suggested by either Prof. Mosteller or Prof. Friedman?

Indeed, Prof. Mosteller admits that many of his proposals (many of which were set forth before the Court even adopted the testimonial approach) are "controversial," in light Crawford's language. Likewise, I don't want to speak for him, but I believe Prof. Friedman would in all candor have to concede that it is very unlikely that a majority of the Court would utilize the "objective witness" standard, even in it's recently modified form.

It seems to me as though the Court is very unlikely to adopt the broad, amorphous, and eaisily manipulated, "objective witness" standard. Shouldn't that point be conceeded so that the academic discussion can begin to focus more pointedly upon just how narrow the Court's ultimate definition of "testimonial" will (or should) be, and just how bright the Court's ultimate bright-line test will (or should) be?

Paul Vinegrad

Richard D. Friedman said...

I'm on vacation and haven't had a chance to respond to Paul's comment. I will say that I don't think that the objective standard is pie-in-the-sky (before Crawford many poele thought the testimonial approach was pie-in- the-sky) or particularly amorphous, and in future posts I hope to explain why I think it is the best one, certainly among the three recited by the Supreme Court; I do understand why prosecutors don't like it, because it gives teeth to Crawford. In any event, the following is a comment by Andrew Fine, who has had trouble posting to the blog:

I think that it’s far too early in the post-Crawford era to “concede” that the Supreme Court is likely to interpret the term testimonial “quite narrowly.” The vast majority of opinions addressing Crawford thus far have been at the trial-court or intermediate appellate level; aside from the Sixth Circuit in Cromer – which construed “testimonial” very broadly – very few higher-level tribunals have analyzed it comprehensively. I think it’s important for advocates and commentators, at this embryonic juncture, to provide persuasive justifications for the approaches that they favor, without regard to how “broad” or “narrow” their construction of “testimonial” may appear to be. A vigorous scholarly debate is likely to provide courts with more enlightenment if it is not constrained by a sense that the Court will eventually choose a “narrow” or “practical” course.
I don’t see any evidence in the opinion itself that the Court is likely to interpret “testimonial” narrowly. If anything, the Court’s refusal to limit itself to the Thomas/Scalia proposal in White, and its intimation in fn. 8 that many excited utterances may well be testimonial, suggest otherwise. I think that it should be kept in mind that Crawford, while more faithful to the founders’ view of confrontation, is radical in the extent of its analytical departure from precedent. It’s unsafe and unsound to predict with confidence that a radical decision will be interpreted narrowly. Many people made that mistake regarding Apprendi [v. New Jersey, 530 US 466 (2000)]. Only those who did not comprehend the scope of Apprendi’s radicalism, or believed that the Court was unaware of the ramifications of its holding, were particularly surprised when the Court applied that holding to invalidate guidelines sentencing schemes in Blakely [v. Washington, 124 S.Ct. 2531.]
Certainly, there is nothing in Crawford to suggest that the Court will eventually constrain itself by the “common sense meaning” of the term “witness” as someone who “testifies ... at a government run proceeding.” As the opinion declares, “the view that the Confrontation Clause applies of its own force only to in-court testimony” has been rejected by the Court for many years. 124 S.Ct. at 1364. In fact, Roberts rejected that viewpoint even more fundamentally than does Crawford: Roberts subjected all hearsay from non-testifying declarants to Confrontation Clause scrutiny, “testimonial” or not, allowing it only if it fell within a firmly-rooted exception or was otherwise found to be reliable.
Paul Vinegrad is correct that, at least with regard to young children, Prof. Mosteller believes that an accusatory statement should be considered testimonial regardless of whether she is “appreciative of the use that will be made of the evidence,” 39 U. Rich. L. Rev. at 593, at least if the child is competent to testify. See id. at 597-599. The issue of whether, under a declarant-centric approach to “testimonial,” the declarant’s state of mind or an “objective witness’s” state of mind should control, needs to be explored more fully.

Brooks said...
This comment has been removed by a blog administrator.
Paul Vinegrad said...

Brooks asks whether I believe the result in People v. Jimenez 2004 WL 1832719 is "correct" under Crawford.

The Jimenez court held that a spontaneous statement by a robbery victim to a police officer was "not the result of an 'interrogation' since there was no formal questioning or obtaining of an official satement by either [officer]. In fact, [because the victim] did most of the talking without any need for being questioned."

To the extent that Crawford can be read to define "testimonial" by reference to, inter alia, FORMAL government action in obtaining the statement (a fair reading of Crawford in my opinion), the result in Jimenez is "correct."

Brooks also asks whether the Jimenez result is "fair." If Brooks is using the term "fair" in the context of due process notions of "fairness," I am not offended by the introduction of the victim's seemingly reliable and trustworthy accusatory statement.

Defense counsel, despite not being able to cross-examine the victim in court, is still free to impeach the credibility of the hearsay declarant victim by any means that he could have used if the victim had testified at the trial. (See FRE 806 and California Evidence Code 1202.) In fact, the defendant may be better off without the victim there in court to explain and/or deny any such impeaching material. In addition, my experiance as a prosecutor over the last two decades has reinforced my belief in the intelligence of jurors -- jurors who will give the appropriate weight to the victim's un-cross-examined (yet, presumably impeached, if there is any such impeachment evidence)accusatory statement.

As an aside, although the California Supreme Court denied a petition for review in Jimenez, the court did so "without prejudice" to Jimenez depending upon the court's decision in People v. Cage -- a case where the California Supreme Court most likely will have to "confront" the meaning of the term "testimonial" as used in Crawford.


Brooks said...

A long reply post, but I suppose blogs are the place for self-indulgent missives:

Paul’s post mirrors the many “This has been fun folks, but let’s get real” comments I’ve heard prosecutors lodge in the months since Crawford was decided. And, of course, it’s quite possible that the Supreme Court will take a narrow approach to testimonial hearsay that will leave much of evidence law unchanged in day-to-day criminal practice. But, I don’t know that Crawford makes this conclusion quite as obvious, or necessary, as Paul seems to suggest.

While Thomas and Scalia appear to have embraced a narrow, formal view of testimonial statements in the past, both also seem wedded to historical analysis in this area, as Crawford makes clear. Footnote 8 thus raises serious doubts about the viability of the modern excited utterance, perhaps the primary evidentiary vehicle for admitting non-testifying witness statements to the police. And, on a more general level, I have a hard time imagining that the Framers, and thus Scalia and Thomas, would feel terribly comfortable with a trial where the prosecutor stands in summation and says, “The defendant is guilty because Office Jones told you that Ms. Smith told him that the defendant assaulted her.” (One might want to read Thomas’ dissent in City of Indianapolis v. Edmond—Although a 4th Amendment case, Thomas’ willingness to question seemingly well-accepted modern police investigative practices due to his perception of what the Framers may have thought of them may play a role here). The fact that such an accusatory hearsay statement may have been taken on the street and jotted short hand into a memo book instead of at the precinct and video-recorded doesn’t seem like distinction that alters the bottom line fact: the defendant could not cross-examine his accuser. This bottom line is reflected in Crawford’s central concern with formal accusations made to the government. The requisite “formality” comes not from the location of the Q&A, the leading versus open-ended questions, the witness’ level of excitement, or the video camera recording the statement, but from the foreseeable, if not mandated, law enforcement response to such a first-hand accusation of crime. Indeed, modern police practices, where the 911 call and the initial police response to it may represent the entire pre-charge criminal investigation, highlight the “formal” nature of many such accusations regardless of their attendant circumstances. And, Scalia in Crawford seemed quite willing to apply the confrontation clause’ historical purpose through the filter of modern police practices. (Perhaps Paul could share his views on People v. Jimenez, 2004 WL 1832719 [Ca. Ct. App. 2004], and whether this decision is a correct and fair result under Crawford?)

All of which makes me think of Prof. Mosteller’s suggestion of focusing on “accusatory” hearsay as the core confrontation concern more than “testimonial” hearsay. If a non-testifying witness’ hearsay statement is the central accusation for which the defendant is standing trial, who cares how “formal” the attendant circumstances were surrounding its making, so long as the defendant’s having to answer for it in a court of law is fairly foreseeable? To me, this objective forseeability should take into account all the facts producing the accusation, and not just the vantage point of one player or another—first and foremost the source, substance and recipient of the accusation (e.g. “Officer, I identify John Doe as having assaulted me” vs. “Hello police, I’d like to remain anonymous, but I just heard gunshots and a guy with X-description running from the scene” vs. statements to private parties), but also the witness’ understanding in making the accusation, the goals of the police in taking it, and any relevant surrounding facts affecting its production or likely use. See e.g., People v. Watson, 2004 WL 2567124 (Sup. Ct. N.Y. Co., Nov. 8, 2004). If the totality of circumstances demonstrate that the subject of the accusation likely would have to answer for it, Crawford should apply when the defendant ultimately is held to answer for it. Rich may recall that I attempted (or perhaps equally struggled) to suggest this point at a recent NYC Bar Association seminar.

Also, just to get a little crazy here, why does the framework for who constitutes a “witness” for confrontation purposes start and end with the circumstances surrounding an out-of-court declaration? Paul writes that the emphasis should be on whether the out-of-court declaration is the “functional equivalent of testifying in court at a government run proceeding.” But, my understanding of evidence law always has been that once a non-testifying declarant’s out-of-court statement is admitted for its truth, that declarant effectively becomes a witness, just one who can’t be cross-examined. Fed. Rule 806 reflects this understanding, with the first sentence of the Advisory Committee Notes reading: “The declarant of a hearsay statement which is admitted in evidence is in effect a witness.” If so, perhaps there’s your ‘testimony in court at a government run proceeding’ invoking confrontation procedural concerns? I don’t mean to suggest that every piece of hearsay in a criminal trial should be governed by Crawford, but why shouldn’t a truly accusatory non-testifying hearsay declarant be viewed as a witness against the accused for confrontation purposes when her accusation is admitted at trial in an effort to convict the defendant? Couldn’t get more bright line than that …

In the end, I think confrontation forfeiture better addresses the concern that I suspect prosecutors really have: that the defendant somehow is benefiting unfairly from the confrontation clause’s procedural mandate. If the defendant had something culpable to do with the witness’ unavailability, just prove it, and I’ll have no qualms about ignoring Crawford. Although broader than Prof. Mosteller’s position and probably a notch or two more restrictive than Rich’s position, the Giles decision seems like an imminently reasonable framework from which to develop this concept.

Brooks said...

Oops - Accidentally deleted my early post. New to this blog site, but I re-posted. I appreciate Paul's response, but have a couple of observations. One, the complainant's statements in Jimenez involved more, I would argue, than a simple "spontaneous statement." Rather, after "admonishing" the complainant (whatever that means) and taking a factual statement about the alleged robbery, the police took the reluctant complainant to another location to view the defendant and make a corporeal identification of him as the robber. While these facts may squeeze into the modern definition of an excited utterance/spontaneous statement, they also make me think that either that exception perhaps should be revisited, or the Court desperately needs to make clear what it meant in footnote 8. Two, while Paul is right that occasionally the defense may benefit from the absence of the complainant at trial, often so do prosecutors, and more importantly, that strategic question has nothing to do with the procedural question underlying Crawford. Indeed, if anything it proves the point of Crawford, particularly if Paul's premise is that a guilty defendant may fare better at a trial with a non-testifying complainant: that jurors more reliably can assess a witness who testifies live in front of them to explain her or his testimony and credibility. And, in my experience as a defense attorney, prosecutors have shown themselves keenly aware of this fact, and when subject only to the flimsy Roberts test, the amount of energy prosecutors will expend to baby-sit an elusive witness who has made accusatory excited utterances commonly seems to correspond with the how strong of a live witness she or he will make.

Paul Vinegrad said...

I read the footnote 8 dicta as follows: A spontaneous statement which is "testimonial" (i.e. because it was obtained by the police/government while investigating a crime with an eye towards prosecution)is likely barred by the Confrontation Clause, unless it was made "immediately upon the hurt recieved, and before the declarant had time to devise or contrive any thing for her own advantage."

However, if there is a 1791 exception for testimonial spontaneous statements fitting the narrow definition (of "spontaneous") in footnote 8, that would seem to contradict the Court's statement (in footnote 6 dicta) describing the dying declartion exception as sui generis?

Richard D. Friedman said...

I hope soon to have a posting on the formality bugaboo. For now I’ll say I largely agree with Brooks’s long posting. I agree that the core case covered by the Confrontation Clause is that of accusatory statements, but it is not the only one; if a witness testifies that Defendant’s car was parked outside Victim’s house on a given night, which happens to be the night Victim was found murdered, I don’t think that’s accusatory, but the confrontation right certainly applies.

I guess it’s clear enough why Paul, as a smart and aggressive prosecutor, would find footnote 8 of Crawford troublesome, but in my view his reading of the footnote is simply not a plausible one. Here is the key language of the footnote:

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 dictum does not say that certain statements that are testimonial because “obtained by the police/government while investigating a crime with an eye towards prosecution” are nevertheless admissible if “made immediately upon the hurt received . . . .” Nothing close to it. Rather, the Court is making the historically accurate point that if there was an exception to the rule against hearsay for spontaneous declarations in 1791 – a point that is not clear, because the res gestae doctrine allowed some spontaneous statements on the ground that they were not hearsay – it is questionable [the Court could have made a stronger statement] that it would have applied to testimonial statements. And the reason for that is that the exception, if there even was one, was limited to a very narrow category of statements that, at least ordinarily, were not testimonial. Indeed, because the Thompson doctrine was so narrowly limited, it could not (except perhaps in an extraordinary case that would require considerable imagination to concoct) apply to a statement that was “obtained by the police/government while investigating a crime with an eye towards prosecution.” I very much doubt that within several decades of 1791, and maybe much later, there was any statement admitted as a spontaneous declaration that was so obtained. Footnote 8 does not stand in contradiction with the Court’s statement describing the dying declaration exception as sui generis, as the only one that, as of 1791, allowed the admission of testimonial statements.

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