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.
7 comments:
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?
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.
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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