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.

3 comments:

Paul Vinegrad said...

Rich, the Government's brief on Martha's case is available. Go to www.lawprofessorblogs.com and click on the "White Collar Crimes Prof" link on the right-hand side. Then scroll down the page.

Contrary to your post, the Government makes a powerful argument that the challenged statements were NOT introduced to prove the truth of the matter asserted. The Government argues that the statements were (1) nonhearsay and (2) were co-conspirator statements (although, unlike Crawford's reference to co-conspirator statements, they were not made "unwitingly" to law enforcement).

As the Government points out, although the respective declarant was knowingly speaking to law enforcement, their PURPOSE/INTENT was not to provide evidence AGAINST their co-defendant (or any other person for that matter). Rather, their cospiratorial intent was to lie to law enforcement in order to further their conspiracy. The absence of an accusatory intent removes the satements from the scope of the term "testimonial."

If the Government's position is adopted by the Second Circuit (it appears as though their are various means by which the court can resolve the case without addressing the Crawford issue), it would lend further support for my position that only out-of-court statements that are the functional equivalent of a person's testifying in court are "testimonial." (Indeed, Jeff Fisher essentially conceded this point in responding to a question at the outset of his oral argument in Crawford.)

When a person testifies in-court at a government-run proceeeding the following occurs: (1) The Government is involved in eliciting/generating the in-court statement; (2) The person testifying knows (a) of the government's involvement, and (b) that their statements are being used by the government against the defendant on trial; and (3) The purpose/intent of the government-run proceeding is to use the statement against the defendant.

The functional equivalent (of this in-court setting) requires that the Government be involved in the production of the out-of-court statement; that the declarant have the same knowledge (as a witness in-court would); and the purpose/intent be that the out-of-court statement be used against someone in connection with a future case.

I agree it will very intersting to see how the Second Circuit resolves the Stewart case.

Paul

Richard D. Friedman said...

Well, evidently I misunderstood that it was agreed thatthe statements were admitted for their truth. If it is determined that they weren't, then there is no Crawford issue. But if it is determined that they were, then the issue on which Dreeben conceded comes into play.

I'm going to have to reserve for later posts a response to the broader issues raised by Paul's comments; I think his standard would go a great way to eviscerating the confrontation right. Just a few comments here.

I'm not sure how significant it will be if the court rules that the statements here weren't testimonial (of course, there is not telling what the court's dicta would be; in a decision earlier this week, Mungo, the court already pronounced some narrowing dicta). This is, as the defense contends, a rather rare case, in which the statements were made knowingly to investigating officers, and (by hypthesis) it is true both that they were made pursuant to a conspiracy and that they are offered for their truth at trial. I think the best argument for the prosecution is that even if the statements were testimonial the witness was not testifying against Stewart when they were made. To my mind, that argument poses a close issue. I would be inclined to say that Baconovic was clearly testifying when he made the statement, and that the use of the statement against Stewart at trial renders him a witness against her for confrontaiton purposes; perhaps this is the viewpoint that led Dreeben to concede the point at the argument of Crawford. But one could reject this argument without doing broad damage to the confrontation right.

Speaking of the oral argument, it is true that Jeff FIsher spoke in terms of the functional equivalent of in-court testimony. But Justice Breyer noted that this was vague and asked Jeff if he thought that the definition offered in the amicus brief that I submitted, based on the reasonable anticipation of the declarant, was a good one ,and Jeff said that it was. Essentially that definition, as articulated in the NACDL-ACLU amicus brief, was one of the three recited by the Crawford opinion as possibilities.

Richard D. Friedman said...

Well, evidently I misunderstood that it was agreed thatthe statements were admitted for their truth. If it is determined that they weren't, then there is no Crawford issue. But if it is determined that they were, then the issue on which Dreeben conceded comes into play.

I'm going to have to reserve for later posts a response to the broader issues raised by Paul's comments; I think his standard would go a great way to eviscerating the confrontation right. Just a few comments here.

I'm not sure how significant it will be if the court rules that the statements here weren't testimonial (of course, there is not telling what the court's dicta would be; in a decision earlier this week, Mungo, the court already pronounced some narrowing dicta). This is, as the defense contends, a rather rare case, in which the statements were made knowingly to investigating officers, and (by hypthesis) it is true both that they were made pursuant to a conspiracy and that they are offered for their truth at trial. I think the best argument for the prosecution is that even if the statements were testimonial the witness was not testifying against Stewart when they were made. To my mind, that argument poses a close issue. I would be inclined to say that Baconovic was clearly testifying when he made the statement, and that the use of the statement against Stewart at trial renders him a witness against her for confrontaiton purposes; perhaps this is the viewpoint that led Dreeben to concede the point at the argument of Crawford. But one could reject this argument without doing broad damage to the confrontation right.

Speaking of the oral argument, it is true that Jeff FIsher spoke in terms of the functional equivalent of in-court testimony. But Justice Breyer noted that this was vague and asked Jeff if he thought that the definition offered in the amicus brief that I submitted, based on the reasonable anticipation of the declarant, was a good one ,and Jeff said that it was. Essentially that definition, as articulated in the NACDL-ACLU amicus brief, was one of the three recited by the Crawford opinion as possibilities.