Thursday, January 27, 2005

American Prosecutors Research Institute on Crawford

The American Prosecutors Research Institute has devoted an issue of its journal The Voice to Crawford v. Washington. As one might expect, it is an attempt to limit the impact of Crawford as tightly as possible, and in particular to preserve what it euphemistically refers to as "evidence based prosecutions" -- that is, prosecutions without evidence being given by the complainant subject to confrontation -- as they were allowed before Crawford.

Adam M. Krischer makes the rather extreme assertion that "domestic violence almost always involves forfeiture." I agree that forfeiture does occur frequently in domestic violence cases, and even that "the domestic violence itself may have procured the victim's unavailability." But the burden of proving forfeiture must remain squarely on the prosecution's shoulders. There should not be an attempt to create anything like a presumption that if the case involves domestic violence the accused has forfeited his confrontation right, or even more modestly that if the complainant is no longer willing to testify in accordance with her initial statement then intimidation is the cause. Mr. Krischer goes into considerable, and useful, detail as to how prosecutors may prove forfeiture. But he offers little guidance on what prosecutors can and should do, notwithstanding intimdation, to increase the chance that the complainant will testify live subject to cross-examination -- though he does say, "A properly supported victim, connected to services and counseling, is more likely to be cooperative than not, and a cooeprative victim, willing and able to testify, makes Crawford a moot point." When prosecutors have believed they needed to secure live testimony by the complainant or face dismissal of the charge, some have not hesitated to exert considerable pressure, including jailing the complainant. Whatever the merits of that approach, courts should not be so ready to reach a conclusion of forfeiture that prosecutors will have little or no incentive to preserve the accused's right to confront.

The issue also includes a list of predicate questions, prepared by Cindy Dyer, Chief of the Family Violence Unit of the Dallas County District Attorney's Office, to ask when examining at a preliminary hearing or at trial a police officer who has taken a statement from a complainant. If the complainant made statements in response to questions by an officer, then the prosecutor is advised to include the following in the examination:
1. Were the statements taken "during the course of an interrogation"?

2. What was the purpose of your questions?

3. Were your questions to her an interrogation or merely part of your initial investigation?

4. Were these questions asked to determine if a crime had even occurred?
Apparently the thought is that if the desired answers are received -- and even apart from the leading nature of three of these questions we can be sure that the police will understand what the desired answers are -- then the complainant's statements should not be deemed to be testimonial. For the reasons already discussed in my post on The Interrogation Bugaboo, this reflects a deficient understanding of the confrontation right.


Anonymous said...

From Fred Moss, SMU

It should not be hard for a DA to prove in a domestic violence case that the defendant's abuse alone has caused the complaining witness to be too frightened to testify.

We can be confident that the prosecution's burden of proving unavailability is only by a preponderance (Bourjaily) and that the proof need not be admissible under the evidence rules.

Thus, the DA can simply put on someone (cop, investigator) who spoke with the witness or a relative of the witness who said the complaining witness was too afraid to testify.

Bam! The Confrontation Clause vanishes under Rich's theory that the defendant's conduct toward the witness need not be motivated by a desire to intimidate the witness into not testifying.

Indeed, let's not stop with murder, assaults where the victim is too injured to testify, and domestic violence cases. There is no logical/rational reason to confine the broadened forfeiture doctrine to these cases. Any criminal case involving physical force or the threat thereof can go forward without the victim if fear produced by the underlying crime is the reason the victim won't testify.

The CC, it seems, has a huge hole in it. The only real protection of the defendant from "evidence only" convictions is, ironically, the leaky old hearsay rule.

Rich's position is certainly right intuitively. You can't shoot your parents and seek the mercy due an orphan. But, the effects of the position in general are fairly frightening unless some limitations to forfeiture can be fashoned. As of yet, I don't see any.

Richard D. Friedman said...

Well, Fred is certainly right that Bourjaily says that preponderance is the standard for determining predicate evidentiary issues. But we should bear in mind a few points. First, Bourjaily and other cases in this line only set a floor; nothing prevents a jurisdiction from taking a more stringent standard in an appropriate case, and some courts have adopted such a standard. Second, I don't believe the Supreme Court has ever considered the precise question of what standard of persuasion should be applied to determine whether the accused has foreited confrontation rights, and it is possible that the Court would say that this context is sufficiently different from others that a higher standard is necessary as a matter of constitutional law. Third, Crawford altered the status quo so broadly and dramatically that there is good reason to re-evaluate in the new context issues, like this one of the standard of persuasion in a forfeiture case, that bear closely on the confrontation right.

In short, I don't think that a sttepped-up standard of persuasion -- something like clear and convincing evidence -- is precluded here. And in fact I thin such a standard probably ought to be required in forfeiture cases. A higher standard should put some effective contraints on the use of forfeiture doctrine.

Paul Vinegrad said...

Pre-Crawford, post-Lilly, if a prosecutor sought to introduce a nontestifying co-defendant's declaration against interest as substantive evidence against the defendant, the Confrontation Clause would be satisfied if the court found that the statement contained particularized guarantees of trustworthiness.

In California, at least, there was no standard of persuassion (statutory or constitutional) that had to be satisfied before the court could make a finding of Roberts reliability. I am not aware of any other jurisdiction imposing such a standard.

What additional Confrontation Clause concerns would justify imposing any standard of persuassion (upon the prosecution) before a court could find forfieture by wrongdoing?

Richard D. Friedman said...

In response to Paul's comment: I may have created confusion by failing to define terms. By "standard of persuasion" I mean the level of confidence that a fact-finder must have to reach a given outcome. I'm avoiding the more common term burden of proof because this is just one component of the overall burden of proof. On the merits in a criminal case, the standard of persuasion is, of course, "beyond a reasonable doubt," and that is constitutionally required. So there has to be some applicable standard of persuasion on the forfeiture issue -- that is, the law must demand that the judge, who determines the issues on the forfeiture question, not find the factual propositions supporting forfeiture unless she has some degree of confidence that those propositions are true. I don't know of anybody who seriously contends that this standard should be less than the preponderance of evidence -- i.e., more likely than not. But some observers, including me, believe a higher should be required before concluding that by virtue of his own misconduct a defendant has forfeited a central constitutional right.

Brooks said...

I can't imagine how the standard of proof for a forfeiture finding could fall below a preponderance standard, since that standard is, at a minimum, what's required to prove waiver of a constitutional right, such as in the Miranda context. Arguably, forfeiture should require a higher showing of proof than waiver, because of the involuntary and commonly much broader deprivation that forfeiture entails in contrast to waiver. In wondering what confrontation concerns would justify the prosecution bearing a burden of persuasion re: forfeiture, perhaps Paul's post confuses waiver and forfeiture with the situation he describes where the judge finds that the defendant's constitutional interests in fact have been satisfied?

If we assume a clear and convincing standard of proof, how might a judge in not-obvious-outcome domestic violence cases distinguish meaningfully between an uncooperative complainant who is responding to the coercion created by an abusive relationship and an uncooperative complainant who simply wants to move on or who finds testifying against a spouse or partner distasteful or unnecessary? I think that a more realistic forfeiture doctrine should be developed to address the unique circumstances presented by DV cases. But, it also seems to me that this issue could raise some of the same questions of victim autonomy and state paternalism that have been debated in DV cases in the area of mandatory arrests and prosecutions.

Brooks said...

In a very interesting pair of decisions on February 1, State v. Branch, __ A.2d __, 2005 WL 221198 (NJ 2004) and State v. Cotto, __ A.2d __, 2005 WL 221185 (NJ 2004), the New Jersey Supreme Court tackled the thorny problem of the excited utterance hearsay exception under Crawford in a unique way: it revisited the hearsay exception itself. Branch and Cotto both involved accusatory statements by non-testifying witnesses admitted as excited utterances. In Branch, a child witness described a home burglar to a police detective who responded about 10 minutes after the family called 911, which the family did moments after the violent burglar had fled the home. In Cotto, a witness described a violent robbery and assault by her ex-boyfriend and an accomplice to police officers who responded approximately 5 minutes after it was reported and 15-20 minutes after the assailants left the witness’ residence. The trial courts’ admission of these statements comes as no surprise, as similar facts easily have warranted admission of hearsay statements as excited utterances in countless cases.

In Branch and Cotto, however, the New Jersey Supreme Court re-examined the excited utterance exception’s historical roots in the res gestae exception, which excluded statements that merely narrated a past occurrence. The Court concluded that since the excited utterance exception’s original formulation, courts have engaged in unwarranted “interpretive expansion” of the exception, and “paid only nominal attention to ‘the opportunity to deliberate or fabricate element.’” Applying a more literal historical standard of this element, the Court determined that both statements failed to qualify as excited utterances, notwithstanding that severely startling events precipitated them and that they were made relatively promptly by modern excited utterance standards:

“[T]ime lapse is not the most important consideration … Rather, the nature of the statement, including the ‘nature of the utterance,’ determines its admissibility … Here, the [witness’] statements in response to police questioning constituted ‘narratives of a past occurrence’ and not statements ‘exclamatory, and coincident with the happening of the’ [events].”

Pretty strong stuff, back-tracking 30 years of state evidence law. And, it allowed the Court to dodge whether these types of statements prove “testimonial” under Crawford, a tough question that has split many courts and commentators (just look at this blog!). The Court nevertheless emphasized that its holding would seem consistent with the Supreme Court’s footnote in Crawford addressing White v. Illinois and the spontaneous declaration exception’s historical form, if any, in 1791.

Will the New Jersey Supreme Court stand alone here, or will other courts avoid a potentially unnecessary constitutional problem by revisiting the excited utterance exception to conform it more to its historical roots?

Anonymous said...

Regarding the question of increasing the standard of persuasion to prove unavailability and/or forfeiture:

In the present political climate, few legislatures or courts are going to raise standards, i.e., burdens of proof. However, these issues perhaps can be addressed in part by DEFINING unavailability. That is, by defining the necessary conditions for forfeiture, the slide toward finding forfeiture -- and there likely will be one -- can perhaps be slowed or halted.

As I understand, there are two conditions for forfeiture: Unavailability of a witness and wrongful procurement of the unavailability by Defendant.

What does it mean to be unavailable? Physically unable to come to court? Not coming because of fear of a specific threat? Fear of general threats based on a reasonable belief? Generalized fear without a reasonable belief? Generalized desire to avoid the unpleasantness? With each step, the new standard will look less desirable to a legislature or appellate court.

As to procurement, the obvious threshold is that the procurement should be intentional. Perhaps "intentional" can be defined down by the prosecution community as including patterns of abuse, but this is questionable; and where the intent isn't specifically to keep the victim away from court, the witness' absence might not meet a reasonable definition of "unavailability." At the most-feared extreme, situation, where the fear is induced by the violence of the alleged crime itself, then the nature of the crime would define away the Constitutional right, but no court would find this situation permissible. (Hopefully!)

Don't confuse me with an expert on these issues. It's just that, on reading previous posts, it struck me that a definitional approach might prove more successful in practice than trying to persuade courts or politicians to raise the burden of proof.

J.D., Raleigh, NC

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

An interesting approach, focusing on the definition of unavailability more than the standard of proof to restrict forfeiture to acceptable dimensions. To my limited knowledge, however, unavailability most commonly is satisfied by the prosecutor's inability physically to produce the witness to court despite diligent efforts to locate her, regardless of why she has become unavailable. And, in domestic violence cases, this scenario probably is the most common type of unavailability. (Of course, some cases, commonly child victim cases but also DV and other vulnerable witness cases, involve more complicated questions of unavailability, where a witness can be produced but inexplicably recants, or cannot testify due to emotional trauma or because he or she likely will suffer emotional or physical harm from testifying). So, the judge will have to decide whether the defendant improperly has caused unavailability without hearing from the unavailable witness as to why she won’t appear. In cases where the defendant has done something intentionally designed to make a known witness disappear—the classic forfeiture model—the inference of causation generally proves much clearer from the alleged facts. But, where the prosecutor is attempting to prove that the defendant improperly has procured the witness’ absence by acts not themselves designed to make the witness unavailable at trial, the inference of causation becomes more muddy. For instance, does the formula *pending DV assault charge+one past police report of domestic abuse two years ago+complainant statement to arresting officer of ‘he hit me but I don’t want him to go to jail’+subsequently non-responsive witness to trial subpoenas*=the defendant’s misconduct caused the complainant’s unavailability? The salient question thus isn’t whether the complainant is unavailable, or whether the defendant has engaged in misconduct with the witness, but whether the known misconduct by the defendant has caused the witness’ current unavailability. Only a high standard of proof can ensure that courts will not reflexively infer causation and cast aside a significant constitutional right on suggestive but perhaps uncertain facts. At the same time, under the protection of an appropriately high standard of proof, courts should give prosecutors in these cases a realistic opportunity to connect the dots, because these cases do involve a unique defendant-complainant dynamic that too frequently leads to unjust results …

Computers said...

In the developed world, virtually every profession makes use of computers.
However, certain professional and academic disciplines have evolved that
specialize in techniques to construct, program, and use computers.
Terminology for different professional disciplines is still somewhat fluid and
new fields emerge from time to time

Movies said...

movies mania is website for a pop-culture website covering movies,
television, music, pro-wrestling, politics, sports, video games, and more........


printingworld said...

nice site

photographs said...

Improvements also continue to be made in the automated processes used to
develop pictures and have lead to the availability of one-hour photo
processing facilities. The real future of photography may lie in the area
of digital imagery, a computer-based technology, which produces images

custom business cards said...

That's interesting, I'd recommend getting your custom business cards from, they have great values.

Anonymous said...

this blog is awesome, i love the layout! if you're interested, there's some great postcards at