Sunday, January 02, 2005

The Formality Bugaboo

Some cases have indicated that a statement cannot be considered testimonial for purposes of the Crawford inquiry unless it was made formally. One such case is People v. Jimenez, 2004 WL 1832719 (Cal. App. 2d Dist. Aug. 17,2004), which has been mentioned in comments on this blog; another, in dictum, is the recent decision of the Second Circuit in Mungo v. Duncan, 2004 WL 2988301 (Dec. 28, 2004). I believe this view represents a misunderstanding of Crawford, and of the basic approach to the confrontation right that Crawford reflects.

This is not to say that courts adopting a formality rule can find no language in Crawford to cite in their support. First, drawing on a definition given by Noah Webster, Justice Scalia wrote that testimony “is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’" Second, Justice Scalia then offered this contrast: “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Third, one of the three formulations of the class of testimonial statements presented by Justice Scalia is the one adopted by Justice Thomas (with Justice Scalia himself joining) in his separate opinion in White v. Illinois, 502 U.S. 346, 365 (1992): "extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions."

Even on their face, none of these three passages adopts a formality rule. The Court did not say that testimony must be a solemn declaration; it said that it typically is such a declaration. The two polar categories, “a formal statement to government officers” and “a casual remark to an acquaintance,” plainly do not exhaust all possibilities, and so presenting these two does not indicate where the boundary between testimonial and non-testimonial lies. As for the Thomas formulation, it is only one of three alternatives presented by the Court, and the only one that includes a formality rule. Moreover, it is not clear whether Justice Thomas regards confessions as being a subset of “formalized testimonial materials”; if so, it is not clear why, because confessions can be very informal, and if not, it is not clear why the two sets, “formalized testimonial materials” and “confessions,” should be deemed to constitute the overall class of testimonial statements.

In short, nothing in Crawford compels the conclusion that only formal statements can be deemed to be testimonial. And courts should not adopt such a rule, most importantly because it makes no sense. Consider this exchange (I could make the same point by using the actual statements made by the informant in the decision of the Sixth Circuit in United States v. Cromer, 2004 WL 2711130 (6th Cir. Nov. 29, 2004), which rejected a formality requirement; see my posting on Cromer on this blog on December 9):
Police Officer: Please have a cup of coffee and make yourself comfortable.
If that chair is too hard, please let me know and I’ll get you a cushion.
Witness: Thanks so much. The chair is fine, but I’d love some milk if you
have it.
Officer: Sure. Here you go. You know, I’m collecting evidence for
the trial of Suspect on robbery charges. I know you’ll find it inconvenient and
unpleasant to testify in court, so why don’t you tell me everything you
remember, and then I’ll tell the jury everything you’ve told me. We can do this
very informally. In fact, I’m not even going to take notes. So just start
talking whenever you’re ready.
Witness: OK. Well, I was just walking down Main Street, minding my own business . . . .

It seems to me clear that this statement is testimonial. Clearly, Witness is making a statement for use at trial and (if it matters, which I don’t think it should) Officer understands that as well. But just as clearly, the statement seems informal – or, put another way, it cannot be considered formal without robbing that term of all meaning. Finally, it seems obvious that this type of statement should not be admitted against accused if he never has an opportunity to cross-examine Witness. And -- here is the crucial part -- it is inadmissible not despite the lack of formality but, one may say, in large part because of it.

What formalities is this statement missing? The presence of the accused and the opportunity for him to cross-examine, most notably. Those, of course, are the essence of the confrontation right. Clearly, the logic could not be that because of their absence the statement is informal and therefore the confrontation right does not apply, because that is a Catch-22 that would prevent the right from ever applying. Apart from those two, the most obvious formality is the oath. But we already know from Crawford itself that the absence of the oath will not make the statement be considered non-testimonial; the majority opinion was quite explicit on this point, see Crawford, 124 S.Ct. at 1365 n.3 ("We find it implausible that a provision which concededly condemned trial by sworn ex parte affidavit thought trial by unsworn ex parte affidavit perfectly OK."), and the statement at issue in the case was not given under oath. There are other formalities as well that usually accompany testimony -- the question-and-answer format and the general ceremonial nature of the courtroom -- but these are of lesser importance; I will explain in a separate post reasons why I do not believe interrogation is necessary to make a statement testimonial.

The bottom line is this: The absence of formalities does not render a statement non-testimonial. Rather, the absence of the most important formalities may make unacceptable as evidence a statement that is testimonial in nature. This casts a helpful light on dictionary definitions , like the one quoted by Crawford, that include formality as a component of testimony: Formality is an ideal, an aspect of testimony given in the optimal way, at trial in open court. The purpose of the Confrontation Clause, indeed, is to ensure that testimony be given in an acceptably formal way, in th presence of the accused and subject to cross-examination. To say that the absence of formality takes a statement that would otherwise be deemed testimonial outside the purview of the Clause would be to treat a defect of the statement into a virtue.

It would also give investigating officers precisely the wrong incentive. Whtever procedure is deemed to be a critical aspect of formality they would tend to avoid, so that statements given to them in full anticipation of evidentiary use would then be deemed non-testimonial and outside the rule of Crawford.

For reasons I hope to explore more fully in future posts, I believe the proper approach to the question of what is testimonial depends on the anticipation of the declarant, or on the reasonable anticipation of someone in the declarant's position, that the statement would be used evidentiarily. The presence of formalities may support a determination that the statement was testimonial; for example, in Crawford the statement was videotaped, with an introduction by the investigating officer that could leave no doubt about why the statement was being taped. But when a witness to a completed crime knowingly makes a statement to the police or other authorities describing the crime, the statement should be deemed testimonial, no matter how informally it was taken, because the likely evidentiary use is so clear. The presence of formalities can reinforce that determination, but they are not necessary to it.


Paul Vinegrad said...

I like Walter Dellinger's definition of testimonial statements set forth on page 16 of his reply brief in the Martha Stewart case:

"Nor do [out-of-court declarants] act as 'witnesses,' U.S. Const. amend. VI, when speaking to someone who is not a government agent or informant, or whom they do not realize is one. [citing to Saget, 377 F.3d at 229]. Even when knowingly addressing a government official, [an out-of-court declarant's] statements are not testimonial unless made under relatively formal circumstances suggesting they may be used in court. [citing to Crawford, 124 S.Ct. at 1364; and Saget, at 229]."

I should note that I inserted the term "out-of-court declarants" in place of the term "conspirators." However, that is not of any significance regarding the manner in which Mr.Dellinger defines "testimonial" statements, as Crawford did not in any way suggest that the definition of "testimonial" will change depending upon whether the out-of-court declarant is a conspirator or some other category of declarant.

Thus, Mr. Dellinger's interpretation of Crawford is very similar to the "functional equivalency" test (mentioned by Jeff Fisher at the outset of his oral argument in Crawford and which I believe is the most accurate interpretation of Crawford):

A statement will not be testimonial unless the declarant knowingly provides his statement to a government agent in a formal setting (i.e. one that suggests that the statements may later be used in court).

Mr. Dellinger, although eschewing Prof. Friedman's definition of testimonial, does seem to agree with Rich on a point. That being that the "accuser" test (proposed by Prof. Mosteler) was not adopted by Crawford. (See footnote 19, on pages 21 and 22, of Mr. Dellinger's reply brief.)

However, in footnote 19, Mr. Dellinger makes the following statement that I believe is not accurate:

"[W]hen co-defendants stop being 'witnesses' and become 'accusers,' the Constitution imposes even more stringent restrictions on the use of their statements. [citing to Bruton.]"

How can Mr. Dellinger state on the one hand that the Confrontation Clause does not adopt an "accuser" test, but then state that such a test does apply when dealing with nontestifying accomplices' out-of-court declarations against interest that implicate the defendant on trial? It seems to me that Crawford does not interpret the Clause in this manner. There are not different CC tests that apply, depending upon whether the declarant is a nontestifying accomplice, or another class of declarant. Rather, the Clause applies only if the declarant is a "witness" as that term has been defined by Crawford. To the extent Bruton (a decision that was a CC case) suggests otherwise, I believe it has been overruled by Crawford's new CC test.


Richard D. Friedman said...

I do not think one can draw too much significance from the nature of Walter Dellinger’s argument. He is of course contending for the position that suits the interests of his client. But in any event, I do not think one can substitute the general term “out-of-court declarants” for “conspirators” in his argument without potentially changing the meaning quite drastically. As I pointed out in the main post, and as Michael Dreeben noted in the oral argument of Crawford, it is a relatively rare case in which there is a strong argument that a statement by a conspirator, made in furtherance of the conspiracy and yet offered for the truth of what it asserts, is testimonial. The particular circumstanceso f the Stewart case may provide an example of such a case. But there are numerous circumstances in which the witnesses make statements that should be considered testimonial even though they are not made formally or to government agents.

Brooks said...

In a comment to an earlier post, you noted that testimonial hearsay can include non-accusatory declarations, such as the car location example you offered. Do you think non-accusatory declarations require any greater degree of attendant formality to prove testimonial than accusatory declarations? If so, how much more? And, if so, where along the spectrum of information that hearsay declarants provide to the police would you place the line between accusatory and non-accusatory declarations?

Richard D. Friedman said...

In response to Brooks's questions: I don't think that a line between accusatory and non-accusatory statements has any significance for Confrontation Clause doctrine. Some statements are more accusatory than others (saying the defendant's car was in front of the victim's house may be quite accusatory if the dcelarant knows the victim was murdered that night), but it's not a label that matters for purposes of the Confrontation Clause. Whether a statement is testimonial needs to be determined in light of all the circumstances. If the declarant knowingly tells the police about a crime that has been completed, it is presumably testimonial whatever the circumstances, because the declarant must know the likely evidentiary use. If the declarant gives the poice innocent-sounding information, then presumably we would have to find some indication, not on the face of the statement itself, that the declarant anticipated evidentiary use. Showing that the declarant understood the investigative significance of the information would probsbly be enough, as in the car example above. A declaration by the police that the information may be useful in a criminal investigation would be another. So the degree of accusatoriness might affect the extent ot which we need other indications of testimonial nature, but it's not a binary situation of one rule for statements characterized as accusatory and another for statments characterized as non-accusatory.

Andrew C. Fine said...

Could the "accusatory" label be helpful in the sense that although a testimonial statement need not be accusatory, all accusatory statements, when made to the authorities, are necessarily testimonial? At least two cases, US v. Cromer, 389 F3d at 674, and In re TT, 815 NE2d 789, 801 (Ill. App. 1 Dist.), seem to have recognized this.

Also, since you have advocated for a standard that would include as testimonial some statements made to private parties, do you think Prof. Mosteller's proposed test -- "when a statement is accusatory and intended to be conveyed beyond those who would be expected to keep it confidential, ... it should be considered testimonial," 49 U.Rich.L.Rev. at 544 -- is helpful?

Richard D. Friedman said...

In response to Andrew's first question: I almost always hesitate to make universal statements, but it is hard to imagine circumstances in which an accusatory statement is made to authorities without it being testimonial. Of course, we have another definitional question then -- what's accusatory? -- but a statement contending that a person has committed a crime would count as accusatory.

And in response ot the second question, yes, I agree with Bob that if an accusatory statement is intended for a wider audience than the immediate recipient it is almsot certainly testimonial. In fact, I would go a little further -- if the speaker's anticipation is that the statement will be disseminated more broadly, whatever her hope or purpose may be, it is probably testimonial.