Thursday, January 20, 2005

The Interrogation Bugaboo

Since Crawford v. Washington, some courts have said that a statement is not testimonial unless it is made in response to governmental interrogation. E.g., People v. Bryant, 2004 WL 1882661 (Mich. App. 2004); United States v. Webb, 2004 WL 2726100 (D.C. Super. Dec. 22, 2004). And indeed, some have gone further, refusing to characterize a statement as testimonial unless it meets a restrictive definition of interrogation as "structured police questioning." State v. Barnes, 2004 WL 1773301 (Me. 2004); Fowler v. State, 809 N.E.2d 960 (Ind. App. 2004), transfer granted (Ind. Dec. 10, 2004); People v. Newland, 775 N.Y.S.2d 308 (N.Y. App.), leave to appeal denied, 3 N.Y.3d 679 (2004). This idea has begun to distort police practices, as police try to act in such a way that prosecutors can later argue that statements made to the police were not in response to interrogation.

I believe that te whole supposed interrogation requirement is entirely mistaken. Interrogation is a factor that in some contexts supports an inference that the statement is testimonial, but the statement may be testimonial even though it is not in response to interrogation. In this post, I will not contend against the less extreme proposition that only if a statement is made to a government agent can it be testimonial. I believe that proposition is also erroneous, but I will address it in a later post.

Those who contend that interrogation is necessary for a statement to be deemed testimonial have language they can point to in Crawford, though it is quickly apparent that the language does not really support them. Sylvia Crawford's statements were made in response to police interrogation, and the Court held that, whatever else the category of testimonial statements might include, statements made in response to police interrogation certainly are. Here are the passages in question, with emphasis added in each case:
The Clause's primary object is testimonial hearsay, and interrogations by law enforcement officers fall squarely within that class.

Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Police interrogations bear a striking resemblance to examinations by justices of the peace in England.

In sum, even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class.

Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with to the abuses at which the Confrontation Clause was directed.
There is no indication, then, that statements not made during formal testimnial events -- a preliminary hearing, grand jury or a former trial -- must be in response to police interrogation to be considered testimonial. The Court is very clear that it is merely listing a core class of testimonial statements, a class that plainly includes the statements at issue in the case, and is deciding no more than that these statements are testimonial. Left for another day is the question of what additional statements, if any, shall be considered testimonial. It is true that the Court left open the possibility that it will not consider any statements beyond this core class to be testimonial. Indeed, the fact that the Court took the care, in footnote 4, to offer some elaboration on the meaning of "interrogation" -- saying that it was using the term in a colloquial sense, that it did not have to choose among definitions, and that "Sylvia's recorded statement, knowingly given in response to structured police questioning, qualifies under any conceivable definition" -- confirms that the Court preserved the possibility that the term would in some circumstances be decisive. But that is as far as the Court went in this direction. It offered no intimation that a statement not made in response to interrogaiton would not be considered testimonial. And it certainly did not suggest that if a statement was not "knowingly given in response to structured police questioning" it would not be testimonial; it merely said that a statement meeitng that standard "qualifies under any conceivable definition."

So Crawford does not tell us that a statement must be in response to interrogation to be characterized as testimonial. And common sense tells us that there is no such requirement. Suppose that at trial a prosecutor gives an observer an opportunity to come to the front of the courtoom and then says, "Ms. Observer, I invite you to tell us what you know about this incident." After the witness does so, the prosecutor says, "Thank you. You may go." Of course, defense counsel objects because of a lack of confrontation. "But," says the prosecutor, "this was no witness. I did not subject her to any interrogaiton." The prosecutor is right that there was no interrogation, but of course we would expect the legal argument to be rejected sneeringly. What Observer was doing was testifying. It does not matter that her statement was not given in response to questions; nor would it matter whether she or the prosecutor took the intiative in arranging for her to give the testimony.

So now suppose the invitation comes not at trial but at the police station.: "Ms. Observer, if you care to make a statement, please feel free to do so. I will videotape it, and when we this perpatrator stands trial I will give the prosecutor the tape so that she can play it in front of the jury." I think it is equally obvious that a statement made in response to this invitation is testimonial. And now suppose an observer walks into the police station and says, "You don't know about a crime that has been committed, but I am now going to tell you, and I expect that you will then want to prosecute. Please record what I am about to say, because I expect you will want to use it at trial -- I do not like the idea of being under oath and having to answer questions by some aggressive defense lawyer." I cannot see a plausible basis on which this statement should not be deemed testimonial. Or suppose the observer walks in to the police station with an affidavit completed, describing the crime. Does anyone seriously contend that this is not testimonial?

Now, of course, the statements in these hypotheticals are less formal than in the usual case, in which a witness makes a statement to a police officer in the field, perhaps before the officer is confident that acrime has been committed. But, for reasons that I have already analyzed in a post called The Formality Bugaboo, formality is not required to render a statement decisive. If the declarant in that field situation understands full well that, once the officer receives the statement, it is likely to be used for prosecutorial purposes, it is testimonial. The declarant is creating evidence, and this critical reality is unaffected by the facts that the police officer was not confident until the moment that the statement was made that a crime had been committed, and that structured questioning by the officer was not necessary to secure the statement.

The bottom line is that if the declarant is making the statement with the reasonable anticipation of prosecutorial use, it is testimonial, even if it is made without quesitoning by government authorities or entirely on the witness's own initiative. Interrogaiton may, however, be a significant factor in indicating that the declarant did have this anticipation, because if the authorities are interrogating that is a factor that would often convey to the declarant the likelihood of prosecutorial use. But when the declarant is reporting a crime this factor is not necessary to characterize the statement as testimonial; she knows that she is conveying ot the authorities information about a crime, and presumably she understands that they will use that information to invoke the machinery of criminal justice. To hold that such a statement is not testimonial is merely to try to avoid Crawford because it makes prosecutions more difficult.


Paul Vinegrad said...

Crawford certainly supports Prof. Friedman's first proposition that a "statement may be testimonial even though it is not in reponse to interrogation."

Crawford, however, does not support Prof. Friedman's second proposition that "formality is not required to render a statement [testimonial]."

I suggest that the following language from Crawford is the most pertinent to determining the characteristics/elements of a "testimonial" statement:

"[T]he principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of exparte examinations as evidence against the accused. It was these practices that the Crown deployed in notorious treason cases like Raleigh's; that the Marion statutes invited; that English law's assertion of a right to confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind...This focus also suggests that not all hearsay implicates the Sixth Amendments core concerns. An off-hand, overheard remark...bears little resemblance to the civil-law abuses the Confrontation Clause targeted...The text of the Confrontation Clause reflects this focus. It applies to 'witnesses' against the accused--in other words, those who 'bear testimony.'...'Testimony,' in turn, is typically '[a]solemn declaration or affirmation made for the purpose of establishing some fact.'...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. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement" [to wit, "testimonal" statements](124 S.Ct 1354, 1363-1364.)

Thus, Crawford provides some very compelling support for the following proposition:

In order for a statement to be deemed "testimonial" it must resemble the abusive civil-law practices that "the Crown deployed."

Those practices (by "Justices of the peace" and "other government officers" (124 S.Ct. at 1365)): all:

(1) involved "government officers" producing testimony with an "eye toward trial." (124 S.Ct. at 1365 [refering to the "involvement of government officers in the production of testimonial evidence."]; 124 S.Ct. at 1367, fn. 7 [refering to the "[i]nvolvement of government officers in the production of testimony with an eye toward trial..."]);

(2) were conducted in formal settings; and

(3) were conducted for the purpose of producing evidence to be used against an accused

Thus, these elements of government involvement, formality, and purpose were present when these out-of-court statements were obtained. Just as these elements are present when the government calls a person into the formal setting of a courtroom for the purpose of establishing an accused's guilt.

Contrary to Prof. Friedman's position, there is no language in Crawford that supports the conclusion that any of these three elements are irrelevant, or of minor importance, in defining a "testimonial" statement. Rather, Crawford strongly suggests just the opposite is true.

In addition to these three elements, Crawford also indicates that a fourth element must be present before a statement will be deemed "testimonial" The declarant must know that he/she is speaking to a governmental official. (See 124 S.Ct. at 1368 [referring to Bourjaily and statements made "unwittingly" to an FBI informant].)

On another point, I am glad to see Prof. Friedman has apparantly abandoned advocating that the so-called "third formulation" (proposed by the NACDL in Crawford) is the appropriate test of whether a statement is "testimonial."

In this post, he appears to now be embracing a portion of the so-called "first formulation" (proposed by Jeff Fisher in Crawford) -- i.e. whether the declarant would reasonably expect the statement to be used prosecutorially.

It thus appears evident to Prof. Friedman that the current Court (given its language in Crawford) would never embrace the amorphous, easily manipulated, "third formulation," especially given the fact that that test ignores the word "against" (in the text "witnesses against him") by using the phrase "available for use at a later trial," instead of the "first formulation's" use of the phrase "to be used prosecutorially."

I don't believe the Crawford court would be as willing as Prof. Friedman to adopt a standard that makes the declarant's state of mind dispositive. First, many of the same infirmities that affect the "third formulation" also render this test unworkable. Secondly, at oral argument in Crawford the justices questioned the viability of such a standard. Lastly, at least Justices Scalia and Thomas have (in the White concurring opinion) already rejected a similar "in contemplation of litigation" test.

Finally, I would submit the following hypothetical for the readers consideration:

D enters a 7-11. He pulls out a gun and robs four victims. He then shots each victim in the head, killing them. As he exits the store, D bumps into W. W recognizes D from the neighborhood. D shots W in the head. A uniformed police officer arrives within a minute. The officer approaches W who is lying on the ground bleeding from his head. Without any questioning by the officer, W says, "Officer, D shot all those people. He bumped into me. I recognized him. He shot me. Please catch him before he hurts someone else!" W then falls into a coma. He remains in a coma for six months. After he regains consciousness he goes to Iraq to join the insurgents. He is not available at the time of D's trial. There is no nexus between his unavailability and D's conduct. Is W's statement to the officer "testimonial"? Does it in any way resemble the inquisitorial practices that the "Sixth Amendment must be interpreted" in light of? (124 S.Ct. at 1363.)

Paul Vinegrad

Richard D. Friedman said...

I am glad that Paul agrees with the point of this post, that a statement does not have to be in response to interogation to be deemed testimonial.

That is all this post was meant to demonstrate. Anything else was peripheral to it, and I certianly did not mean to abandon any positions I have taken before -- including that the third of the tests recited by Crawford is the best one.

Many of Paul's comments are addressed to what I have called the formality bugaboo, and I have discussed this at length in a posting on that subject. Some of his comments are also addressed to the idea that a testimonial statement must be addressed to a government agent, and I hpoe to discuss that soon; I believe this is a mistaken conception.

In response ot Paul's hypothetical: The statement was testimonial. W (presumably that stands for witness, one covered by the Confrontaiton Clause) expressed a wish that D be caught to be prevented from killing again, but he nust have anticipated that when he told the police about D's crimes this would set the criminal justice system in motion and that his statement would be used as part of it. There is no forfeiture, because W could have been made available for confrontation. Why the prosecution did not make W available during the period when he was lucid and before he became unavailable Paul does not explain, but it is the prosecution rather than the defendant who must bear the risk of W's becoming unavailable through nobody's fault.

Paul Vinegrad said...

Upon further reflection, I believe I was incorrect in agreeing with Prof. Friedman's proposition that a statement may be testimonial even though it was not in response to "interrogation."

True, Crawford does state that the term testimonial applies at a minimum to prior testimony and "POLICE interrogations." However, I believe that if there is going to be any EXPANSION of the phrase "POLICE interrogations," such expansion would relate solely to the word "POLICE," not to the term "interrogation" (as it is commonly understood).

For example, Crawford strongly suggests that the involvement of "governmental officials", other than the police, in generating statements through the use of "interrogation" would render such statements testimonial. Crawford thus contemplates a future expansion of the phrase "police" to encompass other governmental officials who are playing a similar investigative role in gathering evidence against an accused. Crawford, however, does not contemplate any expansion of the term "interrogation" beyond a "colloquial" definition.

Crawford also strongly suggests that the term "police" will not be expanded to encompass "private" persons or entities whose purpose in speaking with a witness and/or victim is far removed from the investigative, evidence gathering, purpose of the the police when they engage in interrogation. Thus, I don't believe that interrogation by "private" persons will be testimonial under the Crawford rationale.

As Crawford settles in, more academics (to various degrees) are realizing that Crawford's rationale (1) overwhelmingly supports this narrow construction, and (2) does not embrace Prof. Friedman's approach that focuses on the state-of-mind of the declarant and/or a so-called objective witness. (See John F. Yetter, Wrestling with Crawford v. Washington and the New Constitutional Law of Confrontation, 78-OCT Fla. B.J. 26; see, also, Miguel A. Mendez, Crawford v. Washington: A Critique, 57 Stan. L. Rev. 569.)

I predict that when all is said and done (and, assuming the Court adheres to it's dicta that nontestimonial statements are not the concern of the Confrontation Clause), the "testimonial" approach so strongly (and rightfully) advocated by Prof. Friedman and others will result in far fewer hearsay statements being subjected to Confrontation Clause scrutiny than under the Roberts approach.