Monday, February 21, 2005

Reflections on the Brooklyn Conference

On Friday, Brooklyn Law School held what I believe is the first full-scale academic conference on Crawford and related issues. Many thanks to the Law School and to Bob Pitler, who was the force behind the conference.

One impression I received was that some commentators believe that in the end Crawford will be as manipulable and open-ended as was Roberts. I don’t buy it for a minute. The concern reminds me of the joke about the woman who gave her son two shirts. The next morning, he wore the blue one when he came down to breakfast. “The red one you don’t like?” she asked.

In other words, the concern is way premature. Crawford transformed the law, and it declined, quite properly in my view, to state with much specificity what it meant by “testimonial.” But little by little, if not in great big bites, the term will be clarified to a substantial extent. Perhaps the Supreme Court will soon adopt a global definition. But I’m not sure it will need to do so for a while. It might answer a series of questions over several cases: Is there an absolute rule that a statement is not testimonial unless it is formal, or in response to interrogation, or made to a government agent? To each of these, I hope the answer will be negative. But whatever the answer is, an answer will be given, and at least gradually the law will be clarified. Whatever the rules are, if they are sensible ones they will leave some close and highly debatable cases, but that is true of virtually any area of the law. Even if the Court gives unsatisfactory answers on all the significant questions necessary to refine the meaning of "testimonial," the law will be more satisfactory than it was under Roberts – and I believe it will be more predictable as well, because it will reflect, however imperfectly, an important principle worthy of respect. Core cases, like that of Michael Crawford himself, will be easy and predictable, as they were not under Roberts.

I was also struck by the resistance that many of the commentators had to treating excited utterances as testimonial. I have never said that all statements that fit within the modern conception of the excited utterance exception are testimonial, but I do believe that many are, even though they are made for purposes other than or in addition to assisting prosecution of crime. It may be that in the context of domestic violence the Supreme Court will be loath to categorize as testimonial the initial parts of 911 calls made shortly after the (alleged) commission of a crime. But footnote 8 of Crawford counsels caution. It properly indicates uncertainty as to whether an exception for spontaneous declarations existed at the time of the Sixth Amendment, and says that if there was such an exception it was closely confined in time. Even apart from rigid originalism, the history (reviewed by Bridget McCormack and me in Dial-In Testimony, 150 U. Pa. L. Rev. 1171 (2002)) is interesting, because it indicates that for many decades after the time of the Amendment courts were still very restrictive in applying this exception, excluding statements that were narrative in nature. This rule, I bleieve, reflected an implicit recognition of the testimonial quality of many of these statements. The rule did not change because social changes demanded admissibility or altered the tesitmonial quality of some excited statements, but because the confrontaiotn principle became badly obscured over time.

At the close of the conference, Margaret Berger raised the question of whether the confrontation right should be carved out of the Evidence course, and left for Criminal Procedure, so that it doesn't crowd out discussion of hearsay law. I agree that the confrontation right is properly considered an aspect of criminal procedure rather than merely a rule of evidence. That is, it sets out a procedure by which witnesses shall give their testimony, and therefore operates before trial as well as at trial. It is not simply a rule of what evidence gets admitted at trial and what must be excluded, though of course it is protected in large part by an exclusionary rule. Nevertheless, I believe that detaching the confrontation right from the teaching of hearsay law would be a great mistake. Much of hearsay law makes sense only as a reflection of confrontation principles. And now that the confrontation right has been separately articulated, a critical question will be the extent to hearsay law should remain as it stands. My own feeling is that hearsay law – as opposed to confrontation law – should generally become far less exclsuionary and less rigid. But this, of course, is a vast and complex topic.


Fred Moss said...

I agree with Richard about the need to teach Crawford in Evidence.

[Of course, I teach the 5th amendment in Evidence too, so I guess I'm just weird. [I give them the Webster Hubble case: the 5th amendment aspects of document production and both kinds of immunity, all in one package.])

Imagine the chagrin of a newly minted law grad who took evidence and not con crim pro going to work for a prosecutor or defense firm who learns for the first time on the job that the hearsay rule doesn't alone determine the admissibility of statements against the accused?

I am wondering **when** Crawford ought to be taught; before or after the exceptions. My instincts tell me that it should be before, but....??

Any one have thoughts on the timing issue?


Anonymous said...

Any useful information on why Crawford has to be a "watershed rule" and thus must be retroactive on collateral habeas review in addition to direct review?

Did the conference have anything on this? What are the best arguments? It seems that Scalia's right to confront being around since Roman times sure does imply Crawford is an old rule?

Andrew C. Fine said...

I attended the Brooklyn conference and was impressed by the wide range of scholarly viewpoints represented, and by the fluency of the presentations, including, of course, those of Prof. Friedman (who either presented or participated in 3 of the 4 panel discussions). Much of the hostility toward regarding any sort of excited utterance as testimonial came from the panelists discussing a hypothetical factual scenario regarding a 911 call and follow-up police interviews. Their attitudes, however, should be taken with a grain of salt, since one of the panelists (Barbara Underwood) is a lifetime prosecutor, and the moderator (Bob Pitler) and one of the other panelists (Paul Schechtman) were prosecutors for most of their professional lives. It's not surprising that Prof. Friedman seemed to be taking flak from all directions during this discussion.

Regarding retroactivity, probably the most cogently analyzed of the few opinions finding Crawford to be retroactive for purposes of a collateral challenge is People v. Watson, 2004 WL 2567124 (N.Y. Sup.Ct., N.Y. Co., decided 11/08/04), relying on the second Teague exception. Two circuits thus far have held that Crawford is not retroactive, the Second (Mungo v. Duncan, 393 F3d 327 (2004)) and the Tenth (Brown v. Uphoff, 381 F3d 1219 (2004)), and others have tentatively expressed that view.

Mark Dwyer said...

I think footnote 8 strongly supports the view that excited utterances are not “testimonial.” It opines that a testimonial “spontaneous declaration” would not have been admissible in 1791:

“It is questionable whether testimonial statements would ever have been admissible on that ground [i.e., because they were spontaneous declarations] in 1791….”

The contrast is with footnote 6, which suggests that a “dying declaration” would have come in, in 1791, even if testimonial. Why does it matter? Because if a "testimonial" hearsay statement was admissible in 1791, the Framers maybe did not mean to ban it with the Confrontation Clause. Thus, testimonial spontaneous declarations are barred by the Confrontation Clause even if testimonial dying declarations may not be.

No surprise yet. But that same sentence continues, and as it does, it gets interesting:

“… ; 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.”

As I read this, the Court is saying that a spontaneous declaration that is in fact an excited utterance, one made while the reflective capacity is stilled, is the very antithesis of a testimonial statement.

To see that more clearly, the whole of the relevant sentence by the Court is:

“It is questionable whether testimonial statements would ever have been admissible on that ground [i.e., because they were 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.”

Thus, a true excited utterance is by definition not a testimonial statement.

That begs the question of whether courts today too broadly define “excited utterance.” But that question is not addressed by footnote 8. It says that a proper excited utterance is not testimonial.

On that question, it is not relevant whether the excited utterance exception was recognized in 1791 (as to which the Court suggests uncertainty). The Court is not saying that hearsay exceptions unrecognized in 1791 are all barred by the Confrontation Clause. The Court is discussing only whether there are any forms of testimonial hearsay that were admissible in 1791. And in doing so, in passing, it seems to define excited utterances as non-testimonial.

Harold said...

Bob Pitler and Brooklyn Law School do indeed deserve congratulations for organizing an informative, lively, and well attended conference (200 or so people in the audience). There were roughly four major foci of discussion. The first was the question of Scalia's manner of using history. Richard F aside, many speakers seemed skeptical that J Scalia got his history right or made proper use of history but fewer people seemed to feel or assert that no form of original intent or original meaning properly has a bearing on the interpretation & elaboration of the Confrontation Clause. A second bone of contention was the definition of "testimonial." Rich F focused on what he saw as the appropriate definition of "testimonial" whereas several other commentators responded orthogonally largely by making predictions about how courts or the Court would eventually define "testimonial." Some of the observers who made predictions also revealed their preferences: Bob Mosteller, for example, was not pleased by the narrow definition of "testimonial" that he said probably awaits us, whereas other commentators (e.g., Underwood) made it relatively plain they were pleased by the narrow definition they said is over the horizon. The discussion at the conference had several other foci (e.g., the scope of forfeiture), but other posters have commented or will comment on these other important issues, and I should not do so. Sincerely yours, Harold P.S. There was some tentative and inconclusive discussion about whether the purposes or functions of the confrontation right need to be invoked, considered, and debated to resolve the question of the proper meaning of "testimonial." Roger Park seemed to make this suggestion. Rich F, however, seemed again to reject this suggestion, possibly leaving us with the circular argument that the confrontation clause pertains only to testimonial statements (subject to exceptions) because the aim of the confrontation clause (subject to exceptions) is to bar testimonial statements -- and we all darned well ought to know and agree or what "testimonial" means. (I oversimplify and parody this brief discussion, of course. But my implied question is a fair one: I am not sure if Richard F thinks his preferred definition(s) of "testimonial" is (are) groundded largely in history or whether he thinks his interpretation(s) of the scope of "testimonial" is (are) rooted in something else. And if RF does believe that the roots of his preferred definition lie at least in part outside of history, it would be good to know precisely where he thinks they lie.)

Brooks said...

A very interesting Crawford decision form the 9th Circuit yesterday in Bockting v. Bayer, 2005 WL 406284 (9th Cir. Feb. 22, 2005), a habeas petition coming out of Nevada. In Bockting, the defendant was convicted of sexually abusing his six-year-old daughter. The daughter first reported the abuse to her mother, after the daughter woke up crying and looking, as the mother explained, “’like she had just woken up from a bad dream and … was quite upset.’” 3 days after the daughter reported the abuse to her mother, a medical examination was performed, and 2 days later, the daughter gave a police detective the same statement she gave to her mother. At a preliminary hearing on the charges, the daughter became upset when questioned about the abuse, claimed not to recall the incident nor her statement to the police detective, and was deemed an unavailable witness. Same at trial. The prosecution instead introduced the daughter’s hearsay statements to her mother and the police detective.

I would suggest three significant aspects of the Bockting decision:

(1) The court applied Crawford retroactively—Sort of. Judge McKeown found Crawford a “new rule” of criminal procedure, but also deemed it a “watershed” rule, disagreeing with the 2nd and 10th Circuits. Judge Noonan, by contrast, viewed Crawford as not a new rule at all, and thus “[r]etroactivity is not an issue.” Yet, Judge Noonan offered, “in order to provide a precedent for this court, I also concur in Judge McKeown’s analysis and opinion.” Judge Wallace dissented over applying Crawford retroactively to this habeas petition. Does Bockting set the stage for a prompt Supreme Court ruling on retroactivity?

(2) On the merits under Crawford, both Judge McKeown and Judge Noonan appeared to agree that the statement to the police detective was testimonial—probably not too controversial there—and that the error was contrary to established Supreme Court law and not harmless error. But, Judge Noonan went further to suggest that the statement to the mother also was testimonial, a question Judge McKeown found unnecessary to answer. Referring to both statements as “two testimonial tales,” Judge Noonan noted that the daughter’s statement to her mother “may have been an excited or spontaneous utterance.” But, Judge Noonan then proceeded to analyze both statements' trustworthiness in a very Roberts-like manner to “demonstrate how wise it is to exclude testimony untested by cross-examination.” So, at least one judge on the 9th Circuit embraces a broad, applies even-to-excited utterances-and-non-governmental actors interpretation of Crawford?

(3) In dissent, Judge Wallace applied the Roberts test, including the unavailability requirement with which many observers thought White v. Illinois had dispensed in most cases. Judge Wallace instead distinguished between simple unavailability—requiring a good faith effort to produce at trial—and “necessity”—requiring a showing of no alternative means to cross-examine, such as a Maryland v. Craig setup—and implied that White eliminated only the latter requirement from Roberts analysis. (Judge Wallace found that the record reasonably satisfied an unavailability standard for habeas purposes) Does unavailability return as a Roberts-based confrontation requirement to limit the admission of hearsay even under a narrow reading of Crawford?

Barbara Underwood said...

Just a brief response to the personal aspect of Andrew Fine's remarks: (1) Although I have been a prosecutor for many years, I am not a "lifetime prosecutor," having been a professor of law at Yale for ten years, teaching and writing about evidence, among other things; and (2) I wonder why the views of a prosecutor, lifetime or otherwise, should be "taken with a grain of salt" in this discussion, as the law in this area is generally shaped by the competing interests of the prosecution and defense.

Andrew C. Fine said...

In response to Ms. Underwood's post, my intent was neither to impugn the credentials of the members of the last panel whose backgrounds included substantial prosecutorial experience, nor to suggest that the views of prosecutors on this subject are not entitled to the most serious consideration. Rather, I was responding to Prof. Friedman's comment that he was "struck by the resistance that many of the commentators had to treating excited utterances as testimonial."

Having attended the entire conference, I do not recall such resistance having been expressed to a significant degree before the last panel discussion, when the moderator and two panelists, including Ms. Underwood, expressed strong opposition to the idea that any excited utterance could be viewed as testimonial. Since each of those panel members have spent many years as prosecutors, I thought that it was worth pointing out that their views cannot properly be considered indicative of an overall scholarly hostility to Prof. Friedman's point of view.

Anonymous said...

Prof. Friedman:

Do you know when the papers presented at the conference will be published in the Brooklyn Law Review? I am writing a paper on Crawford and would love to access the papers from the panel that dealt with Crawford's use of history.


Richard D. Friedman said...

Our papers are due later this spring; when they will actually be published by the Brooklyn Law Review I cannot say, but usually the editorial process takes several months, and it tends not to move very quickly over the summer.

Anonymous said...

Prof. Friedman:

Thank you for your prompt response to my query about your paper. I have another question: Did you prepare notes for your comments on Prof. Kirst's paper titled "Can History Define the Structure of Confrontation Doctrine?"? If so, would you be willing to post those notes?

Richard D. Friedman said...

I did not prepare formal notes for my comment on Roger Kirst's paper. I may write a short responsive essay, and if I do I would probably post it. But I'm not sure I'll be able to write one in time!