Tuesday, March 08, 2005

Crawford on NPR

Today is the first anniversary of Crawford, and as it happens Paul Rosenzweig, Senior Legal Research Fellow of the Center for Legal and Judicial Studies at The Heritage Foundation, did a commentary on the case -- focusing on Martha Stewart and on battered women -- for NPR's All Things Considered. If you want to listen to the commentary, click here. If you want to read the text, I'll put it in as the first comment to this posting.

1 comment:

Richard D. Friedman said...

Here is the text of Paul Rosenzweig's NPR commentary:

What Do Martha Stewart and Battered Housewives Have in Common?Paul Rosenzweig

Last year Martha Stewart was convicted of lying to the FBI in an attempt to obstruct an investigation of her stock transactions. She has just been released from prison and is returning home to resume her life as a businesswoman and celebrity. Even though her sentence is complete, the appeal of her conviction lives on. It will be heard by the Second Circuit Court of Appeals on March 17th.
Little did Martha Stewart know that the Supreme Court would sow the seeds of her possible vindication just four days after her conviction. In a decision called Crawford v. Washington the Court changed 25 years of precedent that controlled what evidence prosecutors could present to the jury. Nobody knows yet exactly what the decision means – but the Stewart case will be one of the early, significant tests.
Since 1980, prosecutors have sometimes been allowed to play tapes or present transcripts of some witness statements to the jury. The witness didn’t have to come to court himself. They used everything from sworn depositions, to recorded statements made to the police.
The government took advantage of this old rule in Stewart’s case. Her co-defendant Peter Bacanovic, gave a sworn and recorded statement to the Securities and Exchange Commission. Later, at Stewart’s trial, the government simply played the tape recording of Bacanovic’s statement, instead of calling him to the stand to testify.
Because his accusations were presented in the form of a tape recording, not live testimony, Stewart never had a chance to ask Bacanovic about them or challenge his story in any way. Under the old, pre-Crawford rules, this use of Bacanovic’s testimony was perfectly acceptable.
But Crawford changed all that. The Confrontation Clause of the Sixth Amendment says that a defendant has the right to confront the witnesses against him. The Court read this phrase in an absolute way, saying that whenever the government offers the testimony of a witness for its truth that testimony has to come in live, in front of a jury, and be subject to cross-examination. With one stroke of the pen, the Court changed the way that criminal trials are conducted in America. And, so, if the Second Circuit agrees that Stewart’s rights were violated because Bacanovic appeared by tape instead of live, she’ll be entitled to a new trial.
But a victory for Martha Stewart may be a defeat for battered housewives and girlfriends. It is a sad truth that, for many reasons, some of those physically brutalized by their husbands and boyfriends are often unwilling to testify against them in open court. Faced with this reality, for years under the old rules prosecutors made their cases by playing tape recorded statements from the abused – sometimes their frantic calls to 911, but frequently their statements to police investigators. But, because those statements are made to the police, lawyers may not be able to use them in court now.
According to Professor Richard Friedman of Michigan, using recorded statements to police from battered wives and girlfriends may be unconstitutional after Crawford – for exactly the same reason that Bacanovic’s taped statement is problematic. As the Court said, allowing the accused to be convicted of a crime without the opportunity to confront and cross-examine the witnesses against him violates core constitutional principles.
Adhering to those principles sometimes creates harsh results – nobody can be happy if wife beaters go unpunished. But they are important principles – Martha Stewart ought to have been able to look her accuser in the eye and challenge him directly. Tape recorders, unlike live witnesses, don’t have eyes.