The case of State v. Wiggins, 159 N.C.App. 252, 584 S.E.2d 303, review denied, 357 N.C. 511, 588 S.E.2d 472 (2003), cert. denied, 124 S.Ct. 1617 (March 8, 2004 -- the same day as the Crawford decision), now being attacked collaterally, may provide a useful illustration. The defendant, better known as Rae Carruth, is a former NFL player who was convicted of conspiring to murder his pregnant girlfriend. The shooting occurred early in the morning of November 16, 1999. The victim, in her car, managed to pull into a driveway and made a cell call to 911, staying on the phone for 12 minutes until an ambulance arrived. During this call she said that Carruth had blocked her car with his SUV, and that she was shot from another car that had pulled up alongside. According to the Court of Appeals:
Mecklenburg Police Officer Peter Grant ("Grant") arrived on the scene aroundNow, let’s assume that at least some of these statements are testimonial. (I think they all are, but that’s another matter.) So presumptively there is a violation of the confrontation right. But the victim was certainly unavailable at trial and perhaps the accused forfeited the right. Clearly conspiracy to commit murder is conduct that can cause forfeiture, and I believe there is ample evidence to support a finding, to whatever the appropriate degree of confidence may be, of the accused’s involvement. (This finding might rely on the victim’s statements, the very statements that the prosecution is trying to get admitted, but for reasons I’ve explained in my article Confrontation and the Definition of Chutzpa, which is also cited in the post on Forfeiture and dying declarations, I don’t think that’s a significant difficulty.) In short, it is not hard to conclude that the victim is dead, and unable to testify at trial, because of the accused’s wrongdoing. This is not the end of the matter, however. Rather, it brings us to what strikes me as the most interesting question: Should there be no forfeiture because the prosecution could have set up an opportunity for confrontation?
12:43 a.m. The victim identified defendant to Grant as the driver of the vehicle
that she had also described in the 911 call. The victim was transported by ambulance to Carolinas Medical Center and arrived at 1:10 a.m. The victim gave Grant a complete chronology of the events that transpired during the night and early morning. Emergency surgery was performed to remove the bullets and deliver the baby from the victim at 1:30 a.m. At 4:00 a.m., the victim was taken to a trauma intensive care unit. Around 7:00 a.m., an endotracheal tube was inserted into victim's throat. Traci Willard ("Willard"), the morning nurse, asked the victim if she remembered what had happened to her. The victim nodded and motioned for Willard to bring a pen and paper to her. The victim handwrote notes describing the shooting and events of the morning and previous evening. Later, the victim's father asked her if there were any stop signs on the road that would provide defendant a legitimate reason to stop in the road. The victim shook her head negatively. The victim died 14 December 1999 as a result of the inflicted wounds. Victim's infant son
It may seem grotesque to ask a severely wounded – and ultimately dying – victim to confront the accused from her hospital bed. But note some critical facts. First, she clearly had no hesitation about giving her testimony, and the police had no hesitation about asking for it, coming to her bedside even in the first minutes at the hospital. Second, she lived for nearly a month after giving that testimony. During this period was there a time when she could have testified subject to full confrontation (by which I mean in the presence of the accused and under cross-examination)? The answer may well be yes.
I am inclined to say that simply because the victim is able to make testimonial statements, and the authorities are able to take one from her, it does not necessarily follow that full confrontation should be required as a precondition to admitting the victim’s statement. In some circumstances, although it is possible for the victim to make an accusatory testimonial statement, it is not possible to arrange for confrontation; the victim may die first. Beyond that, even if confrontation is possible, it raises significant difficulties that the accusatory statement does not. No preparation is necessary for the victim to make an accusatory testimonial statement – she can make it to whoever happens to be nearby, under her own initiative (I am assuming that such statements would be testimonial; if they are not, the forfeiture question is never really reached for Confrontation Clause purposes), and she can make it to a police officer as soon as the officer can get to her. Making the statement presumably accords with her desires – she wants to being the assailant to justice. (That factor suggests how clear it is that these statements are testimonial.) She can expect a sympathetic audience. By contrast, testifying in the presence of the accused – or even having the accused brought to her presence – may well be highly traumatic. The victim presumably does not have any desire to answer skeptical questions from a defense lawyer (though if the rule is that she must for her testimony to have effect, she might therefore have a derivative desire). Indeed, the fact that a lawyer would be involved at all makes for a rather disturbing scene. And cross-examination could not be held instantly. First a lawyer would have to be retained or appointed, and then ideally do some preparation and consultation with the client.
It appears, therefore, that there are some circumstances in which, even though the victim was able to make testimonial statements, and indeed even though the authorities were able to take one, providing full confrontation would be far more difficult. Ordinarily, we discount the difficulties that testifying subject to confrontation poses for the witness and for the adjudicative system; she, and we, must cope with them as best as possible. But witnesses are entitled to fight for their lives without undue interference, and to do so with dignity. The accused, having by hypothesis endangered the victim’s life, cannot demand an opportunity for confrontation at all costs. Clearly the adjudicative system is entitled to rule, "If because of the accused’s wrongdoing it is impossible for him to have full confrontation, then he forfeits the right to have such confrontation." And I am arguing that the word "impossible" could be replaced by "not reasonably possible" without making the rule invalid. But note that there are two important qualifications implicit in this rule.
First, in some circumstances the authorities can reasonably provide an opportunity for full confrontation, and if so they ought to. That is, in such circumstances they ought to announce their intention of using the witness’s statement at trial if she is unable to testify live, and offer the accused the opportunity for a deposition at a given time and place. Does a deposition in dire circumstances seem bizarre? It should not; certainly it did not nearly two centuries ago. Note R. v. Forbes, Holt 599, 171 E.R. 354 (1814), in which the court held that portions of a dying victim’s statement could not be introduced against the accused because they were not given in his presence, and R v. Smith, Holt 614, 171 E.R. 357 (1817), which explained that a purpose of giving the accused the right to be present was so that he could cross-examine. (Smith declined to cross-examine, and that resolved the matter.) Carruth’s case may well be one in which a deposition was feasible; it may be that there was a time while the victim lingered during which it would not have been unduly cruel to ask her to testify in his presence and subject to cross-examination, on the understanding that this was important to bring him to justice. There are no hard-and-fast rules here, I don’t think; this judgment requires a balancing of values.
Second, in some circumstances even if full confrontation is not reasonably possible, partial satisfaction of the confrontation right may be reasonably possible. If, for example, the victim is sinking rapidly enough that defense counsel cannot prepare to an ideal extant, that does not excuse absolute denial of the right to cross-examine; the right ought to be provided to the extent reasonably feasible. Or if the client has absconded, so that it is not possible for a lawyer to consult with him, that does not excuse failure to appoint a lawyer to conduct cross as best she can. All the authorities can do in setting up a deposition is the best they can – but they should be required to do something close to that. Finally, even if it seems not to be reasonably possible to allow cross-examination at all, it may be reasonably possible to allow the accused a chance to have the victim testify in his presence.
All this suggests the possibility of some very difficult, and excruciating, decisions. I have never contended that adoption of the testimonial approach to confrontation, or of a robust doctrine of forfeiture, would eliminate the need to make hard decisions. What we have to try to do is to ask the right questions, and I am contending that one of the questions we should be asking, in the face of wrongful conduct by the accused that has prevented a witness from testifying at trial, is whether the authorities have done what they reasonably could be expected to do to allow for confrontation, in whole or in part.
Ideally, the prosecution would not have to guess in advance what answer a court would give to this question. Suppose, then a prosecutor in a case like Carruth’s believes that it would be unduly cruel to require the victim to testify subject to confrontation, but she is also risk averse and does not want to lose the prosecution by being more decorous than necessary. It seems to me that she ought to be able to litigate the confrontation issue in advance, seeking a declaratory ruling that if the victim is unable to testify at trial her statements will be admitted even without confrontation, or with confrontation limited in certain aspects.