Friday, March 04, 2005

Forfeiture, the Prosecutorial Duty to Mitigate, and Rae Carruth

I have advocated a broad theory of forfeiture: If a witness makes an out of court testimonial statement without then being subjected to confrontation, and she is unable to testify later subject to confrontation because of the accused’s wrongdoing, the accused forfeits the right, under the Confrontation Clause and the rule against hearsay, to exclude the earlier statement. Implicit in this phrasing of the theory should be an important limitation: The prosecution should not be able to benefit from the forfeiture doctrine if, notwithstanding the accused’s wrongdoing, the prosecution had, but did not exercise, a reasonable opportunity to preserve the right of confrontation in whole or in part. The question of reasonableness is one of degree, and will often raise difficult questions not only of fact but of values.

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 around
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
Now, 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?

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.


Paige A. Nichols said...

I am intrigued by this proposition because it initially looks as if the accused’s wrongdoing might not warrant a forfeiture finding if the prosecution’s “wrongdoing”—failing to produce the declarant at a time when cross-examination might have been possible—trumps the accused’s wrongdoing, thus making it unfair to invoke the forfeiture doctrine.

I wonder if this proposed rule really creates a third prong to the usual forfeiture inquiry, or is it simply part of the unavailability/cause analysis? The usual questions we ask are: (1) is the declarant unavailable?; and (2) did the accused cause the declarant’s unavailability? Professor Friedman’s proposed rule might suggest a third question: (3) notwithstanding “yes” answers to (1) and (2), did the prosecution fail to exercise a reasonable opportunity to preserve the right of confrontation in whole or in part?

But it seems that the proposed rule might be more closely connected to the usual unavailability/cause questions. This is particularly true if we view the declarant’s status as a continuing state from the time the declarant makes testimonial statements (or from the time the prosecution is aware of such statements) through trial. This view puts the burden on the prosecution to prove that the accused’s wrongdoing rendered the declarant unavailable for cross-examination during this entire period of time. And the prosecution will be less able to bear that burden if it made no effort to produce the declarant at any point during this time. The Supreme Court has held that where the prosecution makes “absolutely no effort to obtain the presence” of a witness, then the prosecution cannot claim that the witness is unavailable, because “[t]he right of confrontation may not be dispensed with so lightly.” Barber v. Page, 390 U.S. 719, 722-25 (1969); see also Motes v. United States, 178 U.S. 458, 470-74 (1900) (forfeiture finding inappropriate where witness’s absence was attributable to the government’s negligence in failing to procure witness).

Thus, in the Rae Carruth scenario, to prove that the accused forfeited his right to confrontation, the prosecution must prove that the victim was unavailable for cross-examination at any time after she made her statements. And if the prosecution did not test the victim’s availability during that time, it should now be much harder for the prosecution to claim that she was unavailable.

This point is especially important in child sex cases where the prosecution claims that the child is unavailable to testify at trial because of the psychological trauma caused by the alleged sexual abuse. In the absence of any effort on the prosecution’s part to produce the child for confrontation by, for example, calling the child as a witness at an appropriate proceeding or engaging an expert to prepare the child for confrontation—at any time prior to or during trial—no forfeiture finding should be made. Again, the prosecution’s failure to attempt production of the child does not excuse or trump the accused’s alleged wrongdoing; rather, it weighs heavily against a finding that the prosecution has sustained its burden of proving that the accused’s alleged wrongdoing in fact rendered the child perpetually unavailable.

Richard D. Friedman said...

I generally agree with Paige Nichols' analysis -- the issue of what the prosecution could have done could be considered as part of the unavailability question or as a separate question. But I am inclined to treat it separately, and I think the burden on this point should be on the defendant. Here is the dialectic as I see it:

The prosecution offers the statement. The defense objects on confrontation grounds. The prosecution raises the forfeiture issue, and has the burden of demonstrating that the witness is unavailable to testify at trial, that the accused engaged in wrongful conduct, and that that conduct played a role in the witness's unavailability. Then the defense says, "But you could have done something earlier," and it has the burden of showing what it is the prosecution could have done and when.

One important benefit of this approach is that, to borrow analysis offered some years ago by Kevin W. Saunders, in The Mythic Difficulty in Proving a Negative, 15 Seton Hall L. Rev. 276 (1985), it is much harder to prove a universal statement than to prove an existential statement. An example of a universal statement is, "There was never a time after the shooting when confrontation practically could have been afforded." An example of an existential statement would be, "There existed an opportunity to provide confrontation; a deposition could have been held feasibly any time between December 2 and December 9."

Brooks said...

I find the premise of these posts troubling, largely because they presuppose some pre-trial right to confront witnesses, with corresponding witness-production duties by the prosecution. The 6th Amendment confrontation right is a trial right; as a general rule, the prosecution has no constitutional duty to make a witness available for the defendant to confront prior to trial. Of course, if the prosecution itself seeks to sidestep confrontation at trial, such as by offering a testimonial hearsay statement by a non-testifying declarant, I fully understand a rule that says, 'if you can't give the defendant the trial confrontation to which he is entitled, then you better have taken advantage of any opportunity for pre-trial confrontation as a fair substitute, or you can forget it.' But, if a witness is unavailable for trial solely because of the defendant's misconduct, allowing the defendant to trump the prosecution's forfeiture claim because the prosecution feasibly could have provided pre-trial confrontation to which the defendant otherwise was not entitled effectively imposes on the prosecution a constitutional duty to anticipate, and protect the defendant from, his own misconduct. I can't see how the 6th Amendment requires this.

Richard D. Friedman said...

I disagree with Brooks. Yes, it's often said that the confrontation right is primarily a trial right, but we must understand the particular sense in which this is true. Usually we expect confrontation to occur at trial, and it is at trial that we are able to determie that there is a violation of the confrontation right; until a testimonial statement has been introduced without affording the accused the opportunity for confrontation, there has not been a violation. But the opportunity for confrontation may be offered beforehand, and a wise prosecutor, knowing that a witness may be unable to testify at trial, will sometimes ensure that the witness's testimony may be presented at trial by taking her deposition and offering the accused the chance to attend and to cross-examine.

So if the witness is likely to become unavailable through no fault of the accused, the prosecutor has a strong incentive to take the witness's deposition; if this is not done and the witness is indeed unable to testify at trial, then the prosecutor cannot present any pre-trial testimonial statements that the witness made. Now, why should the prosecutor's incentive be any different given that the witness's prospective inability to appear at trial appears to be attributable to the wrongdoing of the accused? No good reason, so far as I can tell. That is, the prosecutor should not be allowed to think, "Well, it would be feasible for me to take the witness's deposition right now, and if she were likely to die through nobody's fault I would of course do so, because otherwise I would not be able to use her testimonial statement at trial. But I think that if the witness does die the court is likely to conclude that her death is attributable to the fault of the accused. So I'll sit back and relax; no need to bother about a deposition. If the witness lives, she can testify at trial, and if she dies forfeiture doctrine will defeat the confrontation right. La di-da."

Brooks said...

I certainly agree with Rich’s responding post to the extent it addresses witness unavailability that is no fault of the defendant. And, I think that the standard for forfeiture should be set pretty high.

Yet, once unavailability rests with the defendant’s wrongdoing, unless the defendant can show some other claim to pretrial examination, the argument, ‘But the prosecutor easily could have spared me from the consequences of my own misconduct’ doesn’t win me over. True, in the Rae Carruth example, where the prosecution probably could anticipate the witness’ death, a prosecutor as a matter of strategy might want to depose the witness if possible, since the prosecutor that early may not know whether she can establish the defendant’s culpability for forfeiture purposes, or even whether this homicide theory of forfeiture will prevail in her jurisdiction (a separate issue there). Risk assessment is always part of trial work. But, once the defendant’s culpability for the witness’ unavailability is properly established, I don’t know why the prosecutor should be held responsible as a constitutional matter for not fixing a problem that the defendant created, ‘La di-da’ attitude by the prosecutor or not. What about the more numerous non-homicide forfeiture cases, where the witness doesn’t die early in the proceedings from the crime itself, but either is intimidated, improperly influenced or killed close to trial? The prosecutor here may have had months, perhaps even a year or more, prior to trial when she could have allowed the defense to depose the witness. In some cases, like many domestic violence cases, prosecutors may foresee this sort of problem as clearly as the witness’ death in the Carruth case. If the week before trial the defendant scares the witness off, may the defendant claim that the prosecutor nevertheless should have taken advantage of one of these many opportunities just in case the defendant did deep-six the witness, even though at those times the defendant had no other claim to pre-trial confrontation? Paige Nichols’ post argues that he may: “This view puts the burden on the prosecution to prove that the accused’s wrongdoing rendered the declarant unavailable for cross-examination during this entire period of time [prior to trial].”

I just don’t see it. We make defendants live with their decisions all the time in criminal cases so long as they are informed decisions, even if theoretically the prosecution or court could have mitigated the downsides of those choices. An absconding defendant was mentioned in one of these posts. Absconding defendants frequently are tried in absentia, thus forfeiting (or implicitly waiving) innumerable constitutional trial rights such as the right to testify, even though I suppose the prosecution quite easily could arrange a pre-trial deposition of the defendant just in case he for some reason proves unavailable at his own trial. I can’t perceive how a trial right burdens the prosecution with exercising due diligence prior to trial to preserve that right against the defendant’s own misconduct.

Nevertheless, if the issue arises in one of my cases, I will float the argument out there, and report on how it is received!

Richard D. Friedman said...

I think the difficulty of Brooks's analysis is the assumption that the accused is asking to be spared the consequences of his own misconduct. Let's think about it this way. There are three possible basic manners in which the witness's tesitmony may be given, in descending order of preference: (1) Live, at trial, subject to confrontation, including cross-examination. (2) In a deposition or other pre-trial proceeding, subject to confrontation, including cross-examination. (3) In some other pre-trial statement, without confrontation. Possibility (3) is obviously unacceptable absent forfeiture. By hypothesis, the accused has by misconduct prevented possibility (1). But why does that mean that the prosecution should be able to invoke possibility (3), even though it could easily have arranged possiblity (2)?

In other words, to be precise the consequence of the accused's misconduct is not that the witness is unavailable to testify subject to confrontation; it is only that the witness is unavailable to testify at trial. This point is particularly important because we know that the prosecution presumably would arrange for possibility (2) if the witness's testimony was important, the witness appeared likely to be unavailable to testify, and there were no forfeiting conduct. The rule I am suggesitng therefore maintains in the context of a forfeiutre contention the incentive that the prosecutor ordinarily has to preserve confrontation to the extent reasonable.

Brooks raises a very interesting hypothetical of the witness who is available until shortly before trial and only then intimidated by the defense. But I don't think this creates a problem. The prosecution ordinarily bears the risk that one of its witnesses will become unavailable for trial; if the porsecution has declined to take the witness's deposition and she suddenly becomes incapacitated through nobody's fault, that is tough luck on the prosecutor; next time, consider taking a deposition. But the prosecutor should not be held to take the risk that by misconduct the accused will prevent the witness from testifying. So, at least until a time when pre-trial depositions become common for most witnesses, I don't think the prosecution should be held accountable in that circumstance. There may be close cases, in which the witness's knees are beginning to buckle, and the prosecution should know that, though the witness would be willing to give a deposition now, she may not have the fortitude to testify by the time trial comes around.

Notice also that, perhaps unlike Paige Nichols, I do not subscribe to the view that the prosecution bears the burden of proving that it would never have been able to take the witness's testimony subject to confrontation. Rather, as I said in my first comment on this post, I think the accused should have the burden of showing what the proseuction could have done and when.