Shifting the Burden

Some prosecutors, eager to introduce an out-of-court testimonial statement at trial but not eager to put the witness on the stand, have attempted to shift to the accused the burden of producing the witness. "We'll introduce the statement," they effectively say, "and we'll ensure that the witness is close at hand. Then, if the accused wants to confront the witness he can call her to the witness stand. He may choose not to do so, but that his his choice, and he has no complaint that he has been denied his confrontation right." In Bratton v. State, 2005 WL 459019 (Tex. App. Dallas Feb. 28,2005), the court rejected this tactic, as had State v. Cox, 876 So.2d 932 (La. App. 3d Cir. 2004) ("Simply stated, if the State needed to have Mrs. Sykes' testimony to enable the State to introduce the statement into evidence, the State could have called Mrs. Sykes as a witness.") For short, though the courts rejected it, I'll refer to this as the Bratton-Cox procedure.

In neither of these cases did the court give a very full explanation. The Bratton court said that "as the party seeking to admit" the out-of-court statements, the prosecution bore the burden of showing that they were admissible, and to do that Crawford required that they show that the declarants were unavailable and that the accused had a prior opportunity for cross-examination. But here, by the prosecution's own acknowledgment, the witnesses were available, and the accused had not had an oportunity to cross-examine. Well, yes, but this really doesn't meet the argument -- the prosecution is contending that the acucsed has an oportunity at trial to examine the witnesses adersarially. If that opportunity is sufficient, then there is no confrontation violation. Indeed, Crawford, in footnote 9, took pains to "reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)."

Given the citation in Crawford, I will call this rule the Green rule, though I am not sure that this is historically accurate. (Green itself did not hold as broadly as Crawford suggested it did; it reserved the question of whether the confrontation right precluded introduction of the prior statement if the witness professed inability to remember, and this question was decided in the negative in United States v. Owens, 484 U.S. 554 (1988).) I believe that the Green rule is wrong-headed, and that the Court has failed to take into account the extent to which cross-examination is impaired if before it begins the witness is no longer adhering to the substance of the prior statement. See Prior Statements of a Witness: A Nettlesome Corner of the Hearsay Thicket, 1995 S.Ct. Rev. 277. But that rule seems likely to be with us for the foreseeable future: So far as the Confrontation Clause is concerned, then, it is now acceptable for the prosecution to put a witness on the stand and then introduce for its truth a prior statement made by the witness even though the witness does not now testify that the substance of the statement is true. I may address the merits of this rule in another post. But for now, the question is this: Given the Green rule, is the Bratton-Cox procedure acceptable -- that is, may the prosecution present an out-of-court testimonial statement without putting the witness on the stand or ensuring any earlier opoprtunity for cross-examination, but with the assurance that the witness is available to be called as a witness by the defense? I think that, even given the Green rule, the Bratton-Cox procedure is unacceptable.

In a case like Green or Owens, the prosecution presents the witness live, the witness gives testimony that is unsatisfactory to the prosecution, and the prosecution introduces the prior statement. Alternately, the prosecutor might introduce the prior statement through another witness after the primary witness has left the stand and then recall the primary witness, or perhaps it would suffice to announce to the court and the defense before cross begins that the prior statement will be introduced. Thus, without the accused having to lift a finger, and even absent cross-examination of the witness, the witness's testimony presents a discrepancy: The prior statement made an assertion that the current testimony does not confirm. This was critical to the conclusion in Green.:

The most successful cross-examination at the time the prior statement was made could hardly hope to accomplish more than has already been accomplished by the fact that the witness is now telling a different, inconsistent story, and--in this case--one that is favorable to the defendant.

399 U.S. at 159.

I do not believe this argument is persuasive (the jury may well conclude that the witness has failed to adhere to the prior statement for reasons carrying no suggestion that the prior statement is false) , and it does not even meet the facts of Green very well. (The witness, Porter, had previously identified Green as his drug supplier; at trial he did not identify someone else but rather said he couldn't remember.) But put those concerns aside.

The fact is that in a case like Green or Owens, the accused has the disparity to work with even before beginning cross-examination. The accused may, as I contend in the article cited above, be severely impaired in his ability to cross-examine, but at least the cross-examination can be conducted without bearing undue risk or cost. Now consider the Bratton-Cox procedure. The prior statement has been introduced, and the prosecution intends to do nothing more about the witness. If the accused wants, he may present the witness as part of his own case. This, I contend, is an opportunity inferior to the one envisioned by Green or Owens-- and a fortiori inferior to the usual opportunity in which the witness testifies to the material propositions from the stand and is then cross-examined.

One critical problem should not arise. The accused should not be precluded from asking leading questions by the fact that he called the witness; simply from the fact that the prior statement was introduced by the prosecution, the witness should be deemed hostile to the accused, or identified with the prosecution, for purposes of Fed. R. Evid. 611(c) and its state counterparts. If a court failed to recognize this, I think that would be sufficient to make out a confrontation violation. But let us assume that the court would allow leading questions, and instead focus on these other problems posed by the Bratton-Cox procedure.

1. Adverse questioning would be delayed. As an often-quoted passage puts it. "The chief merit of cross examination is not that at some future time it gives the party opponent the right to dissect adverse testimony. Its principal virtue is in its immediate application of the testing process. Its strokes fall while the iron is hot." State v. Saporen, 205 Minn. 358, 362, 285 N.W. 898, 901 (1939) (emphasis added).

2. The accused may have to disrupt the presentation of his case to put on a witness who may be hostile or at least unhelpful.

3. The accused may appear to the jury to be over-reaching by putting the witness on the stand. This is especially true if the witness is a child or otherwise appears vulnerable. When the prosecution puts a witness on the stand, it is usually to tell her story; if the accused puts a hostile witness on the stand, it may appear that the purpose is to bludgeon her.

4. If the accused does not get something good out of the examination, the jury will likely notice and draw an inference against him: "Well, he certainly didn't get anything out of her worth bringing her in." By contrast, if the prosecution calls the witness, it is a simple matter for counsel to rise to ask a few questions without arousing expectations.

5. The accused incurs a substantial risk that calling the witness to the stand will make not only appearances but the weight of the evidence worse from his point of view. When a witness testifies live for the prosecution, the worst from the accused's standpoint has presumably occurred before the cross-examination begins; the prosecution has gotten from the witness however much it can that will help its case. Taking proper care, defense counsel can be reasonably sure that no further harm will be done, and cross is an opportunity to improve the situation, to undermine the damage that the witness has done by her testimony on direct, supplemented by any prior statement that has been admitted. But if only the prior statement has been presented to the jury before defense counsel rises, the situation is altogether different. Now defense counsel faces substantial uncertainty. If she puts the witness on the stand, it is possible that the witness will begin by disavowing the former statement, or otherwise failing to reconfirm it. It is also possible that the witness will begin by reaffirming the prior statement but that effective adverse questioning will undercut her credibility substantially. Either of these possiblities is good from the point of view of the defense. But there is a third possibility as well -- that the witness will begin by reaffirming the prior statement and not be impeached substantially. In that case, the defense will have done itself a great deal of harm by calling the witness to the stand. A lawyer wary of doing harm will often not take the chance.

Taken together, all these considerations make the opportunity for confrontation offered under the proposed procedure quite inferior to that provided under the Green rule, and a fortiori inferior to the opportunity provided when the prosecution puts the witness on the stand and the witness testifies on direct to the material propositions at issue. To say that the opportunity is inferior does not necessarily mean that it is inadequate constitutionally -- there is a question of what the baseline is against which constitutional violations are measured -- but it appears clear to me that the opportunity under the Bratton-Cox procedure is so far inferior that it should be considered inadequate.

To see why, think about this comparison: First, suppose a witness testifies for the prosecution, and either the testimony given from memory or a prior statement that is introduced as part of the direct is harmful to the defense. How often does defense counsel rise to ask questions on cross-examination? Most often. Now suppose the witness does not testify, though she is available to, but her prior statement is introduced. How often does the defense put her on the stand to examine her? Not often at all. I believe the difference is explained by the fact that under the Bratton-Cox procedure the opportunity for confrontation is so impaired, and so risky, that defense counsel dare not exercise it. Such an opportunity is not constitutionally adequate.

Now consider one other procedure that I have heard proposed: The prosecution is allowed to introduce the prior statement on the condition that if the defense wants the prosecution will put the witness on the stand as part of its case. This procedure does not appear to face problems 1 through 4 above. But it does face problem 5, in somewhat modified form: The prosecution is presumptively given a free ride -- it gets the statement in without first having to present the witness and having to take the chance that the witness will testify inconsistently with the prior statement -- and the defense is then put to the decision of whether it wants to risk making matters worse by having the witness testify live and possibly reaffirming the statement and sticking to it. I think the prosecution, the party that wants to present this evidence, rather than the accused, the party who has a right to "be confronted with the witnesses against him," should bear the risk of how the witness will testify.

Procedures to shift the burden to the defense may be based largely on a desire for efficiency, to avoid the necessity of putting a witness on the stand whom the defense doesn't have any real interest in cross-examining. But for the reasons I have stated, I don't think the procedures discussed here are acceptable. There is nothing wrong with the prosecution asking the defense to waive the confrontation right and allow admission of a prior statement. (There is an interesting complication, though: Rejecting the waiver request, and so insisting on confrontation, might entail some risk even though cross-examination itself will not do harm to the defense. That is, it might be that the defense is better off if the prior statement is introduced without the witness testifying live than if the witness gives vivid live testimony and is not substantially impeached. But I do not believe this risk -- choosing live tesitmony instead of a report of prior testimony -- is as substantial as that created by the procedures discussed above, in which the accused can get cross only by calling for live testimony in addition to a report of prior testimony.) And in some cases, as I will discuss soon in another post, I believe it is even appropriate to require the accused to certify that he has some good reason for not being willing to waive the confrontaiton right.