Monday, March 28, 2005

A Strange Federal Opinion on Dying Declarations and Forfeiture

In United States v. Jordan, 2005 WL 513501 (D. Co. March 3, 2005), a judge of the United States for the District of Colorado has issued one of the stranger opinions I have seen concerning dying declarations and the forfeiture doctrine.

The accused is charged with stabbing a fellow inmate, Stone, to death. Afraid that he was dying, and in fact on the verge of death, Stone made several statements accusing Jordan of the crime. There does not seem to have been much dispute, and the court dquarely concluded, that the statements fell within the dying declaration exception to the hearsay rule, Fed. Rule of Evidence 804(b)(2). That did not ensure admissibility, though, for the court held that Stone’s statements to an investigating Bureau of Prisons agent were “patently testimonial.” This seems clearly correct; indeed, I believe that his statement to the same effect to a paramedic ought also to have been considered testimonial, but that issue does not have any impact on the outcome of the case.

The court then considered the status of dying declarations under Crawford. It quite accurately said, “Whether driven by reliability or necessity or both, admission of a testimonial dying declaration after Crawford goes against the sweeping prohibitions set forth in that case.” But it also noted that Crawford nevertheless preserved the possibility of maintaining as an historically based anomaly an exception to the confrontation right for such declarations. And yet the court rejected this argument, asserting that “the dying declaration exception was not in existence at the time the Framers designed the Bill of Rights.” Not only is this statement strikingly inaccurate – see, e.g., R. v. Woodcock, 1 Leach 500, 168 E.R. 352 (K.B. 1789) – but it also seems quite squarely in conflict with the court’s statement made just a few paragraphs before: “The dying declaration became an exception to the rule against hearsay in the early 18th Century.” And the court followed its inaccurate assertion with a series of non sequiturs:
At the time of enactment of the Sixth Amendment, "sworn statements of witnesses before coroners" were admissible despite not being subject to cross-examination. [124 S.Ct.] at 1376. Crawford requires both necessity (unavailability) and an opportunity for cross-examination (Sixth Amendment confrontation to test reliability). Based on my reading of Crawford, in the case of a dying declaration, the presence of only one will not suffice. Inability to test Stone's statements through the constitutionally rooted crucible of cross-examination is fatal to application of the dying declaration exception to the hearsay rule in this case.
I agree with the Jordan court that the dying declaration exception makes little sense and that it does not square well at all with the theory of Crawford. (See the post on Forfeiture and dying declarations.) But it is plain that the doctrine did exist at the time of the Sixth Amendment, that Crawford acknowledges this, and that Crawford at least holds open the possibility that, notwithstanding the absence of an opportunity for cross-examination, statements fitting within the exception ought to be admissible on historical grounds. I do not believe that this invitation should be taken up, largely because forfeiture dotrine achieves much the same results in a far more persuasive manner.

But the Jordan court also declined to apply forfeiture doctrine. It relied on Fed. R. Evid. 804(b)(6), which applies only if the wrongdoing on which the forfeiture contention is based "was intended to, and did, procure the unavailability of the declarant as a witness." But in the context of the case, it was wrong for the court to give anything more than persuasive weight to the Federal Rule. The statements were, as noted above, dying declarations within the meaning of Fed. R. Evid. 804(b)(2). Even assuming that – as the court held, and as I think proper – this does not relieve the confrontation problem, it certainly does resolve the hearsay problem. There is therefore no need to find a further way around the Federal Rules' presumptive ban on hearsay. The court, in short, should not have looked to the Federal Rules' expression of forfeiture doctrine. Whether the confrontation right is forfeited is a matter of federal constitutional law, and there is no reason why the constitutional standard of forfeiture must conform to the Federal Rules' expression of the doctrine. Therefore, even if it is true that, as the court said, there are no cases holding "that a murder whose by-product is the unavailability of a witness to that killing is covered by the rule [i.e., Rule 804(b)(6)]," this does not answer the constitutional question. As I have indicated in the post on Forfeiture and dying declarations, there are already several post-Crawford cases holding that a murder defendant may forfeit the confrontation right by committing he very killing with which he is now charged. And for reasons expressed in that same post, I believe these decisions are correct: The constitutional right should be forfeited if the accused's wrongdoing rendered the witness unable to testify subjeect to confrontation, whether or not that wrongdoing was motivated by the desire to achieve that result.

Ultimately, the strangest aspect of the Jordan case is the outcome. For hundreds of years, dying declarations have been admitted against homicide defendants. The courts have not usually articulated sound reasons for this result, but it is one that has strong intuitive appeal, as implicitly recognized by Crawford. Had the Jordan court held that in the circumstances of this case the statement could not be admitted because the prosecution had failed to mitigate the problem created by Jordan's wrongdoing, the decision would have had relatively narrow implications and would have been on firm theoretical grounds, see the post on Forfeiture, the Prosecutorial Duty to Mitigate, and Rae Carruth, however dubious might be the factual conclusion that mitigation was a reasonable possibility. But instead, the court's decision appears to preclude any use of a dying declaration identifying a killer and made to an investigator (and in my view the logic should carry beyond that, whether the audience was a public official or not), unless the prosecution can show that the assailant was motivated by the desire to prevent the victim from testifying. That is not a result most courts will find at all attractive. If the Government decides to appeal, my guess is that this decision will be dead on arrival at the 10th Circuit.

6 comments:

TJ said...

Did you notice that Michael Crawford pled to 10 years on remand yesterday? A win in the Supreme Court = 4 years off your sentence.

Peter Tillers said...

In an attempt to rebut a federal trial judge's claim that “the dying declaration exception was not in existence at the time the Framers designed the Bill of Rights,” Rich cites R. v. Woodcock, 1 Leach 500, 168 E.R. 352 (K.B. 1789). I take no position on the question of whether Rich and Scalia are correct in asserting that the exception for dying declarations did exist when "the Framers designed the Bill of Rights." But, speaking (once again) as an ingenue in matters historical, I wonder (but do not know) if Rich is being a bit careless in his use of history.

It seems that WOODCOCK was a case decided in Merry Old ENGLAND, and not in the Colonies. Moreover, it seems that WOOCOCK was decided SOMETIME in 1789.

Would "the Framers" have known about WOODCOCK in 1789?

In 1789 there was no internet, no telephone, no telegraph, and (as far as I know) no telepathy; and there were no steamships, no hot air balloons capable of transatlantic flight, and no heavier-than-air aircraft.

Even if a report of the decision reached these shores in 1789 (but in what part of 1789?) is it likely that the Framers knew of the decision in 1789? All of them? Some of them? Many of them?

Would all of the Framers have learned of the decision immediately after a report of the decision reached these shores? Almost immediately? After a few months? How many months?

It is, to be sure, entirely possible that there are satisfactory answers to these questions. (For example, perhaps WOODCOCK simply reiterates the rule clearly stated in, say, thirty earlier decisions, including, perhaps, even decisions by Colonial courts.) So Rich's bottom line may be entirely correct, it may be indisputable -- given other but unmentioned legal evidence & considerations. This I do not question. My plea is only this: I would appreciate a few words of explanation about the sorts of questions mentioned here, from Rich and particularly from decision makers such as Justice Scalia when they cite decisions from the early 1790s or late 1780s in an attempt to show what the Framers thought, believed, intended, or assumed in, say, 1789. (Tom Davies' forthcoming Brooklyn conference paper about questions of this sort has emboldened me to pipe up here and now. Moral: I claim no originality for the kinds of questions & doubts I mention here & now.)

A further question:

Given the state of communications in the 1780s and given other barriers to transmission of legal knowledge at the time, it is not obvious to me that I should assume that what was known to English judges and barristers even as early as, say, 1780 was also in the in the minds of some, many, or all of the Framers in 1789.

N.B. My nitpicking questions would or might be largely answered if I were reliably informed that there is a consistent stream of decisions in Merry Old England dating from, say, the 1750s about dying declarations -- because then, if I thought that the appropriate reference point for the status of dying declarations under the 21st century's Confrontation Clause is what the American Colonists -- or, in any event, the Drafters -- thought the English common law had to say about the question of the admissibility of dying declarations, my guess would be, should be, or might be that the Colonists thought that the common law in the Colonies is or should be (roughly?) the English rule that is clearly revealed by a stream of English decisions from ca. the 1750s onwards -- and that such common law should not be repudiated by the Confrontation Clause. But if I am told there was an English decision that was apparently made in 1789 and that was, possibly, well known to English legal professionals (some of them, in any event) in 1789, ... well ... I just don't know what a 1789 decision of that sort tells me about the probable state of mind or assumptions of any people in the Colonies in 1789, even the state or mind of well-educated Colonials.

A collateral point: If the history of one, two, or three thousand years (or so) is ultimately the true historical basis for the type of principle of confrontation embraced by the Court in Crawford, should the same long historical interval (rather than, say, 1750 - 1789 in England and the Colonies) be dispositive of the status of dying declarations under the Confrontation Clause? If we should use a broad swath of history to give meaning to "confrontation," why should we do otherwise when we ponder the relationship between dying declarations and the principle of confrontation? So which is it: principles of confrontation that men and women have embraced since time immemorial (a/k/a for a very long time) or principles that certain people in certain places embraced in the late 18th century? (We could, of course, say that people in the late 18th centurt embraced -- or TRIED to embrace -- principles that prevailed since time immemorial. But then do we emphasize what those late-18th century people THOUGHT those eternal principles are -- or should we instead emphasize what those pretty-much-perpetual principles ACTUALLY were? Questions, questions, ....)

Andrew Fine said...

I'm responding to Prof. Friedman's argument that forfeiture of confrontation is a constitutional question, and that, accordingly, "there is no reason why the constitutional standard of forfeiture must conform to the Federal Rules' expression of the doctrine (in FRE 804(b)(6)." Technically, he's right, because 804(b)(6) is framed as a hearsay exception, and if a statement qualifies under another such exception (such as dying declaration), the hearsay problem has been overcome, and other enumerated exceptions are irrelevant (though it's a bit ironic that Prof. Friedman is relying on the applicability of the dying-declaration exception, which he despises).

More fundamentally, however, the notion of constitutional supremacy over rules and legislation in the context of forfeiture troubles me. Suppose that 804(b)(6) had not been framed as a hearsay exception, but as a limitation on courts' power to refuse to apply the Confrontation Clause on forfeiture grounds, and had provided that forfeiture may be applied only where the court finds that defendant's motive was to procure the declarant's unavailability as a witness. Would Prof. Friedman still argue that courts are free to determine, as a constitutional matter, that forfeiture must be applied regardless of the defendant's motive? Shouldn't rule-making bodies or legislatures have the authority to grant defendants more protection against the introduction of uncross-examined testimonial hearsay, on policy grounds, than the constitution requires as a baseline? Though the constitution may allow state and federal courts to determine that a defendant has forfeited his 6th Amendment rights, I don't think it can require them to do so.

Richard D. Friedman said...

Very belatedly, in response to the comments by Peter and Andy:

Peter suggests I may have been careless in citing the 1789 decision in Woodcock for the proposition that the Jordan court was “strikingly inaccurate” in asserting that “the dying declaration exception was not in existence at the time the Framers designed the Bill of Rights.” I’ll admit to being casual, but I don’t think careless. I did not contend that the Framers read or knew about Woodcock, which was almost exactly contemporaneous with the drafting of the Bill of Rights, but only that it is one case (the citation was “see, e.g.,”) demonstrating that the exception was indeed in existence at the time the Bill of Rights was drafted. A glance at Woodcock shows that it does not purport to create a new doctrine but rather explains one that is familiar. (“Now the general principle on which this species of evidence is admissible is . . .”). I cited Woodcock because it seemed adequate to the task and I had it close at hand. I might also – had I been inclined to do more work, which I didn’t think was necessary for the point – have cited R. v. Reason, 16 How. St. Tr. 1 (K.B. 1722), which is cited by Crawford in footnote 6 (also reported in 1 Strange 499, 93 E.R. 659), or Bambridge’s Trial, from 1729-30, 9 Hargrave’s State Trials 151, 161; or R. v. Ely (1720), 12 Viner’s Abr. 118. And as I mentioned in my post, the Jordan court itself says that the exception originated early in the 18th century; the court cites Howard L. Smith, Dying Declarations, 3 Wis. L. Rev. 193, 203 (1925), which contends that until the early 19th century the exception was considerably broader than it is now. And by the way, I have no particular interest in showing that the dying declaration exception existed before the Sixth Amendment; the fact that it did is something that I have to reconcile (which I bleieve I can do, by forfeiture theory) with a categorical view of the confrontation right

Peter’s questions are inspired by the paper presented at the Brooklyn Conference by Tom Davies. Tom focuses on Justice Scalia’s assertion in Crawford that “ by 1791 (the year the Sixth Amendment was ratified), courts were applying the cross-examination rule even to examinations by justices of the peace in felony cases.” He shows very well that the cases that Justice Scalia cites in support of this proposition were probably not known by the Framers of the Sixth Amendment. But I don’t think this undercuts the basic points of Justice Scalia’s argument. Scalia shows that the necessity of cross-examination as a prerequisite for the admissibility of testimonial statements was established in the 17th century. And then, in what amounts to an aside, he notes that the exception for examinations under the Marian statutes wore away, so that “by 1791 (the year the Sixth Amendment was ratified), courts were applying the cross-examination rule even to examinations by justices of the peace in felony cases.” He then continues the English story, saying that early 19th century treatises confirm the cross-examination requirement, and that an 1848 statutory change merely confirmed common law developments in the common law. Justice Scalia does not appear to be arguing that the exception perceived in the Marian statutes to the usual cross-examination requirement was undone by the time the Sixth Amendment was adopted, and therefore this is an important factor in determining how the confrontation right should be construed. That would make no sense. There was no possibility that the Confrontation Clause, in speaking in categorical terms, could have been understood to draw an exception for examinations under the Marian statutes – which were not even a part of federal law. I think Justice Scalia was probably trying to say that the common-law principle of confrontation, which the Sixth Amendment adopted as a matter of constitutional law, was so powerful that at about the time of the adoption it even swept away in England this exception that had been perceived under the Marian statutes. Had the English cases limiting the procedure under the Marian statutes occurred in, say, 1795, I don’t think the essential nature of his argument – which followed the English story into the middle of the 19th century – would have been much changed.

Peter raises an interesting question about different time horizons. The question is significant, I think, only to the extent that we take an originalist view of the meaning of the Clause. Though I think history is important, I don’t think it’s the exclusive source of meaning, but let’s lay that aside for now. I think the horizon for an originalist in thinking about the confrontation right itself is very broad because the right has been around for a long time, and the Framers presumably understood it in the context of Biblical texts and English experience of the previous two hundred years. So far as I know, the history of the dying declaration exception, or at least of its articulation ,was not nearly so deep. was articulated

Andy Fine asks: “Shouldn't rule-making bodies or legislatures have the authority to grant defendants more protection against the introduction of uncross-examined testimonial hearsay, on policy grounds, than the constitution requires as a baseline?” Of course they should, and are. But if they do that, those rules aren’t constitutionally based. So far as the Constitution is concerned, the question is: When is the accused’s constitutional right to confrontation forfeited because of conduct that resulted in the witness’s unavailability? I have argued that there ought to be forfeiture of the constitutional right if wrongful conduct by the accused rendered the witness unavailable, even if that conduct was not motivated by a desire to do so. In crafting their hearsay rules, jurisdictions do not have to include a forfeiture doctrine at all; until FRE 804(b)(6) was adopted, the Federal Rules did not explicitly have a forfeiture exception. If they do have such an exception, it can be the same as, broader than, or narrower than the constitutional doctrine. FRE 804(b)(6) is narrower than the forfeiture doctrine that I have suggested should govern the confrontation right. That means that if a statement is hearsay and does not satisfy FRE 804(b)(6) or any other exemption, it will be excluded as a matter of hearsay law even if forfeiture doctrine would remove a confrontation problem. But if the hearsay law of the jurisdiction provides another exemption – say, the residual exception – then that takes care fo the hearsay problem, and the constitutional forfeiture doctrine can take care of the confrontation problem even if FRE 804(b)(6) would not be satisfied. I guess therefore that I do not understand the problem Andy addresses in the first paragraph of his comment, or at least do not understand it to be a problem.

Richard D. Friedman said...

Very belatedly, in response to the comments by Peter and Andy:

Peter suggests I may have been careless in citing the 1789 decision in Woodcock for the proposition that the Jordan court was “strikingly inaccurate” in asserting that “the dying declaration exception was not in existence at the time the Framers designed the Bill of Rights.” I’ll admit to being casual, but I don’t think careless. I did not contend that the Framers read or knew about Woodcock, which was almost exactly contemporaneous with the drafting of the Bill of Rights, but only that it is one case (the citation was “see, e.g.,”) demonstrating that the exception was indeed in existence at the time the Bill of Rights was drafted. A glance at Woodcock shows that it does not purport to create a new doctrine but rather explains one that is familiar. (“Now the general principle on which this species of evidence is admissible is . . .”). I cited Woodcock because it seemed adequate to the task and I had it close at hand. I might also – had I been inclined to do more work, which I didn’t think was necessary for the point – have cited R. v. Reason, 16 How. St. Tr. 1 (K.B. 1722), which is cited by Crawford in footnote 6 (also reported in 1 Strange 499, 93 E.R. 659), or Bambridge’s Trial, from 1729-30, 9 Hargrave’s State Trials 151, 161; or R. v. Ely (1720), 12 Viner’s Abr. 118. And as I mentioned in my post, the Jordan court itself says that the exception originated early in the 18th century; the court cites Howard L. Smith, Dying Declarations, 3 Wis. L. Rev. 193, 203 (1925), which contends that until the early 19th century the exception was considerably broader than it is now. And by the way, I have no particular interest in showing that the dying declaration exception existed before the Sixth Amendment; the fact that it did is something that I have to reconcile (which I bleieve I can do, by forfeiture theory) with a categorical view of the confrontation right

Peter’s questions are inspired by the paper presented at the Brooklyn Conference by Tom Davies. Tom focuses on Justice Scalia’s assertion in Crawford that “ by 1791 (the year the Sixth Amendment was ratified), courts were applying the cross-examination rule even to examinations by justices of the peace in felony cases.” He shows very well that the cases that Justice Scalia cites in support of this proposition were probably not known by the Framers of the Sixth Amendment. But I don’t think this undercuts the basic points of Justice Scalia’s argument. Scalia shows that the necessity of cross-examination as a prerequisite for the admissibility of testimonial statements was established in the 17th century. And then, in what amounts to an aside, he notes that the exception for examinations under the Marian statutes wore away, so that “by 1791 (the year the Sixth Amendment was ratified), courts were applying the cross-examination rule even to examinations by justices of the peace in felony cases.” He then continues the English story, saying that early 19th century treatises confirm the cross-examination requirement, and that an 1848 statutory change merely confirmed common law developments in the common law. Justice Scalia does not appear to be arguing that the exception perceived in the Marian statutes to the usual cross-examination requirement was undone by the time the Sixth Amendment was adopted, and therefore this is an important factor in determining how the confrontation right should be construed. That would make no sense. There was no possibility that the Confrontation Clause, in speaking in categorical terms, could have been understood to draw an exception for examinations under the Marian statutes – which were not even a part of federal law. I think Justice Scalia was probably trying to say that the common-law principle of confrontation, which the Sixth Amendment adopted as a matter of constitutional law, was so powerful that at about the time of the adoption it even swept away in England this exception that had been perceived under the Marian statutes. Had the English cases limiting the procedure under the Marian statutes occurred in, say, 1795, I don’t think the essential nature of his argument – which followed the English story into the middle of the 19th century – would have been much changed.

Peter raises an interesting question about different time horizons. The question is significant, I think, only to the extent that we take an originalist view of the meaning of the Clause. Though I think history is important, I don’t think it’s the exclusive source of meaning, but let’s lay that aside for now. I think the horizon for an originalist in thinking about the confrontation right itself is very broad because the right has been around for a long time, and the Framers presumably understood it in the context of Biblical texts and English experience of the previous two hundred years. So far as I know, the history of the dying declaration exception, or at least of its articulation ,was not nearly so deep. was articulated

Andy Fine asks: “Shouldn't rule-making bodies or legislatures have the authority to grant defendants more protection against the introduction of uncross-examined testimonial hearsay, on policy grounds, than the constitution requires as a baseline?” Of course they should, and are. But if they do that, those rules aren’t constitutionally based. So far as the Constitution is concerned, the question is: When is the accused’s constitutional right to confrontation forfeited because of conduct that resulted in the witness’s unavailability? I have argued that there ought to be forfeiture of the constitutional right if wrongful conduct by the accused rendered the witness unavailable, even if that conduct was not motivated by a desire to do so. In crafting their hearsay rules, jurisdictions do not have to include a forfeiture doctrine at all; until FRE 804(b)(6) was adopted, the Federal Rules did not explicitly have a forfeiture exception. If they do have such an exception, it can be the same as, broader than, or narrower than the constitutional doctrine. FRE 804(b)(6) is narrower than the forfeiture doctrine that I have suggested should govern the confrontation right. That means that if a statement is hearsay and does not satisfy FRE 804(b)(6) or any other exemption, it will be excluded as a matter of hearsay law even if forfeiture doctrine would remove a confrontation problem. But if the hearsay law of the jurisdiction provides another exemption – say, the residual exception – then that takes care fo the hearsay problem, and the constitutional forfeiture doctrine can take care of the confrontation problem even if FRE 804(b)(6) would not be satisfied. I guess therefore that I do not understand the problem Andy addresses in the first paragraph of his comment, or at least do not understand it to be a problem.

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