Mayhew is also useful more generally in demonstrating that Cromer is not the product of some crazed let-‘em-loose mentality. Cromer and succeeding cases in the Sixth Circuit have taken a broad view of what is testimonial under Crawford – and this is perfectly consistent with a broad view of when an accused should be considered to have forfeited the confrontation right.
Indeed, I believe that many of the cases in which courts have an impulse to let in a statement that really ought to be considered testimonial can best be dealt with by invoking forfeiture doctrine – so long as this is done by proper standards and procedures. Consider in this light State v. Wright, 2005 WL 1903860 (Minn. 2005). In a post of yesterday I have commented critically on Wright's refusal to treat as testimonial key statements made by the accused's girlfriend, referred to as R.R., and her sister. Given that holding, the Minnesota Supreme Court acted properly in declining to consider whether Wright had forfeited his confrontation right. But if the court had held, as it should have, that the statements were testimonial, then the forfeiture issue would have been critical. Here are important facts on that issue as stated by the Minnesota court:
While preparing the case against Wright, the Hennepin County Attorney’s office repeatedly telephoned R.R.’s sister, but was unable to reach her. A police investigator attempted several times to reach R.R., and when R.R. finally answered a telephone call, she told the investigator that she did not want to participate in the case. The investigator went to R.R.’s residence to deliver a subpoena, and when no one answered, he slid the subpoena under the apartment door. A domestic violence victims’ advocate told the court that she had spoken with R.R., who said that she was concerned for her safety and her sister’s safety if they were to testify. R.R. also was concerned that Wright still might have keys to her apartment, and told the victims’ advocate that Wright had been telephoning her from jail. According to the advocate, Wright told R.R. that “if she doesn’t do what he wants someone will come over to her house and do something to her.”Given these facts, should Wright be held to have forfeited the confrontation right? I believe the answer is no. That is not because the contention of forfeiture is based on intimidation rather than, say, kidnaping or murder, or because the intimidation allegedly arose, at least in part, from the same conduct that formed the basis of the criminal charge against Wright. It is perfectly appropriate to apply forfeiture doctrine in such circumstances; see my long prior post on the subject. But a doctrine with such an extensive reach must not be applied in such a way that any complaining witness can avoid confronting the accused simply by having a government official contend that she was intimidated.
To support a determination of forfeiture, the state bears the burden of showing that the witness is genuinely unavailable, that this unavailability is attributable to the wrongdoing of the accused, and that the state has done what it could to obviate the problem. In referring to the state, I am eliding for now the question of what responsibilities belong to the prosecution and what belong to the court.
In some cases, the state must show that it has done what it could to identify and locate the declarant. In Wright, that was not a problem with respect to R.R., but the efforts of the state to locate the sister appear to have been desultory at best. Beyond that, the state must compel the attendance of the witness at trial or at some other testimonial proceeding where she may confront the accused – genuinely compel her attendance, not merely shove a subpoena under her door. If the state has reason to believe that the witness may be willing to testify in the near future but not in the more distant future, then it should arrange for the proceeding to be held as soon as practical. At the proceeding, the state should attempt to administer the oath, to examine the witness, and to allow for cross-examination. To the extent the witness is recalcitrant, the state should attempt to examine her as to why she is. At least arguably, she ought to be subjected to sanctions for contempt if she improperly refuses to testify, and afforded some form of protection if there is reason to believe that she is in genuine danger for testifying.
This is an immensely complex matter to work out, and it is sure to be highly controversial. But it is also very important. If the question of what is testimonial is resolved as it should be, then my guess is that a great deal of the action in the area of confrontation over the next decade or so will concern this question of what process is necessary before an accused may be deemed to have forfeited the confrontation right. In my view, a robust doctrine of forfeiture is essential to developing a satisfactory law of confrontation; otherwise, the courts will find themselves irresistibly tempted to put beyond the scope of the Confrontation Clause statements that clearly should be characterized as testimonial. But we must avoid creating a doctrine under which a crucial prosecution witness may avoid confronting the accused by the mere expedient of having a government official testify, “She was too scared to come to court.”