Saturday, December 24, 2005

R. v. Brasier -- a classic case from 1779

I have been commenting on very recent cases, but here is R v. Brasier, 1 Leach 199, 168 E.R. 202, a case from 1779 that has been much cited over the years. It bears on the treatment not only of fresh accusations but also of statements made by children and of accusations made to private care-givers. The report is as it stands in the English Reports, later annotations and all.


(An infant witness under seven years of age, if apprized of the nature of an oath, must be sworn; for no testimony is legal except it be giyen upon oath.)
[S.C. 1 East, P.C. 443; Bull. N. P. 293, Edit. 1790. Referred to, R. v. Guttridge, 1840, 9 C. & P. 471; R. v. Paul, 1890, 25 Q.B.D 202; R. v. Lillyman, [1896] 2 Q.B. 167.]
This was a case reserved for the opinion of the Twelve Judges, by Mr. Justice Buller, at the Spring Assizes for Reading, in the year 1779, on the trial of an indictment [1-Leach-200] for an assault with intent to commit a rape on the body of Mary Harris, an infant under seven years of age.
The case against the prisoner was proved by the mother of the child, and by another woman who lodged with her, to whom the child, immediately on her coming home, told all the circumstances of the injury which had been done to her: and there was no fact or circumstance to confirm the information which the child had given, except that the prisoner lodged at the very place which she had described, and that she had received some hurt, and that she, on seeing him the next day, had declared that he was the man; but she was not sworn or produced as a witness on the trial.
The prisoner was convicted; but the judgment was respited, on a doubt, created by a marginal note to a case in Dyer's Reports (Dyer, 303, b, in marg; 1 Hale, 302, 634; 2 Hale, 279; 11 Mod. 228; 1 Atkins, 29; Foster, 70; 2 Hawk. 612; Gilb. L. E. 144); for these notes having been made by Lord Chief-Justice Treby, are considered of great weight and authority; and it was submitted to the Twelve Judges, Whether this evidence was sufficient in point of law?
The Judges assembled at Serjeants'-Inn Hall 29 April 1779, were unanimously of opinion, That no testimony whatever can be legally received except upon oath; and that an infant, though under the age of seven years, may be sworn in a criminal prosecution, provided such infant appears, on strict examination by the Court, to possess a sufficient knowledge of the nature and consequences of an oath (see White's case, post, 430, Old Bailey October Session, 1786), for there is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court; but if they are found incompetent to take an oath their testimony cannot be received. The Judges determined, therefore, that the evidence of the information which the infant had, given to her mother and the other witness, ought not to have been received. The prisoner received a pardon (see the case of Rex v Travers, 2 Strange, 700).

United States v. Hadley: Not My Views on Fresh Accusations!

I must resist the temptation to comment here on every interesting Crawford case that comes down, and while Hammon and Davis are pending I will particularly refrain in general from commenting on cases presenting the type of issue raised there, the applicability of the Confrontation Clause to fresh accusations. But because the opinion of Hon. Gerald E. Rosen, a district judge sitting by designation on the Sixth Circuit, in United States v. Hadley specifically cites my work and contends that the result he reaches (the issue is not addressed by the other members of the panel) is "fully consistent" with my post-Crawford writings, I will say this: Judge Rosen's opinion does not at all reflect my views, and I do not think it reflects my writings, either. He cites my article, The Confrontation Clause Re-Rooted and Transformed, 2004 Supreme Court Review 439, 459-60 (available from Westlaw here or for purchase from the Cato Institute by clicking here). It is, frankly, hard for me to understand how one could read the pages he cites, or the carryover to the next page, and reach the conclusion about my views that he does. To whatever extent the confusion may be attributable to lack of clarity on my part, I hope it will be relieved by my brief in Hammon.

The Expertise End Run and People v. Goldstein

The New York Court of Appeals, the highest court in the state, issued a brave opinion on Deember 20 in People v. Goldstein, a notorious case in which the defendant pushed a woman he did not know to her death in front of an approaching subway train. Goldstein raised a defense of insanity, and in response the state presented the testimony of a forensic psychiatrist, Angela Hegarty, who testified that in her opinion Goldstein was sane at the time. Hegarty relied in substantial part on statements made to her by others, and the trial court admitted these statements.

The Court of Appeals, per Judge Robert Smith, held that New York evidence law did not prevent admission of Hegarty's opinion, notwithstanding the fact that it was based in part on out-of-court statements. Pointing to the 2000 amendment to Fed. R. Evid. 703, the court reserved an issue not presented by the parties, whether New York evidence law required exclusuion of the statements themselves. All this was preliminary, because the court held that the Confrontation Clause required exclusion of those statements.

The court first rejected the argument that the statements should be deemed to have been offered not for the truth of what they asserted but only in support of Hegarty's opinion. The court pointed out that the statements provided no support for that opinion unless they were true. In this context (not entirely clear how broad a context the court meant), the court said, the distinction between offering a statement for its truth and offering it to support an expert's opinion is "not meaningful." The court thus rejected the path of least resistance, down which others have gone in accepting the distinction; see my prior posting on the subject. The court is clearly correct that in this case the distinction is an empty one. And perhaps there should indeed be a per se rule that when the statement supoprts the esxpert's opinion only if true then the statement should be deemed to be offered for the truth for Confrontation Clause purposes. Add one more to the list of Crawford-related issues the Supreme Court will have to resolve.

The court also held, without apparent difficulty, that the statement was testimonial. Hegarty was hired by the state to testify for the People, and the court infers that the interviewees should reasonably have understood that she was involved in trial preparation and that their statements were likely to be used prosecutorially. The court properly and quickly rejected arguments that the statement could not be testimonial becausei t was informal and because Hegarty was not a government official.

The only issue the court seemed to find problematic was the question of harmless error. the cour tc oncluded that the error was not harmless, and reversed the conviction. This issue, and only this one, led to the only dissent, by a single judge, Susan Phillips Read.

Leaving aside the harmless error portion, which I have not examined carefully and on which I have no view, the majority opinion is solid, persuasive, and terse; the last point is worth emphasis, even apart from style, because it treats isues that should not be difficult in a clear and straightforward way. And yet it is sensitive to the human cost of sending the matter back for another trial. I would like to ascribe the quality of the opinion to the fact that I worked for Judge Smith in practice a quarter century ago, but I don't see anything in the opinion to support this hypothesis.

Petitioner-side briefs filed in Hammon and Davis

The briefs for the petitioners and supporting amici in Hammon v. Indiana and Davis v. Washington were filed on December 22. You can see the brief I filed for the petitioner in Hammon by clicking here . For the petitioner's brief in Davis, filed by Jeff Fisher, click here. For the amicus brief filed in both cases by the American Civil Liberties Union and its Indiana and Washington affiliates, click here. For the amicus brief in Hammon of the National Association of Criminal Defense Lawyers and the Public Defender Service for the District of Columbia, click here, and for the amicus brief filed in Davis by the same two organizations and also the Washington Association of Criminal Defense Lawyers, click here.