Saturday, December 24, 2005

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.


Anonymous said...

Not surprisingly, as an attorney who supervised Mr. Goldstein's Court of Appeals brief, I heartily concur with Prof. Friedman's praise for Judge Smith's opinion. Notably, the post-Crawford courts that have gone down "the path of least resistance" have without exception provided no analysis to support their ipse dixits that such statements are not offered for their truth. Except for the odd example (say, a psychiatrist testifies that someone told her that the defendant said "I'm Superman"), statements testified to by an expert, such as those at issue in Goldstein and in the Thomas case previously discussed by Prof. Friedman, will ordinarily "support the expert's opinion only if true," and thus can only be regarded as hearsay.

At least in New York, the Goldstein opinion may lead to considerable change in the manner in which expert testimony is presented in criminal cases. It is pretty clear that an expert will no longer be able to recite, in haec verba, statements she solicits from non-testifying witnesses in support of an opinion. Moreover, though this issue was not preserved in Goldstein, it is certainly arguable that if the expert does recite the substance of such statements, and also acknowledges that she relied on the statements at least in part in formulating her opinion, the constitutional admissibility of the opinion itself might be endangered.

It is doubtful that the problem could be circumvented by having the expert summarize rather than repeat the content of the statements, or convey their essence inferentially; the same hearsay problem would be presented, albeit indirectly.

Of course, the Confrontation Clause problem would be circumvented entirely if the prosecution called the declarants as witnesses. Moreover, at least in New York, if the declarants testify, their prior statements would be admissible under a hearsay exception.

The court's analysis of the "testimonial" nature of the statement may prove helpful outside the expert-witness context, since the court rejects a "formality" test and, as Prof. Friedman notes, summarily disposes of the argument that the statements weren't testimonial because Hegarty wasn't a government employee. Of course, the Supreme Court may well provide a clear definition of "testimonial" in Davis and Hammon.

Andrew Fine

B.Goldstein, APD said...

This issue has been raised in Miami, in an appeal from a misdemeanor DUI conviction, where an expert gave his opinion about blood alcohol levels based on tests conducted by a non-testifying witness who was not unavailable. If the appellate court finds that this violated the right to confrontation under Crawford, the state will probably appeal to the next level, the Third District Court of Appeal. I will report the result on this blog. For those who want to cite Goldstein before publication in the New York reports, it can be cited as 2005 WL 3477726 (N.Y.), or 2005 N.Y. Slip Op. 09654.

Roslyn said...

So, I don't actually believe this will have effect.