Wednesday, August 02, 2006

Shifting the Burden, Take 2

One response to Crawford that has been attempted by prosecutors in some states has been to tell defendants, in effect, "We are introducing into evidence a testimonial statement made by a witness whom we are not calling to the stand. But the witness is available, and if you like you may subpoena her and call her as your own witness." In State v. Campbell, 2006 ND 168, 2006 WL 2074742, called to my attention by James Duane, the North Dakota Supreme Court recently held this procedure constitutionally acceptable in the context of the report of a state crime lab. The court strongly suggested that the report was testimonial (I think it plainly was), but decided it need not determine that issue definitively because, in its view, the defendants had waived the confrontation right. The basis for this conclusion was that a statute gave the defendants the right to subpoena the author of the report and they did not do so. I have previously discussed at some length on this blog reasons why I believe that such a procedure is constitutionally inadequate. I will not repeat those arguments; you may read the prior posting by clicking here.

I will add several further thoughts, though. First, suppose that a state adopted a general procedure that whenever a prosecution witness testified the accused could indicate his desire for cross-examination, but that cross would be deferred until the close of the prosecution's case, at which time the accused would have the option of recalling the witness. Obviously, such a procedure would be a dramatic change of traditional criminal trial procedure. It seems unlikely to me that it would satisfy the Confrontation Clause. But the subpoena process approved by Campbell is worse, because the initial testimony is not presented live and the defendant has to subpoena the witness, not simply demand cross.

Second, the logic of the Campbell opinion appears to be unlimited with respect to types of statement. That is, the prosecution could present its entire case through affidavits and say to the defense, "We believe these witnesses are available. If you insist on confronting them, subpoena them and call them as part of your case." That would work an even greater revolution in criminal trial procedure. Perhaps implicit in Campbell is the idea that the declarant there was under the control of the state, so that there could be no doubt about his or her availability. But if so, why should the defense have to subpoena the witness, rather than simply demand that the state produce him or her? And if that is all the defense has to do, shouldn't the witness have to testify as part of the prosecution's case rather than as part of the defense's?

Third, the subpoena procedure would make inevitable frequent litigation over availability of the witness, with the incentives twisted. Note that under Crawford, as under Roberts before it, it is the prosecution, the party seeking admission of the prior statement, that sometimes claims the witness is unavailable. Under the ordinary post-Crawford procedure, the issue of unavailability arises only if there has been a prior oportunity for confrontation. Even within that relatively small category of cases, the prosecution has a strong incentive to produce the witness -- it may prefer the live testimony of the witness to the out-of-court statement, but in any event producing the witness avoids the issue and so is safer. Thus, the prosecution will want to demonstrate unavailability in those cases, and pretty much only those cases, in which it is not able easily to produce the witness. But the subpoena process turns the incentives around. Under that process there has not been an opportunity for confrontation, so if the witness is unavailable the out-of-court testimonial statement must be excluded. Thus, the defendant, the party on whom the burden of producing the witness is placed, has a strong incentive to demonstrate that he cannot do so. If the defense reports that it subpoenaed the witness but the witness does not appear, then the prosecution would frequently contend that the fault is the defense's -- the subpoena was too late, or it went to the wrong place, or it wasn't served properly, or no effort to enforce it was made. (And what effort should the defense make?) If the witness is determined to be unavailable, the statement must be excluded and the process will have achieved nothing. The prosecution might demonstrate that the witness is available by producing her itself, in which case also the process will have achieved nothing. Or perhaps the court will determine that the witness could have been produced by proper efforts, but that seems unacceptably speculative.

Fourth, it is perfectly acceptable, and probably virtually inevitable, to require the defendant, as a condition of predicating error on a denial of confrontation, to make a timely demand that the witness be produced. The critical differences between such a requirement and the subpoena process approved by the Campbell court are: (1) Under the subpoena process, but not under a timely demand requirement, it is the defense that does the work of procuring the witness's attendance. (2) Under the subpoena process, the witness testifies as part of the accused's case, raising numerous difficulties analyzed in my prior posting. Under a timely demand requirement, the witness testifies as part of the prosecution case, which is as it should be. Note, then another recent case, Howard v. United States, 2006 WL 1834995 (D.C. Jul. 6, 2006; amended, Jul. 10), called to my attention by Jeff Fisher. The situation was similar to that of Campbell, and the court likewise held that the accused waived the confrontation right by not subpoenaing the author of a lab report. But here the court not only emphasized that the subpoena was cost-free to the defendant but declared:
Had the defense served a subpoena on the chemist, as the statute permits, the government could have presented him in its case in-chief, and the chemist then would have been available for cross-examination by the defense.
If the court insists that the witness, if subpoenaed, testify as part of the prosecution's case, then a subpoena procedure that is cost-free to the defendant looks very much like a requirement of a timely demand.

Finally, having said all this, I think it may be possible to articulate situations in which the accused may be required to certify that he has some good reason for not being willing to waive the confrontation right -- just wanting to impose costs on the prosecution and thereby gain a litigation advantage not being a good reason. Indeed, in my prior post on burden-shifting, I said that I would soon present another post discussing this possibility. But I have not made good on the promise yet; as I began drafting it became apparent to me that the matter was more complex than I had anticipated. I will continue mulling, because I think this is a crucial subject, and I welcome comments.


Rocky Sharwell, APD said...

A defendant in FL could be giving up something potentially valuable at trial by calling the analyst in his or her case.

Under Florida law--at least until October 1, 2006, a defendant who calls a witness or introduces any evidence forfeits the right to first and last word in closing argument. The legislature recently passed a statute giving the State first and last word in closing--It remains to be seen what happens to the rules of criminal procedure.

David B. Chontos said...

A different scenario but heading in the same direction is the case from PA's intermediate appellate court. I am pasting from a footnote in a Crawford brief I filed today.
In Commonwealth v. Love, 896 A.2d 1276 (Pa. Super. 2006), the appellant complained the Crawford rule of law applies to a statement from a judge who was a witness to disorderly behavior in his courtroom. In support of the prosecution, the government submitted the judge’s statement as evidence. This was accomplished through Pa.R.E. 803(1) – Present Sense Impression. The judge was not called as a government witness. The judge was made available but the defense choose not to call him. On this factual record, the Love panel ruled there was no “prejudice” and characterized appellant’s Crawford argument as “absurd and disingenuous.” Id., at 1283.

Anonymous said...

Here in Virginia, we can get a certificate of analysis from the state lab in less that 5 months. Meanwhile, defendant is in custody. If you complain, the judge will nolle prosse the case, then your client will suffer a new arrest on a straight indictment. New bond and no finding out the facts at a preliminary hearing.
At trial, if you were to subpoena the chemist to court in all your cases, I am sure that such a lawyer would be removed from the court appoinyed list, or, if an assistant pd, told to stop it or be fired.

Richard Klibaner said...

Under the Massachusetts statute, the chemist's certificate is prima facie evidence of the type and quantity of the alleged drugs. Requiring the defendant to show good cause to call the chemist is very much like requiring him to stipulate to the facts set forth in the certificate unless he has evidence calling the results into question. It removes from the state the burden of establishing elements of the crime.

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One of my buddy's recently got into some trouble at a bar and the short story is he was arrested on assault charges which are ridiculous we were there and watched as a random guy came up to him punched him in the face and began repeatedly beating him. He stood up to defend himself and in the crossfire the wasted dude fell and banged his head on the kerb. The cops show up and don't want to hear us and arrest him.
It all got cleared up in the end but had that have gone to court and my friend had to have paid court bonds could he have claimed them back or even sued the police force for wrongful arrest? Also where would be the best place for getting bonded?