Friday, November 10, 2006

Manipulation of the "Objective Witness" Standard

I’m not making any predictions about what will happen in Columbus, Ohio, on November 18, but here’s a prediction I will make: The Michigan Supreme Court will not soon issue a Crawford opinion as absurd as the one issued this week (over a nice dissent) by a 4-3 majority of the Ohio Supreme Court in State v. Stahl, 855 N.E.2d 834, 2006-Ohio-5482. Stahl is an example of a court reciting the optimal standard for what is testimonial – and then flagrantly manipulating that standard. It shows how important it is that the United States Supreme Court start setting some categorical rules.

Stahl was accused of an oral rape. The complainant, Amy Mazurek, made a detailed statement shortly after the incident to a police officer, who took her to a Developing Options for Violent Emergencies ("DOVE") unit, specializing in health-care services for victims of sexual assault and domestic disturbances, at a local hospital. Mazurek signed a consent form that read:

I voluntarily consent to this forensic examination and collection of evidence. I have received a detailed description of the steps of the process and understand that I may withdraw my consent to any or all parts of this examination at any time. I authorize the release of evidence, information (including protected health information), clothing, colposcope photos, and photography documentation of injuries to a law enforcement agency for use only in the investigation and prosecution of this crime. I understand that if release of the Sexual Assault Evidence Collection Kit is not authorized, the kit will be kept at the SANE [Sexual Assault Nurse Examiner] Unit for sixty days and then destroyed.

The police officer remained in the examination room throughout the entire exam, which was conducted by a nurse-practitioner, Jenifer Markowitz, who was coordinator for victim services of the unit. Markowitz took a statement from Mazurek, which included an identification of the assailant, and, according to the court,

also collected materials using an approved forensic evidence-collection kit (see Ohio Adm.Code 109:7-1-01), including nail scrapings, oral swabbings, and material retrieved with dental floss. Additionally, Markowitz used ultraviolet lighting to identify any bodily fluids still present. Markowitz also collected a napkin from Mazurek's coat pocket that Mazurek had used to wipe her face after the incident.

Markowitz never saw a doctor, and there is no indication in the court’s opinion that she ever received any treatment at the DOVE unit, apart from advice about the importance of follow-up care.

Fair-minded readers may believe that the statement in the DOVE unit was a classic example of a testimonial statement. But read on.

Tragically, Mazurek died several weeks later of an unrelated seizure disorder. So the trial was based on her statement to Markowitz. (At least the court recognized that the statement to the police officer could not be admitted!)

The court adopted the "objective witness" test for determining whether a statement is testimonial – which I think is correct – and with an elaboration that I also think is at least largely correct. The court said:

In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant's expectations.

I have argued that the declarant’s perspective is the proper one as a matter of principle; I also believe that a test based on that perspective is less manipulable than one based on a questioner’s perspective, because a professional questioner can so often articulate some reason other than law enforcement for asking the question (health, safety, community care). The elaboration that “the intent of a questioner is relevant only if it could affect a reasonable declarant's expectations” is, I think, the best way of making sense of a rather confusing aspect of the opinion in Davis v. Washington, which seems to waffle between declarant’s and questioner’s perspectives. (One qualification: If a law enforcement officer has an evidentiary intent but conceals it from a declarant who is not suspected of wrongdoing for the purpose of being able to use the statement, then the prosecution ought to be estopped form denying that the statement is testimonial.) But make no mistake – in this case, the court’s adoption of the declarant’s perspective and that elaboration served the purpose of avoiding the obvious conclusion that the statement was testimonial; as the court said, “there is little doubt” that Markowitz and the police officer “intended to use the DOVE unit examination results to further their investigation.”

Indeed, the court shrugged aside the overwhelming evidence that the examination was conducted for evidentiary purposes by asking, in effect, “How was the declarant to know?” Well, how about that consent form, which just about screams out that the “forensic exam” is, at least in large part, for evidentiary purposes? Oh, says the court, the declarant wouldn’t think that included statements; after all, she had made a statement to the cops already, which was clearly for forensic purposes, so this further statement couldn’t have been. (As if no witness is ever asked to make more than one statement to police officers.) So, with a cop in the room, the complainant understands that physical evidence collected from her – including from inside her body, is largely for forensic purposes, but the possibility of forensic use of what she says would never occur to her, because the medical purpose is so obviously paramount. Translation: The bad guy is going to get off here unless this statement is characterized as non-testimonial, so it will be.

If Stahl is good law, then the state has a simple way of virtually nullifying the Confrontation Clause in any case of a crime against the person: Bring the accuser to a hospital unit and have her make a statement to someone designated as a care-giver. There does not seem to be any reason why the unit cannot be in close proximity to the police station, or even in a separate part of the station. The creation or expansion of these units can be financed by transferring some police officers into them. There will be less need for police officers, because statements to them are not as useful for forensic purposes as statements to nurses. Of course, there will be some additional short-term costs for new uniforms, but that is much cheaper than bringing non-professional witnesses into court.

The death of Mazurek serves as a reminder that many confrontation problems could be avoided if the state would take depositions of witnesses to preserve their testimony. In this case, with (presumably) no advance warning that there was a substantial chance that Mazurek would not be available to testify at trial, the prosecution’s decision not to take a deposition may have been entirely reasonable. But it should be the prosecution, which has the burden of producing evidence and which wants to rely on the testimonial statement of this declarant, rather than the defendant, who has the right to remain passive and demand that adverse witnesses confront him, that should bear the risk that the declarant will in fact be unavailable to testify at trial.


Jeff Fisher said...

It’s worth noting that the Ohio Supreme Court’s decision conflicts with numerous decisions from other courts, all holding that statements suspected victims give in police-orchestrated interviews with medical examiners and social workers are testimonial. See Medina v. State, ___ P.3d ___, 2006 WL 2830167 (Nev. Oct. 5, 2006) (statements to medical examiner); State v. Krasky, ___ N.W.2d ___, 2006 WL 2806573 (Minn. App. Oct. 3, 2006) (medical examiner); People v. Harless, 125 Cal. App. 4th 70 (2004), rev. granted, 109 P.3d 69 (Cal.), rev. dismissed, 119 P.3d 962 (Cal. 2005) (medical examiner); State v. Mack, 101 P.3d 349 (Or. 2004) (social worker); State v. Snowden, 867 A.2d 314 (Md. 2005) (social worker). But because the Ohio Supreme Court’s decision is not a “final judgment” – it merely remands the case to allow it to proceed to trial – it cannot (yet) be challenged in the Supreme Court.

Richard D. Friedman said...

Jeff nicely corrects an error I made in my posting -- I said the trial was based on the statement made to the nurse-practitioner, but in fact there has not yet been a trial. The trial presumably will be based on that statement -- and if Stahl is convicted he will have an ice issue for Supreme Court review.

Paul Vinegrad said...

"Misapplication of the Wrong Standard"

Rich is right -- the Ohio Supreme Court reached the wrong result. However, Rich is also wrong -- the court applied the wrong test.

The "objective witness" standard (aka Crawford's third formulation) is dead. The Court in Davis clearly rejected this test. The test adopted by Davis focuses on the objectively assesed "primary purpose" of the questioner and whether the questioner was confronted with an on-going emergency or other exigent circumstances.

In the case before the Ohio court, objectively assesed, the nurse was an agent of the police, there was no on-going emergency or other exigent circumstance, and her primary purpose was to gather evidence for use in a future prosecution. Thus, the statements that were the product of her questioning were testimonial.

With respect to Rich's call, once again, for a categorical rule. The Court in Davis plainly rejected this approach. Rich and Jeff argued for the categorical rule that any accusatory statement made to a know law enforcement officer should be testimonial. Not a single justice was willing to embrace this rule. Indeed, the rule the Court adopts places no emphasis whatsoever on the accusatory nature of the statement. Rather, the Court's focus is on the nature of the government questioning and the volatility of the situation at hand.

Richard D. Friedman said...

In response to Paul (who I'm glad recognizes that the result in Stahl is wrong): Numerous courts since Davis have applied the objective witness standard, so I think it's premature to say that it's dead. It's true that Davis focused on the intent of the questioner, but Davis is highly ambiguous, because it also says that ultimately it's the declarant's statement that must be assessed. Davis is so clearly the product of a compromise, it's hard to know where things will eventually shake out, and the best guess may be, as suggested in Stahl and my main posting, that the intent of the questioner will be considered relevant only so far as it bears on the understanding of the speaker.

I've addressed the issue of perspective at length elsewhere, and won't go into it again here. But two quick points: (1) A test based on the primary purpose of the speaker can't be the underlying standard for determining what's testimonial, because it doesn't apply at all if there's no questioning. Davis makes this clear. (2) Conscientiously applied, such a test would exclude statements made by conspirators to undercover police officers -- not a result that prosecutors would like or that courts would embrace.

Steven Yermish said...

The problem with trying to place singular emphasis on the objective test is that it fails to take into account what are clearly (at least to me) testimonial statements by those who cannot reasonably anticipate their use prosecutorially because of the declarant's limitations, i.e., young children or retarded, mentally ill or cognitively impaired persons. Which test to apply really does depend on the circumstances of the case, particularly whether there is an interrogation by law enforcement as the threshold question (the primary purpose test), and then what the declarant's expectation was as a second or corollary question.

Paul Vinegrad said...

Rich's observation regarding the characterization of a conspirator-declarant's statement to an undercover cop is wrong.

Yes, if one were to simply apply the primary purpose (of the questioner) test, the resulting statement of the conspirator-declarant would be testimonial.

However, footnote 5 in Davis makes clear that, in addition to determining the questioner's primary purpose, "formality" is an essential element of a testimonial utterance.

This "formality" is simply absent when the declarant doesn't recognize that they are speaking with a cop. (This formality is also absent when the declarant's unsworn statement is given to a private party -- whether blurted out or made in response to a question.)

In Davis, the Court found "sufficient formality" existed because (and this is critical) lying to a cop is a crime.

Thus, the Davis test is "primary purpose" (of the questioner) AND "formality." With the later concept, at a minimum, requiring an awareness on the declarant's part that they are acting as a witness against someone.

Richard D. Friedman said...

Not surprisingly, I disagree with Paul in several respects.

(1) It is true that the Davis Court said explicitly in a footnote that it did not deny that formality is essential for a statement to be deemed testimonial. But just what is the meaning of that passage – which does not quite adopt a formality requirement – will have to be worked out in the future. I have argued before at length that a formality requirement doesn’t make sense and that it gets things backwards – the aim of the Confrontation Clause is to ensure that testimony is given under proper conditions, so it would be bizarre to say that a statement is not covered by the Clause because it was not given under sufficiently formal conditions. And indeed I believe it is probable that even if the Court continues to talk about formality the requirement will be minimal. Thus, note that in the text of the opinion, discussing Hammon , the Court said, “It was formal enough that Amy's interrogation was conducted in a separate room, away from her husband (who tried to intervene), with the officer receiving her replies for use in his ‘investigat[ion].’” In the end, it will probably turn out that formality means nothing more than something like “made under circumstances indicating that the declarant understood the likely forensic use of the statement.”

(2) Whatever a formality test means, it cannot mean that a statement is testimonial only if made under threat of criminal sanction for willful falsehood. (I’m not sure whether Paul thinks there is such a requirement, but his comment might suggest this.) In the footnote passage Paul quotes, the Court said it was “sufficient” that it would be a crime to lie to an officer. Sufficient but not necessary. If statements could be testimonial only when lying would be a crime, then each state could pass a Confrontation Right Nullification Act in terms such as this: “Notiwthstanding any other provision of law, if a statement (a) is not made from the witness stand at a trial or other proceeding, and (b)but for this Act would be deemed to be the testimony of a witness for purposes of the Sixth Amendment to the United State Constitution, then it shall not be a crime to make the statement, even if it is willfully false.” And, by the way, I don’t think this type of statute is entirely fanciful. I can easily imagine legislatures removing criminal sanctions for false statements of domestic violence if they believe that the removal will increase the chances that an accuser will not have to testify at trial.

(3) Paul’s test, requiring a forensic purpose on the part of the questioner in addition to formality, still does not address the situation in which there is no questioner. But in footnote 1, Davis made explicit that “statements made in the absence of any interrogation” can be testimonial: “The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation.” Yes, Davis examines the purpose of the questioner, but also in footnote 1 it asserts that “of course even when interrogation exists, it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate.” This supports the suggestion I made in the main posting, that the purpose of the questioner may turn out to be significant only as it bears on the understanding of the declarant. If an observer brings to the police station or the courthouse a signed statement titled "Affidavit," containing a description of a criminal incident and accusing another person of being a perpetrator, Paul may regard the statement as non-testimonial because not made in response to quesitoning by law enforcement personnel -- but I believe we can be quite confident that a majority of the Supreme Court will not share his view.

Paul said...

If the declarant drops off an "affidavit" (i.e., a document executed under oath) at the police station accusing someone of a crime, it would be testimonial, per the reference in footnote 1 to volunteered "testimony."

Note how the Court, in footnote 1, refered to volunteered "testimony," versus volunteered "statements." "Testimony" carries with it much more "formality" than do simple UNSWORN "statements."

If the declarant's unsworn statements are made in response to questions by law enforcement (or their agent), they are testimonial if the "primary purpose" test of Davis is met. (In this instance "formality" would be present because lying to a cop is, like lying under oath, a crime.)

If the declarant's unsworn statements are made to a private party they are nontestimonial, regardless of how accusatory they are, and regardless of whether they were elicited by questioning. (See Davis' reference to Dutton v. Evans.) In this case the essential element of "formality" is completely absent.

Thus, Davis makes clear (at least to me) that in deciding whether a statement is testimonial or nontestimonial one must determine if the statement is sworn or unsworn, and, if unsworn, whether it was made in response to questioning by law enforcement or by a private party. All sworn statements (made in court or out, to law enforcement or to a private party) are testimonial. All unsworn statements to private persons (whether volunteered or made in response to questioning) are nontestimonial. Some unsworn statements made to law enforcement are testimonial and some are nontestimonial, depending upon the "primary purpose" of the questioner and the existence of exigent circumstances.

Richard D. Friedman said...

That is just too restrictive a view, and I don't believe the Supreme Court will buy it. Consider the proposition "All unsworn statements to private persons (whether volunteered or made in response to questioning) are nontestimonial." That would mean that Complainant could say to Messenger, "Here is my testimony. Please relay it to court. I won't come in." Unrealistic? Of course not. Plenty of victims' asisstance agencies would be happy to play the role of Messenger. When I said there was a need for categorical rules, I meant good categorical rules, not ones that would destroy the confrontation right.

Note also the complexity of Paul's theory. There is no unifying underlying concept. Affidavits are testimonial by ipse dixit, even though when they are not solicited by law enforcement agents and so cannot meet a test based on the primary purpose of the questioner. So obviously the rule can't be that testimonial statements are only those that meet both a primary purpose test and a formality test.

Finally, for the reasons that I have suggested here and stated earlier, I doubt whether a test based on the primary purpose of the questioner will govern outside the context of cases like Davis, and in that context it is best viewed as a proxy for the declarant's understanding.

Steven Yermish said...

How could an oath necessarily be required to make a volunteered statement testimonial? Wasn't Lord Cobham's letter just that, an unsworn letter to the court?

Anonymous said...

With respect to Paul's comment. I think you are wrong that the Crawford 3rd formulation (objective test) is dead after Davis. The Davis Court specifically limited its holding/analysis to the narrow area of police interrogations. Thus, the objective test is still alive with respect to potentially testimonial hearsay statements made to listeners other than police officers. Additionally, the Davis/Hammond Court recited the 3rd formulation in its opinion but again, specifically declined to choose amongst the three formualtions. That doesn't seem like a rejection of the third formulation to me. Stahl was clearly a results-based decision that utilized the third formulation and then misapplied it.

Richard D. Friedman said...

I agree with the last comment, and even within the area of police interrogations I think there is room to argue that the underlying test is still an objective one. In sny event, the naonymous commentator is clearly right that Stahl applied the thirdformulation, but did it badly.

I do wish commentators would identify themselves, unless there is some powerful reason not to -- such as that they are articulating a position against the policies or interests of their employers.

Jeanne Vanderhoff said...

Sorry for not identifying myself. I'm a California attorney with an oral argument in the Cal. Supreme Court next week on the issue of an accusatory hearsay statement to a doctor rendering medical care in the ER. I'm glad you agree that the Crawford third formulation is still viable. Hope the Cal.Supreme agrees. I would certainly welcome any comments on my issue.

Jeanne Vanderhoff said...

The case I mentioned above is People v. Cage, 120 Cal.App.4th 770. Here's a summary of relevant facts: under a California statute the doctor was a mandatory reporter of child abuse. The victim declarant was a 15 year old boy who was assaulted by his mother. Statement was made to doctor during the course of initial medical treatment in hospital ER. A police officer was present in the ER, but not in the actual examination room. Police officer had interviewed victim a few minutes earlier. The doctor was already aware of police involvement.

Richard D. Friedman said...

I'ven pow posted a main entry with a link to the draft of my article for the Brooklyn conference held in September. Among otherp oints, this article argues that an objective,declarant-oriented definition of testimonial is compatible with Davis.

Stephen R. Bjordammen said...

I am counsel of record in a case presently before the Texas Court of Criminal Appeals. Two primary issues are involved: 1) whether a videotaped forensic interview conducted by CPS of a four-year-old child in a sexual abuse investigation was testimonial; and 2) whether a statutory procedure allowing defense counsel to submit written interrogatories to the child following the interview (to be propounded by the same CPS person and videorecorded) constitutes sufficient opportunity for cross-examine to satisfy Crawford and permit the use of the videotape at trial when the child is unavailable to testify.

Professor Friedman was cited in the brief submitted by the State on the first issue. I will be happy to discuss this case in more detail with anyone, and would welcome any insights and comments as I prepare my response to the State's brief. For those interested, the style of the case is Rangel v. State, PD-447-06. This case is arguably one of Texas' first big post-Crawford cases decided at the highest appellate level.

Stephen R. Bjordammen said...

Just wanted to clarify that the final sentence of my previous post should read: This case is arguably one of Texas' first big post-Crawford cases THAT WILL BE decided at the highest appellate level.

Richard D. Friedman said...

So can you tell us for what proposition the State cited me in its brief?

Stephen R. Bjordammen said...

The State is contending that the Court should adopt the objective witness standard that you have proposed. You are cited as a major academic proponent of this view. In the instant case, the State argues that whether or not the child's statements were testimonial should depend on whether the 4 y/o knew and understood that her statements could be used in the criminal prosecution of my client. It contends that since the 4 y/o was incapable of such knowledge and understanding, her statements are necessarily non-testimonial.

Richard D. Friedman said...

I do take an objective-view standard. Objective means viewing the matter from the vantage point of a reasonable person in the dclarant's position. Genuine application of an objective standard means not taking into account the actual capacities of the particular declarant. So I think the better view is to ask what the understanding of a reasonable person would be in this position. There is no such thing as a reasonable 4-year-old.

One could take, alternatively, a standard based on "the understanding of a 4-year-old of ordinary understanding," but that is not an objective standard, and while this approach has some appeal it also raises the question of why we should depart from an objective standard to take age into account and not other individualized factors.

I have also discussed the possibility that very young children may be incapable, because of cognitive or moral limitations, of being considered witnesses -- but that is a much different question from the one the state is apparently raising.

Stephen R. Bjordammen said...

Thank you for your comments. I am aware that what the State is proposing is an extension of your proposed standard beyond what you originally contemplated. I came to that realization after reading your draft paper you provided a link too. Apparently, either the State was not aware of your position in this regard or simply chooses to ignore this particular aspect. Rest assured, I intend to communicate all of this in my reply.

I have no problem with the reasonable objective adult standard. However, it makes no sense to graft upon the standard a requirement that the matter be viewed from the perspective of the actual declarant and any deficiencies he/she may suffer. This would render the standard incapable of precise application. In my case, if the State's version is accepted, nothing a 4 y/o ever said could be testimonial, even if it were the product of classic police interrogation. Thus, the 4 y/o's incriminating statements would be admissible but those of say a 15 y/o given under the same or similar circumstances would be testimonial and not admissible in a Crawford scenario. Where does a Court draw this line? At ten, eleven, twelve years of age? Is there even an age where presumptively one is cognizant of the fact that their statements made end up being used in a criminal proceeding? I certainly know there are some 12 y/o children with a better understanding of the criminal justice system than some 30 y/o people I have met.

I believe that perhaps even more significant in this case is the issue relating to the statutorily provided alternative to cross-examination. Clearly, the statue in question was drafted in an effort to address potential confrontation issues. My position is that the ability to pose written interrogatories subject to Court approval to the child declarant falls well short of what is considered traditional cross. The procedure lacks any degree of contemporaneous question/answer format and renders follow-up and clarification questions pointless. Besides that, it requires extra-ordinary prescience from the bench and bar in the drafting and approving of individual interrogatories.

Richard D. Friedman said...

I'll underline agreeement with Stephen's comments on the statutory procedure for written interrogatories. It is ironic that the state provided this opportunity in an apparent effort to foreclose a confrontation problem. Taking the examination of a witness out of the presence of the parties but with them having an opportunity to pose written interrogatories is precisely the procedure used by the old Continental courts, and precisely the procedure that the English so vigorously denounced. It is just wrong-headed to think of this as a substitute for genuine confrontation.

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