Wednesday, August 30, 2006
As I have suggested before, it appears to me the result reached by Mills has substantial appeal – if not under the Confrontation Clause then under the Due Process Clause. Suppose a person gives testimony in court during the selection phase. The court should not be able to excuse that witness from cross-examination simply because the court believes the testimony to be true. And, considering just a strong case, it seems clear the result should remain the same if the person makes a statement out of court with the intention that it be used at trial. Otherwise, the person could effectively testify without coming to trial and without taking an oath or being subject to cross-examination. This argument doesn’t distinguish capital sentencing from other sentencing proceedings; I don’t have any settled opinion as to whether the arguments treating death penalty proceedings as constitutionally different have merit.
One aspect of Mills is perplexing. The court says in a footnote, “As to non-testimonial statements, the post-Crawford standard remains unclear.” Aw, come on. The judge is aware of Davis – he had just cited it shortly before – but for that proposition he only cites pre-Davis cases. (Some of the court’s rulings as to whether particular statements are testimonial may also be arguable, but I won’t analyze those.) Really, it should be clear by now: If a statement is not testimonial, the Confrontation Clause doesn’t apply.
Friday, August 18, 2006
In time, I assume it iwll be clear enough that Davis has left no room for the Roberts standard: Crawford held that an opportunity for confrontation, not reliability, is necessary with respect to testimonial statements, and Davis says that with respect to non-testimonial statements the Confrontation Clause simply does not apply. That, in my view, is the proper result as a matter of principle -- the Clause referes to witnesses, and witnesses are those who make testimonial statements -- and I think it will help lend a useful focus and clarity to the law of the Confrontation Clause. It may well be, however, that in occasional cases the failure of the prosecution to facilitate the production of the declarant of a non-testimonial statement will be held to be a violation of due process. If the prosecution is very sloppy with a small DNA sample, thus preventing the defense from examining it, I think that raises a possible constitutional issue; the same result could apply if the prosecution is very sloppy about allowing the defense to cross-examine the declarant of an important statement, even if the statement is non-testimonial and so the Confrontaiton Clause does not apply.
By the way, I suppose Roberts is still good (though somewhat dubious) law in one respect. The case itself involved the question of whether the witness should be deemed unavailable for Confrontation Clause purposes. That issue remains an important one under Crawford with respect to prior testimony, and although one may easily question the Roberts Court's conclusion that the prosecution made sufficient efforts to procure the witness's testimony for her to be be deemed unavailable, the Court has never indicated any doubt about that holding.
Thursday, August 17, 2006
I was reminded of this by the decision yesterday in State v. Woinarowicz, 2006 N.D. 179, 2006 WL 2360187. This was a drug case, and the defendant objected to the introduction of evidence found in her hotel room. A police officer testified at a suppression hearing that a friend of the defendant had given consent to enter and search the room. The defendant objected on the basis of the Confrontation Clause.
The North Dakota Supreme Court rightly rejected this objection. The basis for the Court's decision was that the Confrontation Clause doesn't apply at suppression hearings. Well, fair enough. That's certainly what the decisions say, though as I've pointed out before if the Clause itself doesn't apply there still should be some confrontation right as a matter of due process at suppression hearings: A court wouldn't let a prosecution witness step down from the stand without being subjected to cross, and the prosecution shouldn't be able to avoid cross by taking the testimony out of court.
A crisper, cleaner way of reaching the result in this case would have been to hold that there could not have been a confrontation problem because the friend's utterance was not being offered for the truth of any proposition that it asserted. Now, one might say that it literally asserted that the police had consent and that it was offered to prove that the police had consent. But the utterance here was not a report of any matter. Rather, it was an act of operative significance. If the friend said what the officer testified she said, the police had consent because she said it -- that utterance was the act giving the police consent. The officer therefore testified to a consent-giving event that he personally witnessed, and one could not ask the prosecution to do better than that.
Thursday, August 10, 2006
Monday, August 07, 2006
Wednesday, August 02, 2006
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.