The Accused Who Doesn't Really Want Confrontation

This posting is actually a response to a comment by Pam Metzger, which you can read under an earlier posting, Lab reports and a notice-and-demand statute -- a significant decision from Minnesota, but I’ve put enough effort into it I decided to make it a posting in itself.

I don’t think there’s anything inherently dishonest about the labels waiver and forfeiture themselves – the phenomena of waiver and of forfeiture of the confrontation both exist, and both should exist. But the labels can be applied dishonestly. I think that’s Pam’s complaint in the context of statutes that provide the confrontation right with respect to various types of government statements is lost unless the defense takes certain steps, and I think it has a good deal of force.

But I do believe a state can constitutionally provide, through a properly drafted statute, that that if the prosecution gives timely notice of its intent to introduce a statement of a particular type then the defendant must make a timely demand that the author be produced by the prosecution, or else the confrontation right is lost (call it forfeiture, waiver, abandonment, estoppel, or what you will). A requirement of writing does not strike me as unduly burdensome in the circumstances; I don’t believe there are great transaction costs, because all defense counsel needs to do is complete a one-sentence form. Indeed, it could be worked out that the prosecution has to give notice on a form, and the defendant makes the demand by returning the same form with the demand box checked off. This is not a big deal.

Pam points to another issue, with her economic analysis, that is quite interesting. I think I can summarize her point by saying that either the confrontation right is valueless to the accused in the particular contexts covered by these statutes, in which case the accused would be willing to give it up, or it has value, in which case the accused should be able to exercise the right, or extract value from it in the form of a trade. But the matter strikes me as somewhat more complicated.

Consider three possible outcomes: (1) The written statement is excluded, without substitute. (2) The written statement is admitted, without the author coming to testify. (3) The author testifies, subject to confrontation, and presumably the written statement is admitted.

Obviously, the accused prefers outcome (1) to outcome (2). But does the accused prefer outcome (3) to outcome (2)? Not necessarily. Maybe confrontation isn’t all that valuable to the accused in this particular context, and the vividness of the live testimony would be harmful from the accused’s standpoint.

Now look at the same outcomes from the perspective of the prosecution. Obviously, the prosecution prefers outcome (2) to outcome (1). And by hypothesis we know that the prosecution prefers outcome (2) to outcome (3) – because if the prosecution preferred outcome (3) it would have just produced the author, and the confrontation issue would never arise. It may be that the reason the prosecution doesn’t like outcome (3) has nothing to do with the fear of confrontation, but is simply a matter of cost. Cost prevents this from being a zero-sum game. Indeed, the cost may be so great that the prosecution prefers outcome (1) to outcome (3) – that is, if not allowed to introduce the statement unless the author testifies, the prosecution does without. Even if this is not so, it may be that outcome (3) is far less preferable to the prosecution than is outcome (2).

So even if the accused doesn’t really “want” to confront the witness, the accused may have ample incentive to insist on the confrontation right. If the accused prevails in his assertion of the right – so that the prosecution cannot achieve outcome (2) without the accused’s consent – then the prosecution might choose outcome (1), the accused’s preferred state of affairs. And even if the prosecution, absent a deal, would choose outcome (3), producing the witness, that does not end the matter. Recall, the prosecution may well prefer outcome (2) (its preferred state) over outcome (3) by a great deal; the defense may not prefer outcome (3) over outcome (2) at all, or the differential may be very small. Therefore, the defendant may be able to demand a good deal as the price of allowing admission of the statement. The deal does not necessarily reflect the value to the accused of confrontation; it may reflect only the cost to the prosecution of providing for the confrontation.

Whether the state can constrain the exercise of the confrontation right to ensure that it is not being used merely to impose costs on the prosecution is an interesting and, to my mind, very difficult question. But for reasons I have stated in one post from March 2005 and another from August 2006, I do not believe that an appropriate response is to shift to the accused the burden of presenting the witness.