Thursday, April 19, 2007

Illinois Supreme Court deems statements to clinician and social worker to be testimonial

The Illinois Supreme Court issued a significant decision today in People v. Stechly (and thanks to my former student Brian Koch for pointing it out to me). It holds that a child's statement of abuse made to her mother was not testimonial, but that statements made to a clinical specialist in charge of a hospital child-abuse team and to a social worker at the child's school were testimonial -- and that the error in mischaracterizing these statements was reversible. The Court adopts the view of testimonial articulated in United States v. Cromer, 389 F.3d 662 (6th Cir. 2004). That's good.

The court also adopts a narrow view of forfeiture outside the context of murder, holding that intent (in the sense of purpose, not of anticipation of the natural consequences of one's actions) to procure the witness's absence is necessary for forfeiture. The court distinguishes murder cases -- without holding definitively that intent is not required in those cases -- on the ground that in a murder case the perpetrator has "absolute certainty" that the murdered witness will be unavailable to testify. Well, I don't see how that distinguishes murder -- it's at most just a very strong anticipation of unavailability. And in fact, the perpetrator doesn't have that certainty in most of the cases where the issue arises. The typical case is one in which the defendant (by hypothesis) cast the fatal blow, and the victim makes a statement afterwards; the accused can't necessarily know that the victim won't survive long enough for confrontation at least at a deposition.


Paul said...

The Illinois court really misses the mark. The court believes that statements are testimonial if a reasonable person in the declarant's position could anticipate the statement being used in a criminal prosecution.

This "test" is nothing more than the "objective witness" formulation advocated for by defense attorneys (and some professors) in Crawford and Davis. Crawford refused to embrace this test. Davis made it even clearer that this declarant-centric approach was not the proper focus.

Rather, as properly recognized by the California Supreme Court recently in People v. Cage, the Davis approach killed the objective witness test. Davis adopted a test that has at it's core the requirement of "solemnity" and a focus on the "primary purpose" of the questioner.

The Illinois court's reasonable declarant test makes it MORE likely that unsworn statements to persons who are UNconnected to law enforcement (i.e., a declarant's friend or relative) will be deemed testimonial, than if those same statements had been the product of POLICE interrogation. (The Illinois court properly recognizes that under Davis if the statement occurs in the context of police interrogation "solemnity" and a "primary purpose" on the part of the interrogator to produce evidence are requires to find a statement testimonial.)

The Illinois court's embrace of Prof. Friedman's position (a position implicitly rejected by Crawford and more clearly repudiated by Davis) is wrong.

As Prof. Friedman has stated, ultimately the Supreme Court will set all rogue court's straight ... again. Hopefully, that will be sooner rather than later.

Richard D. Friedman said...

Well, of course I think that Paul's continued attempt to constgrue the Conforntation Clausei nto virtual nothingness is wrong. In my paper for the second Brooklyn symposium, which will be published soon and which I hope to post on this blog, I show why Davis should not be construed to kill off an objective-declarant approach, which is the most sensible one, and about the only one that oucld work when there is no questioner.

NewToTheConfrontationClause said...

Professor Friedman-
Recently my Legal Writing II class at Chicago-Kent dealt with an appellate brief assignment based on the Hampton case from Illinois, also posted this past Thursday. The main issue our class was divided over, and held oral arguments on, was the issue of first impression for the Supreme Court of Illinois of adopting a rule of forfeiture by wrongdoing. In your post about Stechly, you describe the rule that the Court adopts as "narrow"; however, I think that may be somewhat misleading. Although a purpose-based intent element makes the rule narrower than a rule with no intent, or a more relaxed intent element, this rule is still much broader than a rule focusing on the conduct of the accused, and the "wrongfulness" of that conduct. The Court did not even mention, or allude to any consideration of a conduct-based determination of forfeiture, and instead only discussed and ultimately ruled on an effects-based rule. As I completely agree, such a rule is correct. I know you deal with all aspects of the Confrontation Clause in your research, and I was wondering your opinion on the whole issue of a formal rule of forfeiture by wrongdoing, what elements are necessary and correct, and whether the U.S. Supreme Court will ultimately define such a rule.
Thank you.
1L, Chicago-Kent

mitch ignatoff said...

Prof. Friedman-

I am confused about category 1 you refer to as non-testimonial in your article 71 Brooklyn LR at 256. Phenomena are not testimonial, they just are. Light is, DNA is. Bloodhounds are not testimonial because they can't speak-although their trainers should be subject to cross examination.You clearly agree that lab tests are testimonial statements when prepared for prosecution. Please help me understand what you mean.

Mitch Ignatoff, Esq.

Richard D. Friedman said...

The passage to which Mitch refers made the argument that a statement is not testimonial, even if it is gathered by the authorities for evidentiary purposes, if from the declarant's perspective it was not made for evidentiary purposes. And I contended that statements of this sort more resemble bloodhound barks, DNA evidence, etc. (which of course are not testimonial), in the crucial respect -- which, I argued, was the understanding that the statement would be used in investigation or prosecution of crime. In other words, even though the statements in what I called category 3 are made by humans, they stand for confrontation purposes like the non-statements in category 1 -- evidence that, whether it was a natural result of the crime or generated by the police, does not invoke the confrontation right.

One small quibble with Mitch's phrasing -- I don't think a lab test is testimonial. I think the report of a lab test is testimonial if it is made in anticipation of evidentiary use. said...

Thanks so much for your article, quite helpful material.