Saturday, December 29, 2007

A duty to mitigate with respect to statements made before the crime being charged?

An anonymous reader – please identify yourselves if possible! – has offered the following comment in response to my posting on the pending petition in the Giles case:
Prof. Friedman, take the following scenario:OJ beats Nicole. Nicole calls the police. Nicole provides a testimonial statement to the police -- telling them that OJ said, "If I ever see you with another man I will kill both of you!" Two weeks later, OJ is charged with the beating and pleads guilty. Three months later, OJ spots Nicole with another man entering her apartment. OJ murders both. Under your concept of forfeiture Nicole's highly relevant, testimonial statement would be inadmissible, because the prosecution didn't take Nicole's deposition? The Court has said forfeiture is a doctrine based upon "equity." Where is the equity under your rule? Equity often speaks in terms of "unclean hands." Are you arguing that the prosecutor's are dirtier than OJ's, because a depo wasn't held?

This is an important matter, and justifies a main posting.

First, please note that I have not said that the statement would be inadmissible in this setting; I have only said that I think there is a complex issue and that I hope that if the Court takes the Giles case it does not resolve this issue, which is not presented in the current posture of the case.

Next, note that a premise of my comments is that in general the prosecution cannot invoke forfeiture doctrine if it did not take reasonable steps available to it to preserve the confrontation right, in whole or in part. I have called this the duty to mitigate. If, say, a defendant renders a fatal blow but the victim lingers for weeks, during which time the prosecution takes statements from her but fails to give the defense an opportunity for confrontation, I do not believe the prosecution should be allowed to invoke forfeiture doctrine. In this situation, one could ask the same question that the reader does – how could the prosecution’s hands be dirtier than the defendant’s? But I’m not sure how one could weigh equities. The fact in this situation is that the prosecution has a clear chance to preserve the confrontation right and doesn’t take advantage of it; therefore, I don’t believe it should be able to claim that the accused forfeited the confrontation right by causing the victim to be unavailable.

Now, with this background, the basic issue underlying the reader’s comment is this: Is there a per se rule that the prosecution has no duty to mitigate if the statement in question is made before the crime being tried?

In other words, suppose the sequence is (1) crime 1; (2) testimonial statement about crime 1, but relevant also to crime 2; (3) passage of considerable time; (4) crime 2, the crime being charged, which immediately renders the witness-victim unavailable. The prosecution claims forfeiture with respect to the statement on the basis that the defendant rendered the witness unavailable by wrongful conduct, and the defendant counters by saying that the prosecution could have taken a deposition before crime 2.

In some cases, I think the defense argument would be nearly trivial. Say Informer makes a testimonial statement to police about Kingpin’s drug dealing, and then returns undercover. Several weeks later, Informer and Kingpin get into a fight, and Kingpin murders Informer. The earlier statement turns out to be relevant to the murder charge. I don’t think the defense has a plausible argument that the prosecution should have offered a deposition after Informer made the statement.

But in other circumstances, the argument would be considerably stronger. Consider the common case of a serial domestic abuser. Suppose after assault 1, the victim makes a testimonial statement and indicates willingness to cooperate further, but the prosecution declines to offer a deposition. Then – unfortunately, quite predictably – defendant allegedly commits assault 2, and this time the victim refuses to cooperate. Defendant is charged with assault 2, and the prosecution offers the statement made after assault 1.

It is easy enough to understand the argument that even here there can be no forfeiture – the prosecution should not be foreclosed from introducing evidence by failure to take a step before the crime was even committed. And perhaps in the end that is enough to carry the day. But there is another side, which should not be rejected without careful consideration.

(1) Prosecutors should offer depositions as a routine matter when a domestic violence victim makes a testimonial statement. It is entirely predictable that – even absent any further violence, and in some cases through no further fault of the accused – the victim may decline to testify at trial. Offering a deposition will assure that the testimony is preserved if the crime is prosecuted.

(2) It is, of course, entirely predictable that if the defendant committed one assault on the victim he may commit another, and that the later one may be prosecuted. Even if the state decides not to prosecute the first assault, it knows that there is a substantial probability that the statement will be relevant to a later prosecution.

(3) If the argument is made that offering depositions as a routine matter would be prohibitively expensive, I think there are a few responses.

(a) The expense would not necessarily be so great. Presumably, the defense would have to have counsel, but if the state has no intention of prosecuting the defendant might often decline to take the deposition.

(b) This would be money well spent. It would preserve testimony, obviate the need for many trials (a large cost saving when it occurs), expedite trials that do occur, and result in more convictions.

(c) If prosecutors are able to tell legislators that they will lose domestic violence cases unless they take depositions, that will likely generate considerable funding.

Does the calculus change if the second crime is a murder? Maybe. The prosecution asks how significant evidence in a murder case can be rendered inadmissible because the state failed to offer a deposition after a domestic violence incident. But the same response still applies: It should not require death of the victim for the state to take accusations of domestic violence seriously. The state should routinely offer a deposition after such an accusation.

As indicated earlier, I don’t mean to state definitively what I think the result should be in a situation like the one posed by the reader’s comment, or the Giles case. I only mean to say that I think the issue is a serious one that deserves careful consideration; it should not be decided casually in a case that does not even present it.


Anonymous said...

Please read People v. Quitiquit (2007) 155 Cal.App.4th 1, review denied (December 19, 2007).

How would your conceptualization of forfeiture doctrine work under the Quitiquit fact pattern?

Richard D. Friedman said...

This case involves testimonial statements about domestic violence. The defendant was charged with spousal abuse. Several months later, the complainant died, apparently of complications related to the assault, and the defendant was charged with murder. The appellate court held that the statement was inadmissible hearsay. But the reader's comment -- please identify yourself if you can! -- properly asks about forfeiture analysis.

It appears that the accused's wrongful conduct accounted for the victim's death and so, presumptively, for her unavailability at trial. But the state allowed the victim to languish -- presumably she did not die suddenly -- for an extended period of time without offering a deposition. And this is not a case in which the state was not planning on charging the defendan for the crime already committed -- it had
charged him with assault even before the victim died. I think this is a clear instance of failure to mitigate.

Note that if the statement is admissible on forfeiture grounds even in the absence of mitigation, the accused has very little incentive to offer a deposition, because if the victim dies it will be able to use the statement. But if a duty to mitigate applies, the state has a clear incentive to offer the accused the opportunity. All it has to do is notify the accused that it has a statement by the victim that it will use at trial if the victim is unavailable, and that the accused may take a deposition if he wishes at a given time and place.

S.A. said...

Professor Friedman,

I was wondering what your opinion was on the following discrepancy between current Confrontation Clause doctrine and the federal rules of evidence.

It appears that under Crawford/Davis, when forfeiture by wrongdoing applies, defendants can receive less protection from testimonial statements than they receive from nontestimonial statements given the difference between constitutional forfeiture as defined by courts like those in Giles and Jensen and forfeiture under FRE 804(b)(6).

Let me illustrate by using a hypothetical that came to mind from reading about the Jensen case, whose trial starts this week.

Suppose Husband is arrested for poisoning Wife. Suppose also that there's sufficient direct and circumstantial evidence to suggest that Husband poisoned Wife by a preponderance of the evidence (e.g. Husband's web browser history reveals he visited websites about poisoning; Husband bought poison that was found in Wife; Husband mentioned to friends that he wished Wife were dead.) Lastly, suppose that there are two damning pieces of hearsay evidence:

(1) Months before the murder, Wife writes in an email to Friend, "I think my husband is trying to poison me for reasons X, Y, and Z. If I die, please forward this email to the police so they know what happened."

(2) Months before the murder, Wife writes in her diary, "I think my husband is trying to poison me for reasons X, Y, and Z."

Statement #1 is testimonial; statement #2 is nontestimonial.

The court admits statement #1 in under forfeiture by wrongdoing. As articulated by the majority of courts, forfeiture by wrongdoing for testimonial statements requires only that a preponderance of evidence show that the defendant caused the witness's unavailability through wrongdoing. Specific intent to prevent the victim from testifying is not required, and it's OK if the wrongdoing is the same crime the defendant is charged with.

The court excludes statement #2 under the FRE. Because it's a testimonial statement, Crawford/Davis don't apply at all--only hearsay law does. The statement doesn't fall under any hearsay exception (there's insufficient imminence for the dying declaration exception to apply) nor does it meet FRE 804(b)(6)'s stringent requirements for forfeiture by wrongdoing, which requires specific intent to prevent the witness from testifying and, it would seem, separate crimes. ("A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.")

The statements are substantively the same, yet one comes in precisely because the declarant expected it to be used at trial! I can discern no basis for this different treatment except historical accident.

I suppose there are two obvious responses to this problem:

(1) Congress should amend FRE 804(b)(6) to eliminate the intent requirement so that the same standards apply to testimonial and nontestimonial statements. (Perhaps, in the process, Congress could also make clear that intent is not necessary for testimonial statements in order to prevent any possible split among federal courts.)

(2) Congress should amend FRE 804(b)(6) to require intent for both testimonial and nontestimonial statements.

Anyway, I know you're an advocate of a broad forfeiture doctrine in which the doctrine should apply when the wrongdoing at issue is the same crime the defendant is charged with. Nonetheless, this seems to be a real problem and I was wondering what your thoughts were.

S.A. said...

Correction: Second sentence of paragraph 9 should read "Because it's a *non*testimonial statement, Crawford/Davis don't apply at all--only hearsay law does."

S.A. said...

After doing some quick research, it looks like a third option is to interpret FRE 804(b)(6) so that it applies even when the wrongdoing is the same as the underlying crime. See, e.g. United States v. Dhinsa, 243 F.3d 635, 652-53 (2d Cir. 2001); contra United States v. Lentz, 282 F.Supp.2d 399, 426-27 (E.D. Va. 2002).

Perhaps United States v. Natson gets it right. See Natson, 469 F.Supp.2d 1243, 1251-52 (M.D. Ga. 2006) (holding that the wrongdoing can be the same crime the defendant is charged with but requiring an intent to eliminate the victim as a witness) ("As a matter of statutory construction, it is clear that the language of the Rule requires a showing that the party intended, at least in part, to eliminate the witness as a witness."). But even under this interpretation, FRE 804(b)(6) is still (irrationally?) narrower than judge-made forfeiture doctrine for testimonial statements. See id. ("It is correct that for Confrontation Clause purposes a defendant who eliminates a witness forfeits any constitutional right to confront that witness later regardless of the defendant's motive. However, Federal Rule of Evidence 804(b)(6) is narrower than this Confrontation Clause exception.").

Richard D. Friedman said...

Sorry to be slow in responding. The reader points to what may seem to be an anomaly: FRE 804(b)(6) expressly provides that its rule of forfeiture of the hearsay objection does not apply unless the wrongful conduct that rendered the declarant unavailable to be a witness was intended to have that result, but many courts (properly, in my view) have not incorporated such an intent criterion in the doctrines they have articulated for forfeiture of the confrontation right. A few comments:

(1) One could, I suppose, read the intent language in Rule 804(b)(6) to refer to the soft conception of intent, in which one intends the natural consequences of one's actions. But in context I think it is pretty clear the drafters were referring to a purpose -- that is, the party opponent acted with a desire to render the declarant unavailable.

(2) If indeed in this respect forfeiture doctrine under the hearsay rule is narrower than its counterpart under confrontation law, I don't regard that as necessarily anomalous. Hearsay and confrontation are two separate bodies of law, and a statement can be excluded by either one, or by both. There is nothing anomalous about hearsay law excluding a statement to which the Confrontation Clause poses no obstacle.

(3) As I have written in various places, I think it is essential for the sound development of confrontation law that there be a robust doctrine of forfeiture; if there is not, there will be a strong tendency to give "testimonial" an unduly narrow construction. This is because confrontation law operates categorically. Ideally, the courts would recognize no exceptions to the rule that an accused has a right to be confronted with the witnesses against him. This means that a testimonial statement cannot be admitted against him unless he has had an opportunity to cross-examine the maker of the statement. Forfeiture is not really an exception to the right but more of a qualification on its exercise. Just as other rights are waivable, so is this one, and it can be forfeited as well, if the accused is responsible for his inability to be confronted with the witness.

Now contrast hearsay law. In contrast to the rigid, categorical confrontation right, the rule against hearsay is porous; if a court wants a statement admitted, it will almost always be able to find an exemption to the hearsay rule, the residual exception if nothing else. This may account for the fact that the Federal Rules operated for a couple of decades before the rulemakers realized that it would be good to have a forfeiture rule. So when they incorporated one, they were not under pressure to go to the full extent of the logic; instead, they drafted one that caught the most obvious case.

Note in particular that Rule 804(b(6) does not reach most classic dying declarations, because usually those do not involve killings committed for the purpose of rendering the declarant unavailable. There was no need to reach these statements -- the dying declaration exception, Rule 804(b)(2), already removes the hearsay bar from them. But if forfeiture doctrine under the Confrontation Clause does not reach them, then the basic confrontation doctrine will have to be distorted -- perhaps by incorporating into the doctrine an ill-fitting exception just for them -- because it is clear that these statements will be admitted. Indeed, more than a hundred years ago, the Supreme Court said in the Mattox case that no one would be foolhardy enough to deny that these statements are admissible.

(4) Having said all this, I believe that the optimal forfeiture rule under hearsay law probably mimics the optimal rule under confrontation law. But I think it's most important to get confrontation law right; over time, hearsay law will adjust more or less well to the new framework established by confrontation doctrine.

S.A. said...

Thanks for your comments. They're excellent as always. I suppose we'll just have to wait to see if the Supreme Court advances a broad, robust forfeiture doctrine and, if so, whether Congress will follow suit by amending 804(b)(6). (I'd hate to see the 804(b)(6) amended through creative judicial interpretation.)