Friday, April 27, 2007
Let's divide the problem into three. In the first variation, the ultimate defendant has been identified as the principal suspect, but he has not yet been apprehended. I've speculated about the possibility that counsel could be appointed for the suspect, some form of notice be given to the suspect, and a deposition held. That, it seems to me, gives an adequate opportunity for confrontation, at least if the notice given was reasonable under the circumstances; perhaps the accused would have had to emerge from hiding to confront the witness and to consult with counsel, but he did not have a right to remain in hiding. If there isn't notice of the deposition, but the eventual accused knows that he is being sought, is that enough to constitute a forfeiture of whatever aspects of the confrontation right were not protected by the deposition procedure? I don't know.
In variation two, the ultimate defendant is one of several identified suspects shortly after the crime, and the authorities don't yet have enough evidence to arrest any of them. In this variation, it seems the solution is to give notice to all of them, to offer counsel to each of them, and to appoint counsel for any that do not appear.
The toughest variation arises when the authorities have not yet identified a suspect. May they still preserve the testimony by giving some kind of publication notice, appointing counsel for the ultimate defendant, and taking a deposition? That is considerably more difficult, but the matter is still worth considering. In some cases, and on some issues, counsel may be able to conduct suitable cross-examination even without knowing who his client is. But is this enough?
I've just stumbled across People v. Wilkey, 2004 WL 576659 (Mich. Apps. 2004), which highlights some of the issues with respect to pre-arrest preservation of testimony. This was a homicide committed in the course of a break-in. The victim's widow, who was present at the scene, was 82 years old. Wilkey was one of several suspects from the start, but no arrest was made for some time. So the state held a deposition of the widow. A lawyer, who later became a judge, was appointed to represent the interests of any future defendant. The widow's testimony was quite detailed about the event. She also gave some physical description of the perpetrator, who was wearing a mask. According to the appellate court, the defense lawyer, "in a very respectful manner, asked questions of [the widow] to show that she was of sound mind, e.g., what is the date, and she answered appropriately." At the close of her tesitmony, counsel offered the opinion that she was "not easily confused."
The widow died before Wilkey's trial, and the prosecution introduced the deposition transcript. Wilkey was convicted and the appellate court affirmed. Its decision came fifteen days after Crawford, but the court showed no recognition of Crawford, and held that the deposition was admissible under Michigan's residual exception to the hearsay rule. The court did take into account Wilkey's argument that the appointed lawyer had no motive to develop evidence to support Wilkey's theory that the perpetrator was one of two other men identified by Wilkey. The court acknowledged that "more precise questions could have been asked . . . if counsel was aware of the physical characteristics of defendant," but concluded that the lawyer had the tools to develop evidence about the perpetrator's physical characteristics., and did so.
I think the appointment of counsel in this case before the arrest or even definite identification of the accused is noteworthy. Courts ought to encourage prosecutors to preserve testimony where possible. But in this case, the court could have done better. This was a case fitting within the second variation described above -- Wilkey was one of several suspects identified at the time of the deposition. He, along with the others, should have been given notice before the deposition, and he should have had an opportunity fo separate representation, so his lawyer could have asked the widow questions that might have deflected suspicion away from himself. In a system that guarantees the rights of effective assistance of counsel and confrontation of adverse witnesses, it is not enough to be assured that a lawyer was appointed who had a disinterested opportunity to explore the facts.
Thursday, April 19, 2007
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.
Monday, April 09, 2007
The California Supreme Court's opinion in Cage provides a platform to consider a very important category of post-Crawford evidence: statements to doctors and other medical personnel. It also highlights some of the confusion developing in the wake of the Davis v. Washington.
John Cage was involved in an argument and physical altercation with family members. A neighbor called the police to report the disturbance, and over one hour later a police officer found John alone in the hospital waiting room awaiting treatment for a serious cut on his face. The officer asked John to describe the incident to him. John told the officer that his mother, Lisa Cage, had cut him with a piece of glass from a table that had broken during the altercation. A doctor was present for "at least part" of that conversation and then took John back for an examination. The doctor's first question was, "what happened?" John repeated to the doctor the same thing that he had told the officer.
The California Supreme Court held that John's statement to the officer was testimonial because it was not materially distinguishable from the statement Amy Hammon gave the police in Hammon v. Indiana (decided in the same opinion as Davis v. Washington). In the more noteworthy portion of the opinion, the Court also held that the statement John made to the doctor was nontestimonial. In dealing with statements to doctors that describe criminal conduct, there are three general approaches a court might take:
(1) Statements describing criminal conduct as causing a physical condition and identifying an alleged perpetrator are testimonial. Courts, including the California Court of Appeal in an opinion that the California Supreme Court here did not call into question, have taken this approach when the doctors have examined victims as a coordinated part of a criminal investigation. See, e.g., People v. Harless, 125
(2) Statements describing criminal conduct as causing a physical condition are not testimonial but statements identifying an alleged perpetrator are testimonial. Some courts have adopted this position in cases in which doctors were not coordinating their efforts with the police. See, e.g., State v. Slater, 908 A.2d 1097 (
(3) No statements made to doctors (at least when police are not also part of the interview) are testimonial. Some courts have adopted this position in cases, as in (2), in which doctors were not coordinating their efforts with police. See, e.g., People v. Vigil, 127 P.3d 916 (
The California Supreme Court avoided approach (1) by stating that "[t]here is no evidence that Dr. Russell was acting in conjunction with law enforcement." This seems questionable. When the doctor asked John "what happened," he was already aware that the police were investigating whether John's injury was a result of criminal conduct. And, as the court acknowledged,
Perhaps even more troubling, the California Supreme Court chose approach (3) over approach (2) for two reasons that appear illegitimate and one that Davis simply leaves unresolved. First, the court focused on the fact that the doctor's question to John was "neutral in form" and not "structured" to generate evidence. But
So what about John's statement itself? The California Supreme Court's second reason for saying that the statement is nontestimonial is because it was made for the purpose of medical treatment. The court never explains, however, how the part identifying the person who allegedly cut him was necessary for medical treatment. Nor can one perceive any reason why it might have been relevant to such treatment.
Third, the California Supreme Court asserted that John's statement was nontestimonial because it was given in an "informal" setting.
Finally, it is worth noting that the California Supreme Court explicitly rejected the view that a statement is testimonial if a reasonable declarant would have expected it to be used prosecutorially. This holding diverges from several post-Davis cases that continue to use this formulation outside of the context of "interrogations." Again, the Supreme Court will have to answer this question sooner or later.