Tuesday, February 12, 2008

More cert petitions

I have previously written about the pending cert petition in Melendez-Diaz v. Massachusetts. Alert blog reader (I’m adapting a line from Dave Barry there) Richard Klibaner has called attention to a couple of other pending petitions that pose similar issues.

One is Geier v. California, No. 07-7770. You can read the petition by clicking here and the brief in opposition by clicking here. It appears this case has a big harmless error problem.

The other is O’Maley v. New Hampshire, No. 07-7577. You can read the petition by clicking here, the brief in opposition by clicking here, the reply brief in support of the petition by clicking here, and the amicus brief of the National College for DUI Defense in support of the petition by clicking here. O’Maley – in which the state supreme court relies heavily on the state decision in Geier – is somewhat different from Melendez-Diaz. In Melendez-Diaz, the state took advantage of a state statute allowing admission of a certificate of a lab test without any sponsoring witness. In O’Maley, the assistant lab director testified as to the defendant’s blood alcohol level. But the technician who drew the blood and prepared a report certifying that fact did not testify at trial, and neither did the analyst who tested the blood. The state supreme court held the initial certificate to be non-testimonial. But this certificate was a crucial link in proving the defendant’s guilt, because it was an essential part of the proof that the blood tested did in fact belong to the defendant. And the state supreme court also held the blood test results to be non-testimonial. In a technical sense that is right; the test results are the result of a process and of machinery, not a human statement. But the assistant director’s testimony had no value at all unless the analyst tested the proper sample and performed the test properly. So that testimony amounted to, “I have an opinion as to the defendant’s blood alcohol level, based on my assumption [supported by no evidence that will be presented] as to what the analyst did.” If the witness in court testified, “The analyst told me what blood he worked on and how he did the test,” I think the confrontation violation would be clear. It should be no less clear when the witness implicitly bases his “opinion” on an assumption as to what the analyst did.

The state supreme court’s decision was clearly based in large part on its perception that cross-examination would not be worth much, because the technician and the analyst would not remember the incident anyway. Three points in response: (1) I don't think Crawford leaves room for saying that confrontation is unnecessary because it wouldn't do any good. (2) If the state supreme court's position were adopted it would amount to giving the prosecution the benefit of a shell game of sorts: Crawford has adhered to the doctrine -- mistaken in my view -- that if the witness testifies in court the accused has no basis for a confrontation objection, even if the witness does not remember the substance of her prior statement, because the accused has gotten the benefit of cross-examination by showing the failure of memory. So prosecutors taking advantage of this part of Crawford and of the state decision in O'Maley would argue, "We don't have to bring the witnesses in if their memory would be so bad that cross would be useless. But if we did bring them in, the fact that their memory would be bad would make cross valuable for the accused. (3) The memory problem is real. A solution to it is to provide an early deposition. In fact, I think the Supreme Court ought to recognize that if the witness doesn't remember the subject matter of the prior statement then cross-examination is clearly impaired, so if the prosecution wants to preserve the testimony in the face of likely memory loss it ought to provide an opportunity for a deposition. But that's a battle for another day.

I think that O’Maley as well as Melendez-Diaz presents a cert-worthy situation. The basic approach of the O'Maley court has been taken by others as well, including the U.S. Court of Appeals for the Fourth Circuit in United States v. Washington, 498 F.3d 225 (4th Cir. 2007), from which a cert petition is also pending (though behind the schedule of the others, and presumably to be held if the petition in O'Maley is granted). The issues are sufficiently different, though obviously related, that it might be optimal for the Court to grant cert in both O'Maley and Melendez-Diaz. But if it is inclined to grant in only one case, Melendez-Diaz is probably the one to pick, because it is significantly simpler and more straightforward.


Anonymous said...

Professor Friedman,

I'm curious as to the implications of your position in other contexts where experts more clearly rely on testimonial evidence.

For instance, assume we have a situation where the defendant in a murder case claims he is not guilty by reason of insanity. To rebut his claim, the state calls a psychiatrist to the stand to testify that the defendant is, in fact, sane. Previously, the psychiatrist interviewed friends and coworkers of the defendant who told the psychiatrist about various things that the defendant did tending to prove that he is sane. The friends and coworkers are aware that they were talking to a psychiatrist employed by the state in the murder case. Unlike the psychiatrist in the now famous New York Court of Appeals case People v. Goldstein, however, this psychiatrist is careful not to repeat the testimonial statements given to him. Instead, he testifies, roughly, as follows: "I am an experienced psychiatrist who has studied insanity for 20 years. Based on my independent and in-depth investigation of the defendant, which included interviewing several of his friends and coworkers, I have concluded that the defendant is sane." It would seem that this testimony, like the lab tech's testimony in O'Maley, would violate the Confrontation Clause under your analysis. "I have an opinion as to the defendant’s sanity, based on my assumption [supported by no evidence that will be presented] that what friends and coworkers told me was true and accurately described."

If that's the case, it would seem that experts can now rely on only nontestimonial evidence. If the prosecution wants to rebut insanity in this case (apart from having the psychiatrist personally examine the defendant) using the information from friends and coworkers, it would have to revert back to the common law way of giving expert testimony. You'd have the friends and coworkers testify as to these past events, have the psychiatrist watch, and then be called to the stand to state his opinion, based on his review of this testimony, that the defendant is not crazy.

Alternatively, I suppose the psychiatrist could pretend to be someone else, or not disclose that he's working for the state, in order to manufacture nontestimonial statements.

Richard D. Friedman said...

Good question -- but commenters, please identify yourselves if you can! (Even if you're a student of mine; this is the stuff we just discussed in class!)

Yes, I'm inclined to think that in a Goldstein-type situation the psychiatrist can't avoid the confrontation problem by suppressing the sources of information. And that would mean that if the statements to the psychiatrist are testimonial and the psychiatrist's opinion relies on the truth of those statements, the psychiatrist couldn't testify to the opinion unless the witnesses who made those statements testify to them subject to confrontation. And a consequence is that rules like FRE 703 are unconstitutional to the extent they would allow the expert to testify to the opinion without the other witnesses testifying.

Nothing stunning about that. Evidence law in the decades pre-Crawford had pretty much lost sight of the confrontation right, so it's not amazing that relatively recent rules innovations might violate the Confrontation Clause in some of their applications. Indeed, I think courts and rulemakers have been subliminally aware of the constitutional difficulty facing FRE 703; the Rule was amended in 2000 to constrain the admissibility of evidence not otherwise admissible and offered in support of the expert's opinion. It's a very wishy-washy constraint, but my sense is that the impetus behind it was an unarticulated concern that the Rule countenanced regular violations of the confrontation right.

Richard Klibaner said...

I would note that Melendez-Diaz involves a situation in which the testimonial nature of the statement is much more apparent than in either O'Mailey (at least as to the blood test results, not the blood drawing) or Washington since the "certificate" which is admissible pursuant to the statute sets forth the actual statement of the state chemist that the sample examined contained a particular controlled substance and was of a certain weight. It is the chemist's interpretation of the results of undefined chemical (in fact, one of the Mass. statutes does not even mandate a "chemical" test) tests which come in as prima facie evidence. It is routine in Mass. for the state to rely on these certificates to establish elements of its case without putting any sort of an expert on the stand.

Richard Klibaner