This blog is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004). Crawford transformed the doctrine of the Confrontation Clause, but it left many open questions that are, and will continue to be, the subject of a great deal of litigation and academic commentary.
Friday, February 22, 2008
NACDL brief in Giles
The National Association of Criminal Defense Lawyers has filed an amicus brief on behalf of the petitioner in Giles, and you can see it by clicking here. I'll present my comments in the form of another amicus brief!
This case puzzles me. The question the SC has certified seems biased against Mr. Giles. The focus is on what he intended which assumes that he made the witness unavailablle. But if the self-defense theory is correct, then Mr. Giles actions did not make her unavailable. *Her own actions made her unavailable* by putting Mr. Giles in a position where he had to defend himself. When I read the opinion of the California SC I am struck by the fact that they seem to be assuming the very thing they set out to prove. In other words, before Mr. Giles can be accused of intending to tamper with a witness, it must be found that he tampered with a witness at all. Yet whether he did in fact tamper with a wintness is an open question, or rather should have been an open question at trial. By asserting he acted in self-defense, Mr. Giles is in essence asserting he couldn't have intended to witness tamper because as a de facto matter he didn't tamper at all.
But I am not the expert here. I just find the logic of the lower court strange.
Is there any founding-era case admitting a murder victim's testimonial hearsay statement that was made BEFORE the fatal blow was struck?
Did broad principles of "equity" play any part in the admission of founding-era dying declarations? Was reliability the sole and exclusive rationale underlying thier admission? Or, was it simply equitable to admit reliable dying declarations -- with the notion of equity being so obvious that it need not be expressly stated by the court?
I'll save my own comments bearing on Paul's question for the amicus brief I'm hoping to file. But I can reply to worlddan's question now. Many people think there is a problem of circularity -- forfeiture in a case like this is predicated on the defendant having killed the victim unjustifiably, and that is precisely the issue being tried. But there really is not a problem. It just so happens (if the forfeiture theory is accepted) that the judge, in deciding the admissibility of an item of evidence, and the jury, in deciding the merits, have a common issue of fact to determine. They determine that fact for different purposes, on different bodies of evidence (because the judge is not limited to admissible evidence), and presumably under different standards of persuasion. If the court lets the challenged evidence in, it does not tell the jury that it is doing so because it made a finding of a fact the jury must find to reach a guilty verdict; it just lets the evidence in. I think the situation is identical to that in which the prosecution, in a case charging conspiracy, offers a statement as a declaration of a conspirator under FRE 804(d)(2)(E) and similar rules. This is allowed under Bourjaily v. United States, 483 U.S. 171 (1987).
At first glance, the NACDL's brief boils down to a simple assertion that it does not spend any time supporting. In the introduction to its argument, it quotes Crawford as permitting "only those exceptions established at the time of the founding." It then takes what strikes me as a pretty big leap, by concluding that the case therefore turns on whether the scenario in Giles fits within "the framing-era [forfeiture] exception" to the Confrontation right. That might be right, but just because the Supreme Court indicated that it would only permit exceptions established at the time of the founding, does not mean that it would strictly observe and follow the pre-founding cases applying those exceptions. It might just as easily acknowledge the pre-founding exception and its justifications, and then apply it in whatever circumstances it has force.
Maybe the NACDL is right, but it just never makes an argument on this point. It sidestepped the critical question and it then proceeded to recount a history that (I think) won't be the center of the dispute.
Professor Friedman. I wasn't sure what to expect in your response but looking to Bourjaily was certainly not it. I think it's clear that Crawford overruled the *reasoning* of Bourjaily on the Confrontation claim. Scalia merely says he concurs with the *outcome* of that case.
The notion that judges "just let the evidence in" was also peculiar. Certainly judges let the evidence in, and certainly Bourjaily stands for the idea that the procedural standard is less than than the substantive one, but the judge still has to find some cause for allowing the evidence in. Moving the focus from the substantive to the procedural cannot escape the inherent circularity; it only moves it to a different area.
Again, this area of law is new to me so I am sure there is stuff that I am missing. But I must admit that when I first skimmed this case I thought Giles was sure to lose, however, now I think he has a solid chance of winning. The more I read the more difficult I find it to reconcile a ruling against Giles with the Crawford ruling.
My reference to Bourjaily was not to the Confrontation Clause aspects of the case, but to the portion that addresses the procedure for determining whether a statement fits within the hearsay exemption for statements of conspirators. To determine that a statement fits within that exemption, the court must find, among other things, that the declarant and the accused (more generally, the party against whom the statement is offered, but most often that's an accused) were members of a conspiracy. Now, if one of the charges against the accused is that he was a member of that conspiracy, then the court (in determining the evidentiary issue) must resolve the same factual question that the jury must resolve in determining guilt. Accordingly, the structure of the problem is the same as in the Giles-type case. But Bourjaily recognizes that there really isn't a circularity problem, for the reasons suggested in my prior comment. The jury's factfinding mission and the court's are entirely separate matters.
My statement that the court "just lets the evidence in" was not meant to suggest that there are no preconditions to admissibility. On the contrary, what I was saying is that if the court determines that the conditions are met in one of these situations, it does not explain to the jury the factual findings supporting that determination; it simply admits the statement without comment.
I do not think that on analysis the circularity point holds any water. Giles' counsel apparently made the same assessment; they may advert to the argument in passing, but they certainly do not press it.
Prof. Friedman do you have any thoughts on the following questions that you would be willing to share, prior to filing your amicus brief:
1) Why do you think the NACDL brief makes no reference whatsoever to the "necessity" rationale for the framing-era dying declaration exception? (Why do they assert that the sole rationale for that exception was trustworthiness/proxy oath, when that is simply not true?)
2) How much weight do you think the Court will give to the argument, on page 25 of their brief, that "[t]he State ... cannot cite a single case applying [forfeiture] in a remotely similar context ... "? Didn't Jeff Fisher make the same "the State can't cite a single framing-era case" argument in Davis to no avail? (See Fisher's reply brief 2006 WL 542177 at p. *8 - *9)
3) Does the statement in Davis that "[r]estricting the Confrontation Clause to the precise forms against which it was originally directed is a recipe for its extinction" in any way negate the "can't cite a single case" argument?
4) Should the ancient doctrine that no man may profit from his own wrong ("Nullus commodus capere potest de injuria sua propria" (Broom, Legal Maxims, p. 297; Coke Litt. 148b; 1 Hale, P.C. 482.) -- again, not mentioned in the NACDL brief -- be relevant to the Court's decision?
8 comments:
This case puzzles me. The question the SC has certified seems biased against Mr. Giles. The focus is on what he intended which assumes that he made the witness unavailablle. But if the self-defense theory is correct, then Mr. Giles actions did not make her unavailable. *Her own actions made her unavailable* by putting Mr. Giles in a position where he had to defend himself. When I read the opinion of the California SC I am struck by the fact that they seem to be assuming the very thing they set out to prove. In other words, before Mr. Giles can be accused of intending to tamper with a witness, it must be found that he tampered with a witness at all. Yet whether he did in fact tamper with a wintness is an open question, or rather should have been an open question at trial. By asserting he acted in self-defense, Mr. Giles is in essence asserting he couldn't have intended to witness tamper because as a de facto matter he didn't tamper at all.
But I am not the expert here. I just find the logic of the lower court strange.
Is there any founding-era case admitting a murder victim's testimonial hearsay statement that was made BEFORE the fatal blow was struck?
Did broad principles of "equity" play any part in the admission of founding-era dying declarations? Was reliability the sole and exclusive rationale underlying thier admission? Or, was it simply equitable to admit reliable dying declarations -- with the notion of equity being so obvious that it need not be expressly stated by the court?
Paul V
I'll save my own comments bearing on Paul's question for the amicus brief I'm hoping to file. But I can reply to worlddan's question now. Many people think there is a problem of circularity -- forfeiture in a case like this is predicated on the defendant having killed the victim unjustifiably, and that is precisely the issue being tried. But there really is not a problem. It just so happens (if the forfeiture theory is accepted) that the judge, in deciding the admissibility of an item of evidence, and the jury, in deciding the merits, have a common issue of fact to determine. They determine that fact for different purposes, on different bodies of evidence (because the judge is not limited to admissible evidence), and presumably under different standards of persuasion. If the court lets the challenged evidence in, it does not tell the jury that it is doing so because it made a finding of a fact the jury must find to reach a guilty verdict; it just lets the evidence in. I think the situation is identical to that in which the prosecution, in a case charging conspiracy, offers a statement as a declaration of a conspirator under FRE 804(d)(2)(E) and similar rules. This is allowed under Bourjaily v. United States, 483 U.S. 171 (1987).
At first glance, the NACDL's brief boils down to a simple assertion that it does not spend any time supporting. In the introduction to its argument, it quotes Crawford as permitting "only those exceptions established at the time of the founding." It then takes what strikes me as a pretty big leap, by concluding that the case therefore turns on whether the scenario in Giles fits within "the framing-era [forfeiture] exception" to the Confrontation right. That might be right, but just because the Supreme Court indicated that it would only permit exceptions established at the time of the founding, does not mean that it would strictly observe and follow the pre-founding cases applying those exceptions. It might just as easily acknowledge the pre-founding exception and its justifications, and then apply it in whatever circumstances it has force.
Maybe the NACDL is right, but it just never makes an argument on this point. It sidestepped the critical question and it then proceeded to recount a history that (I think) won't be the center of the dispute.
Josh
Professor Friedman. I wasn't sure what to expect in your response but looking to Bourjaily was certainly not it. I think it's clear that Crawford overruled the *reasoning* of Bourjaily on the Confrontation claim. Scalia merely says he concurs with the *outcome* of that case.
The notion that judges "just let the evidence in" was also peculiar. Certainly judges let the evidence in, and certainly Bourjaily stands for the idea that the procedural standard is less than than the substantive one, but the judge still has to find some cause for allowing the evidence in. Moving the focus from the substantive to the procedural cannot escape the inherent circularity; it only moves it to a different area.
Again, this area of law is new to me so I am sure there is stuff that I am missing. But I must admit that when I first skimmed this case I thought Giles was sure to lose, however, now I think he has a solid chance of winning. The more I read the more difficult I find it to reconcile a ruling against Giles with the Crawford ruling.
My reference to Bourjaily was not to the Confrontation Clause aspects of the case, but to the portion that addresses the procedure for determining whether a statement fits within the hearsay exemption for statements of conspirators. To determine that a statement fits within that exemption, the court must find, among other things, that the declarant and the accused (more generally, the party against whom the statement is offered, but most often that's an accused) were members of a conspiracy. Now, if one of the charges against the accused is that he was a member of that conspiracy, then the court (in determining the evidentiary issue) must resolve the same factual question that the jury must resolve in determining guilt. Accordingly, the structure of the problem is the same as in the Giles-type case. But Bourjaily recognizes that there really isn't a circularity problem, for the reasons suggested in my prior comment. The jury's factfinding mission and the court's are entirely separate matters.
My statement that the court "just lets the evidence in" was not meant to suggest that there are no preconditions to admissibility. On the contrary, what I was saying is that if the court determines that the conditions are met in one of these situations, it does not explain to the jury the factual findings supporting that determination; it simply admits the statement without comment.
I do not think that on analysis the circularity point holds any water. Giles' counsel apparently made the same assessment; they may advert to the argument in passing, but they certainly do not press it.
Prof. Friedman do you have any thoughts on the following questions that you would be willing to share, prior to filing your amicus brief:
1) Why do you think the NACDL brief makes no reference whatsoever to the "necessity" rationale for the framing-era dying declaration exception? (Why do they assert that the sole rationale for that exception was trustworthiness/proxy oath, when that is simply not true?)
2) How much weight do you think the Court will give to the argument, on page 25 of their brief, that "[t]he State ... cannot cite a single case applying [forfeiture] in a remotely similar context ... "? Didn't Jeff Fisher make the same "the State can't cite a single framing-era case" argument in Davis to no avail? (See Fisher's reply brief 2006 WL 542177 at p. *8 - *9)
3) Does the statement in Davis that "[r]estricting the Confrontation Clause to the precise forms against which it was originally directed is a recipe for its extinction" in any way negate the "can't cite a single case" argument?
4) Should the ancient doctrine that no man may profit from his own wrong ("Nullus commodus capere potest de injuria sua propria" (Broom, Legal Maxims, p. 297; Coke Litt. 148b; 1 Hale, P.C. 482.) -- again, not mentioned in the NACDL brief -- be relevant to the Court's decision?
Paul
Paul's done some fine research on this issue. Beyond saying that, I think I will withhold comment until doing my brief.
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