Tuesday, May 13, 2008

Failure to answer questions on cross

In United States v. Owens, 484 U.S. 554 (1988), the Court – per Justice Scalia, who also wrote Crawford – held that the Confrontation Clause permitted introduction of a prior accusation made by the victim, Foster, even though Foster did not remember the incident itself or most relevant events since then. I have long thought that Owens was wrong in stating that the accused had the benefits of cross-examination by showing that Foster had a “bad memory.” Foster’s memory was bad because his head was bashed in during the assault being tried; the fact that he could not remember the incident at the time of trial said rather little about his ability to remember at the time of the prior statement, when he purported to remember. It certainly did not provide an adequate substitute for a full cross-examination, which might have probed his opportunity to observe who hit him and any reasons he may have had for speculating that the assailant was Owens. I believe the result in Owens – admitting the statement – can be justified on a forfeiture theory, but only if the state prevails on the issue now before the Supreme Court in Giles – that is, only if the accused may forfeit the confrontation right by serious misconduct that predictably renders the witness unavailable to testify even though that effect was not a purpose of the misconduct. But taking Owens on its own terms, how far does it go? Foster did at least remember making the prior identification. But suppose the witness does little more than sit on the witness stand and take the oath. Would that be enough, given the dictum in Crawford that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements”? 541 U.S. at 59 n.9. (I think that’s wrong; see my article Prior Statements of a Witness: A Nettlesome Corner of the Hearsay Thicket, 1995 Sup. Ct. Rev. 277 – but let’s put that aside for now, too.) What constitutes “appear[ing] for cross-examination at trial”?

Blog reader Sylvia Ornstein, a public defender in New Jersey, has brought to my attention the pending case of State v. Nyhammer, 396 N.J. Super. 72, 932 A.2d 33 (A.D. 2007), which she won in the Appellate Division and is now on review by the state supreme court. The defendant is accused of sexual abuse of a child, A.N., who made a videotaped statement to investigators for the prosecutor describing an incident of abuse. According to the court,
At trial, A.N., then age eleven, testified. Despite many attempts by the prosecutor, she was non-responsive to many questions. She was unable to testify that defendant touched her inappropriately, despite leading questions, although she did write his name on the blackboard. The transcript of her testimony discloses many “no response” notations instead of answers to questions. When the prosecutor used anatomically correct dolls, asking A.N. to indicate where she had been touched or what part of a boy's body she had seen, A.N. made no response. Further, A.N. was unresponsive to the following questions: “has [defendant] touched you anywhere?” and “can you show us what they touched you with on your private area?”

On cross-examination, defense counsel could not elicit recollections from A.N. on questions going to the heart of the charges. She did not describe on direct or cross-examination the acts described in her videotaped statement. Neither did she corroborate her accusation that defendant engaged in sexual activity from the videotaped statement.
Referring to Owens, the court said:
A.N.'s complete inability to present current beliefs about any of the material facts, or to testify about her prior statements, is distinguishable from a situation where a trial witness for the prosecution simply has a bad memory.
Thus, admission of the statement was error.

I think this is the right conclusion. This was a failure, or inability, to testify, not simple bad memory. And I don’t think the proper result would change if the child said, “I don’t remember” instead of declining to respond altogether. If cross was adequate in this case, then I don’t see how it can ever be deemed inadequate so long as the witness is able to go to the witness stand and take the oath. But if that is all the witness is able to do, how can one reasonably say the accused has gotten the benefits of cross-examination? All the accused has been able to show is that at this moment, in these circumstances, the witness is no better able to answer questions than is a corpse.

I'd be curious to know whether readers are familiar with other cases presenting similar facts.


Anonymous said...

I know of one case pending in the Wyoming Supreme Court. A husband was convicted of killing his wife, but the conviction took place 16 years after she disappeared (no body was found). Shortly after the disappearance, their 2.5-year-old daughter made statements to her counselor inculpating the husband. By the time trial took place, the adult daughter couldn't remember anything (she testified to that effect), but her prior statements during treatment were admitted.

The case is Bush v. State.

Caro said...

I can't add anything as to cases with similar facts.

But I'm curious--has anyone ever successfully argued that such silence on the part of a victim of sexual abuse could also be considered a forfeiture situation? The reasoning being that the perpetrator of the abuse traumatized the child by their acts and thus forfeited their right to confront the traumatized child in court.

Rich Mantei said...

Florida has an appellate-level case that's pretty similar:

The State appeals the trial court's order, which granted a new trial based on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). As grounds for granting a new trial, the trial court concluded the defendant's right of confrontation was violated by the State's introduction of a witness's prior statement into evidence. Although the witness testified at trial, he claimed he had been hit on the head with a barbell and, consequently, could not remember the basis for his previous statement. Because the witness had a faulty memory, the trial court concluded the defendant lacked the opportunity for meaningful cross-examination. We reverse.

[1] [2] [3] Crawford made clear, that “when a declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Crawford, 124 S.Ct. at 1369 n. 9. “The Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” United States v. Owens, 484 U.S. 554, 559, 108 S.Ct. 838, 842, 98 L.Ed.2d 951 (1988) (emphasis in original). We recognize that, under some circumstances, a witness's physical presence in the court room may not be sufficient to meet Confrontation Clause requirements. However, the mere fact that a witness has a faulty memory does not result in a Confrontation Clause violation. See id. The Confrontation Clause is satisfied if the defendant has the opportunity to bring out such matters as a witness's faulty memory. See id.

Here, the witness was present at trial. He testified his prior statement was given under oath, he would have made an effort to accurately tell the truth while giving the statement, and the information contained in the statement would have been fresher in his memory. He further testified he could not remember the basis for his prior statement, because he had subsequently *352 been hit on the head with a barbell. The defendant had an opportunity to cross-examine this witness as to his prior statement and faulty memory.

Since the witness was present at trial and available for cross-examination, the introduction of his prior testimonial statements was permissible, and did not violate Crawford. The trial court's order granting a new trial is REVERSED and the case REMANDED for reinstatement of the jury's verdict.

WOLF and THOMAS, JJ., concur.

Fla.App. 1 Dist.,2005.
State v. Miller
918 So.2d 350, 30 Fla. L. Weekly D2793

Richard D. Friedman said...

Thanks. I'd be curious to know whether any readers think this decision is not absurd. So apparently the sum of the witnesse's testimony was to say: (1) the prior statement was under oath; (2) the prior statement reflected a fresh memory; and (3) he "would have made an effort" to tell the truth in making the prior statement. Point (1) could have been determined from the public record, and Point (2) is self-evident. So according to the court, it appears that it's enough to be able to question the witness about his inclination to tell the truth -- even though there is no possible way to question the witness about the underlying event. The physical blow that wiped out the witness's memory -- which, unlike that in Owens appears not to have been cast by the accused -- immunized the witness from cross, and without even giving the accused a compensating benefit, because it shed no light on the ability or inclination of the witness to tell the truth att he time he made the prior statement.

The difference between this case and Owens highlight that Owens should have been decided on forfeiture grounds -- which is possible only if the Supreme Court affirms the forfeiture principle in Giles.

Anonymous said...

What if, during cross, the witness (truthfully) testifies, "Gee whiz, it happened so long ago, I don't remember it. I remember talking to the officer, but not what I said." Crawford error to admit the witness's statement to the cop?

Richard D. Friedman said...

California v. Green says, and Crawford re-affirms, that there's no constitutional problem in that setting; the accused has had an opportunity to show that the witness has a poor memory. I think this misses the point. To show that the witness's memory has failed since the time of the statement does the accused very little good, especially if that provides no reason to believe that the witness's memory failed between the event at issue and the time of the statement. And the witness who cannot remember is effectively immunized from questioning about the event at issue. I have explored these points further in an article in the 1995 Supreme Court Review. So I think Green got this all wrong, and Crawford perpetuates the error. For now, though, that's the law.

Anonymous said...

I've been reading your blog with interest. I filed a petition for a writ of certiorari last week on this issue, Derrick Holliday, petitioner, v. State of Minnesota, respondent. In this case, involving a transferred intent murder, the witness (who told police in a prior statement that he was the intended victim)appeared at trial but could not remember any of the facts of the murder or the fact that he gave a prior statement about the murder. In other words, there was no testimony about the event for which the defendant was on trial and no testimony affirming or denying a prior statement about that event. The Minnesota Supreme Court relied on Crawford's footnote nine to hold that the witness's presence in court made him available for cross-examination. I framed the issue in terms of what it means for a witness to be considered available for cross-examination under the Confrontation Clause in order to avoid the pitfalls of Owens, Green, and Fensterer. I argue that states have interpreted footnote nine to mean different things, and that none of the Court's pre-Crawford cases have held that a witness's mere presence is enough to make the witness available for cross-examination under the Confrontation Clause.

steve baker said...

See my response letter to an article in the Illinois Bar Journal this month.

I read with interest Justice Steigmann’s article in the June Bar Journal [“When Hearsay Testimony is a Nonevent under the Confrontation Clause”]. He may well be correct that at the end of the Crawford road, the availability of a witness for cross-examination is defined as sitting in the witness box. However, the 2d District’s decision in People v. Learn, which he criticized, has had a petition for leave to appeal pending since May 2007, in No. 104423. The 2d District handed down a similar ruling about availability for cross-examination in In re Rolandis G., 352 Ill. App.3d 776 (2004). The Illinois Supreme Court in No. 99581, 224 Ill.2d 575, granted a petition for leave to appeal in 2007.
The criminal defense bar should continue to object to the admission of hearsay testimony as described in the Learn and Rolandis G. decisions, until definitive criteria have been given to us from the Illinois and United States Supreme Courts as to what “available for cross-examination” means.

Steve Baker, Oak Forest, Illinois

Anonymous said...

there is a case in Missouri where a 6 yr old girl accused a man of sexual acts. this child was interviewed on the video and made a statement on the video "this Man, this ______she stated a name is going to go to jail. You could see that the child was prepped in the video and this video was shown in court. 6 yrs later the man was arrested (even though the time limit is 5 yrs) and during the trial (the girl now 11) sat on the witness stand and stated "I don't remember but if that is what I said then, then that must be it" She remembered nothing - the same during the deposition. Oh and they made up charges such as once in a red outfit, once it a blue outfit, etc. There was NO prenetration (which was stated in court) yet the charges were sodomy
anyone interested in checking this one out