Friday, July 18, 2008

No confrontation issue if the statement isn’t even offered.

That seems obvious enough, but the point arose in an interesting context in United States v. Tucker (8th Cir. Jul. 17, 2008). Tucker assisted her boyfriend Robson in a get-away from a bank robbery, and the critical issue was whether when she did so she knew that he had robbed the bank. So, as the 8th Circuit indicated, evidence that Tucker knew that Robson had committed other bank robberies was admissible to show her state of mind on this occasion, and it was also admissible to impeach the credibility of her testimony that she didn’t know Robson had robbed the bank. In cross-examining Tucker, the prosecutor asked whether on three specified prior occasions Robson had robbed a bank and either he had told Tucker about it shortly afterwards or she had helped him get away. Tucker denied each. No evidence of the other robberies was admitted.

If the prosecutor had no good-faith basis for asking questions of this sort, they would be highly prejudicial and improper. But if she did, then they were fair game – even if she had no other admissible evidence of the other robberies, she was entitled to hope that Tucker would tell the truth (as the prosecutor believed the truth is or may be, based on the information that gave her the good faith belief), and that would give her the evidence she wanted. And in this case, she did have a good-faith basis – a statement Robson had made to the FBI. The statement was clearly testimonial, and couldn’t be admitted against Tucker, given that she had not had a chance to cross-examine him. It wasn’t offered, and the jury never even learned of its existence, though they might well have inferred that the prosecutor was basing her questions on something of the sort. But the statement could, without violating the Confrontation Clause, form the good-faith basis for the prosecutor to ask her questions, and that is what the 8th Circuit properly held.


Mark Dwyer said...

Would that result apply as well, do you think, on cross-examination of a defense psychiatric expert? "Doctor, would it change your view of defendant's ability to understand the nature of his acts and to form criminal intent if you knew that his accomplice in this and three similar crimes has pleaded guilty and admitted that he and defendant planned them out carefully?"

Richard D. Friedman said...

Very interesting question -- and a good indication of how smart, aggressive prosecutors will take advantage of every bit of leeway the law allows.

I think the case Mark poses is weaker (for the prosecution) than Tucker in at least two respects. (1) In Tucker, the prosecutor hada good-faith basis for believing that the witness (the accused) had personal knowledge of the events being asked about and that she would, if speaking truthfully, acknowledge the factual propositions suggested by the prosecutor's question. In Mark's hypothetical, that does not appear to be so. (2) In Tucker, there was no reference to the out-of-court testimonial statement at all. In Mark's hypothetical, the prosecutor is basically passing that statement along to the jury -- and it has significance to accomplish what the prosecutor wants it to accomplish only if it is true.

But clearly the prosecutor has some interest here in testing the standard applied by the psychiatrist. I'm going to pretend I'm a judge and sustain an objection to Mark's question (though I'd entertain argument). I'm curious what alternative questions he might ask.

Mark Dwyer said...

I'm not really aggressive enough, I suppose. in a case with facts quite close to those I suggested, I've told the prosecutor not to ask the question. the most he should do is show the relevant statement to the shrink, and make him uncomfortable about how ridiculous his analysis is in terms of the real world.

my hesitation to be more aggressive is not based on the confrontation clause, however. theoretically, the question could come in the same way as does the question in the Tucker case. it's not for the truth; and an instruction can tell the jury to consider it only re the doc's impeachment.

but I don't think we're safe on due process grounds in introducing all that a jury would derive from such a question, w/ implications concerning not only Crawford but Bruton. and, as it turns out, the psych issue in this case isn't serious enough to call for all that risk.

plus we're in NY, and we have People v. Goldstein, discussed in an earlier blog entry. and Goldstein for better of worse emphatically tells us that the prosecution expert can't recount such a statement and discuss his reliance on it. I can't trust that we can persuade the courts that we can backdoor around Goldstein by asking the same stuff of the defense expert.

but I take comfort from what we will ask our shrink, even after Goldstein. he will note, in making common-sense conclusions, that he
i did
rely on the co-defendant's statements. he just won't say what they were. and the jury will realize that a shrink who considers the nitty-gritty has more to say than a shrink who avoided same.

Anonymous said...

You and the 8th clearly have a different definition of "good faith" than I do.

Anonymous said...

I have a confrontation issue. Is there some way I can email you directly?

Richard D. Friedman said...