Tuesday, July 08, 2008

Reflections on Giles, Part 4: The Alito and Thomas opinions

Justice Thomas wrote a brief concurrence in Giles expressing the view that the statement at issue – made by the victim to a responding officer after an alleged assault – was not testimonial in nature. He regarded it as indistinguishable from the statement made to a responding officer in Hammon v. Indiana. I believe he is right that they are materially indistinguishable; of course, I think that the statement in Hammon was clearly testimonial. But given that he dissented from the decision in Hammon, Justice Thomas’s declaration in Giles is hardly surprising.

More intriguing is the separate concurrence by Justice Alito. He says that, “like Justice Thomas,” he is “not convinced” that the statement is testimonial. (Well, if he were entirely like Justice Thomas in this respect, he would be convinced that it was not testimonial.) He expresses sympathy with the dissent’s “displeasure” with the result in this case, but “suggest[]s that the real problem concerns the scope of the confrontation right”; he says it is “not at all clear” that Ms. Avie’s statement is the equivalent of a statement by a witness. Although he is less than definite, Justice Alito sure sounds as if he does not believe this statement is testimonial. But what is notable here is that Justice Alito, like all the justices except for Justice Thomas, joined the majority in Hammon. I suspected from the start that the decision in Davis v. Washington (which included Hammon) was a compromise, from Chief Justice Roberts’s first term, when the Court seemed to be trying hard to achieve consensus (and when Justice Alito was very junior). Justice Alito’s opinion in Giles lends weight to that supposition; it seems likely that he did not like the result in Hammon but went along because other justices who might have been disposed to treat the 911 call in Davis as testimonial were willing to give up that result as part of the overall resolution.

My colleague Chris Whitman, a far more experienced and knowledgeable observer of the Court than I, has raised another issue. She asks whether, given their views, Justices Thomas and Alito should have voted to affirm. I have asked her to write up her thoughts, and she has graciously agreed. Here they are:
Why are Justices Alito and Thomas concurring rather than dissenting? They see no constitutional infirmity in the decision below:

If the statements admitted are not testimonial, as they believe, there is no reason not to affirm the decision.

Alito and Thomas say that the question of whether the statements were testimonial was not the subject of the cert grant. Yet Justices Brennan and Marshall in capital cases repeatedly voted on the basis of their general death penalty views even where cert was granted on a more narrow issue, and Souter (with others) does the same thing in Eleventh Amendment cases. Perhaps the answer is that Alito and Thomas have decided to accept the majority approach to whether a statement is testimonial as a matter of stare decisis, but their opinions in Giles address the issue and certainly sound as if they are not conceding the point.

Under the circumstances of Giles, the result is not so troubling. Here, a criminal
defendant gets a remand even though a majority of the Justices see no constitutional flaw in his conviction. But could there be a case in which the facts are reversed? What if five Justices see a flaw in the trial below, but two of them vote to affirm the conviction on the grounds that the issue critical to them was not the subject of the cert grant? Would we leave a prisoner in jail although five Justices have expressed the view in his case that there was constitutional error below?
I’m not sure she’s right, but I would be glad to know of any readers’ thoughts – in comments either posted here or sent by e-mail to rdfrdman@umich.edu.


Anonymous said...

The Court has stated that it would not "permit litigants, by agreeing on the legal issue presented, to extract [an] opinion on hypothetical ... or dubious constitutional principles," because such an opinion would be nothing more than "advisory." (United States National Bank Of Oregon v. Independent Insurance Agents Of America, Inc., 508 U.S. 439, 447 (1993).)

Weren't Justices Thomas & Alito doing just that? In effect stating that, in the hypothetical case of a "testimonial" statement -- something that did not exist in Giles -- they agree with the scope of the forfeiture rule set for by Justice Scalia. Weren't they allowing the parties -- who stipulated that the statement was "testimonial" -- to obtain an "advisory" opinion? Is this something that concurring justices can do?

Richard D. Friedman said...

I don't think that's what Thomas and Alito were doing. The facts concerning the prior statement in Giles were very similar to those in Hammon. Before the decision of Hammon (as part of Davis), it was not certain whether Avie's statement was testimonial, and the California Court of Appeal said it did not have to resolve the issue, because it decided on the basis of forfeiture. After Davis-Hammon, it seemed clear as could be that the statement was testimonial, and the California Supreme Court noted that the matter was not in dispute. It remained undisputed in the U.S. Supreme Court -- until Thomas and Alito issued their opinions. Thomas is merely re-asserting the position he took in Davis-Hammon. But I don't see how Alito can reconcile his position here with his vote for Hammon.

Anonymous said...

I think you are correct about Alito. He probably has changed his mind, upon further reflection. But the issue of whether or not the statement was testimonial was not directly before the court because all the parties agreed it was testimonial. Giles would have been an awkward case for Alito to, in effect, overrule himself. I suspect he is simply waiting for a case that addresses the issue squarely so he can advance his position squarely. It seems a fair thing to do.

Anonymous said...

This is a perfect example of how the Supreme Court keeps academics in business. By pontificating on what might have been, or could be, a huge amount of uncertainty is created. While such uncertainty is certainly interesting from the point of view of observers, it is insufferable from the standpoint of litigants, practicing attorneys, and lower courts. What began in Crawford, continued in Davis and is perpetuated by Alito's and Thomas's concurrences in Giles is nothing more than an unnecessary and unreasonable mess. The fact that 4 years later we are still largely in the dark as to what "testimonial" means is just ridiculous.

Richard D. Friedman said...

I think the pontification to which the anonymous commentator (please identify yourselves, commetnators, whenever possible!) is referring is the justices', not mine. In any event. I cannot deny that decisions like Crawford provide grist for the academic mill. Is that such a bad thing? Crawford was a major intellectual transformation; I don't think it would have happened when it did without academic input (and, while I'm pleased to take some credit, I don't mean just from me). Managing that transformation is not a simple matter, and I think the Court is correct in taking a prudent, step-by-step approach; in fact, I think the law might have come out better if the Court had not decided a Davis-type case until a few years after Hammon.

Right near the end of my rebuttal argument in Hammon, I said, "I'm hoping that the Court is building a framework for hundreds of years to come, and I think it's more important that it be built right than that it be built quickly." I still believe that -- a few years of uncertainty is a very tolerable price to pay for getting the doctirne right for many more years to come.

But even when all the principal outlines of the doctrine are set, there are still going to be close cases that are hard to predict, just as there are in any area of law. That also is tolerable.

In any event, I don't think Alito and Thomas are likely to cause Hammon to be overruled any time soon, so in that sense their statements don't really add substantial uncertainty. But the fact that Alito is willing to make the expression he did suggests that he will be voting in favor of a very narrow application of the term "testimonial".