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.
Thursday, June 25, 2009
Melendez-Diaz reversed
Scotusblog reports that Melendez-Doiaz has been reversed, by a 5-4 vote, with Justice Sclaia writing the majority opinion and Justice Kennedy writing a dissent. I will post more when I know more!
21 comments:
Anonymous
said...
After reading Scalia's pretty straightforward language about how this is an easy case ("we must first assure the reader of the falsity [of the dissent]"? ) one wonders what took them so long.
My gut reaction to that question is believe it or not it was Thomas who had to be persuaded. His very short concurrence is revealing. He would have gone the other way except for the fact that these statements were at the "core". I think Scalia had a difficult time persuading Thomas that these affidavits were at the "core" and that's what too so long.
Laboratory reports are clearly within Thomas' understanding of "testiminial." I don't think he held things up. But given that the dissent seems so disenchanted by the "testimonial" framework, if another Confrontation Clause case makes its way to the court with an allegedly testimonial informal statement it seems Thomas may get his way.
The majority opinion spends so much time explaining why the dissent is wrong, it fails to explain why the majority is right. What are the boundaries of testimonial? The opinion makes a number of references to the "purpose" of the statement. If a statement is not made for the "purpose" of later use at trial, is it nontestimonial? Or is the question whether "an objective witness" would reasonably believe the statement would be available for use at trial? If so, where is the line? Can a statement not made to law enfrocement reasonably be belived to be available for later use at trial?
I thought we would get a much clearer explanation of the meaning of "testimonial," but now I don't think Scalia has one.
I would guess the hold-up was on the dissent side rather than on the majority. I agree with the last commenter that this probably was not a hard case for Thomas. He has put emphasis on formality, and this sure was formal. It may indeed be that Thomas and today's dissenters will form a majority in other types of cases.
We'll have to study the opinion carefully to figure its likely impact on doctrine on broader issues. Given that Scalia (properly) regarded this as an easy case I don't think it was necessary for him to explore the peripheries of doctrine, but I think there may be some clues as to the standard for "testimonial". More later.
For those of us who practice in courts-martials under the UCMJ, this may not augur much change. Although in cases based purely on urinalysis results there will be a spurt of litigation. United States v. Harcrow, 66 M.J. 154 (C.A.A.F 2008), is safe. And unfortunately there is enough language in the opinion to support the military position expressed in United States v. Magyari, 63 M.J. 123, 125 (C.A.A.F. 2006), that urinalysis cases are different and the laboratory reports are non-testimonial.
I do not necessarily agree that UCMJ prosecutions will not be affected. While Scalia was careful not to touch on issues beyond the scope of the report or certification in the case, he reiterated that it is the reasonable belief of the declarant that controls, without regard to police interrogation. He said that , by the way, the cops requested the testing, so it is a nonissue. But in a situation where an analyst at a military lab would reasonably know or anticipate that a positive test for drugs would likely result in a prosecution, why would his report of the positive test not then become testimonial? I think it would. Professor Friedman is right, it will take some time to study the opinion to estimate its broader impact, but I can foresee one important area (or maybe I just want to since I do capital work). I think it is significant that he mentioned autopsies in footnote 5, and in the next sentence nevertheless said that without exception, these forensic analysts must be subject to confrontation. I believe that this opinion could have broad impact on those cases where substitute medical examiners are used to testify about autopsy findings contained in reports done by someone else. Here in Florida, we've had Johnson for over a year now, and lab analysts are routinely called to testify about drug analyses (unless stipulated to, which is often the case). But DNA analyses are frequently admitted through the testimony of a lab supervisor who reviews the test results, but who did not do the analysis himself. Why would Melendez-Diaz not apply to those situations? Also significant is the language about clerk's certifications authenticating documents and the contrast with affidavits certifying the absence of a document, which Scalia says are testimonial. This may also have broader implications. Finally, Scalia finally put to rest the "business records exception" to the rule in Crawford, by properly characterizing those documents created in anticipation of litigation as being testimonial, without some broad exception for business or public records. This is significant, considering the number of cases around the country that have dismissed Crawford challenges by characterizing obviously testimonial reports as "business records".
I happen to be interested in whether NY practice will be affected, for reasons you might readily deduce.
especially in DNA and autopsy report situations, we introduce the report through the testimony of "an" expert, but not by any means necessarily "the" expert. in DNA cases there is no "the" expert, and in autopsy cases "the" expert may be long deceased himself, or otherwise nowhere nearby.
I remain unwilling to believe that there is an appellate court in the US that will let a stone cold killer go, because the autopsy report was prepared 10 years ago, the tests can't be repeated, and the ME is dead.
we'll see. I take comfort from Justice Thomas' apparent insistence that only "formal" statements, perhaps only sworn affidavits, are implicated. and while I otherwise have nothing against the gentlemen, on this front I am delighted that Justice Souter will be gone soon.
I am rushing, and have not yet been able to write my first analysis of the majority opinion, which I believe is excellent. But in response to Mark: In DNA cases or any others, there are those who can report on the tests form first-hand knowledge and those who can't, and I believe this opinion only allows those who can to testify.
As to the scare case -- the old murder with a dead medical examiner: If the state plans, it can avoid disaster there. It should videotape the autopsy, and it should have more than one qualified examiner present. As I understand it, these are standard practices in many cases. The facts are that (1) the examiner is a witness, (2) witnesses have to testify subject to confrontation, and (3) occasionally cases are lost because witnesses aren't around by the time of trial. But this is a case in which usually the prosecution can protect itself -- as it can in many cases by taking a deposition if it fears a witness becoming unavailable.
I will rush too. in DNA cases, there are many people acting at many steps. as the dissent notes, who "the" expert is, is very problematic. if we call the guy who did X, defendant will say we had to call the guy who did Y.
as to the "scare" case, I'm scared. there are, as I understand it, two MEs at an autopsy, at least often. that reduces but does not eliminate the problem. there is no deposition procedure in NY, and has not been for all the murders in the pipeline. (oh: and in NY, we happen not to have a legislature at the moment.) there are no videos for those autopsies in the pipeline, and anyway video is no substitute for a record of the facts observed -- which, if recorded on video, would be -- uh -- testimonial hearsay, no?
What about cases in which you do not have the analyst who performed the actual test at issue available to testify but you have a lab supervisor who has reviewed the analyst's work testify? There are no real issues under the rules of evidence, but might this practice violate the confrontation clause? The supervisor can testify to the general process--how the lab is run typically--but he or she can not testify to how the specific evidence at hand was actually tested.
5:47 Anonymous, that looks like an easy case: supervisor testimony over general practices that lacks personal knowledge of how the actual test at issue was conducted will fail to satisfy the Confrontation Clause.
Of course, like Scalia, I thought Melendez-Diaz was an easy case, and the Court went 5-4 on it. And I'm just making my way through the opinion now. So who knows.
In Oregon, we resolved the crime lab question favorably under the Oregon Constitution a couple of years ago. Now, the question we're asking -- in light of Melendez-Diaz -- is whether it would apply to intoxilyzer certifications. A case out here says Crawford doesn't apply, because the certification is neither offense- nor offender-specific, but part of general maintenance. (Nevertheless, they are required to be offered into evidence before the breath test result comes in.) Does M-D change that analysis?
I'll try to respond to a few of these. What does Melendez-Diaz say about certifications that an instrument is in good working order? Without resolving the issue, it says these may well be non-testimonial. That's my guess how they would come out.
I agree with Joe Bourne that surrogate testimony appears clearly no good under Melendez-Diaz; indeed Kennedy's dissent seems to say as much. That's the proper result, notwithstanding the amicus brief submitted by some other law profs.
On Mark's point ,agreeing with the dissent about the "multiple hands" problem: (1) If a case depends on multiple witnesses, then multiple witnesses have to testify. (2) If a certain type of lab test is done frequently enough that it becomes a significant factor, then labs can train people to do multiple functions, to diminish the number of witnesses necessary.
On the old murder case, Mark is saying that because New York has not until now taken advantage of the full latitude the constitution gives it, and because the state is now making a farce of itself, the Court should (if a case arises where the examiners are dead) allow critical testimony to come in against a murder defendant without opportunity for cross. I won't predict what will happen, but that would be wrong.
And no, a video itself is not testimonial. Of course, someone can make a testimonial statement on a video, but recording an event that in itself is not testimonial does not make a testimonial statement. If the video simply shows the autopsy, and the decedent is recognizable, then a pathologist could watch the video at the time of trial and draw some conclusions from it.
Illinois will likewise face the dead/unavailable pathologist issue. Last year the Cook County State's Attorney tried legislatively to create a hearsay exception. It was held given the M-D litigation.
Illinois has long had an expert evidentiary provision that allows an expert to consider hearsay in arriving at the conclusion, if same is generally relied upon in the field. People v. Sutherland, 223 Ill.2d 187 (2006); Crawford issues not addressed by the court. Hmmm?
I think the question of the extent to which reliance on a hearsay statement in drawing an expert opinion provides an end run around the Confrontation Clause is an issue the Supreme Court will have to resolve. I hope it takes the view expressed in People v. Goldstein, which I analyzed a few years ago, shortly after it was decided.
The question of whether a testifying expert's reliance on DNA analysis conducted by nontestifying analysts violates the confrontation clause is currently pending in the Illinois supreme court.
I am in a moot court competition on this very issue.
In the case, the victim died of an apparent drug overdose. The medical examiner, as required by law, performed an autopsy on the victim because she died "under strange circumstances" or something to that effect. There was a peculiar drug found in her stomach. No charges were initially brought.
Twenty years later, the defendant (the victims personal physician) was charged with manslaughter and/or negligent homicide. It is alleged that the defendant gave the victim the "peculiar drug," which ultimately led to her death. Proving cause of death is essential to the states case.
The medical examiner who performed the autopsy has since died. The defendant challenged the admissibility of the autopsy report under Crawford and Malendez-Diaz, arguing that the autopsy report is testimonial. Because the "declarant-examiner" is unavailable (dead) and has not been subject to cross, and because the report "certified that a particular fact in question was true," the court excluded the report.
Based on my research, it seems that an autopsy report could be testimonial in some circumstances, and non-testimonial in others. For instance, in this case the autopsy report was done because it was required by law - not by law enforcement officials. However, arguably all medical examiners perform autopsies with a "reasonable expectation that the report will be 'available' for use at a later trial". After all, they are agents of the state. More importantly, the report "certifies that a particular fact in question (i.e. that the drug in the stomach killed the victim) is true."
Even if the report was admissible, isn't it also true that the information about the drug in the victim's stomach would be inadmissible because it is offered as a conclusory opinion as to the true cause of death?
That sounds like a good moot court problem. Ordinarily, an autopsy introduced in a murder trial will clearly be testimonial. But this problem seems to be drawn to leave open the possibility that a person in the position of the medical examiner would not necessarily have anticipated evidentiary use, because the autopsy did not clearly indicate that a crime had been committed. I'd be inclined to say that if the report was going to be used in any formal or investigative proceeding it was testimonial. The fact that the report cerified that a given fact in question was true doesn't do much; that's true of all relevant hearsay. I'm not sure why the fact that the report gave a conclusory opinion as to the cause of death would render it inadmissible, unless the jurisdiction follows the ultimate issue rule, or unless the examiner was unqualified to give an opinion.
Well, I've read some cases where a court admitted an autopsy report to show cause of death (i.e. "heart attack") but not to show other things contained in the report. That is where the idea came from.
What about the idea that autopsies are, as a general rule, primarily for law enforcement use? The statute mandates that an autopsy be done for many reasons, but it seems like the primary ones are akin to law enforcement (e.g. When a crime has been committed, when the DA orders one, when the person dies under suspicious or unusual circumstances, etc).
Scalia did mention that it was the declarant's state of mind that mattered. In Crawford he gave three basic options - the last of which was the most broad - "reasonably expect to be available for use at a later trial."
Is it a good argument to say that a medical examiner, who is employed by the state and performs many autopsies for the prosecution of crimes, and is now preparing one for a death under "suspicious circumstances," would at least reasonably expect it to be "available" for use at a later trial, even if the examiner wasn't doing it for that purpose initially?
21 comments:
After reading Scalia's pretty straightforward language about how this is an easy case ("we must first assure the reader of the falsity [of the dissent]"? ) one wonders what took them so long.
My gut reaction to that question is believe it or not it was Thomas who had to be persuaded. His very short concurrence is revealing. He would have gone the other way except for the fact that these statements were at the "core". I think Scalia had a difficult time persuading Thomas that these affidavits were at the "core" and that's what too so long.
Laboratory reports are clearly within Thomas' understanding of "testiminial." I don't think he held things up. But given that the dissent seems so disenchanted by the "testimonial" framework, if another Confrontation Clause case makes its way to the court with an allegedly testimonial informal statement it seems Thomas may get his way.
The majority opinion spends so much time explaining why the dissent is wrong, it fails to explain why the majority is right. What are the boundaries of testimonial? The opinion makes a number of references to the "purpose" of the statement. If a statement is not made for the "purpose" of later use at trial, is it nontestimonial? Or is the question whether "an objective witness" would reasonably believe the statement would be available for use at trial? If so, where is the line? Can a statement not made to law enfrocement reasonably be belived to be available for later use at trial?
I thought we would get a much clearer explanation of the meaning of "testimonial," but now I don't think Scalia has one.
I would guess the hold-up was on the dissent side rather than on the majority. I agree with the last commenter that this probably was not a hard case for Thomas. He has put emphasis on formality, and this sure was formal. It may indeed be that Thomas and today's dissenters will form a majority in other types of cases.
We'll have to study the opinion carefully to figure its likely impact on doctrine on broader issues. Given that Scalia (properly) regarded this as an easy case I don't think it was necessary for him to explore the peripheries of doctrine, but I think there may be some clues as to the standard for "testimonial". More later.
For those of us who practice in courts-martials under the UCMJ, this may not augur much change. Although in cases based purely on urinalysis results there will be a spurt of litigation.
United States v. Harcrow, 66 M.J. 154 (C.A.A.F 2008), is safe. And unfortunately there is enough language in the opinion to support the military position expressed in United States v. Magyari, 63 M.J. 123, 125 (C.A.A.F. 2006), that urinalysis cases are different and the laboratory reports are non-testimonial.
I do not necessarily agree that UCMJ prosecutions will not be affected. While Scalia was careful not to touch on issues beyond the scope of the report or certification in the case, he reiterated that it is the reasonable belief of the declarant that controls, without regard to police interrogation. He said that , by the way, the cops requested the testing, so it is a nonissue. But in a situation where an analyst at a military lab would reasonably know or anticipate that a positive test for drugs would likely result in a prosecution, why would his report of the positive test not then become testimonial? I think it would.
Professor Friedman is right, it will take some time to study the opinion to estimate its broader impact, but I can foresee one important area (or maybe I just want to since I do capital work). I think it is significant that he mentioned autopsies in footnote 5, and in the next sentence nevertheless said that without exception, these forensic analysts must be subject to confrontation. I believe that this opinion could have broad impact on those cases where substitute medical examiners are used to testify about autopsy findings contained in reports done by someone else.
Here in Florida, we've had Johnson for over a year now, and lab analysts are routinely called to testify about drug analyses (unless stipulated to, which is often the case). But DNA analyses are frequently admitted through the testimony of a lab supervisor who reviews the test results, but who did not do the analysis himself. Why would Melendez-Diaz not apply to those situations?
Also significant is the language about clerk's certifications authenticating documents and the contrast with affidavits certifying the absence of a document, which Scalia says are testimonial. This may also have broader implications.
Finally, Scalia finally put to rest the "business records exception" to the rule in Crawford, by properly characterizing those documents created in anticipation of litigation as being testimonial, without some broad exception for business or public records. This is significant, considering the number of cases around the country that have dismissed Crawford challenges by characterizing obviously testimonial reports as "business records".
I happen to be interested in whether NY practice will be affected, for reasons you might readily deduce.
especially in DNA and autopsy report situations, we introduce the report through the testimony of "an" expert, but not by any means necessarily "the" expert. in DNA cases there is no "the" expert, and in autopsy cases "the" expert may be long deceased himself, or otherwise nowhere nearby.
I remain unwilling to believe that there is an appellate court in the US that will let a stone cold killer go, because the autopsy report was prepared 10 years ago, the tests can't be repeated, and the ME is dead.
we'll see. I take comfort from Justice Thomas' apparent insistence that only "formal" statements, perhaps only sworn affidavits, are implicated. and while I otherwise have nothing against the gentlemen, on this front I am delighted that Justice Souter will be gone soon.
I am rushing, and have not yet been able to write my first analysis of the majority opinion, which I believe is excellent. But in response to Mark: In DNA cases or any others, there are those who can report on the tests form first-hand knowledge and those who can't, and I believe this opinion only allows those who can to testify.
As to the scare case -- the old murder with a dead medical examiner: If the state plans, it can avoid disaster there. It should videotape the autopsy, and it should have more than one qualified examiner present. As I understand it, these are standard practices in many cases. The facts are that (1) the examiner is a witness, (2) witnesses have to testify subject to confrontation, and (3) occasionally cases are lost because witnesses aren't around by the time of trial. But this is a case in which usually the prosecution can protect itself -- as it can in many cases by taking a deposition if it fears a witness becoming unavailable.
I will rush too. in DNA cases, there are many people acting at many steps. as the dissent notes, who "the" expert is, is very problematic. if we call the guy who did X, defendant will say we had to call the guy who did Y.
as to the "scare" case, I'm scared. there are, as I understand it, two MEs at an autopsy, at least often. that reduces but does not eliminate the problem. there is no deposition procedure in NY, and has not been for all the murders in the pipeline. (oh: and in NY, we happen not to have a legislature at the moment.) there are no videos for those autopsies in the pipeline, and anyway video is no substitute for a record of the facts observed -- which, if recorded on video, would be -- uh -- testimonial hearsay, no?
IMHO, that rule won't happen.
What about cases in which you do not have the analyst who performed the actual test at issue available to testify but you have a lab supervisor who has reviewed the analyst's work testify? There are no real issues under the rules of evidence, but might this practice violate the confrontation clause? The supervisor can testify to the general process--how the lab is run typically--but he or she can not testify to how the specific evidence at hand was actually tested.
5:47 Anonymous, that looks like an easy case: supervisor testimony over general practices that lacks personal knowledge of how the actual test at issue was conducted will fail to satisfy the Confrontation Clause.
Of course, like Scalia, I thought Melendez-Diaz was an easy case, and the Court went 5-4 on it. And I'm just making my way through the opinion now. So who knows.
In Oregon, we resolved the crime lab question favorably under the Oregon Constitution a couple of years ago. Now, the question we're asking -- in light of Melendez-Diaz -- is whether it would apply to intoxilyzer certifications. A case out here says Crawford doesn't apply, because the certification is neither offense- nor offender-specific, but part of general maintenance. (Nevertheless, they are required to be offered into evidence before the breath test result comes in.) Does M-D change that analysis?
I'll try to respond to a few of these. What does Melendez-Diaz say about certifications that an instrument is in good working order? Without resolving the issue, it says these may well be non-testimonial. That's my guess how they would come out.
I agree with Joe Bourne that surrogate testimony appears clearly no good under Melendez-Diaz; indeed Kennedy's dissent seems to say as much. That's the proper result, notwithstanding the amicus brief submitted by some other law profs.
On Mark's point ,agreeing with the dissent about the "multiple hands" problem: (1) If a case depends on multiple witnesses, then multiple witnesses have to testify. (2) If a certain type of lab test is done frequently enough that it becomes a significant factor, then labs can train people to do multiple functions, to diminish the number of witnesses necessary.
On the old murder case, Mark is saying that because New York has not until now taken advantage of the full latitude the constitution gives it, and because the state is now making a farce of itself, the Court should (if a case arises where the examiners are dead) allow critical testimony to come in against a murder defendant without opportunity for cross. I won't predict what will happen, but that would be wrong.
And no, a video itself is not testimonial. Of course, someone can make a testimonial statement on a video, but recording an event that in itself is not testimonial does not make a testimonial statement. If the video simply shows the autopsy, and the decedent is recognizable, then a pathologist could watch the video at the time of trial and draw some conclusions from it.
Illinois will likewise face the dead/unavailable pathologist issue. Last year the Cook County State's Attorney tried legislatively to create a hearsay exception. It was held given the M-D litigation.
Illinois has long had an expert evidentiary provision that allows an expert to consider hearsay in arriving at the conclusion, if same is generally relied upon in the field. People v. Sutherland, 223 Ill.2d 187 (2006); Crawford issues not addressed by the court.
Hmmm?
I think the question of the extent to which reliance on a hearsay statement in drawing an expert opinion provides an end run around the Confrontation Clause is an issue the Supreme Court will have to resolve. I hope it takes the view expressed in People v. Goldstein, which I analyzed a few years ago, shortly after it was decided.
The question of whether a testifying expert's reliance on DNA analysis conducted by nontestifying analysts violates the confrontation clause is currently pending in the Illinois supreme court.
I am in a moot court competition on this very issue.
In the case, the victim died of an apparent drug overdose. The medical examiner, as required by law, performed an autopsy on the victim because she died "under strange circumstances" or something to that effect. There was a peculiar drug found in her stomach. No charges were initially brought.
Twenty years later, the defendant (the victims personal physician) was charged with manslaughter and/or negligent homicide. It is alleged that the defendant gave the victim the "peculiar drug," which ultimately led to her death. Proving cause of death is essential to the states case.
The medical examiner who performed the autopsy has since died. The defendant challenged the admissibility of the autopsy report under Crawford and Malendez-Diaz, arguing that the autopsy report is testimonial. Because the "declarant-examiner" is unavailable (dead) and has not been subject to cross, and because the report "certified that a particular fact in question was true," the court excluded the report.
Based on my research, it seems that an autopsy report could be testimonial in some circumstances, and non-testimonial in others. For instance, in this case the autopsy report was done because it was required by law - not by law enforcement officials. However, arguably all medical examiners perform autopsies with a "reasonable expectation that the report will be 'available' for use at a later trial". After all, they are agents of the state. More importantly, the report "certifies that a particular fact in question (i.e. that the drug in the stomach killed the victim) is true."
Even if the report was admissible, isn't it also true that the information about the drug in the victim's stomach would be inadmissible because it is offered as a conclusory opinion as to the true cause of death?
Thoughts?
That sounds like a good moot court problem. Ordinarily, an autopsy introduced in a murder trial will clearly be testimonial. But this problem seems to be drawn to leave open the possibility that a person in the position of the medical examiner would not necessarily have anticipated evidentiary use, because the autopsy did not clearly indicate that a crime had been committed. I'd be inclined to say that if the report was going to be used in any formal or investigative proceeding it was testimonial. The fact that the report cerified that a given fact in question was true doesn't do much; that's true of all relevant hearsay. I'm not sure why the fact that the report gave a conclusory opinion as to the cause of death would render it inadmissible, unless the jurisdiction follows the ultimate issue rule, or unless the examiner was unqualified to give an opinion.
Well, I've read some cases where a court admitted an autopsy report to show cause of death (i.e. "heart attack") but not to show other things contained in the report. That is where the idea came from.
What about the idea that autopsies are, as a general rule, primarily for law enforcement use? The statute mandates that an autopsy be done for many reasons, but it seems like the primary ones are akin to law enforcement (e.g. When a crime has been committed, when the DA orders one, when the person dies under suspicious or unusual circumstances, etc).
Scalia did mention that it was the declarant's state of mind that mattered. In Crawford he gave three basic options - the last of which was the most broad - "reasonably expect to be available for use at a later trial."
Is it a good argument to say that a medical examiner, who is employed by the state and performs many autopsies for the prosecution of crimes, and is now preparing one for a death under "suspicious circumstances," would at least reasonably expect it to be "available" for use at a later trial, even if the examiner wasn't doing it for that purpose initially?
(pardon the run-on)
Jordan, I'm thinking you aren't allowed to seek outside assistance with this moot court problem.
Quite worthwhile material, thank you for the post.
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