Thursday, December 23, 2010

A cert petition on the scope of unavailability

Along with local counsel in Maryland, I filed a cert petition this week in Benitez v. Maryland, concerning how unavailability should be determined for purposes of the Confrontation Clause. You can see the petition by clicking here. You can read the decision that it seeks to review (by the Maryland Court of Special Appeals), by clicking here.

Wednesday, December 08, 2010

Top-side amicus briefs in Bullcoming

Top-side amicus briefs – that is, the ones in support of the petitioner – were filed yesterday in Bullcoming v. New Mexico. Here they all are.

To see the brief filed by five evidence professors, under the lead of Jennifer Mnookin, click here.

To see the brief of 26 defender organizations, led by the Public Defender Service for the District of Columbia, click here.

To see the brief of the National Association of Criminal Defense Lawyers, the National College for DUI Defense, and the New Mexico Criminal Defense Lawyers Association, click here.

To see the brief of the Innocence Network, click here.

And to see the brief that I filed, click here.

Tuesday, December 07, 2010

Is there a multi-witness problem with respect to forensic lab tests?

While litigating Briscoe v. Virginia, I conducted – through a research assistant, Andrew Mackie-Mason, now a student at the University of Chicago – a study of transcripts of Michigan drug trials. Michigan adheres to constitutional procedures with respect to forensic lab results; it does not allow prosecutors to prove such results, over the objection of the accused, by introducing the lab report without presenting the testimony, subject to confrontation, of the author. The principal aim of that study was to find out, given this condition, how often a lab witness actually had to appear at trial. The results – reported in my main brief in Briscoe – showed that in the great majority of cases no lab witness appeared. In some cases, the state presented no evidence of lab results; more frequently, the state presented lab results by introducing a written report, the prosecution not wanting to bring the author of the report in as a live witness and the accused consenting to admissibility of the report. The study also demonstrated that when a lab witness does testify at trial, the defense nearly always cross-examines.

In the pending case of Bullcoming v. New Mexico, No. 09-150, the state presented a forensic lab report and also live testimony of a witness from the lab – but the witness did not perform the test and had no personal knowledge of the conduct of it. Like the petitioner in Bullcoming (represented by Jeff Fisher), I believe this procedure was unconstitutional. Anticipating that, as they have done in Melendez-Diaz and Briscoe, many states will contend that adhering to constitutional procedures would be prohibitively expensive, I have, through a group of student research assistants, conducted a more extensive study of Michigan trials. (Let me give due credit right off: The students who did the work are Wencong Fa, Tasha Francis, Justin Gillett, Regan Nunez, Matthew Parelman (who assembled and organized the data), Kimberly Parks, Luke Rachlin, Joe Reiter, Liza Roe, Alex Su, Sean Stiff, and Anna Walker.) This study was primarily intended to determine, in a state that recognizes that forensic laboratory witnesses are not exempt from the accused's right to be confronted with a witness who made a statement admitted against him, whether there was a significant multi-witness problem. That is, is a chain of witnesses from the lab routinely necessary to prove the results of a forensic lab test? The answer is resoundingly negative.

As in the prior study, we used transcripts provided by the State Appellate Defenders’ Office (“SADO”) – my gratitude to Jonathan Sacks, Deputy Director of the Detroit office of SADO, and to other members of the SADO staff, for making this possible. SADO, which is appointed in a random selection of approximately 25% of indigent trial appeals from every county in the state, maintains electronic copies of trial transcripts from its cases. In this study, the students examined all the trial transcripts to which they were able to get access in the Detroit office in three categories: trials involving drug charges from February 14, 2000 to July 15, 2010; trials involving charges of operating under the influence of liquor (OUIL) from February 3, 2003 to April 20, 2010; and trials involving rape charges with penetration (first- and third- degree criminal sexual conduct) spanning from September 15, 1997 to November 25, 2010. I chose drug cases because they generate more presentations of forensic laboratory tests than any other kind. I chose OUIL cases (which we have referred to more informally as DUI) because Bullcoming itself is a case of this type and because forensic lab results are commonly presented in them. And I chose rape cases involving penetration because they are probably the type of case in which DNA tests – a particularly complex form of lab testing – are most frequently presented.

The detailed results of the study are presented on a spreadsheet that you can examine by clicking here. Here is a summary of the results.

The students examined a total of 154 drug cases. In 116 of these, the prosecution presented lab results presented at trial. But in only 59 of these cases did lab analyst actually testify at trial. In 49 of those cases, only one lab witness testified at trial, and never did more than one lab witness testify at trial with respect to a single test. In nine trials, two lab witnesses testified to two separate tests, and in one trial four lab witnesses testified to four separate tests. So all in all, this makes 71 lab witnesses in 154 trials, or about .46 per trial.

Of the 55 DUI trials examined, 41 included the presentation of lab results at trial. In 26 of these cases, one or more lab analysts testified live. In four cases, two witnesses testified live at trial, and there were never more than two. In only one of these four cases did the two witnesses testify with respect to a single test. (In another case, not included among those four, three analysts, in addition to the one who testified live at trial, testified via video-conference. Together, the four witnesses in that case testified to two tests.) In all, 30 witnesses testified live at these trials, for an average of about .55 per trial. I believe there is a ready explanation for why this number is somewhat higher than in drug cases. Very few DUI cases go to trial. Given the relative simplicity of these cases, when one does go to trial there is a rather high probability that it is because the defense believes that for some reason the lab evidence is problematic.

Of the 104 rape cases examined, 25 included DNA lab results presented at trial. These are, of course, particularly serious prosecutions, and DNA testing is more complex than the other types studied. Therefore, it is not surprising that, as compared to the other two classes of cases, analysts testify live at a higher percentage of the trials at which lab results are presented and that it is more common that more than one lab witness will testify at trial with respect to a given test. (Usually when this happens, they are testifying to different phases, one to screening for DNA and the other to profiling; given that the ultimate forensic result is one result (the identification of the DNA) – in contrast to the identification of two separate substances or two different tests of the same condition – it is appropriate for present purposes to consider this one test.) Of the 25 cases, 21 trials included live testimony by lab witnesses – one witness in 12 cases, two witnesses in eight cases, and three witnesses in one case. That is a total of 31 live witnesses in the 104 trials, or about .30 witnesses per trial; if we restrict our attention to the 25 cases in which DNA results were presented, the average is 1.24 witnesses per trial.

The Michigan appellate courts have been very good in insisting that a lab report cannot be introduced, over the objection of the accused, through the testimony of a surrogate witness who had no personal knowledge of the matters reported, and I understand from discussions with SADO lawyers that only rarely do Michigan prosecutors violate this rule. To double-check, I asked the students to look at the appellate opinions in the cases they examined to see whether a violation of the confrontation right was claimed. (Given the way SADO's briefs are filed, it was far easier finding the opinions rather than the briefs themselves.) In some of the newer cases, the court of appeals has not yet ruled (indicated by "Not found" in the last column on the spreadsheet), but in well over 200 of them it has, and in only one of those, People v. Frey, 2009 WL 2244521 (Mich. App.), appeal denied, 775 N.W.2d 788 (Mich. 2009) (marked in red on the spreadsheet), did the court discuss a claimed Confrontation Clause violation. (That court held there was no plain error when the analyst who performed part of a DNA test did not testify at trial – but the analyst who did testify at trial was present while the test was performed.) So it appears that only very rarely has there been what even the excellent, aggressive SADO lawyers believe is plausibly a confrontation violation.

I do not want to over-claim for this study. To make it feasible in a limited amount of time, I have relied on a large group of students, and my instructions developed somewhat as we learned more. I am sure, therefore, there is some variability in the way the cases have been reported. (Some, for example, affirmatively noted when lab results were admitted by stipulation, and some did not.) I suppose some small inaccuracies are inevitable. But I think the basic results are very strong, and would not be materially altered by discovering small glitches: In Michigan, the defense often consents to the presentation of lab results without the need for live testimony. In drug and DUI trials, even when a lab witness testifies at trial, there is virtually never more than one such witness per test, and when DNA results are presented through live testimony there is virtually always either one or two witnesses.

As in the prior study, what we cannot tell from this data is how often live witnesses are presented because that is the preference of the prosecution; for all that appears from the data, it could be that virtually always when a live lab witness testifies it is because the prosecution chooses to bring the witness in.

Wednesday, December 01, 2010

Petitioner's Brief and Joint Appendix in Bullcoming

Jeff Fisher, for the Petitioner, has filed the opening brief on the merits in Bullcoming v. New Mexico, the case involving a surrogate witness to a lab test. You can read it by clicking here. And you can see the Joint Appendix by clicking here. Amicus briefs supporting the Petitioner are due on Tuesday, December 7.

Saturday, November 20, 2010

Retaliatory killing and forfeiture

A couple of people have pointed out to me the decision of the Sixth Circuit yesterday in United States v. Hendrickson. There are numerous interesting features of the case, but I'll focus on just one: The defendant was charged with killing two people in retaliation for providing information against him in a prior case. In trying to gain admission of the victims' statements in this case, the Government apparently did not even make a serious attempt to contend that forfeiture doctrine does not apply -- because the killings could not have been designed to prevent testimony in that prior case. I suppose that's right as a strict matter of reading the Giles case, and perhaps that's the conclusion that the Supreme Court would come to if it were to look at this issue. But to me, it's just one more case highlighting the misfortune of Giles. The insult to the integrity of the judicial system -- on which Giles, unfortunately in my view, places great weight -- does not seem significantly less when a person kills in retaliation for testimony than when he kills to prevent it.

Monday, October 11, 2010

Audio recording in Bryant

I just learned from Scotusblog that the Supreme Court is now making audio recordings of arguments available the week of argument. You can hear the argument in Bryant by clicking here.

Thursday, October 07, 2010

Reactions to the Bryant argument -- Part 2

Here are further comments on the Bryant argument.

The consequences of holding this statement non-testimonial – Justice Ginsburg asked an important question: What if the speaker had survived? Lori Palmer, for the state, answered straightforwardly that this would not alter what happened at the time of the statement, so in her view it would still be non-testimonial. But then she said the statement would be excluded by the rules of hearsay unless the speaker were unavailable. Not true! In this case, the Michigan courts held that the statement passed the hearsay bar as an excited utterance. In nearly all cases, the courts will find some way to except a highly probative statement from the rule against hearsay; given the existence of a residual exception, they don't have to work hard. And the consequence of this is that even if the speaker is alive and well and living around the corner, or if he decides to take a vacation during trial, under the state's view there is no bar to admissibility – not only no constitutional bar but really no bar at all.

The perspective question – There was extensive discussion of what might be called the perspective question. The justices asked whose purpose matters, the speaker or the questioner's. As indicated in my first set of comments, I think the optimal test operates in terms not of the purpose of the speaker but rather of the understanding, or anticipation, of a reasonable person in the speaker's position. But the basic question remains the same: Do we test whether it is testimonial from the perspective of the speaker or of the questioner, if there is one? To say that the test should be an objective one does not really answer this, because the question remains – objective based on the information available to whom, the speaker or a questioner? I've stated ad nauseum the reasons why I believe the perspective of the speaker – the person who is arguably a witness for purposes of the Confrontation Clause – is the proper one, and the interrogator's perspective makes no sense. I won't repeat these reasons here. I will say that I don't believe the state, or the Solicitor General, or any justice made a genuine argument that the proper perspective is that of an interrogator. And in this case, once we take the speaker's perspective, I think it becomes very clear that this statement was testimonial. Which ties into . . .

Emergency – It's important to recognize – as I think Peter Van Hoek, arguing for Bryant, made clear – that a defendant contending that the emergency doctrine articulated in Davis does not apply is not suggesting any criticism of the police officers on the scene: The doctrine (unlike, say, the exigent circumstances doctrine of the Fourth Amendment) is not a standard for police conduct, but rather a measure of whether a statement should be deemed testimonial for Confrontation Clause purposes. The emergency doctrine is not an exception to the confrontation right, but rather a marking of its outer bounds. I think the best way of accommodating it with sound confrontation doctrine is to say that in some circumstances the need to respond to the emergency is so urgent that a reasonable person in the speaker's position would not, at that time, be anticipating prosecutorial use of the statement. But whether we look at it that way or simply ask the question in terms of primary purpose, the application in this case is clear, once the speaker perspective is taken: The statement was not responsive to Covington's medical situation. And that was the only exigent circumstance he faced, because he knew the shooter was not around and there was no reason to suppose – certainly he gave no indication – that the shooter was on a rampage. The only purpose the statement served was to bring the shooter to justice. I think that's core testimonial. (Even if we look at it from the (misguided) interrogator's perspective, it's at best a dubious case for calling the interrogation emergency-oriented. The officers were reconstructing past events and do not seem to have been at all oriented to resolving an exigent situation.)

Dying declarations and forfeiture – Justice Ginsburg wondered whether the state might be able to renew the argument that the statement was a dying declaration; she understood that a conscientious application of Crawford raises the potential value of a dying-declaration argument for the prosecution. It is conceivable that the Court will remand for that purpose (though as I understand it, there is nothing in the record suggesting that Covington thought he was on the verge of death).

Justice Scalia expressed doubt as to whether there is a dying-declaration exception to the confrontation right (as opposed to a hearsay exception). Frankly, that surprised me, for two reasons. First, Justice Scalia's majority opinion in Giles v. California relies heavily on the establishment of the exception at common law, and in Crawford he indicated that the exception might be sui generis, an exception applicable to testimonial statements that was established by the time of the framing. Second, dying declarations have been admissible for a couple hundred years, and in many circumstances keeping them out is a very unappealing result. I have argued rather strenuously that in fact there should not be a dying declaration exception to the confrontation right, and that the function should be served by a robust doctrine of forfeiture. But the majority opinion in Giles forecloses that possibility; unless the Court revisits the Giles issue (which I hope it does), either the Court will incorporate the traditional dying-declaration exception into confrontation doctrine, or it will exclude statements that have long been admissible (which I don't think it will do), or it will interpret the scope of "testimonial" unduly narrowly to get these statements in.

Let's see how this all plays out in Bryant. Under the doctrine that I regard as optimal, there would be a good chance that Bryant would be held to have forfeited the confrontation right: If the trial court concluded, to whatever degree of certainty is held appropriate, that Bryant killed Covington, then he should be held to have forfeited the confrontation right, because he has no valid, equitable complaint based upon the foreseeable consequences of his own serious misconduct. In some circumstances, even if the accused kills a potential witness, he can contend plausibly that he still didn't forfeit the right because the state had and forsook reasonable opportunities to preserve the right in whole or part, as by taking a deposition. But as I understand the facts here, there was no such opportunity. Covington underwent surgery almost immediately after reaching the hospital, and he died several hours later; I am guessing that he never recovered consciousness, but in any event there was no chance for a deposition (even if a court were to hold that the state, if it can do nothing else, should hold a deposition in the absence of the accused, who in this case was not found till many months later). So I believe that – again, assuming a predicate finding that Bryant killed Covington – the only truly equitable result is to hold that Bryant forfeited the confrontation right. But Giles seems to foreclose this possibility, because it holds that forfeiture does not apply unless the accused killed the witness with the design of rendering the witness unavailable to testify, and there is no indication that Bryant killed Covington for the purpose of preventing Covington from testifying.

That leaves the troubling possibility that – with the Court having made forfeiture doctrine inapplicable and with the facts apparently not supporting application of a dying-declaration exception – some justices will be inclined to adopt a narrowing definition of "testimonial". I remain hopeful that at least four justices will let the judgment of the Michigan Supreme Court stand. But if that happens, the long-term damage to the confrontation right will be attributable in significant part to the mistake made by the Court in adopting too restrictive a view of forfeiture in Giles.

Wednesday, October 06, 2010

Reactions to the Bryant argument -- Part 1

I will not make any prediction on the ultimate outcome of Bryant, but here is a first installment of reactions to the argument. More to follow later, but I’m posting this so I don’t have to wait til I’ve written everything.

More than in any previous argument in the Crawford line, in this one the Court was really focusing on the basic questions that go into determining what makes a statement testimonial for purposes of the Confrontation Clause. If the justices write on the case – not inevitable, because there is the possibility of a 4-4 split – they may well resolve some of these issues.

Underpinnings of Crawford; relation of confrontation and hearsay law – Justice Breyer indicated misgivings about how Crawford has developed. He wondered why, if a state treated a matter as within a hearsay exception, the Confrontation Clause should require exclusion.

There was some irony here, because Justice Breyer’s concurrence in Lilly v. Virginia, 527 U.S. 116 (1999), was one of the first opinions to indicate that tying confrontation doctrine to hearsay law might be a mistake. I do hope that Justice Breyer will return to his earlier insight, and will recognize the fundamental nature of the confrontation right as articulated by Crawford.

The right of confrontation is a basic part of our criminal procedure, prescribing how witnesses against an accused must testify – not in a police station, not in their living rooms, not on the pavement of a gas station while talking to police, but in open court (or if necessary another formal procedure), under oath, subject to cross-examination, and in the presence of the accused. I think the key point is this: If a speaker makes an out-of-court statement in given circumstances knowing full well that it is likely to be used against an accused, and the statement is in fact so used, then we have created a system in which speakers can testify against an accused by making statements in those circumstances.

Of course, the confrontation right applies only to statements that are testimonial in nature, not (as Justice Breyer seemed to worry) to the vast majority of hearsay statements. Thus, conspirator statements (an example he cited), even those made to undercover police officers, are not testimonial, because a reasonable person in the position of the speaker would not anticipate prosecutorial use. But where a statement is testimonial, it simply does not do to rely on the hearsay law of the jurisdiction. In formal terms, of course, that is abdicating constitutional responsibility to the rulemakers of the states. In practical terms, it should be recognized that the modern law of hearsay is essentially a sieve – just about anything can get through. Justice Breyer listed a few hearsay exceptions, but the list is long and it is topped off by a residual exception. It would, in my view, be a great misfortune to return to a period in which we hope that courts applying hearsay law will do the work of protecting a fundamental aspect of our criminal procedure.

History – There was a brief allusion to history. I think the history is clear: Neither at the time of the founding nor for many years afterwards — really, I think, nearly two centuries – would a common law court have plausibly admitted the statement at issue in this case. The NACDL amicus brief does an excellent job on this. The res gestae doctrine had not yet developed at the time of the framing. The Brasier case, from 1779, involved a statement made shortly after the crime, with the assailant at large, and the court is very clear in regarding the statement as testimonial and in holding it inadmissible. In the first decades of the development of the res gestae doctrine, the doctrine did not allow narratives of past events. (For example, in the Bedingfield case of 1879, even a statement made seconds after the event was (controversially by then) held inadmissible.) Gradually, courts loosened up – but really, it wasn’t until the late 20th century that a court would have seriously considered admitting a statement like this (putting aside considerations of dying declarations and forfeiture).

It’s also worth emphasizing in this context a point made by Crawford -- putting aside the dying declaration exception and forfeiture, none of the doctrines admitting hearsay that were established at the time of the framing (for example, a develolping doctrine governing business records) were applicable to testimonial statements.

Formality – The state put its primary reliance on a formality test. It appeared to me highly unlikely that a majority of the Court would accept that line of reasoning, and for good reason. As I’ve said (many times) before, a formality test gets things backwards and misses the point of the Confrontation Clause, which was to ensure that testimony be given under proper (formal) conditions; if a statement should otherwise be characterized as testimonial, lack of formality means not that the statement is non-testimonial but rather that it was not given under acceptable conditions. A formality test is also very manipulable – government agents can get around the confrontation clause just by taking testimony under informal conditions. It also distorts incentives – it gives police the incentive to postpone gaining control over a situation until they have taken witness statements made in anticipation of trial. As I have explained before, I believe that if Davis is read as establishing a formality standard – not inevitable, because Davis said merely that it did not deny that formality was essential for a statement to be testimonial – it is best understood as having no independent content beyond the requirement that reasonable person in the position of the speaker would anticipate that the statement would be used for prosecutorial purposes.

Purpose – Justice Alito suggested it makes no sense to ask what the primary purpose of the speaker is. Well, I sure don’t think that test is optimal. I believe the decisive question should be not what the primary purpose of the speaker was but rather what the understanding of a reasonable person in the speaker’s position would be. (And given Davis, I think we have to say that we take the reasonable person in the actual circumstances, acting in the heat of the moment.) Asking about the understanding of a reasonable person avoids the difficult weighing of purposes on which Justice Alito was commenting. It also avoids an inquiry into the subjective frame of mind of the speaker. Even more importantly, it is better justified as a matter of principle: in some circumstances, a witness might not want to create testimony (for example, if it is an unwelcome part of a plea bargain), but if he realizes that in fact he is creating a narrative statement that will be used in prosecution, he is testifying. In this case, I think a reasonable person in Covington’s position clearly would have understood that his statement would be used in prosecuting the assailant.

That's all I can do for now. I'll present comments on the proper perspective - speaker's or interrogtor's -- and on emergency and maybe one or two other issues later on.

Tuesday, October 05, 2010

Bryant Transcript

The Supreme Court held argument today in Michigan v. Bryant. You can read the transcriupt by clicking here. I will post some comments on the argument, tonight or tomorrow.

Sunday, October 03, 2010

Bryant argument on Tuesday

Michigan v. Bryant will be argued in the U.S. Supreme Court on Tuesday. I will be second chair to Peter Van Hoek, lead counsel for respondent Bryant. Here are a few thoughts in advance of the argument. These are my own views entirely, and none should be attributed to Bryant or to Peter.

First, a quick review of the facts. Responding to a 911 call, police arrived at a gas station here they found Anthony Covington lying on the ground, bleeding and in pain. In response to their inquiries as to what happened, he told him that he had been shot about half an hour before at the house of “Rick” – arguably a reference to Bryant – six blocks and had driven himself to the spot where the police found him. Covington died later that day. His statement to the police was a crucial piece of evidence in convicting Bryant of murder.

The question here is whether the statement was testimonial for purposes of the Confrontation Clause. I believe that on careful analysis the answer is clearly in the affirmative.

The basic question, in my view, is whether a reasonable person in Covington’s position would realize that his statement was likely to be used in investigating or prosecuting a crime. And I think there can be no doubt that the answer is yes: Covington was giving information about a gunshot assault on him. The case is not like Davis v. Washington, for at least two basic reasons. In Davis, the assault was in progress or just concluded at the time of the statement; here it was a closed incident in the past. And in Davis, the victim was unprotected and presumably seeking protection from the assailant; here, by contrast, Covington was in no need of protection, because the police were already around him.

In part for this reason, the fact that Bryant was at large does not alter this analysis. A rule that a statement is not testimonial if the accused is not already in custody would lack logical support and it would create a badly distorted incentive for the police – to delay taking a suspect, even a dangerous one, into custody while they are gathering evidence.

Nor does the fact that Covington was in dire medical condition alter the analysis. If his statements were ones that could aid in treating his medical condition, then the case would look different, but this was a simple statement describing the crime. There is no remaining contention in the case that the statement was a dying declaration – and even if it were, that would be a separate question from whether the statement was testimonial. If the doctrine governing forfeiture that I regard as ideal were in place, a court might conclude as a preliminary matter that Bryant forfeited the confrontation right by killing Covington. But that possibility – which is also a separate question from the one of whether the statement is testimonial – has been foreclosed by the Court’s decision in Giles v. California, because there is no evidence suggesting that Bryant killed Covington for the purpose of rendering him unavailable as a witness.

It should be borne in mind in this context that nothing in the state’s argument depends on the fact that Covington in fact died before trial. In the state’s view, if he had made a full recovery – or if, though he needed prompt medical attention his life was never in serious danger – and he or the state simply decided that he would not testify at trial, the case would look the same, and because the statement would be characterized as non-testimonial, nothing in the Confrontation Clause would preclude admitting the statement. Indeed, when stripped of the fact that the victim died before trial, this case looks very much like Hammon v. Indiana -- a statement describing an alleged crime made some time after the incident, by a person who was allegedly a victim injured during the crime, made at the scene to police who arrived in response to a 911 call and were able to protect the speaker at the time of the statement. If such a statement is admissible, then I believe we have defeated the purpose of the Confrontation Clause: We will have in effect created a system in which a person who observes a crime may create narrative evidence that will be used at trial to convict a person with no need ever to take an oath or face the accused or cross-examination -- all the person need do is make a statement to the police describing the incident shortly after it occurs.

As in Hammon, the statement be regarded as non-testimonial on the ground that it was not sufficiently formal. I’ve addressed this point enough times in enough places I’ll just make two quick points. First, formality as an independent requirement for characterizing a statement as testimonial makes no sense, because the very point of the confrontation right is to ensure that testimony is given under proper conditions, including the required formalities. If a statement was made in the reasonable anticipation that it would be used for prosecution, the absence of formalities does not mean that the statement is not testimonial; it just means that the statement was not given under acceptable conditions for testimony.

Finally, I want to point out that virtually all the arguments made on the state’s side proceed from the premise, usually made only implicitly, that the question whether a statement is deemed testimonial should be determined form the perspective of the questioner (assuming there is one). Again, this is a point that I have addressed many times (including in my amicus brief in this case). I think that perspective makes no sense at all, and Davis does not stand for it. This case could make a solid contribution to the development of the doctrine of the Confrontation Clause if it establishes that the proper way of determining whether a statement is testimonial is to look at the situation from the point of view of a reasonable person in the position of the declarant.

Tuesday, September 28, 2010

Cert grant on the surrogate witness issue

I just realize I didn't post the first part of this message a few hours ago, when I thought I did!

The Supreme Court granted cert today in Bullcoming v. New Mexico, No. 09-10876. This is likely to be a very significant follow-up to Melendez-Diaz, posing the issue of whether forensic lab results may be introduced through a surrogate witness. That is, given that the results must be proved through a live witness, may that witness be an analyst who has no first-hand knowledge about the matters as to which he is testifying?

Here are the following documents in Bullcoming: the cert petition, the state’s brief in opposition to the petition, and the reply brief in support of the petition.

And, while I'm at it, here is a decision of the state same court, issued the same day as Bullcoming, in a companion case, State v. Aragon, 225 P.3d 1280. In Bullcoming, the court holds that one analyst can testify to the facts reported by an absent analyst; in Aragon, the court holds that one analyst cannot pass on the absent analyst's opinions. I do not believe the distinction will hold.

Thursday, September 16, 2010

Decision on remand in Briscoe

The Virginia Supreme Court today issued its decision in Briscoe on remand from the United States Supreme Court. You can read it by clicking here">. The court held that the former Virginia statutory scheme (under which the defendant had to call a lab analyst as his witness if he wanted to examine the analyst) was unconstitutional. This, of course, was the point that I sought to establish in bringing the petition for certiorari; Melendez-Diaz made the point clear, and now the Virginia Supreme Court has drawn the obvious conclusion.

The court held that the error was harmless in Briscoe’s case, but Cypress’s conviction was reversed. I expect his case will plead out.

Monday, July 19, 2010

State's reply brief in Bryant

The state has filed a reply brief in Michigan v. Bryant. Like its main brief, the reply is refreshingly short. You can read it by clicking here. Below is a summary of the three points made by the brief, and my thoughts on each.

First, the state argues that the perspective for judging whether a statement is testimonial should be an objective one. Nobody disputes that. But the state conflates the subjective-objective question with the entirely different (I will resist the temptation to call it orthogonal) question of the perspective from which the determination should be made. For various reasons that I have summarized in several places, including this blog and my amicus brief in Bryant, I believe it is important that the determination be made from the perspective of the speaker. The state equates a speaker-oriented determination with a subjective one. But that equation does not follow: The proper question, I believe, is what the anticipation would be of a reasonable person in the position of the speaker.

Note that to say that the determination is objective does not avoid the question of asking this question: On the basis of what body of information is the determination made? It makes no sense (again, I will not review the reasons here) for that body of information to be what was available at the time to the police interrogator, even assuming there is one. Rather, the body of information should be what was available at the time to the speaker. A subjective determination would ask: What was the speaker’s purpose (or anticipation) when he or she made the statement? An objective test asks a question like this: Would a reasonable person knowing the information available to the speaker at the time anticipate the statement would be used in investigating or prosecuting the crime?

As I see it, the only way the state could have even a hope of victory is if the Court were to adopt (or implicitly apply) an interrogator’s perspective – that is, basing the determination on the information available to the interrogator at the time of the questioning. Thus, I think this case – more than Crawford, Davis, Hammon, Melendez-Diaz, or Briscoe – may provide a vehicle for deciding the perspective question. But the Court need not decide that question; it could well decide that even from the officers’ perspective it was clear from the outset that the conversation was not designed to relieve an emergency but to assist in prosecution of a crime.

The state’s second main point in its reply is that the emergency doctrine of Davis is not limited to criminal events. But even assuming that is so, it should not help the state. The victim’s statements did not – and were not reasonably calculated to – assist treatment of his medical condition. They were clearly likely to be used to assist in prosecution of the crime (and were so intended).

Finally, the state engages in a debate with Bryant over the contours of the res gestae exception to the hearsay rule. The doctrine is a 19th century creation, long post-dating the Confrontation Clause. Over the course of that century – far too late to be of assistance to the state – the courts loosened up in admitting statements made some time after the incident. Indeed, the significance of this line of cases is that at the time of the Clause and for decades after – even after the broad and newly developing rule against hearsay began to shroud the principle underlying he confrontation right – courts did not admit statements describing past criminal activity, even though the interval was very short. The fact that by the time they did start doing so they tended to talk in terms of the rule against hearsay rather than of the confrontation right is of no assistance here to the state.

Thursday, June 24, 2010

Bottom-side amicus briefs in Bryant

Yesterday was the due date for amicus briefs supporting the respondent (the defendant) in Michigan v. Bryant. I filed one, which you can read by clicking here, and the National Association of Criminal Defense Lawyers filed another, which you can read by clicking here. If I learn that there are others, I will post them as well.

Thursday, June 17, 2010

Respondent's brief in Bryant

Here is the brief, filed yesterday, of respondent Bryant in Michigan v. Bryant. Amicus briefs supporting Bryant are due on the 23rd. I expect to file one.

Monday, June 14, 2010

Cert denied in Pendergrass (and reply brief)

As reported in a comment by an anonymous reader, the Supreme Court denied cert this morning in Pendergrass v. Indiana. I may have mroe to say on this later. For now, I'll simply say that the basic issue presented by the case -- who must testify as to the results of a forensic lab test -- is an important one that the Court will have to resolve sooner or later.

I never posted Pendergrass's reply brief in support of certiorari, but for completeness will do it now; you can see it by clicking here. Personally, I think the issue is well enough joined that the Court could have taken this case if it were disposed to resolve the matter now. It may be that both sides from Melendez-Diaz are a little wary given the addition of yet another new Justice.

Tuesday, May 11, 2010

State's BIO in Pendergrass

The state has filed its Brief in Opposition in Pendergrass v. Indiana. You can read it by clicking here.

Sooner or later, the Court is going to have to address the basic issue raised by this case -- whether a prosecutor may prove an event or condition (here, the conduct and results of a lab test) by presenting the testimony of a person who did not observe that event or condition.

State-side amicus briefs in Bryant

The Solicitor General's Office and 36 states have filed amicus briefs on the state's side in Michigan v. Bryant. You can read the SG's brief by clicking here and the states' brief by clicking here. Both briefs, like that of Michigan, take the perspective of the interrogator in determining whether the statement is testimonial. I think this is a basic error, and I hope the Court does not fall into it.

I assume that if SG Kagan is confirmed to the Court she will be recused from sitting on this case, given that her name is now on the cover of a brief submitted in it. And that means that it is possible that the Court will ultimately be equally divided, which would leave the decision below untouched.

Thursday, April 29, 2010

State's brief in Michigan v. Bryant

The State, which is the petitioner, has filed its brief -- a day early -- in Michigan v. Bryant, the pending case on fresh accusations. You can read it by clicking here. I expect to be filing an amicus brief on behalf of the respondent. So for now I will confine myself to a few short comments.

1. The brief justifies its name. It is refreshingly short -- the body is only 17 pages.

2. At the very outset, it poses the Question Presented: "[A]re preliminary inquiries . . . nontestimonial . . . ?" But the question isn't whether the inquiries, preliminary or not, are testimonial. The question is whether the statements, in this case by the victim, are testimonial or not. One of the critical points that I hope will be clarified as a result of this case is that the question of whether a statement is testimonial or not must ultimately be made from the perspective of the speaker (or of a reasonable person in the position of the speaker), not from that of the questioner, if there is one.

3. The brief appears to take the position that any statement made in response to police interrogation before the police have ascertained the identity and location of the perpetrator is non-testimonial. This view would vitiate much of the confrontation right. It would also distort the incentives of police, and detract from their protective function.

Tuesday, March 02, 2010

More on Bryant

Some more on Bryant: Here, once again, are links to the Michigan Supreme Court opinion, from the court's website and from Westlaw. And here, via Scotusblog, are links to the petition for certiorari and to the brief in opposition.

Bryant will give the Court a chance to resolve several important issues in confrontation law. Here are several points I hope it will establish:

1. The proper perspective for determining whether a statement is testimonial is that of the speaker – that is, of the potential witness – not of a police interrogator, if there is one. The state will try to argue that in this case when the police came to the scene they did not know how dangerous it might be. Even if that assertion were true – and it seems dubious at best – it is clear that the victim knew that the assailant posed no immediater danger. The victim's statement was made for evidentiary purposes, to describe the crime and identify the person who committed it. On this ground, it should be considered testimonial.

2. To the extent formality is a requisite for a statement to be deemed testimonial, it is satisfied by demonstrating that a reasonable person in the position of the declarant would expect the statement to be used in investigation or prosecution of a crime. It would make no sense to adopt a separate formality requirement. The purpose of the Confrontation Clause is to ensure that testimony is given under the proper conditions. To hold that a statement clearly made in anticipation of evidentiary use is not testimonial because it was given informally would stand logic on its head and invite witnesses and government authorities to evade the confrontation right by giving and taking such statmeents informally.

3. That the witness is in a medical emergency does not render non-testimonial his statements describing the crime and identifying the assailant. The situation of the victim was dire – but he did not help it by identifying the shooter and describing the circumstances of the shooting. Plainly, these statements were made for testimonial purposes.

4. That the suspect is at large when the witness speaks does not render the statements non-testimonial. The victim did not have any reason to believe that either he or anybody else was in further imminent danger from the assailant. A rule making a statement non-testimonial whenever the suspect identified by the statement is at large would yield absurd results, invite abuse, and create an incentive for bad policing.

One further thought: As mentioned in my first post on this case, I think it is an interesting question whether, under what I believe to be the optimal rule for forfeiture of the confrontation right, Bryant should be held to have forfeited the right. That depends on whether it was feasible, consistent with standards of humaneness, to take the victim's deposition. I believe that to the extent that one has an intuitive feeling that the statement in this case should be admitted this is responsive to an impulse that Bryant should not be allowed to have killed the victim and then caused his statement to be excluded on grounds of forfeiture. But Giles v. California appears to foreclose this resolution of the matter. I very much hope that what I regard as a mistake in one direction in Giles does not lead the Court to make a compensatory but broader mistake in construing the breadth of the confrontation right in Bryant.

Cert grant in Bryant

I was out of touch, skiing, yesterday, and am slow in reporting the news that the Supreme Crut granted cert in Michigan v. Bryant; I had previously reported on the state supreme court case. More on this later.

Monday, January 25, 2010

Cert petition on "Who must testify?"

Sooner or later, the Supreme Court will have to resolve the question of who must testify to the substance of a lab test. Indeed, with Briscoe now safely off the Supreme Court's docket, this would be a logical next issue for the Court to tackle; the justices were interested in it both in Melendez-Diazand in Briscoe. Jeff Fisher has just filed a cert petition raising this issue in Pendergrass v. Indiana, seeking review of Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009). You can read it by clicking here.

G . . . VR in Briscoe

One June 25, the day the Supreme Court decided Melendez-Diaz, most observers -- including me -- confidently predicted that it would GVR Briscoe -- that is grant the petition, vacate the case, and remand it to the Virginia Supreme Court for further consideration in light of Melendez-Diaz. Well, now that has happened, in a rather odd way. The Court granted the petition on June 29. And, as many readers already know, today -- after full briefing and argument -- it vacated and remanded. You can find the per curiam opinion -- and the Court is listing it as an opinion, rather than as an order -- by clicking here, and you need not budget more than a few seconds to read it.

Thus, we have the result that most observers fully expected right after the Melendez-Diaz decision in June. We will probably not know, at least for a long time, why the Court decided to take the case. But there has been considerable speculation that it did so to give it an opportunity to reconsider Melendez-Diaz, or cut back on it, given the replacement of Justice Souter by Justice Sotomayor. A comment by Justice Scalia at argument lent some force to this theory.

Twenty-five states and the District of Columbia, as amici, explicitly asaked the Court to overrule the case. That didn't happen.

The essence of the argument presented by Virginia and the United States was implicitly that the Court should overrule Melendez-Diaz to the extent that it held that a state violates the Confrontatin Clause if it presents testimony in written form, leaving it to the defendant, if he wishes, to put the witness on the stand. (Virginia contended that the now defunct statute involved in the case required the prosecution to guarantee the presence of the witness, a reading of the statute that I believe is unjustified, and both Virginia and the United States conceded that this would be required to make the statute valid.) That didn't happen.

Instead, we have a per curiam decision, for a unanimous Court that now includes Justice Sotomayor rather than Justice Souter, treating Melnedez-Diaz without question as good law, as one would expect the Court should do.

I hope that states and prosecutors that have been waiting in hopes that somehow the Court would go back on what it just decided seven months ago today will now get on with what they should do. They should recognize that numerous states have long acted in a way that fully complies with the Confrontation Clause as it is so well applied in Melendez-Diaz, and that they can do the same.

No doubt, the issue of who must testify with respect to lab results will have to be resolved by the Court. In fact, Jeff Fisher has just filed a cert petition on this issue, and I will post that soon. Eventually, perhaps, the Court will also adress the lower-significant issues of whether a state may require a defendant who demands live testimony to assert a good faith reason or an intent to cross-examine.

But for right now, on an issue that is -- pardon the expression -- orthogonal to those, the issue of how must a prosecution witness testify, the critical point confirmed by Melendez-Diaz remains the law: A prosecution witness must testify live, face to face with the accused, and not in writing.

Thursday, January 14, 2010

Top 50 Criminal Justice and Criminology Blogs

I just received word that Justice City, USA, another blog, listed the Confrontation Blog as one of the top 50 Criminal Justice and Criminology Blogs. I didn't even know there were 50 blogs in the field! But it's an interesting list, which you can find at.

In any event, my thanks to readers. I look forward to being able to comment with (relative) lack of restraint once Briscoe is decided.

Tuesday, January 12, 2010

Transcript in Briscoe

The Supreme Court heard argument yesterday in Briscoe v. Virginia. You can read the transcript by clicking here. I will hold substantive comments -- including about the exchange on the word "orthogonal" -- until after the decision.

Here are a couple of corrections, though, as to case names. On page 8, line 21, the case I referred to was Learn, not Warren.

On page 50, lines10-11 the cases to which Ms. Kruger referred were Inadi and White v. Illinois.