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.


Anonymous said...

You say that the proper analysis is from the point of view of the declarant. Say a declarant makes a statement against penal interests to an undercover police officer. The declarant has no idea that the statement might be used in a later criminal prosecution. Despite the fact the undercover cop might be soliciting the statement for the very purpose of using it at trial, would the statement nevertheless be non-testimonial?

Richard D. Friedman said...

That is correct. I am virtually certain that had the Court thought the result would be otherwise it would not have accepted the testimonial approach in Crawford. And of course saying that this statement is not testimonial does not alter the result that prevailed pre-Crawford.

A more difficult case, I think, is this: A governemnt agent tells a witness (perhaps a child): "Don't worry. Nothing you say is going to be used in court." Should the statement then be considered non-testimonial, on the grounds that the witness (or a reasonable person in the witness's position) would not believe that it was amde for testimonial use? I don't believe so -- I think the government should be estopped by its wrongdoing from denying the testimonial quality of the statement.

Is thre a difference between the two cases? I believe so. In the first, the police are doing just what we want them to do in dealing with wrongdoers. In the second, the witness is presumably doing nothing wrong and exercising her right not to say anything, and the government agent is trying to trick her out of doing that.

Anonymous said...

So it wasn't a deceptive or coercive Crown the Framers were concerned with when they considered Sir Walter Raleigh's trial. It was the lies Lord Cobham might tell to the Crown?

Richard D. Friedman said...

Interestingly posed question.

I think it's important to bear in mind that the history, and reality, of the confrontation right up to the time of the adoption of the Sixth Amendment is not summed up in the case of Walter Raleigh. The right has existed in systems without a public prosecutor, and most prosecutions in England through the time of the Framing were by private prosecutors; that was still true in at least some places in America. So I think Crawford puts somewhat too much emphasis on the notion of prosecutorial abuse. The right to be confronted with adverse witnesses holds whether or not there is a prosecutor and whether or not a prosecutor has committed abuse.

I don't think that's inconsistent with the idea that when there is a witness whose testimony is offered by the prosecution there is extra concern if the prosecution has used coercion to procure the testimony or a type of deception that we are unwilling to accept. I don't think a conspirator going about his business talking to someone who happens to be an undercover cop is a witness, and I don't think the deception used in this case is of a type we're unwilling to accept.

Anonymous said...

Can the Court use this case to resolve the (still open) issue of whether there is a CC exception for "testimonial dying declarations"? Or, because of what transpired in the Michigan courts regarding the "dying declaration" question, will the Court will be limited to addressing the scope of the term "ongoing emergency"?

It seems that under Davis if the Court concludes that, objectively, there was an "ongoing emergency" when the officer asked "what happened," the declarant's response is nontestimonial, regardless of whether or not he (or a reasonable person in his position) believed (or would have believed) that his answer would be used to build a case against his assailant.

Under Davis, if the Court concludes that, objectively, no "ongoing emergency" existed (because the crime transpired 30 minutes earlier) then the answers are testimonial, regardless of the declarant's (or a reasonable declarant's) state-of-mind, i.e., "primary purpose" in making the statements.

Your thoughts, Prof Friedman?

Michelle R. Slack said...

With all due respect, I disagree with your view of the application of forfeiture. I read your perspective in the Evidence Stories segment on Crawford, which was before both Davis and Giles, and disagreed with it then. Frankly, I agree with Souter's concurrence in Giles that the use of forfeiture in these cases seems too intertwined with the ultimate issue of guilt for the homicide itself.

With respect to the question of whether the Court will address the dying declaration exception to the Confrontation Clause in deciding Bryant, I think it might be too bound up with the state hearsay law and the lack of evidence that the victim knew death was imminent here. Moreover, in both Crawford and Davis, the Court declined to address arguments not clearly presented to it. Yet, I (like anonymous) would be interested in your thoughts, Professor Friedman.

Richard D. Friedman said...

Well, a lot of people disagree with my view on forfeiture, and the most important fact is that a majority of the Supreme Court did in Giles. I adhere to my view, and I believe that Giles was an unfortunate mistake.

I'm not going to say anything here that I haven't said before, but: To me the whole idea that doctrine should avoid finding a forfeiture because the crime being charged and the act alleged to have caused forfeiture are the same, or closely intertwined, doesn't make a whole lot of sense. There are two separate questions to be resolved for two separate purposes: Is the defendant guilty of the crime charged? Did the defendant forfeit the confrontation right? These are usually decided by different entities, and on different bodies of evidence and under different standards of persuasion. Why should it matter that both involve the same act? The situation is no different, I don't think, from that involving the conspirator exemption. And note that Giles doesn't eliminate the so-called problem, but just limits the circumstances in which it arises: If the allegation is that the accused committed the crime to silence the victim as a witness, then we have the same "intertwining" situation. And apparently the majority, and Souter especially, believes that might happen routinely in domestic violence cases.

But I raise this now not because the issue is presented in Bryant but only because I believe that if one has an intuitive sense that the statements in Bryant ought to be admitted the better explanation would be that Bryant forfeited the right, not that the statements are non-testimonial.

I think much of the discussion in Giles is based on the premise that there is a dying- declaration exception to the Confrontation Clause. I argued in my amicus brief that most dying-declaration cases really reflected the forfeiture principle, but the Court showed no interest in that explanation. But in any event I don't think the question of a dying-declaration exception is presented by this case.

I don't know what the Court will say about the purpose or anticipation of the speaker, or of a reasonable person in his position. I think the question, for a case like this, is something like whether a reasonable person in the position of the speaker would anticipate that the statement would likely be used in investigation or prosecution of a crime. Davis says that if the statement was made primarily for resolving an ongoing emergency then it isn't testimonial. In this case, assuming the statements were not made for resolving an emergency (and I don't believe they were), it appears that they satisfy the standard for being testimonial.

Michelle R. Slack said...

Thank you for your thoughts on the issue. I apologize if I'm going over old ground on the forfeiture issue, here.

I agree with your view that forfeiture is related to the dying declaration exception to the Confrontation Clause. I think it's strange, though, that what's missing in Bryant - namely evidence that the victim knew death was imminent - is what would make the statements more testimonial. After all, if you believe you will be around at a later date to testify against the person who shot you, you are less likely to feel the need to "testify" at the scene (and more inclined to just want some medical help). Yet, if you think death is imminent, a reasonable person would make a statement to the police with almost the singular purpose being its later use in the prosecution against the person who you believe shot you. I realize that this is because of the historical nature of the dying declaration exception, but I still think it's strange in light of the theory of Crawford.

In any event, I agree that the dying declaration exception is not the issue in Bryant.

Anonymous said...

I do think the dying declaration exception is at issue in this case, at least tangentially. I think it all depends on what one perceives as the "on going emergency". Is the on going emergency the fact there might be a killer on the loose or is the on-going emergency the fact that a witness might die? If you think it's the later then I could certainly see the need to address the dying declaration exception. One of the problems with looking at it from the point of view of the witness in this situation is that it's equally reasonable to think that the statement was given for either reason.

Unlike you, I think this case is very likely to be decided on formality grounds. Read the concurring opinions by Thomas and Alito in Giles. It might in your view "stand logic on its head" but I don't think that either Alito or Thomas thinks that.

Richard D. Friedman said...

The dying-declaration exception to the hearsay rule has always had a requirement that at the time of the statement the declarant believed that death was imminent, and Giles is based in large part on the existence of this requirement; it would go utterly contrary to the logic of Giles to construct a dying-declaration exception to the confrontation right without this requirement. And as I understand the facts in Bryant, there is no basis to conclude that death was imminent, or that the victim believed it to be, when he made the statements in question.

I understand very well that Thomas puts great store in an independent formality requirement, and that perhaps Alito does as well. I happen to think that they are wrong. But I also recognize that they get votes and I don't.

Anonymous said...

How can you say that there is NO basis in Bryant to conclude that (1) death was imminent, or (2) the victim believed he was dying?

Given the nature and extent of the victim's injuries, and viewed objectively, isn't it reasonable to conclude that (1) death was imminent, and (2) the victim believed he was going to die?

How can you argue for an objective declarant-based standard in deciding whether a particular statement is testimonial, but not apply a similar objective standard to the foundational requirements of the dd exception?

Richard D. Friedman said...

Well, here's an excerpt from the state supreme court decision:

At the preliminary examination, the prosecutor argued that the statements were admissible as either excited utterances or as dying declarations. The district court originally ruled that the statements were inadmissible because there had been no showing of the requisite factual foundation. The prosecutor then sought to establish a foundation for admission of the statements directed solely at the question whether the statements were excited utterances. At no point in the ensuing examination was the officer asked any questions concerning whether the victim expressed a belief that his death was imminent or was told that he was likely to die from his wound. That is, the prosecutor clearly abandoned any effort to establish even a minimally sufficient foundation for the dying declaration exception, and limited his further questions exclusively to the excited utterance exception. The district court then ruled that the statements were admissible excited utterances, but did not address whether they were also dying declarations. The district court's original ruling that there was not a sufficient foundational basis to conclude that the statements were dying declarations was never appealed or reversed. [End of quotation; emphasis in original.]

So at least it's clear that there wasn't a basis for concluding that the victim knew of the imminence of death, which (rather than actual imminence) is what the exception requires.

As for the suggestion that I'm being inconsistent, a few points:

First, let's be clear -- if I were writing the doctrine, there would be no dying-declaration exception to the confrontation right. Instead, forfeiture doctrine, incorporating a mitigation requirement but without a purpose requirement, would take up these cases. That is, serious intentional misconduct that had the foreseeable impact of rendering the witness unavailable would presumptively result in forfeiture of the confrontation right, without need to show that the accused engaged in the misconduct for the purpose of rendering the witness unavailable, but the defendant could show that the prosecution failed to take reasonable steps to mitigate the loss of confrontation rights. Taking a deposition, if the victim were not too close to death, might be a required mitigation.

Second, nobody listened to me, and so there is a dying-declaration exception to the confrontation right, which appears to have the same contours as the common-law (and Federal Rules) exception, which means that it makes the speaker's subjective understanding crucial.

Third, there is nothing inconsistent about part of confrontation doctrine being hard-edged and part being softer in nature. For example, I think the standards on unavailability should be rather flexible. The objective should be to determine where the doctrine needs to be hard and where it should be soft. A lyric from Honey Bun in South Pacific comes to mind. (Hint to the interested: It begins, "Where she's narrow she's as narrow an arrow . . . .")

Anonymous said...


I have noticed that the courts do not seem to consistently apply the third formulation of testimonial from Crawford which was adopted from the NACDL amicus brief -- statements made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. In that brief, the NACDL also suggests the test is "what did the speaker reasonably believe would be done with his or her statement." Those 2 statements do not appear to be totally consistent, yet courts have applied each of those formulations.

E.g., a 4-year-old states that her stepfather molested her. I doubt the declarant was reasonablly thinking at all about trial. But I'm not sure what an objective witness would reasonably believe.

Any thoughts

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Anonymous said...

What's the chance the Court overrules Crawford, etc. in Byrant? It seems Kennedy, Roberts, Alito and Bryer (despite voting with the majority in Davis) are disillusioned with the testimonial framework (see, Kennedy's dissent in Melendez). Thomas is going to vote against finding the statement testimonial (it's not formal enough for him). As far as I can tell, Sotomayor never showed her hand re: Crawford while she was on the Seocnd Circuit.

Can the Court square finding that the statement in Bryant is nontestimonial with Davis? Unless they decide emergency is whenever (a) someone is injured or (b) the perpetrator of a crime is on the lam.

Even if the Court does not overrule Crawford, it seems likely that, to keep Thomas with the majority, formality is going to be a bigger part of the testimonial analysis.

Richard D. Friedman said...

I don't think it's at all likely that the Court would overrule Crawford. Even in Kennedy's rubric from Melendez-Diaz, the decedent here fits the mold of a "conventional" witness -- he purportedly perceived an event that gave him knowledge of the defendant's guilt. The four Melendez-Diaz dissenters may want to take a piece out of Crawford as interpreted in Melendez-Diaz, and Thomas may want to take a different piece out of Crawford as interpreted in Davis, but there's no indication any of them wants to reject the basic Crawford framework; remember that the first Supreme Court opinion suggesting something like the testimonial approach was Thomas's concurrence in White v. Illinois, and the next substantial one was Breyer's concurrence in Lilly v. Virginia. And Sotomayor has given no hint that she wants to upset the law in this realm.

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