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.
14 comments:
I have concerns about your claim that a determination as to whether or not a statement is testimonial must ultimately be made from the perspective of the speaker and not the questioner.
What about White and Siler? Surely the 4 year old girl in White and the 3 year old boy in Siler had no thoughts about whether what they were saying would be used in a subsequent trial. On the other hand, the intent of the officers in those circumstances plays a significant role in determining if the statements were testimonial. I also think a "reasonable adult" standard is an unsatisfying response because it effectively ignores the context and real intent of the speaker in these circumstances - which is the whole point of focusing on the speaker.
While perhaps not likely, it is also certainly possible that an advocate could tell a victim that everything she says is confidential but actually intend to use, and use, all of the statements given against the perp at trial. In that circumstance the speaker, and a reasonable person, would reasonably believe that what they are saying is non-testimonial. At the same time, I have a hard time believing the statements are non-testimonial for confrontation clause purposes because of the decietful intent of the advocate in obtaining those statements.
I think a hard and fast rule that takes the persepective of the speaker or questioner over the other is misplaced. They are both of significant importance in determining whether statements given are testimonial. And, sometimes the perspective of the declarant can carry the day and other times the perspecitive and intent of the questioner can carry the day.
MBL
These are very good and interesting comments, but I'm sticking to my guns. I think the declarant perspective is the proper one, always, and that the confrontation right will be stronger if that is adopted.
I've written about it before, and will again, in this case, but first a few general comments. First, simplicity is to the advantage of the right. The more complex the boundaries of testimonial become, the more manipulable they are by courts, and usually the manipulation will be in denigration of the right.
Second, we've got to remember that the confrontation right exists whether there is a questioner or not. But there's got to be a witness. I don't think there's any theoretically sound basis on which to say sometimes it's the intention or understanding of one that matters and sometimes the intention or understanding of the other.
Third, having said that, the presence of a questioner is certainly an important light that can shape the situation and so cast light on what a reasonable person in the position of the witness would anticipate.
Fourth, most often, if the two differ -- that is, a reasonable person in the position of the speaker would understand the situation differently from the way a police interrogator would -- the confrontation right will be stronger if we stick with the speaker's perspective. This is because (1) more often, as in Bryant, if there's a differential, it's the speaker rather than the questioner who knows what's going on, and (2) official questioners can manipulate what they say their understanding and purpose were.
Now, the commentator highlights the two principal situations in which this generalization is not true. First is very young children. I would hate for this difficult case to shape confrontation law in general. That would be the tail wagging the dog. It may be that the proper response is to ask what the understanding of a reasonable person would be. True, as the commentator says, that disregards the particular context, but the purpose of using an objective person test is to abstract from the particular context. But I've suggested that, in the case of very young children, perhaps they should not be treated as witnesses at all. In this view, they are instead sources of information that have been examined in the broad sense by the prosecution, and the defense should have a right of examination as well. But that examination, in this view, probably shouldn't happen in court and it probably shouldn't be done by a lawyer. I really doubt that a lawyer's cross is particularly useful with a very young child. I hope to develop this perspective in an article I will entitle "The Child Quasi-Witness."
Second, the commentator raises the possibility that the police questioner will simply lie about the intended use of the statement. I think the way to handle this problem, which I take seriously, is through a doctrine of estoppel, which is a counterpart to forfeiture: If the speaker is blameless (unlike a conspirator)and simply deciding not to provide testimony, an official cannot trick her and still have the statement be deemed non-testimonial. It'd the trickery that motivates us in this case to think that the official shouldn't be able to get away with it. Sometimes trickery is OK and sometimes not. Is that a fuzzy line? Perhaps, but I think it's much better to have some fuzziness there and preserve a categorical rule for determining whether a statement is testimonial.
I'm VERY interested in reading your article on the child as a quasi-witness. I am a psychologist and I have long believed that children do not fundamentally understand the legal system, their place in it, and the consequences of their actions in the legal context. I have long found it ironic how we claim child abusers and molesters manipulate children and then throw children into a legal system that frequently does the same thing. Despite the claim of working in the child's best interest it's normally a battle between adult interests, with the child as the tool of both parties.
Having said that, I often struggle to articulate a vision of what would be a better system or a more viable alternative. So while I agree that children do not fit well within our traditional notions of the confrontation right I'm not sure there is a system that is much better.
Well, the article is not yet written. But the basic idea is that below a certain age or level of development -- we can argue about what the standards are for determining that -- it does not make sense to treat children as witnesses. Yes, they are human beings , but so what? If they are incapable of performing the function of witnesses (however that may be determined), then we should not treat them as witnesses but merely as sources of information, in the same way that DNA traces, or tire tracks, or maggots, or barking dogs are non-witness sources of information. If that is true, then the confrontation right does not apply, but the defendant ought to have a right of reasonable access to the source of the evidence. What that should mean, I think, is that (1) when government agents seek information from the child they should preserve it as well as reasonably possible -- which ordinarily would mean videotaping, and (2) the defendant ought to have aright to examine the child, but not through a lawyer in the courtroom, with the child face to face; the more suitable possibility is to have a qualified expert, such as a psychologist, interview the child in a comfortable setting.
I think treating the child as a quasi-witness in this way leads to far more sensible results -- more humane and more likely to be productive -- than traditional courtroom interrogation and cross-examination, and that it is perfectly compatible with a sound view of the confrontation right.
Prof. Friedman, what authority can you cite for your assertion that "the confrontation right exists whether there is a question or not"?
I think footnote 1 from Davis v. Washington should suffice:
Our holding refers to interrogations because, as explained below, the statements in the cases presently before us are the products of interrogations -- which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial. The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation. (Part of the evidence against Sir Walter Raleigh was a letter from Lord Cobham that was plainly not the result of sustained questioning. Raleigh's Case, 2 How. St. Tr. 1, 27 (1603).) And of course even when interrogation exists, it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate.
_______
Justice Scalia's history is correct: Given the absence of a police force or of public prosecutors for most crimes in the late 18th century and before, volunteered testimony was the norm, and the confrontation right applied to it. To hold that there has to be official interrogation for a statement to be testimonial would mean that a witness could prepare a statement, perhaps with the assistance and at the instance of others and perhaps videotaped, and shove it under the prosecutor's door without it being characterized as testimonial.
footnote 1 refers to "Volunteered TESTIMONY" not "Volunteered STATEMENTS." Thus, limiting this category to volunteered SWORN statements.
No one disputes that ALL SWORN statements (whether produced by government questioning or simply created by the declarant on their own) are testimonial. However, there is no authority that supports the proposition that volunteered UNsworn statements are testimonial.
The reference to the "letter from Lord Cobham" doesn't help your case. This letter was produced only after Cobham had been subjected to sustained interrogation by the government for the purpose of producing evidence against Raleigh. Thus, there is a clear nexus between the government interrogation of Cobham and his subsequent "letter." In Fourth Amendment parlance, the "letter" was simply the fruit-of-a-poisonous-tree ... it was the inevitable product of the preceding government interrogation and was tainted with the same coercion that accompanied the earlier interrogation.
Bottom Line: The only UNsworn statements that the Court will ever deem to be testimonial are those that are produced by the government for the primary purpose of building a case against the accused. And then only if (1) there is some degree of formality attending the statement (i.e., in Davis - lying to a cop is a crime) and (2) the declarant has some degree of knowledge that they are providing information against someone.
The Court will never hold that UNsworn statements voluntarily made by a declarant to a cop (or to a private party) in the absence of any conduct on the part of the government are testimonial, even if the declarant's (objective or subjective) primary purpose was to make a case against their enemy.
This is not to say that such evidence will pass constitutional muster under due process scrutiny, or won't be excluded pursuant to state evidence rules, only that the confrontation clause will not be the barrier.
Well, frankly, this comment, while clever, strikes me as one more attempt by a prosecutor to cripple the confrontation right, without any justification in history or the logic of the right.
I think footnote 3 of Crawford is dispositive on the question of whether an oath can be necessary to render a statement testimonial:
. . . We find it implausible that a provision which concededly condemned trial by sworn ex parte affidavit thought trial by unsworn ex parte affidavit perfectly OK. (The claim that unsworn testimony was self-regulating because jurors would disbelieve it . . . is belied by the very existence of a general bar on unsworn testimony.) Any attempt to determine the application of a constitutional provision to a phenomenon that did not exist at the time of its adoption (here, allegedly, admissible unsworn testimony) involves some degree of estimation . . . but that is hardly a reason not to make the estimation as accurate as possible. Even if, as THE CHIEF JUSTICE mistakenly asserts, there were no direct evidence of how the Sixth Amendment originally applied to unsworn testimony, there is no doubt what its application would have been.
__ __ __
Put another way: An oath is not necessary to make a statement testimonial for purposes of the Confrontation Clause. Rather, it is necessary (but not sufficient) to make testimony satisfactory. An oath may be an indication that the speaker anticipated evidentiary use of the statement, but it cannot be required for that conclusion. If the law were otherwise, then a defect of testimony – the absence of the oath – would be turned into a saving grace.
And if the law were otherwise, then it’s easy to imagine victims’ advocacy groups saying, “We’ll make a videotape of you giving a statement, and we’ll bring it to court. You don’t have to testify under oath or in front of the person you are accusing.” This is plainly unacceptable.
Again, I think it’s important always to bear in mind that the confrontation right arose in an era without police and without public prosecutors for most crimes. Testimony ordinarily was volunteered. And it had to be under oath and subject to confrontation to be acceptable.
Assuming the Court will not use Bryant to revisit the scope of the testimonial doctrine adopted in Crawford, and will simply be refining the primary purpose/ongoing emergency principle set forth in Davis, it appears the following will be the questions confronting the Court:
(1) What is an "emergency"?; and
(2) When does it end?
With respect to the later question, one can argue that, from the perspective of a reasonable declarant in the position of the wounded victim, the emergency ended when the paramedics arrived, since the "emergency" confronting him was only his own physical condition.
However, from the perspective of reasonable first responding officers the "emergency" is not simply confined to the declarant/victim's physical well-being. Rather, the "emergency" that they faced was more far reaching. It encompassed offering immediate protection to the victim, to other officers, and to the public at large. Thus, the primary purpose of their questions -- "What happened?,"Who did this?," and "Where is he?" -- was to deal with that ongoing "emergency."
The issue arises as to whether both the declarant/victim and the questioning officer(s) must be confronted with an "emergency"?
For example, let's evaluate officers who are dispatched to a bank robbery in progress. When they arrive the perpetrator is gone and the robbery is over -- all of the legal elements of the robbery have been met. They find one teller on the ground dead from a gunshot; one teller seriously wounded from a gunshot; and one teller unscathed.
There is an "emergency" confronting the wounded teller -- their own physical well-being. But, is there an "emergency" confronting the teller who was not physically hurt? If not, and if the Court determines in Bryant that there must be an "emergency" confronting both the questioning officers and the declarant, that declarant's statements (in response to police questioning) would be testimonial, regardless of the broader "emergency" confronting the officers.
I would venture to guess that the Court will require a dual-emergency. Otherwise, the officers could ask numerous bystanders -- all of who were not injured -- the what, who and where-type questions and all the responses would be nontestimonial.
Assuming a dual-emergency exists, at what point does the "emergency" end for the questioning officers? For example, what if in the bank robbery example it takes 15 minutes for the paramedics to arrive, thereby extending the "emergency" for the wounded victim. Can the officers, simply because they want to protect the public at large, ask an unlimited number of questions that are designed to assist in that goal? Is there a workable rule that can be utilized to determine the point at which the officers questions (designed to protect the public) per se produce testimonial statements?
How about using the Fourth Amendment "probable cause," or "reasonable suspicion" standards? So, for example, once the officers questions to a declarant (who is faced with an emergency) establish probable cause to arrest a particular person for having committed a particular crime at a particular location any additional questions will, as a matter of law, produce testimonial statements. Or, once those questions establish reasonable suspicion that a described individual has committed (or is about to commit) a crime at a described location, further questioning will generate testimonial statements.
Any comments?
I'm not convinced by the response to the child and decietful advocate situations.
While a legal artifice might be constructed to get around these situations, the need to construct such work-arounds underscores the problem with focusing on the witness' perspective over (and regardless of) the questioner's perspective or intent.
Even if you have a child opt-out rule, you still have situations of individuals with mental disabilities that would give rise to a serious questions about such a rule. Advocates could not intend to be decietful at the time of questioning but decide at a later time it is best to provide testimony in the interest of the victim's safety, etc...
I see nothing theoretically problematic in looking at the entire context in which a statement is given to determine if it is testimonial, including matters beyond the intent of the speaker. Regardless of their intent at the time a statement is made, they can effectively be witnesses against a defendant when the government uses statements the speaker did not intend or expect to be used against a defendant at trial. I see nothing inherent in being a witness against a defendant that would theoretically limit analysis to the speaker's mental state when providing a statement, and as mentioned, there are clearly potential situations where that won't work without creating some work around. And, while it may give a judge a some wiggle room because the entire context of the situation must be evaluated, there is nothing unusual about that in the law.
MBL
Other than a "core" category of cases, the testimonial approach is proving to be subject to as much judicial manipulation as the reliability doctrine it replaced.
Adopting MBL's "totality-of-the-circumstances" test would virtually obliterate any bright-line rules.
The Court, having started down the testimonial path, is going to find itself continually refining (and re-refining) phrases (such as "ongoing emergency") in an attempt to "clarify" what it meant in Crawford.
By the time the thicket of child declarants reaches the Court, there will be such a mishmash of inconsistent lower court decisions that trial judges and trial attorneys won't have a clue as to the "rule" to be applied in any given case.
Perhaps the Court will use the opportunity in Bryant to draw some real hard and fast rules (that Scalia purported to draw in Crawford) that can be applied across a broad range of extrajudicial statements?
I suggest we hold a seance and ask Sir Walter Raleigh to come up with some "hard and fast rules."
Obviously, there's some ambiguity around the edges of what "testimonial" means; Crawford expressly recognized this, and anticipated that further decisions would be necessary to refine the concept. But I think most cases are tolerably clear. Statements made in the station-house or otherwise to the authorities, at least in controlled situations, in anticipation of prosecutorial use, statements made at plea hearings or before the grand jury or in forensic lab reports -- all these are now clearly testimonial. Conspirators' statements, including those made unknowingly to the police, statements made before any criminal activity, statements made in the course of ordinary activities not related to criminal prosecution -- all these are clearly non-testimonial. Yes, a lot remains to be resolved. But since Crawford the Court has issued exactly two opinions attempting to refine the meaning of testimonial. It will take several more decisions to resolve all the big issues, and there will always be smaller ambiguities. But hey, this is law -- who ever said that all lines are crystal clear? Crawford got it essentially right -- under the previous regime, ambiguity was inherent, because there was no true guiding principle. Crawford states a basic, clear, strong principle, and gives hope of generating a coherent body of law.
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