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.

11 comments:

paul said...

Prof. Friedman, how would your "reasonable anticipation of declarant" test apply to the following situation:

A four-year old child tells his parents that he was molested by his uncle. The parents notice injuries on the child that confirm his statement. The parents call the cops. The cops (possessing "probable cause" to arrest the uncle) extensively question the child about the molestation. However, during the questioning the cops are dressed as clowns so that the child feels more comfortable speaking to them. The child (because of his age and the fact that the cops are dressed as clowns) has no idea that his statements would be used in investigation or prosecution.

Under your test, would the child be acting as a CC "witness"?

Wouldn't application of the "adversarial relationship" (AR) test (set forth by the four dissenting justices in Melendez-Diaz) reach a more reasonable result than your test?

Under the AR test, since the cops were acting with probable cause to arrest when they questioned the child, an AR existed between the cops and the molesting uncle at that time. Just like the AR that existed when the Crown questioned Lord Cobham about Raleigh -- they had probable cause to believe Raleigh was a criminal conspirator.

Also, under your "reasonable anticipation" test, what is the result when undercover cops (acting with probable cause to arrest a particular conspirator -- X) question a coconspirator/accomplice -- Y -- and elicit from him statements directly implicating X as the mastermind of the criminal enterprise?

In this example, doesn't application of the AR/probable cause test render a result that is more consistent with Raleigh's Case and the Framer's intent?

Anonymous said...

(from Andy Fine)

I agree completely that as a policy matter, the perspective of the declarant should be decisive. But given Davis/Hammon, can they take this position without completely disregarding their earlier reasoning?
Also, given the voting lineup in Melendez-Diaz, is it possible to win w/o Thomas' vote, which it appears would be impossible to get here on "formality" grounds?

Richard D. Friedman said...

Those are comments from two different wings.

So far as Paul's comments are concerned: I don't think the adversarial relationship test has any connection with the history of the confrontation right in mundane cases, in which there was ordinarily no public prosecutor. This is a fundamental matter of principle -- the right is to be confronted with witnesses, and it exists independently of government officials. The adversarial relationship test would virtually eliminate the effect of the clause in most cases. The police would say that until they got the first statement -- just enough to convict -- they had no adversarial relationship with the defendant.

Taking the second of Paul's hypotheticals first: The statements to the undercover cop by a conspirator are not testimonial, I don't think -- and I believe that if they were Crawford would not have adopted the testimonial approach.

As for the first hypothetical, the very interesting one involving cops in clown suits: There are various ways one could go with this.

One, which I tend to favor, is to say that kids that young aren't capable of being witnesses, and the confrontation right as such doesn't apply, but they are sources of information and the defense has a right of access to them, including out-of-court examination presumably by a psychologist. I have spoken about child quasi-witnesses.

Another point is that when the police use trickery to squeeze a testimonial statement out of an innocent person (as opposed to a criminal conspirator) who otherwise would not have made it, then probably the prosecution should be estopped form denying that the statement is testimonial; this is a counterpart to estoppel by forfeiture when the accused prevents a witness from testifying.

Finally, it may be that if the child is capable of testifying the proper application of an objective test requires use of a reasonable person as the standard, not a reasonable child (there's an oxymoron).

On Andy's comments: In my article Crawford, Davis, and Way Beyond, 15 Journal of Law and Policy 553 (2007), I lay out why I think Davis is consistent with the declarant perspective. I think Davis reflects what I called a heat-of-the-moment rather than an armchair perspective; in other words, it asked what a reasonable person in the position of the declarant would have anticipated at the time, and in the condition, in which she gave her answer.

Unless Thomas comes around on formality, his vote is lost, and maybe Alito's as well. But I think the issues in this case are entirely different (the o word again occurs to me) from those in Melendez-Diaz. I'm hoping some of the dissenters in that case realize that.

I assume, by the way, that Kagan will be recused, which means an 8-member Court and the possibility of an even split.

Richard D. Friedman said...
This comment has been removed by the author.
Anonymous said...

Professor Friedman:

A quick question on what I perceive to be a potentially absurd result regarding the boundaries of what is "testimonial" and "non-testimonial"....

Reaching back to the facts of Melendez-Diaz, what if, hypothetically, after the lab analyst had tested the substance seized form Melendez, he and his co-worker (who did not observe the testing) went out to lunch, where the lab analyst informally and "casually" remarked to his co-worker that he followed procedures X, Y, and Z and that the results showed a quantity of "A" and tested positive for narcotic "B". While I understand this couldn't become a commonplace strategy to avoid the defendant's CC rights (as repeating this practice would be characterized as being aimed at providing the prosecution w/ this information for trial), would an affidavit from the co-worker detailing what he was told by the lab analyst be considered admissible w/o having the lab analyst confront the defendant? Obviously, the co-worker would be subject to the defendant's CC rights, but wouldn't the lab analyst's comments be considered non-testimonial? (this is all assuming that the lab analyst would not then move forward with providing an "analyst certificate" to the prosecution).

While this hypo is strained, it is a very possible scenario and I think it is representative of what Melendez-Diaz may force police to do in its wake...which is to take interrogation responses from potential "witnesses" and then contact anyone whom these potential witnesses may have casually told this same information to. This practice could have the result of promoting just outcomes but also outcomes where the defendant is strategically deprived of his confrontation right. For instance, in cases of domestic abuse where the victim has either fled, has died, or is the defendant's wife, locating these supposed "non-testimonial" statements even after the victim had formally made "testimonial" statements to police would seem to promote a just result.

This distinction between testimonial/non-testimonial seems so mis-founded when you consider the reality that the reliability of a casual remark to a neighbor (when no expectation exists that this remark will be scrutinized at trial and/or will have criminal implications for a defendant) is often more variable than that of a lab analyst's "certificate" of a drug test. Both statements will be used AGAINST the defendant and will likely go towards proving a material element of the crime, yet the former is admissible w/o live testimony and the latter is not. If Crawford and Melendez are going to root the CC firmly on the basis of being a procedural right that is concerned only with how testimony's reliability is tested (via Cross, etc.), then it seems as though the Court has drawn the line too close and somewhat arbitrarily (the testimonial/non-testimonial line). Are there any powerful arguments for why certain non-testimonial statements that are presented to prove a material element of a crime are appropriately excluded from the purview of the Confrontation Clause?

Thank you.

-Interested Law Student

Anonymous said...

Professor Friedman:

A quick question on what I perceive to be a potentially absurd result regarding the boundaries of what is "testimonial" and "non-testimonial"....

Reaching back to the facts of Melendez-Diaz, what if, hypothetically, after the lab analyst had tested the substance seized form Melendez, he and his co-worker (who did not observe the testing) went out to lunch, where the lab analyst informally and "casually" remarked to his co-worker that he followed procedures X, Y, and Z and that the results showed a quantity of "A" and tested positive for narcotic "B". While I understand this couldn't become a commonplace strategy to avoid the defendant's CC rights (as repeating this practice would be characterized as being aimed at providing the prosecution w/ this information for trial), would an affidavit from the co-worker detailing what he was told by the lab analyst be considered admissible w/o having the lab analyst confront the defendant? Obviously, the co-worker would be subject to the defendant's CC rights, but wouldn't the lab analyst's comments be considered non-testimonial? (this is all assuming that the lab analyst would not then move forward with providing an "analyst certificate" to the prosecution).

While this hypo is strained, it is a very possible scenario and I think it is representative of what Melendez-Diaz may force police to do in its wake...which is to take interrogation responses from potential "witnesses" and then contact anyone whom these potential witnesses may have casually told this same information to. This practice could have the result of promoting just outcomes but also outcomes where the defendant is strategically deprived of his confrontation right. For instance, in cases of domestic abuse where the victim has either fled, has died, or is the defendant's wife, locating these supposed "non-testimonial" statements even after the victim had formally made "testimonial" statements to police would seem to promote a just result.

Next post continues....

Anonymous said...

This distinction between testimonial/non-testimonial seems so mis-founded when you consider the reality that the reliability of a casual remark to a neighbor (when no expectation exists that this remark will be scrutinized at trial and/or will have criminal implications for a defendant) is often more variable than that of a lab analyst's "certificate" of a drug test. Both statements will be used AGAINST the defendant and will likely go towards proving a material element of the crime, yet the former is admissible w/o live testimony and the latter is not. If Crawford and Melendez are going to root the CC firmly on the basis of being a procedural right that is concerned only with how testimony's reliability is tested (via Cross, etc.), then it seems as though the Court has drawn the line too close and somewhat arbitrarily (the testimonial/non-testimonial line). Are there any powerful arguments for why certain non-testimonial statements that are presented to prove a material element of a crime are appropriately excluded from the purview of the Confrontation Clause?

Thank you.

-Interested Law Student

Richard D. Friedman said...

The student commentator poses an interesting hypo. I think the solution lies in not defining testimonial too narrowly. If the victim of a serious crime later narrates the incident to another person, say her mother, I think that should be testimonial notwithstanding the fact that the audience is not an official. A reasonable person in the speaker's position would realize that there is a substantial possibility that the narration will be passed on and used as evidence. I would say the same thing about the analyst's statement at lunch.

Apart from that, if this ploy were used by either the speaker or the audience with the intention of creating evidence, I think the state ought to be estopped from denying that the statement was testimonial.

More broadly, it is important to remember that the Confrontation Clause is about how witnesses testify -- for that is what witnesses do, that is, make statements that are testimonial. So it's not simply adventitious to limit the right to statements that are testimonial. And as Crawford makes clear, it really doesn't matter whether the particular statement is reliable -- if it's testimonial, it's a concern under the Clause, and if not, not.

Anonymous said...

Thank you for your response.

As far as establishing which perspective to view the statements from, I agree that law enforcement and those obtaining statements on law enforcement's behalf should not be permitted to circumvent the CC by creating situations where the speaker's primary purpose is not testimonial but the obtaining party's (Law enforcement) primary purpose is clearly testimonial. Although I know you advocate a speaker-oriented perspective (objective person in same circumstances...), do you think that when Law Enforcement is the questioner that the perspective should shift to focus on their primary purpose?

Also, do you think that there is any legal significance between Davis' "Primary Purpose" approach and Crawford/MD's looser approach of whether an objective witness would reasonably anticipate the statement would be used in investigating or prosecution? In my opinion, there seems to be quite a gap between these two approaches where many cases can fall and their respective outcomes will be dependent on which approach is applied. For example, if a witness, in response to police questioning of a bomb threat, tells the officer that she saw a male in a blue Toyota place a bag in a parking garage, this statement is certainly made to assist the officer in an ongoing emergency. The safety of the officer and others in the vicinity of the possible bomb would have to be the primary purpose in both making and requesting the statement. However, it is also true that a reasonable speaker (and officer) in those same circumstances would anticipate that the statement would be used in the investigation and any subsequent prosecution. Is this statement testimonial or not?

Anonymous said...

I believe that the real answer is that the witness would be precluded from offering testimony by the rule against hearsay.

Mark Dwyer

Richard D. Friedman said...

I don't believe that when a law enforcement officer is involved the determination of whether or not the statement is testimonial should be based on the officer's perspective. The testimonial quality of the statement depends on the perspective of the speaker, the purported witness. It would be odd to have one definition in one context and another in another context. Law enforcement officers try to generate evidence all the time, but the confrontation right is not invoked unless what the speaker is doing is testimonial. And -- perhaps more importantly -- simply because an officer is not aware from the start that the speaker is making a testimonial statement should not deprive the statement of its testimonial quality; a contrary doctrine would allow officers to avoid the confrontation right by maintaining ignorance, or the appearance of ignorance, as long as possible.

I'll add two caveats: First, the purpose of an official questioner may be an important fact in shaping the situation and so it may cast light on what a reasonable person in the speaker's position anticipates will happen. If an officer is obviously questioning for investigative use, a reasonable person responding to those questions would understand this and so the statement would be testimonial.

Second, I think in some circumstances the prosecution may be estopped from denying the testimonial quality of the statement, if officials use trickery to secure statements from persons who have engaged in no wrong-doing and who would not wish to testify unless compelled to do so.

And yes, even if it is acknowledged that the speaker's perspective prevails, there is a significant difference between a reasonable anticipation test and a primary purpose test. For reasons I have articulated before, I think the reasonable anticipation test is the preferable one.

Mark relies on the hearsay rule. But the rule is utterly porous, and in any event it provides no constitutional protection. I believe a court deciding an issue under the Confrontation Clause should put no weight on the possibility that the hearsay rule would keep the statement out.