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.


Paulo Dá Mesquita said...

Professor Friedman,
About the first point «The consequences of holding this statement non-testimonial», Don’t you think the admission of that kind of «hearsay» when the witness is available and the state don’t call her for the trial should be bared by the due process clause?
Or in other words, accepting that kind of statements as non-testimonial it’s admission without confrontation of the witness depends of the proof that the declarant is unavailable for reasons that the state is not responsible for.

Paulo Dá Mesquita (Portugal)

Richard D. Friedman said...

Thanks for the question. I don't really think that it works well to say that the statement is not testimonial, therefore the Confrontation Clause doesn't apply, but the Due Process Clause can act as a backup keeping the evidence out. I think we would have real trouble if the Due Process Clause kept out all hearsay where the witness was deemed available. There are a lot of statements that people make without anticipation of litigation, and occasionally one of these statements does become relevant to litigation. By hypothesis, the confrontation right doesn't apply. So why is it a due process violation if the state introduces the statement without showing unavailability? Suppose the state has to prove the price of a commodity at a given time; would it have to bring in the person who entered the price in the exchange's records, or show that person's unavailability?

Ultimately, I think the confrontation right will be stronger if it is relatively narrow -- limited to statements that would amount to a form of testimony if they were admissible -- but absolute within its confines. Allowing an extra "junior right" on the edge of the main one is, in my view likely in the end to eat away at the core of the right, by encouraging an unduly narrow definition of testimonial.

Dale Nance said...

Paulo’s question hits the nail on the head. He rightly sees that the considerations that ought to be controlling – whether we think of this as a due process matter or a confrontation clause matter – concern the choices made by the prosecution, not the choices made by the declarant, or the declarant’s purpose or expectations. It’s the prosecution’s choice to offer hearsay without producing an available declarant to testify that constitutes the governmental abuse at which the confrontation clause was directed, as is illustrated by the paradigmatic treason trial of Sir Walter Raleigh. (At one time, Justice Harlan recognized this point.) If the doctrine interpreting that clause were focused in that way, then the death of the declarant would negate any plausible claim of governmental abuse in offering the hearsay. That would eliminate any need to have some special sui generis historical exception for dying declarations (they would always be constitutionally admissible, unless the government somehow made sure the declarant wouldn’t survive to testify), and therefore it would obviate the need felt by Professor Friedman to subsume dying declarations within an expanded forfeiture-for-wrongdoing exception. I developed the rough contours of such a theory of the Clause in an early article reacting to Crawford. See Rethinking Confrontation After Crawford, International Commentary on Evidence, vol.2, iss.1, art.2 ( (By the way, in that piece you can find an answer to the “reductio” hypothetical Professor Friedman poses concerning routine business records.) The Bryant case is just one of several that suggest that the Court might want to rethink things, not by returning to the useless reliability tests of Ohio v. Roberts, but by emphasizing that the Bill of Rights is there to make sure that the government doesn’t deprive defendants of their opportunity to cross-examine declarants, not to prevent hearsay declarants from creating evidence that might be used against a defendant.

Dale Nance, John Homer Kapp Professor, Case Western Reserve University School of Law

Richard D. Friedman said...

I am rushing, and may say more later, but for now I'll just say that I continue to think that my old friend and colleague Dale Nance, for whom I have enormous respect, misses the point of the confrontation right. It is a right with respect to adverse witnesses. It existed long before public prosecutors did, and would continue to exist even if crime were once again privately prosecuted, as it was in England at the time of the adoption of the Confrontation Clause. It is the prosecution rather than the accused who bears the risk that a prosecution witness dies, without fault of any party to the case, before hte accused has been offered a chance to be confronted with her.

Dale Nance said...

I referred (at one point) to "the prosecution" only because that's the way it is done today. Elsewhere, I simply referred to "the state." Obviously, the actions of the police, for example, would be attributed to the state, even if they are not formally part of "the prosecution." Moreover, the argument would be essentially the same if cases were prosecuted by private parties (condoned by the state) or even by the judges themselves (which is pretty much what medieval English trials looked like sometimes): in any event, it is the misconduct of state actors (including the judges) in not requiring the live testimony of available declarants (or, of course, rendering the declarants unavailable) that constitutes the governmental abuse. To be sure, one might claim that this was only of constitutional concern in those special contexts in which governmental actors of some sort had been involved in the creation of the statements, as when police conduct interrogations, an aspect emphasized in Crawford and Davis, or even only when declarants had an expectation that their statements might be used at trial. But even if so, that would only further limit the reach of the doctrine, and would not render inadmissible a declaration made by someone who dies before trial (again, without the fault of any state actor). To exclude hearsay in that situation is not so much to place the risk that the witness dies before trial upon the prosecution as it is to place that risk on the jury, by depriving it of the best information available from the lost source, in a context where the jury knows full well (and will be reminded by the defense) that the statement was uttered without the securities associated with in-court testimony, such as the opportunity for cross-examination.) It's hard to understand why the Framers, who went out of their way to protect the institution of jury trial, would want to do that.

Dale Nance, CWRU

Richard D. Friedman said...

Thanks to Dale for the clarification, but I think he begs the question when he speaks of misconduct of state actors "in not requiring the live testimony of available declarants." The misconduct is in allowing an accused to be convicted without him having had the opportunity to be confronted with a witness, whether now available or not (putting aside the possibility that the unavailability is attributable to the accused). In Hammon, I pointed out to the court that in a couple of thousand cases in the Old Bailey, when the prosecuting witness did not show up, the case was universally dismissed (I think there was one exception). This was done without question as to whether the witness was available.

I think Dale has made one of the great advances in evidence scholarship by demonstrating that the best evidence principle -- the idea that a party is responsible for producing the best evidence possible -- has considerably more force than modern commentators have generally accorded it. But not everything can be subsumed under that principle. The preference for testimony to be given live at trial rather than in a prior proceeding can be. But the right of the accused to have some opportunity to be confronted with the adverse witnesses cannot be. I don't think that a general death exception -- if a witness dies without fault of the prosecution her testimony can be admitted against an accused notwithstanding the absence of an opportunity for confrontation -- has ever been the law. (I think maybe Massachusetts and Rhode Island have had general exceptions like this for some time; I can't remember, and I'm not sure if they're still in force or if they purport to apply to prosecution evidence, but even if they do they stand out by being so unusual.)

Dale Nance said...

Thanks to Rich for the kind words about the best evidence approach that I have advocated generally, although I should say that I have always recognized that there are various evidence rules, sometimes quite justifiable, that cannot be explained using that principle. And just to be clear, it is not my claim that the Confrontation Clause should be subsumed under the best evidence principle, at least not in the same way that many other evidence rules might be. For example, confrontation aside, hearsay is often admitted when little can be expected to be gained by requiring an available declarant to appear in court, and this is consonant with the best evidence principle. In my view, a stricter requirement of necessity holds in the confrontation context; an available declarant must be called (or at least made readily available for the accused to call), as a condition of using the hearsay, even when there is little or nothing that one can expect to gain epistemically from doing so.

Dale Nance, CWRU