Thursday, January 20, 2011

Two more bottom-side amicus briefs in Bullcoming

In addition to the brief of 33 states and the District of Columbia, which I earlier posted, two other bottom-side amicus briefs were filed in Bullcoming. You can read the brief of the National District Attorneys Association and other organizations by clicking here, and the brief of the New Mexico Department of Health Scientific Laboratory Division by clicking here.

There is also one loud silence -- for the first time in the Crawford line, the United States Solicitor General did not file in support of the state.


paul v said...

Very well written briefs, especially by the NDAA.

True, the Court can decide this case (1) by fitting it into footnote number 1 from M-D, or (2) by concluding that the testifying witness was an "expert" who was simply conveying his own, independent, opinion -- an opinion that can be based upon testimonial hearsay that is not introduced for its true, but simply to explain the basis for the expert's opinion, together with a limiting instruction.

However, there appears to be a serious division among the justices on a broader, more fundamental, more far reaching constitutional question: Which out of court declarants are "witnesses" for CC purposes.

Justice Thomas has clearly stated his position that only those hearsay declarants that make "formalized" testimonial statements are "witnesses." His definition of "testimonial," however, is not entirely clear.

Justices Scalia & Ginsburg have been consistent in their position that any hearsay declarant that makes a "testimonial" statement is a CC "witness," so long as there is some indicia of "formality" attending the making of the statement. Their definition of "testimonial" appears to be expanding (from Crawford to M-D) such that it may include the very broad "objective witness" formulation.

Based upon their dissent in M-D, Justices Kennedy, Alito, Breyer & Roberts are troubled by the broad scope of the "testimonial" approach, given that that definitional term is not even part of the CC's text. They question how closely aligned that approach is to the history preceding the drafting of the CC. They appear to believe that the term "witness" should be defined by reference to Raleigh's Case -- with Cobham's government-generated statements, after an "adversarial" relationship existed between his interrogators and the suspect, Raleigh, being the paradigm.

Justice Sotomayor & Kagan have yet to speak to the issue, at least as members of the Court.

Thus, it seems that Bullcoming (and, for that matter, Bryant) provide, what appears to be, a divided Court with an opportunity to revist the relatively new "testimonial" approach of Crawford. This possibility should not be overlooked by the litigants and their supporting amici.

Were the statements of the non-testifying "analyst" in Bullcoming made by a CC "witness"? Are the statements of non-testifying pathologists made by CC "witnesses"? Are the statements of lab personnel conducting DNA testing made by CC "witnesses"?

In light of the fractured Court, it is not sufficient to simply determine whether any such statement is "testimonial" or not.

In my mind, a formulation along the following lines would be consistent with the M-D dissent:

A hearsay declarant is a CC "witness" if, and only if, (1) a government official responsible for investigating and prosecuting criime was involved in producing the statement; (2)an "adversarial" relationship existed between that government official and a particular suspect at the time the statement was elicited; and (3) the declarant had some degree of knowledge that they were providing evidence against someone.

The required "adversarial" relationship will not be found to exist unless the government official has "probable cause" to arrest a particular suspect at the time the time the declarant's statement is obtained.

It will be interesting to see if the M-D dissenters follow through with a continued search for the meaning of the CC, notwithstanding the absence of an invitation to do so by the litigants and their amici.

paul v said...

In some instances, a jury must accept as true the hearsay which forms the basis of an expert's opinion. In these cases, the CC is implicated. And the CC problem is not solved by providing a limiting instruction.

Justice Mark Simons of the California Court of Appeals, First District, is one of the preeminent scholars on evidence law in the state. Last week, he authored a brilliant opinion that points out that the CC's requirements can't be evaded by simply reiterating the evidence law based rule that the hearsay basis of an expert's opinion is not introduced to prove the truth of the underlying hearsay. Rather, it must be determined if the hearsay declarant (whose statement forms the basis of the expert's opinion) is a CC "witness." (See People v. Hill, Court of Appeals, First District, Division Five, No. A117787, decided January 13, 2011.)

Indeed, the entire body of (pre-Crawford) state and federal evidence law that is based upon the proposition that hearsay relied upon by an expert to form his/her opinion is not introduced to prove its truth and, thus, is outside the scope of the CC needs to be examined by the Court. Bullcoming might present an opportunity to do so?

The import of Justice Simons' decision also bolsters the point that I made in my previous post: The Court in Bullcoming should decide if a CC "witness" is limited to "conventional witnesses" who actually observed the crime or any human action related to it. (Melendez-Diaz, 129 S.Ct. at p. 2535.)

Anonymous said...

On its facts, Bullcoming does not seem to present the Court with an opportunity to directly address the issue of expert basis testimony. I suspect that is an issue for a future case, depending on the outcome of Bullcoming (and possibly Bryant).

Steven Yermish said...

The best articulation of the argument against admitting the hearsay experts rely upon was by the New York Court of Appeals in the Goldstein decision. They called the legal fiction a fallacy; after all, why would experts rely upon it if it were not true?

Anonymous said...

Goldstein involved statements made to a psychiatrist that were revealed to the jury during that psychiatrist's testimony about sanity. That is not the same as a forensic scientist relying on the work of other forensic scientists whose "statements" (and I use this term loosely) are not revealed to the jury when the testifying expert appears in court and gives his/her own opinion.

Anonymous said...

Anonymous @ 11:26: What is the point of the expert's testimony unless the underlying lab report is accepted by the jury as containing truthful assertions? There is no point. The expert is nothing more than a conduit for hearsay (the lab report) that the CC, according to M-D, forbids.