Paul Vinegrad on "Government Coercion & The Confrontation Clause: Getting To The Heart of The Matter"

Blog reader (and retired prosecutor) Paul Vinegrad has asked me to put the following post on the blog. I’m happy to do it, though as usual I disagree with just about everything Paul has to say, creative though it is. Paul’s post begins after the first row of x's and after the second row I present my own comments in response.

Any reader who has a confrontation-related message too long for the comments section of the blog is welcome to submit it to me; so long as it is appropriate for the blog, I I will post it.

x x x x x x

I take the position that only hearsay that is created by sufficiently coercive government conduct is barred by the Confrontation Clause if the accused has not had an opportunity to cross-examine the declarant.

The following hypothetical illuminates my argument:

Gang warfare is rampant in South Central LA. The Bloods are shooting at the Crips. And the Crips are returning fire. Innocent bystanders have been maimed and killed in the ensuing battle, struck by a hail of bullets fired from automatic weapons stuck out of car windows by unidentified perpetrators.

Mr. V and his family, unfortunately, have to live and work in this gang infested area.

One evening, Mr. V is exiting his business – a local grocery market – with his wife. Crip gang members are in the parking lot. A car pulls up. Everyone in the car is dressed in blue attire. One of the occupants sticks a Mac-10 automatic weapon out of the window and opens fire on the Crips. The car speeds off. Mr. V is struck by several rounds from the Mac-10. He sustains very painful, but not life-threatening, wounds to his legs and arms. Mr. V recognizes the shooter from the neighborhood as Psycho Dan.

Mr. V makes the following statements after being shot:

(1) Upon being struck he immediately blurts out "Psycho Dan why did you do this!" This statement is heard by a bystander;

(2) His wife runs to his side. She asks him if he is ok. He says "yes." She then asks him who shot him? He says "Psycho Dan. But don't tell anyone! He will kill our family if he finds out that I was a snitch!"; and

(3) Several beat cops who were in the area, heard the shots, and are aware of the ongoing gang war and its toll on innocent people caught in the cross-fire, arrive. They reasonably believe the shooting was part of the ongoing gang war. They approach Mr. V. They ask him "Who shot you?" Mr. V says "I can't tell you. They will kill my family. Please get the paramedics!" The cops tell Mr. V that he will live, his wounds are not life-threatening, whoever did this is very dangerous and may kill innocent women and children as he moves through the area trying to shoot rival gang members. They plead with Mr. V to help them protect the public from this menace. They plead with him to tell them "Who did this?" Mr. V says "I can't tell you. They will kill my family. Please get the paramedics!" One of the cops then tells Mr. V "If you don't tell us who did this, we won't call the paramedics" Mr. V, in excruciating pain, says "Psycho Dan. Please don't tell anyone that I told you! He will kill my family!"

The prosecutor calls Mr. V to testify at Psycho Dan's trial. Mr. V, because of fear that his family will be hurt, refuses to testify. He is held in contempt by the judge. The prosecution then seeks to introduce each of Mr. V's statements identifying Psycho Dan. The defense objects on Confrontation Clause grounds.

It is my opinion that the judge should rule as follows:

(1) The blurted out identification is not barred by the CC. It was, in the words of Bryant, "reflexive." It was not made with any particular "purpose," or even anticipation of subsequent use by the government to investigate or prosecute the perpetrator. It was, to use Prof. Friedman's example, analogous to a drug sniffing dog barking when it smelled cocaine. Most importantly, there was no conduct by any state actor that "created" this statement. Despite Justice Scalia's suggestion in Bryant, and during argument in Bullcoming, that the CC would be applicable to "blurted out" statements (and neither "interrogation," nor any questioning, is required), I believe the overwhelming majority of the Court will reject his position, at least with respect to unsworn statements. And, ultimately, will hold that, absent any conduct by state actors, unsworn hearsay is outside the scope of the CC.

(2) The identification made to his wife (a private citizen) in response to her pointed question – a question (when viewed objectively) that was unmistakably designed to identify the shooter – is also outside the scope of the CC. Unlike the blurted out statement, and viewed objectively, it is reasonable to conclude that this interaction between Mr. V and his wife, and the resulting statement, had some purpose. Clearly, the "primary purpose" of the question and the answer was to identify the shooter, and not to address any "emergency," i.e., threat to the victim or any other member of the public. However, once again, no state actor participated in the "creation" of this statement. Absent that element, the CC is inapplicable to this unsworn statement. The Court, as it has done in the context of the Fourth and Fifth Amendments, will ultimately hold that state action is required before the CC can apply. Just as state action is required for the Fifth Amendment's prohibition on "compelling" a person to be a "witness" against himself in a criminal trail to apply, I believe, ultimately, the Court will hold that the Sixth Amendment's CC incorporates the same requirement.

(3) The identification made to the cops is barred by the CC, despite the fact that, objectively viewed, the "primary purpose" of the "interrogation" was to address an "ongoing emergency" – a more real and pressing "ongoing emergency" than existed in Bryant. The CC applies to (and bars admission of) this statement because of the coercive conduct by the cops in extracting the words from the declarant's mouth. I believe that it is this element of coercion by state actors that is at the heart of the CC.

Coercion by the government was utilized against Cobham in the form of "interrogation," while in custody, and accused of being a co-conspirator. It was used, albeit to a lesser extent, against Sylvia Crawford as she was "interrogated" in custody at the police station after being advised of her Miranda rights. It was used, to an even lesser extent (but still present), by the government against Amy Hammon as the police "interrogated" her, one (or two)-on-one, face-to-face, in a confined location not open to the public, and after she initially stated that "nothing happened."

The government created coercive conditions in these situations placed varying degrees of pressure (in the words of Fifth Amendment jurisprudence, "compulsion") on the declarants to tell the government actors what they believed they wanted to hear. Whether it was that Raleigh was conspiring against the King, Mr. Crawford was lying when he asserted self-defense, or Mr. Hammon did in fact beat Amy, despite her initial denial. In each instance the government coercion created a motive for the declarant to fabricate a story in order to gain some perceived benefit. Cobham's shifting of blame to Raleigh and providing details of the alleged conspiracy would, from the reasonable perspective of someone in his position, inure to his benefit. The same is true in the case of Sylvia Crawford and Amy Hammon – viewed objectively, each could have felt it would be in their interest to tell the police what they believed the police wanted to hear (regardless of the veracity of their statement) in order to end any "pressure" that the police created and were exerting.

This element of state created coercion was not present in Davis where there was physical separation between the government and the declarant. It is hard to pressure someone on the telephone to say what you want when they can simply hang up. The lack of resemblance between Davis and Raleigh's Trial really has nothing to do with the presence of an "ongoing emergency" in the former and no such emergency in later case. (In this regard I agree with Justice Scalia that one can make a reasonable argument that the "emergency" in the case of Raleigh – the potential overthrow of the King – was just as real and significant, if not more so, than that in Bryant, yet the circumstances under which Cobham's accusatory statements were created by the Crown were the paradigmatic CC violation.) Rather, despite the presence or absence of an "emergency" (ongoing or otherwise), the critical factor for purpose of determining the applicability and scope of the CC is whether the statements were uttered in response to a government created coercive situation.

Sufficient coercion did not exist in Bryant, given the very limited nature of the questioning by the cops, the public setting, and the absence of any external "pressure" by the police to get Covington to speak, i.e., to tell them what a reasonable person in his position would believe they wanted to hear. Nor does any coercion remotely exist in Bullcoming, where the declarant is simply asked, via a written request, to test a sample of blood and report back what, if any, alcohol is present. The analyst Caylor in Bullcoming was under no "pressure" by anyone to have the gas chromatograph generate a particular result. As Justice Alito alluded to in the Bullcoming argument, analyst Caylor's livelihood and/or promotions did not depend upon the results of testing that he performed.

Government created coercion/pressure does, however, permeate the statement by Mr. V identifying Psycho Dan to the cops. The fact that the cops were confronted with a very real "ongoing emergency," of which Mr. V was acutely aware, is irrelevant to the determination of the CC's applicability.

Coercion – not allowing any hearsay that is tainted by the possibility of government pressure – is at the heart and soul of the CC. It is the presence or absence of that coercion (when viewed objectively) that determines whether the "resemblance test" (approvingly cited by 6 justices in Bryant) has or has not been met.

x x x x x x x x

There are several problems with the coercion test proposed by Paul.

Perhaps the most obvious one is that it would be extremely difficult to apply, and so highly subjective I think it would provide very little protection.

Second, it has absolutely no grounding historically. We have to bear in mind that the confrontation right long pre-exists the institutions of a police force or a public prosecutor; most prosecution until the late eighteenth century was by private persons. The confrontation right would have been virtually empty if it only applied to instances of coercion by public officials.

Third, there isn’t even a whisper of such a limitation in the text of the Confrontation Clause.

Fourth, such a rule would yield very odd results. A person who observes a crime could write an affidavit, perhaps with the assistance of a private NGO, and send it to a prosecutor, and the confrontation right would never come into play.

Fifth, the Supreme Court has already rejected such a rule. As the last point suggests, a coercion rule is a more restrictive version of a test limiting the confrontation right to interrogations, and the Court has explicitly said that the Confrontation Clause is not so limited.

So far as the state action requirement is concerned, it is satisfied by the fact that the state is trying and presumably convicting an accused in part on the basis of testimony that it introduces without offering the accused an adequate opportunity for confrontation.