Monday, December 12, 2011

Hardy v. Cross -- Supreme Court decision on required efforts to find an unavailable witness

The Supreme Court issued a summary decision today in a Confrontation Clause case, Hardy v. Cross.

Cross was tried on charges of kidnapping and sexual assault. The alleged victim, referred to as A.S., testified at trial, but in a way that the Seventh Circuit, 632 F.3d 356 (2011), later called “pause-filled and evasive.”. Cross was acquitted on the kidnapping charge but the jury hung on the sexual assault charges. The state declared its intention to retry Cross on those charges, and a date for the second trial was set. Shortly before the trial date, however, A.S. disappeared. The state made several efforts to find her, but without success. At the retrial, the state was allowed, apparently over objection, to introduce A.S.’s testimony from the first trial; a legal intern read in the transcript, apparently without the long pauses that occurred in the first trial and in a “more fluid and inflected” way, according to the Seventh Circuit. Cross was found guilty on two counts of criminal sexual assault, but acquitted on the charge of aggravated sexual assault.

On direct appeal Cross lost on his contention that the state did not make sufficient efforts to secure the live testimony of A.S. at the second trial for her to be deemed unavailable for Confrontation Clause purposes. And he lost in federal district court on his petition for habeas. But he won a unanimous reversal in the Seventh Circuit, undone today by the Supreme Court’s summary and unanimous reversal.

The Seventh Circuit held that the state did not make sufficient efforts to locate A.S., particularly given her importance to the case. The state delayed for a week after learning that she was very reluctant to testify again, and never subpoenaed her. Although it made repeated efforts to find her through the same sources, it never tried some possibilities, most notably speaking to her current boyfriend.

The Supreme Court was unimpressed. There was no reason, it said, to believe that if the state had made any of the attempts cited by the Seventh Circuit the result would have been that A.S. would have testified at the second trial. I wonder about that with respect to the boyfriend. There is no way of knowing for sure, but it does seem to me speaking to the witness’s current boyfriend is a pretty obvious move that shouldn’t be overlooked.

But the bottom line is that the inquiry is ultimately a very fact-intensive one requiring an assessment of good faith. In line with my post of yesterday, The niqab and the structure of the confrontation right, this is a determination that inherently requires balancing; I think it is very hard to state bright-line rules here. (That doesn’t mean there are none; if the state knows where a witness is and i can invoke a formal procedure to secure her presence, then it should do so; this is Barber v. Page, 390 U.S. 719 (1968), and maybe that’s irrespective of the importance of the witness. But this case involves efforts to find a witness, and it’s much harder to state absolute rules as to what the prosecution needs to do.)

And this case, in any event, came up on habeas, which means that a deferential standard of review applies, a consideration that the Supreme Court emphasized; I suspect this factor contributed to the unanimity of the opinion.

And by the way – the Court cited the discussion of unavailability in Roberts, which resembled this case in some respects. I’ve always thought that in Roberts the state should have made more efforts than it did. But, Crawford notwithstanding, there has never been any doubt that this aspect of Roberts remains good law. For all the general discussion in Roberts, the decisive issue in the case was whether the witness should be deemed unavailable, and that would still be true if the case were decided under Crawford.


Anonymous said...

I think the efforts by the state to find the witness is a red herring and I think the courts paid too much attention to it. Even I would characterize the state's efforts as beyond the norm.

So what? The fundamental truth was that the witness wasn't there and I simply don't accept the idea that a legal intern reading in prior testimony suffices. How does one confront a legal intern or a transcript. That's incoherent.

I simply fail to grasp the logical basis for arguing that a right that the constitution gives to the accused is dependent in any way on the prosecutor's "good faith". The best intentions in the world and the most strenuous efforts can't make up for the simple fact that the witness wasn't there. Despite your dislike for Giles I thought Giles stood for that point.

I mean the fact pattern in Hardy and Giles are exactly the same. In neither case was the witness actually present at trial. The difference between the two cases is WHY the witness wasn't available. It's a bizarre state of affairs that the law allows the accused to kill the witness (Giles) and the confrontation right is violated but when the witness absconds on her own accord and for her own reasons the confrontation right is not violated so long as the prosecutors try really hard to find her (Hardy). That's a system ripe for gaming by everyone.

Richard D. Friedman said...

What this comment ignores is that in Hardy the accused already was confronted with the witness, at the first trial. So in that case the question is always whether the accused should be deemed unavailable to testify at the second trial. Why? Because we still prefer live testimony -- we at least like to think that it's better than the cold transcript -- so if the witness is available then she should be brought in to testify live. But if the witness is deemed unavailable, then we accept the testimony from the prior trial as a second best solution, better than losing the evidence from the witness altogether.

This is entirely traditional, and it has traditionally been so that the usual way the prior testimony is presented is by a transcript. Video is preferable, of course, and maybe in time courts will hold that if there was an opportunity to make a video recording of the prior testimony nothing less will be an acceptable substitute. But I suspect that as long as federal courts don't allow cameras in the courtroom that isn't going to happen.

In Giles, the accused had no prior opportunity for confrontation. Accordingly, given that the prior statement was testimonial, it could be admitted against the accused only if he was held to have forfeited the confrontation right. The Supreme Court should have held that he did forfeit it. But that didn't happen.

Anonymous said...

"But if the witness is deemed unavailable, then we accept the testimony from the prior trial as a second best solution, better than losing the evidence from the witness altogether."

I don't agree. The Confrontation right is not an evidence gathering tool. It's a right at the same level as the right to free speech or the right to a trial by jury. If losing the evidence from the witness is the cost of persevering the right, so be it.

The fundamental outlook of our CJ system has always been that it is better to protect the innocent than condemn the guilty. So some evidence is lost and perhaps some guilty person goes free. So what? That happens all the time in other aspects of the law where evidence is forfeited. Difficult to imagine why the Confrontation right is any less than the unreasonable search right.

Richard D. Friedman said...

All I can say is that this view has no basis in the history of the confrontation right -- a prior examination subject to confrontation has alwayssufficed if the witness is unavailable at the later trial -- or in the language ofhe Confronttion Clause, and Crawford clearly precludes it.

fault said...

While I agree that a prior confrontation satisfies in many cases, does it carry over to all cases? That was mostly the issue here - the original witness was unsatisfactory with long pauses and as far as I can tell, largely wilted in the stand. The clerk on the other hand would have, I assume a monotonous drone.

The face-to-face part of confrontation was treated as a right in Coy v iowa and toned down to a preference in Craig v Maryland.

Don't you think some harmless error is in order - independent of the availability issue. After all, the jury didn't buy the testimony in the first trial and I doubt the second jury would have found her a very reliable witness.

Also, if the defence using a private investigator is able to locate the witness now, would that make any difference to the habeas? Can it be used in an actual innocence claim?

Andrew MacKie-Mason said...

Like "fault," I'm interested in the witness's apparently untrustworthy demeanor, which sounds (at least from your summary) like it didn't play a significant role in the case. Maybe (and this is somewhat related to Anonymous's concerns about "confronting a transcript") the defense should be able to hire an actor to read the transcript in a way they feel is more faithful to the original testimony?