Monday, October 15, 2012

Three decisions from the California Supreme Court on forensic reports

The California Supreme Court issued three decisions today on the Confrontation Clause and forensic reports.  Two of them divided the court and show how bad things can get in light of the confusion sown by the US Supreme Court's decision in Williams v. Illinois

The lead case, People v. Lopez, involves a lab report of blood alcohol content.   Seems familiar, doesn't it?  But a majority of the court says that the analyst doesn't have to show up because this report was not sufficiently formal, given where the analyst's signature was on the report.  Maybe a subsequent reading will make this appear less bizarre than it appears to me at the moment, but two quick reactions:  (1) The majority engages in a fine-tuned analysis of the placement of signatures and notations that I think utterly loses sight of the fundamental right at stake of an accused to be confronted with those who provide evidence against him.  (2) The decision, if it stands, provides a recipe for avoiding the confrontation right with respect to forensic reports, something that many labs and prosecutors have been eager to accomplish (one of the concurring opinions is pretty explicit on this).  This recipe will denigrate the quality of evidence presented.

The second case, People v. Dungo, involved an autopsy report in a murder case.  The majority decision says this was not testimonial because it was not made with the primary purpose of creating evidence for trial.  My reaction to this is on the order of "Give me a break."  I understand that there are all sorts of reasons why a medical examiner might do an autopsy.  But by the time the examiner is ready to write a report saying that death was by strangulation, he knows exactly what he is doing -- creating prosecution evidence in a murder case.  I am not a fan of the "primary purpose" test, but if this autopsy report doesn't meet it then the test has become farcial.

The third case, People v. Rutterschmidt, was decided on harmless error grounds, without dissent.  But it's worth mentioning, because it's not every day that a pair of elderly ladies is charged with having taken out multiple insurance policies on the lives of two men, in incidents six years apart, and then murdered them by running over them while they were in compromised condition.

Thursday, June 21, 2012

Source of the "targeted individual" test?

I hope to be offering more commentary on Williams within a few days.  Meanwhile, perhaps I can offer a solution to one mystery.  Justice Kagan quite sensibly says that where Justice Alito's "targeted individual" test comes from "is anybody's guess."  One answer, ironically, might be right here on this blog.  In a couple of commentaries, and then in a longer one in January 2011 that I put in a full posting, titled "Pure Cold Case" Prosecutions & The Confrontation Clause:  What Does The Future Hold?, Paul Vinegrad, a frequent contributor to this blog -- always resourceful and frequently, as here, wrong-headed, in my view -- suggested this test.  (He spoke about the need for "reasonable suspicion" to detain or arrest "a particular person.")  You can see Paul's posting, and the critical commentary I offered on it, by clicking here.

Of course, even if this does solve the mystery of where Justice Alito got the idea, it only pushes the mystery back somewhat.  Referring to Paul's test in my response, I said, "I’m not sure where he gets that – so far as I know there is no historical basis for it." And I pointed out what would be its stunning consequences -- for example, rendering outside the scope of the confrontation right a police officer's formal description of a crime scene, made before a suspect was identified but in full anticipation of use at an eventual trial.

Five justices rejected this theory, and for good reason.  I am sorry that four justices remain so desperate to limit the impact of Melendez-Diaz that they are willing to sign on to just about any theory that achieves that objective, no matter how lacking in foundation it might be and what devastation it would work on the confrontation right.  But five remains greater than four.

Tuesday, June 19, 2012

Thoughts on Williams, Part I: Reasons to Think the Impact May be Limited

Here is a first installment of preliminary thoughts on Williams. Obviously, I think the result is unfortunate; I think Williams should have won. But the damage to the Confrontation Clause may be much less than I might have guessed it would be given the result. This posting will simply focus on four reasons why that is so.

Splintered Court

First, to state the obvious, there is no majority opinion. The case appears to stand for nothing more that the proposition that in the circumstances of this case there is no Confrontation Clause violation. And, as Justice Kagan emphasizes, repeatedly and usefully, five Justices reject the rationales stated in Justice Alito’s opinion, clearly and decisively. That opinion, like the dissent in Melendez-Diaz, contains some assertions that would seriously undercut the Confrontation Clause if they became law. But only the Melendez-Diaz dissenters sign on to that opinion. Predictions that Justices Sotomayor or Kagan would go over in the circumstances of this case were not borne out, and Justice Kagan wrote an excellent, refreshing dissent.  

No Plausible Alternate Explanation

Second, Justice Alito rightly seizes, repeatedly, on a circumstance that is helpful to him, and the prominence he gives to it suggests that for at least one member of the plurality it may have been decisive. This case was not like Melendez-Diaz, Briscoe, or Bullcoming, in which the questions were how much, if any, of a bad factor (cocaine, blood alcohol) was present in a given sample; in those cases, one can imagine a lazy, incompetent, or dishonest analysis helping the prosecution by simply saying, in effect, “A lot.” In this case, by contrast, Cellmark was presented with a crime scene sample and reported a DNA profile that, as it turned out, matched a person against whom there was significant other evidence. As Justice Alito points out, Cellmark had no reason to suspect Williams, and no other source, so far as we can tell, for knowing Williams’s profile. So the chance of Cellmark coming up by chance with a DNA profile that happens to match a guy in the vicinity and one against whom there is, at least in the end, substantial evidence, is really infinitesimal.

This is not simply a matter of saying that the Cellmark report is reliable. I’ll make the point by drawing on an analysis I made decades ago, Route Analysis of Credibility and Hearsay, 96 Yale L.J. 667, 682-83 (1987), of an old case, Bridges v. State, 19 N.W.2d 529 (Wis. 1945). Bridges was accused of molesting a young girl. The girl made a statement to her mother describing the apartment where the incident occurred. The description closely matched that of Bridges’s apartment, and let’s assume that, taken in conjunction, the set of features that she described was highly unusual. Let’s also assume that she didn’t testify and that there is no reason to suspect that she was in the apartment on any occasion other than the one in question. The statement might appear to be offered for the truth of what it asserts – that the girl was in (and molested in) a room meeting the description that she stated. But now let’s say that instead of stating that she was in a room of that description, she came home from school with a story she wrote featuring a room of that description Clearly, the story is not offered for the truth of what it asserts. And yet, if the description is sufficiently odd, but matches the accused’s apartment, it has substantial probative value. Given that the child was not in the apartment on any other occasion, the fact that she put together the odd conjunction of features may be powerful evidence that she was in the apartment on the occasion in question – even if she is not regarded as a reliable witness.

So now let’s bring this back to a DNA case. Suppose (1) a crime scene sample is sent to a lab, (2) the lab sends back a piece of paper bearing the case number for that sample and a set of numbers that, it turns out, match the DNA profile of a given person, (3) the lab was not given that person’s DNA profile, and (4) there is substantial other evidence suggesting that that person left DNA in the crime scene sample. I believe all of these facts were true in Williams. In these circumstances, I think the prosecution probably should be allowed to present that piece of paper and say, in effect, “I’m not asking you to rely on the proficiency of this lab. But there’s no plausible way in these circumstances that the lab could have come up with those numbers unless Accused left his DNA in the crime scene sample and the lab did an accurate DNA test on the sample.”

That’s not the way the evidence was presented here, and so I still thought Williams ought to have won. My point now is simply that this set of circumstances was sufficiently important to the Alito group that he cited it three times; absent it, the case might (and should) have looked very different to one of that group.

Identity of the Fact-finder

Justice Alito indicates that the foursome might have viewed the case differently if the fact-finder were a jury. The other five properly wonder how the identity of the fact-finder can affect a Confrontation Clause issue. As I understand it, Justice Alito’s response is in effect this: There was an OK way that a fact-finder could use the Cellmark information, as supporting the expert’s opinion (I don’t agree, given the presentation of the information, but that’s a subject for another post), and a bad way, which would violate the Confrontation Clause. There’s a substantial chance that a jury would fail to draw the distinction, but a trial judge can do it. I think it probably hurt Justice Alito to have to make the concession, acknowledging that instructions might not be a satisfactory cure here, but it may have been the price of keeping the four together. Of course, one of the difficulties here is that the supposed distinction between admission for the truth and admission in support of the expert’s opinion is non-existent when the statement supports the opinion only if true. Five justices recognized this point.


As I understand Justice Thomas’s opinion, the case would come out differently if the report had been certified. Let’s put aside for the moment the merits of that view. (I don’t think there are any.) My understanding is that as of now the laws of some states purport to allow lab reports only if sworn or certified, or somehow made what even Justice Thomas would regard as sufficiently formal to come within the Confrontation Clause. So where this is true, even if the facts are otherwise identical to those of Williams, it appears the case comes out differently. Those state laws might be changed, of course. If a given state removes its requirement of formalization, for the obvious and presumably stated purpose of making the lab report admissible, would Justice Thomas then say that this is the type of evasion he has previously, and again in Williams, said cannot be made to avoid the Confrontation Clause? I wouldn’t hazard a prediction.

Monday, June 18, 2012

Petition in Rose denied

I hadn't seen the order list before, but now I have. The etition for certiorari that I filed in Rose was indeed denied. So I guess that this is a conflict that will persist for a while longer; in some states, the Constitution is deemed to prevent child witnesses from testifying attrial from behind a screen, and in some states it isn't. Perhaps the Court thought the conflict was not yet deep enough, but it's impossible to know. I hope that befoer too long goes by they do take a case on this issue.

Opinions in Williams

You can read the opininos in Williams v. Illinois by clicking here. Commentary from me later.

Williams affirmed without majority opinion

Scotusblog reports that Williams was affirmed 5t-4, with Justice Alito writing for four justices (the Melendez-Diaz and Bullcoming dissenters), Justice Thomas concurring in the result, and the others dissenting. That's all I know for now; I haven't seen the opinions. I'll post them soon, and offer some comments, probably today, maybe tomorrow. I also know that the Court did not grant the petition for certiorari in Rose -- but I haven't seen the order list yet, so I don't know for sure whether it was denied.

Friday, June 01, 2012

BIO and reply brief in Rose v. Michigan

I've been tied up, in large part with grading, but now I'm going to try to catch up on some postings I've been meaning to make over the last few weeks. For starters, here are the Brief in Opposition and my Reply Brief in support of the petition for certiorari in Rose v. Michigan, which I presented in a prior post. (The petition seeks review of a decision allowing a child to testify from behind a screen in the trial courtroom; it raises the questions of whether this procedure was inherently prejudicial and of whether Maryland v. Craig, 497 U.S. 836 (1990), should be overruled.) The Supreme Court may decide whether or not to grant the petition as early as June 18.

Thursday, March 29, 2012

Petition for certiorari on procedure for child testimony

I'm sorry for the delay, but I am posting now a petition for certiorari that I filed on March 8, in Rose v. Michigan, raising issues concerning the procedures for children's testimony. In this case, the child was allowed to testify at trial from behind a screen that quite obviously blocked her view of the accused. The Michigan court of appeals held this procedure permissible. People v. Rose, 808 N.W.2d 301 (2010). The state supreme court granted review and heard argument, but eventually decided not to rule on the merits; Justice Marilyn Kelly dissented from that decision. People v. Rose, 805 N.W.2d 827 (2011).

There is a clear conflict of state courts as to whether the procedure is unconstitutionally prejudicial. The petition raises this issue and also the broader question of whether Maryland v. Craig should be overruled.

You can see the petition here and the appendix (which includes the opinions in both the court of appeals and the state supreme court) here.

The state has asked for and received an extension until May 14 of its time to file a Brief in Opposition.

Friday, January 13, 2012

The latest from the European Court of Human Rights

Last month, the Grand Chamber of the European Court of Human Rights decided Al-Khawaja and Tahery v United Kingdom. This is an obviously important decision, and I have thought to write a post about it, but I haven't had time. So I've asked William E. O’Brian, Jr., an American lawyer who is an Associate Professor of Law at the University of Warwick in England and who has in interest in confrontation matters, to do a write-up. Here it is, with a short follow-up commentary by me following.

* * *
Al-Khawaja and Tahery v United Kingdom, (Nos 26766/05 and 2228/06, decided December 15, 2011) is a new and very important decision from the Grand Chamber of the European Court of Human Rights on confrontation. It contains for the first time a discussion of the Crawford case and its progeny, along with a discussion of similar cases from various other common law jurisdictions. Below I will briefly summarize the history of the case and the most important aspects of the new ruling. I have published several pieces comparing ECHR and UK law with US law on these matters before this decision, which I would be happy to share with those interested in knowing more.

Al-Khawaja was convicted of indecent assault on two women, one of whom committed suicide prior to his trial; her statement to the police was read at trial. Tahery was convicted of wounding with intent; the only witness to the altercation that was able to identify the defendant refused to testify at his trial due to fear, and his statement to the police was read at trial. Both appealed unsuccessfully in the English courts, and brought cases before the ECHR alleging that the use of their police statements at trial violated Article 6 § (3)(d) of the European Convention on Human Rights, which guarantees defendants in criminal cases the “minimum right”, inter alia, to “examine or have examined the witnesses against him.”

Previous decisions of the ECHR had interpreted this right fairly robustly, but had (in my own view) undermined this position by refusing to find violations in several cases where there was other evidence against the accused in addition to the hearsay evidence that was challenged. The leading case prior to this one was Luca v Italy, 36 EHRR 46 (2003), where the court held that a conviction based primarily on the statement of a co-accused to the police and prosecutor violated the Convention, because the conviction was based solely or to a decisive degree on statements that the accused had had no opportunity to examine. The original chamber that heard Al-Khawaja and Tahery invoked this “sole or decisive test” to find a violation in both cases. Al-Khawaja and Tahery v UK, 49 EHRR 1 (2009).

The UK government sought and obtained a Grand Chamber rehearing (more or less analogous to an en banc rehearing in a US Court of Appeals, although a Grand Chamber is final). Its position was bolstered by a unanimous judgment of the UK Supreme Court in R v Horncastle [2009] UKSC 14, [2010] 2 AC 373, in which the UK Supreme Court rejected various similar appeals, refused to follow the chamber decision, and subjected the “sole or decisive test” to withering criticism. In effect, the Grand Chamber decision furnished an opportunity for the ECHR to respond to the UK Supreme Court’s scathing attack on its previous confrontation jurisprudence.

The applicants argued that there were three possible approaches to the issues: (1) the “rigid and literal” approach of Crawford, (2) the chamber approach, under which untested hearsay could sometimes be used at trial but could not be the “sole or decisive” evidence against the defendant, and (3) the Horncastle approach, under which the defendant’s opportunity to examine the witness was simply a matter to be considered in determining whether the defendant had a fair trial overall. Applicants did not argue for the Crawford approach, undoubtedly because they did not need to, as it was reasonably clear, although not conceded by the UK, that the untested evidence was decisive in both cases.

The Grand Chamber decided that there were two requirements to avoid a violation. First, there must be a good reason for the non-attendance of a witness, and a violation can be found if there is no good reason for non-attendance even if the evidence in question is not “sole or decisive.” Second, if the conviction is based solely or to a decisive degree on evidence that the defendant has been unable to examine or have examined, the rights of the defendant may have been unduly restricted. But the Grand Chamber (see paragraph 147) rejected a rule that in such a case there has automatically been a violation. Instead, it held that cases where the untested evidence is the sole or decisive evidence require that the proceedings be subjected to “the most searching scrutiny,” including whether sufficient counterbalancing factors were in place to permit a fair and proper assessment of the reliability of the evidence. It rejected most of the UK Supreme Court’s arguments, which essentially asserted that other procedural safeguards provided in English law obviated the need for such scrutiny, but also decided that an inflexible rule finding an automatic violation whenever a conviction was based solely or decisively on hearsay “would transform the rule into a blunt and indiscriminate instrument.”

On the actual cases, the Court seems to have essentially split the baby, finding a violation in Tahery but not in Al-Khawaja. It relied in the latter case on the “similar fact” evidence of the other victim, along with the evidence that the deceased victim made similar statements to friends prior to her suicide, taken together with warnings delivered by the judge on the dangers of relying on her evidence in light of defendant’s inability to cross-examine, found that these provided sufficient counterbalancing factors. Two judges dissented, essentially arguing that the court should continue to adhere to the rule that a conviction based solely or decisively on untested evidence could not stand.

A few additional observations are in order.

First, the ECHR has not adopted a dividing line between “testimonial” and non-testimonial hearsay, but all of its cases have involved testimonial hearsay and at least one English court has held that Article 6 § (3)(d) only applies to such hearsay. The opinion in Al-Khawaja tends to use terms like “hearsay,” “untested evidence” and “absent witnesses” more or less interchangeably (see for example paragraph 147 of the majority judgment). The only references to the “testimonial” issue are in passages discussing Crawford and its progeny.

Second, the decision notes with approval previous indications in English decisions that there would be an exception for cases where the defendant’s own actions prevented the witness from testifying. In neither case was this a factor, however, as in Al-Khawaja it was conceded that the victim’s suicide was unrelated to the assault, and in Tahery’s case there was no evidence that the witness’s fear of testifying was due to threats or other actions by the defendant.

Third, both the majority and the dissenters adopt fairly narrow definitions of when evidence is decisive. The majority held that it should be understood as “evidence of such significance or importance as is likely to be determinative of the outcome of the case.” (paragraph 131). The dissent’s definition was even narrower, defining decisive evidence (in footnote 1 to the dissent) as “evidence without which the prosecuting authorities could not bring a case.”

Fourth, although no one argued for a Crawford approach, the dissenters do, in footnote 5, defend the Crawford rule against UK Government attacks on it as “absolutist and anachronistic,” while noting that it is “more exacting than our standard.”

Fifth, it is unclear to me why the court found that the victim’s statements to her friends in Al-Khawaja provided support for the police statement evidence that was challenged; there is no discussion of why those statements fare any better. The court does not view itself as laying down rules of evidence, but rather as ensuring that the trial is fair, and it may therefore believe that multiple incidents of hearsay may be sufficiently reliable to base a conviction on even if no one of them would be. Or it may be that these statements were not challenged because the parties assumed they were not testimonial, although the ECHR jurisprudence nowhere says that only testimonial hearsay is subject to Article 6 § (3)(d).

I have argued at length in favor of a robust approach along the lines of Crawford (but without the gloss of Giles), and am of course disappointed with the Grand Chamber ruling. But it is nowhere near as bad as the UK Supreme Court’s decision in Horncastle. The chief difficulty is that by leaving results ultimately subject to a balancing test, albeit a much stronger one than the UK courts wanted to employ, the ECHR may have let itself in for a large volume of future cases, whereas the previous Chamber judgment provided a much more bright line rule, although still subject to disputes over whether the evidence was “decisive” in individual cases.

William E. O’Brian Jr.
Associate Professor of Law
University of Warwick

* * *

I agree generally with Bill's analysis, and will offer just a few brief follow-up comments. First, as I have noted before, it is ironic that the courts in England – where the confrontation right reached fruition and which long proclaimed that right as one of the great advantages of its system as compared to those of continental Europe – now has to be dragged into enforcing the right by a court sitting in France.

Second, I think one reason why the European Court developed a theory of confrontation without a very clear textual basis for it is that most of the nations within its jurisdiction do not have a law of hearsay. Hearsay law tends to clutter the analysis, because hearsay is a very broad category and any rule excluding all or virtually all hearsay would be impractical. So it is unfortunate that in this decision, the European Court has been led into using the language of hearsay, presumably because it was reviewing a UK decision. It would be much better if the court focused on the fact that the right that it has developed under the Convention concerns not a general law of hearsay but rather the conditions under which the testimony of witnesses may be received.

Third, if it had done that, I think the court would not be so ready to dismiss the Crawford approach. As Bill points out, the balancing approach that the court adopts is a recipe for future difficulty. Recognizing that the confrontation right applies only to statements that are testimonial in nature – but that as to those it expresses a fundamental procedural right that is applied categorically – is not only a more principled approach but an entirely practical one as well.