Sunday, October 26, 2014

State Action and the Confrontation Clause

Regular contributor Paul Vinegrad, in comments to my previous posting, has been arguing that there’s no state action for purposes of the Confrontation Clause, as made applicable to the states by the Fourteenth Amendment, unless a state agent had something to do with the creation of the statement.   I want to respond here to two points made by Paul, both of which I regard as highly creative, which in this context means that they are clever but really have no relationship to reality.

First, Colorado v. Connelly, 479 U.S. 157 (1986), has nothing to say about the Confrontation Clause.  There, the Colorado Supreme Court held that admission of a confession initiated by the defendant while in an impaired mental state violated the Due Process Clause, despite no impropriety on the part of any agent of the state.  The US Supreme Court reversed.  Justice Rehnquist’s opinion for the Court included this passage, which I gather is what Paul has in mind:
Our “involuntary confession” jurisprudence is entirely consistent with the settled law requiring some sort of “state action” to support a claim of violation of the Due Process Clause of the Fourteenth Amendment. The Colorado trial court, of course, found that the police committed no wrongful acts, and that finding has been neither challenged by respondent nor disturbed by the Supreme Court of Colorado. The latter court, however, concluded that sufficient state action was present by virtue of the admission of the confession into evidence in a court of the State. 702 P.2d, at 728–729.

The difficulty with the approach of the Supreme Court of Colorado is that it fails to recognize the essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other. The flaw in respondent's constitutional argument is that it would expand our previous line of “voluntariness” cases into a far-ranging requirement that courts must divine a defendant's  motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision.
The essence of the holding is that an involuntary coercion, in the meaning of the Due Process Clause, is one that an agent of the state coerced, not one that merely results from the irrational condition of the defendant.  That’s really a substantive holding.  The Court never says, “There was no state action.”  I think its discussion makes it clear that what it is really saying is that there was no action by the state of the sort that makes a confession involuntary for constitutional purposes.

But the wrong with respect to an involuntary confession consists largely in the coercive out-of-court conduct by the state that secures the confession.  The Confrontation Clause is altogether different.  I’ll emphasize a point made many times before: The Confrontation Clause imposes no constraints on investigative activity by the police or other agents of the state; the police should  interview witnesses out of the presence of the accused and with everybody fully anticipating prosecution.  What the Confrontation Clause prohibits is the use at trial – which is of course under the auspices of the state – of a testimonial statement to help convict the accused without offering the accused the right to be confronted with the witness who made the statement.  That’s pure state action.

Second, Paul claims historical pedigree for his theory, by citing the Raleigh case.  The Raleigh case and other state trials are highly atypical of prosecutions of the pre-Revolutionary era.  Most crime was privately prosecuted.  There was nothing comparable to a modern police force.  And yet the confrontation right was well established in ordinary private prosecutions; for example, if the prosecutor (a private party) did not appear, the case was routinely dropped, not pursued by having someone else testify to what the prosecutor had observed.  Indeed, Raleigh, in claiming the right, emphasized that if it had been a mundane case – “for two marks” – he would have had an unquestioned right to be confronted with his accusers.  A robbery victim, for example, could not have made a statement to a friend about the robbery, in contemplation that the friend rather than the victim would testify at trial.


paul said...

True, the Court has not yet definitively decided if state action is required before hearsay can be barred from introduction at a criminal trial by the Confrontation Clause. And, assuming some form of state action is necessary, what the defendant is required to establish.

And, yes, Connelly does not directly answer these questions. But it is one in a very long line of Supreme Court cases establishing state action as a fundamental component limiting the scope of constitutional protections.

As Yale Law School Professor Akhil Amar has stated: "Professor Friedman's ... clever argument sidesteps a powerful counterargument rooted in a basic principle of constitutional structure: the Constitution is mainly addressed to state action." (See, Amar, Akhil Reed, Confrontation Clause First Principles: A Reply To Professor Friedman, 86 Geo. L.J. 1045, 1048 (1998); see, also, Daniel B. Shanes, Confronting Testimonial Hearsay: Understanding The New Confrontation Clause, 40 Loy.U.Chi.L.J. 879, 900-901, 909 (2009).)

Let's assume that teachers who questioned the child in Clark were not state actors (simply because they were mandated reporters). And let's assume further that the three year old child's accusatory hearsay statement was patently unreliable (because, among other things, the state trial court found that he was incompetent to testify). It is clear under the Court's holding in Perry v. New Hampshire, 132 S.Ct. 716 (2012), that the Fourteenth Amendment's Due Process Clause could not serve as a bar to the admission of the hearsay in a state court because (and this is critical) there was no causal connection between the child's hearsay accusation and any "state action." And, according to the Perry decision (echoing the Connelly decision which is cited at page 726), a state court's admission of the accusatory hearsay into evidence does not, by itself, constitute "state action" required to trigger application of the Due Process Clause.

If, based upon the above hypothetical, Clark could not rely on the Fourteenth Amendment's Due Process Clause to exclude the child's hearsay accusation how can he conceivably rely upon the Sixth Amendment's Confrontation Clause given the indisputable fact that the later applies to the states only because of the former?

As I have previously stated, the Confrontation Clause (just like the Due Process Clause in Perry) can't serve as a bar to the admission of hearsay unless the defendant seeking exclusion establishes a sufficient causal connection between the hearsay and some conduct, some action, on the part of the state government.

In Clark, given that the teachers were not state actors when they questioned the child (i.e., their conduct in questioning the child is not "fairly attributable" to the state because of Ohio's mandatory reporting law), the Confrontation Clause is inapplicable, regardless of whether the hearsay consists of an unreliable accusation.

One last point: If the admission of the child's unreliable accusation would "shock the conscience" the defendant might have a substantive due process right to seek its exclusion. But any such extreme circumstances (i.e., a private person nonstate actor obtains the hearsay evidence from another private person nonstate actor by means of torture) do not exist in Clark.

The private person/child's statement to the private person/teachers is, like the private person hearsay in Dutton and White, not covered by the Confrontation Clause (or, according to Perry, the Fourteenth Amendment's Due Process Clause).

We shall see.

paul said...

With respect to the Raleigh case, consider the following:

There was a clear, unmistakable, causal connection between Cobham's accusatory hearsay and state action. The Crown extracted the words from Cobham's mouth while he was in custody and himself accused of conspiring to kill the King. Given these circumstances, it is easy to see why the government's using his accusation to convict Raleigh without affording Raleigh a right of confrontation would be such an affront and would have motivated the Framers to include the Confrontation Clause in the Bill of Rights. Cobham clearly became a "witness against" Raleigh only because of the involvement of the Crown in producing his accusation.

Now let's contrast Cobham's government-generated accusation to the hearsay from a private person anonymous gentleman (accusing Raleigh of conspiring to cut the King's throat) made to another private person -- a boat pilot by the name of Dyer -- without any government involvement.

At his trial, Raleigh argued that he was being denied his right to confront Cobham. But he never raised a confrontation objection to the admission of the accusation of the private person/anonymous gentleman. Rather, the sole objection to Dyer's repeating that accusation was based upon its lack of reliability.

Professor Friedman himself acknowledges that the Confrontation Clause was not intended to exclude unreliable hearsay (such as the anonymous accusation). Rather, he contends that it was designed to deem hearsay declarants such as Cobham as "witnesses against." (See, Friedman, Richard D., The Mold That Shapes Hearsay Law, 66 Fla.L.Rev. 433 (2014).)

I agree with Professor Friedman that Cobham was a "witness against" Raleigh within the meaning of the Confrontation Clause. And I agree with him that the anonymous gentleman was not a "witness against" within the meaning of the Confrontation Clause. Where we part company is the reason why Cobham's hearsay is barred by the Confrontation Clause, but the anonymous gentleman's accusation is not.

Cobham's accusation was the direct result of coercive government conduct designed to accuse a targeted person (Raleigh) of a crime. Cobahm's accusation was not the product of his own free will, but was tainted by coercive government action (similar to the coercion prohibited by the Fifth Amendment).

In contrast, the anonymous gentleman's voluntary private party accusation made to another private party/Dyer bore no connection to any government influence. It was the the product of his own free will untainted by any conduct on the part of the Crown or its agents.

Whether or not the Raleigh case was "atypical" of prosecutions of the pre-Revolutionary era, as Professor Friedman contends, is beside the point. There is virtually unanimous agreement that Raleigh's case served as the basis for the inclusion of the Confrontation Clause in the Bill of Rights. And a careful examination of the hearsay evidence that was admitted at that trial, and Raleigh's objections to such admission, reasonably establishes that only hearsay that bears a causal connection to some conduct on the part of the government is within the scope of the clause. (This argument is in addition to the "incorporation" argument that I set forth previously on this blog.)

Clark will provide the Court an opportunity to reexamine the "history" (set forth in the Crawford majority and dissenting opinions as well as discussed in post-Crawford academic writings). This history, in particular Raleigh's case, I contend requires state action (as one of several elements) before hearsay will fall within the scope of the Confrontation Clause.

Brian S. said...

Thanks for your comments, Paul and Professor Friedman. I enjoyed this exchange and appreciate that you two (it seems) have a working relationship despite disagreeing. That's rather rare, especially in all things internet-related.

Richard D. Friedman said...

I think I won't add to this particular exchange by commenting substantively on Paul's comment. But I'll use Brian's comment as an opportunity to say how much I do value and enjoy Paul's participation in this blog. He is indeed very resourceful -- though I sometimes do find his arguments wrong-headed I know they will be powerfully argued, and based on deep knowledge of the case law and academic literature. He seems to have read everything I've ever written, at least on confrontation. It's a little scary, actually!

paul said...

Professor Friedman,

Thank you for the kind words. Although I am not sure that being described as a "very resourceful," "wrong-headed" person was intended as flattery. Perhaps "well intentioned, but misguided" would have softened the blow.

All kidding aside, thank you for allowing me to participate on your blog despite my critical analysis of your conception of the confrontation right. And, yes, I have read almost everything that you (as well as other esteemed academics) have written regarding confrontation. In so doing it wasn't my intent to be "scary" in the (academic) stalker sense. I just want to ensure that when I speak (or write) about a particular legal issue that I have given great consideration to the opinions of others, especially when those holding contrary views are as preeminent in their field as are you when it comes to evidence law in general and the Confrontation Clause in particular.



P.S. Since you are going to refrain from commenting on the Clark case, perhaps you can convince some of your AALS Evidence Section/LISTSERV colleagues to be guest commenters in your absence?

Anonymous said...

FWIW in my view Paul both takes a much to narrow view of what constitutes state action and also what constitutes coercion.

Professor Friedman is correct that putting someone on the witness stand is pure state action. Properly understood, it is the action of the Judaical power of the sate and not its Executive power; the prosecution demands that the witness appear via a subpena, it is the judiciary that compels the appearance. However, from the viewpoint of the defendant this distinction matters not one whit and the Confrontation right is designed to protect the accused, not the Executive power.

But even if one doesn't swallow that line of thinking the teachers in this case were still witness against Clark, even by the definition put forth by Akhil Amar in the paper Paul cites. Amar claims that a action becomes state action when the government "appears on the scene". The mistake Paul makes is to limit this statement to the /physical/ appearance of the government. The government did appear on the scene in Clark through the legislative function when it mandated reporting. To be sure, once again, the state did not appear on the scene in the form of the Executive power but this is not relevant. For Confrontation Clause purposes it should not matter which branch of government is doing the coercing.

I recognize that there is a way that this seems somewhat unfair. The Executive is bearing the cost for something it had nothing to do with. But the Executive power doesn't lie isolated and distinct--The Executive is merely the representative of the people at the court and it is the collective will of the people, in whatever structural form it takes, that the Confrontation right is designed to limit.

lee woo said...
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Leslie Lim said...

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