Tuesday, November 25, 2014

Top side briefs and joint appendix in Ohio v. Clark

Here are links to the top-side briefs and the joint appendix in Ohio v. Clark.

First, the main brief of the petitioner, the State of Ohio.

Next, the joint appendix.

And now the amici:

The United States

Domestic Violence Legal Empowerment & Appeals Project (DV LEAP)

Fern L. Nesson and Charles R. Nesson (my old Evidence teacher and his wife, a childhood friend and neighbor, and boy, do we disagree!)

The Ohio Prosecuting Attorney's Association and the National Children's Alliance

New Mexico and the National District Attorney's Association

The American Professional Society on the Abuse of Children

The Criminal Justice Legal Foundation

Child Justice, Inc.

The National Education Association, the American Federation of Teachers, the National School Boards Association, and the Ohio School Boards Association

The State of Washington, plus 41 other states (I think I counted right!) and the District of Columbia.  New Mexico signed onto this one as well, so it's on two of the briefs.

31 comments:

paul said...

Has the Nesson CC theory ever been proposed before? Other than Raleigh's Case (or, at least, the Nesson interpretation of that case) and the Nesson interpretation of Kirby, is there any historical support for their theory?

Their theory is intriguing. But does it have substantive historical support beyond Raleigh and Kirby?

Richard Friedman said...

I've only seen their theory in earlier writings of theirs. I think it has no historical foundation, and it would lead to disastrous results.

There is no doubt that in the early days there was less talk of cross-examination as such, because the accused in criminal prosecutions didn't have the right to counsel (but after 1696 the accused did have this right in treason prosecutions). But so what, I think. Two points on the history:

(1) There is no doubt that the accused, in demanding that the witnesses be brought face to face, expected to challenge the adverse witnesses personally. Sir Thomas Smith, describing a typical criminal trial in the mid-16th century, speaks of an "altercation," and by the middle of the 17th century judges are solicitously protecting the (still unrepresented) accused's right to ask questions of the adverse witnesses.

(2) I don't think there's any historical evidence whatsoever to back up their sufficiency theory. If that's what the confrontation right meant, it would have become apparent long ago. And the Confrontation Clause wouldn't have been worded as it was. The basic story told by Crawford is undoubtedly correct: The Clause is meant to ensure that witnesses are brought face to face with the accused rather than being allowed to testify in any other way, such as by speaking privately to officials.

And one point on the basic conception of the Clause: The Nessons are just plain wrong, I think, in contending that Crawford continues to confound confrontation and hearsay. Crawfordsays that if you testify against an accused you have to do so according to the long prescribed procedures. There's no need to refer to the rule against hearsay in describing the confrontation right, which long predates the hearsay rule.

And finally, one comment on consequences. As I understand it, so long as the prosecution presents sufficient evidence to support a conviction, the Nessons believe the Constitution would have nothing to say if the prosecution then presented a bunch of videotapes of people who choose not to come to court but want to bring their accusations of the defendant to he attention of the jury. That's unlike anything we've ever seen, and it's pretty bad.

Anonymous said...

I agree with the very last thing Professor Friedman says. Under Roberts the rests was whether the witness was "reliable". Under Crawford the test is whether the information is "testimonial". Under Nesson's theory the test would be, to quote directly from the brief, "The essential question is whether there is good solid evidence independent of the hearsay or whether there is not."

Dear lord. If the problem with Roberts is that the courts could arrive at no coherent definition of reliability, and the problem with Crawford is that the court has no coherent definition of "testimonial" then how is Nesson's test an improvement. "Good solid evidence" is vaguer than both of those! It's not a test at all but an invitation for endless mischief. In essence, we are back to the "mini-trials" approach where the judges is making a determination of the sufficiency of the evidence before the jury even sees the case. In Nesson's view the judge should allow Confrontation only when it helps the jury arrive at a verdict, which is to say almost never. I think Nesson tips his hand in the second sentence of his argument, "Confrontation in its archetypal form––where a victim accuses the defendant of a crime in open court before a judge and jury––is the *dramatic* core of an American criminal trial. (emphasis added)

Nesson's brief is not "pretty bad". It's God awful. He's been watching too much Perry Mason.

paul said...

Jeff Fisher is a brilliant Supreme Court advocate. But he has his work cut out for him in this case.

He is going to be very hard pressed to convince five Justices that (1) the teachers were agents of law enforcement (or state actors) simply by virtue of their status as mandatory reporters, and (2) the primary purpose of the child's statements (identifying Clark as the person who injured him) was to accuse a targeted person of a crime, to build a case against Clark, to establish past facts potentially relevant to a future prosecution, or were intended as a substitute for live in-court testimony.

No matter what iteration of the primary purpose test the Court might apply, I don't see any Justice concluding that the child's was a "witness" within the meaning of the Confrontation Clause. Or, in the lingo created by Crawford, that his statements were "testimonial."

I think Fisher's goal should be to try and minimize the damage to the Crawford "testimonial" approach.

First, he must convince five Justices not to trash Crawford entirely. Four Justices appear ready to sink the Crawford ship. One more and its lifespan will be half of that of Roberts.

Secondly, if the Court allows Crawford to survive, he must try to convince five Justices not to narrow the Court's conception of which hearsay declarants constitute "witnesses" such that the "core" cases (like Lilly and Crawford) become the perimeter of the Clause's reach.

If anyone can pull this off it is Fisher. But, for all of the reasons I previously stated on this blog, I don't think he will succeed.

How far the Court will go in concluding that statements from one private party to another private party (without any connection to any action or conduct on the part of the government) are not within the reach of the Clause should be very interesting.

As I have previously stated, I believe there are two routes that the Court can take to reach this conclusion.

First, there is no resemblance whatsoever between the manner in which any purely private party hearsay is created and the historical abusive government practice (of creating statements out of court in a coercive setting and using them in court as a substitute for live testimony to convict a criminal defendant) that gave rise to the Clause.

Second, the Clause is inapplicable as a bar to admissibility of hearsay in the absence of some action/conduct on the part of a "state actor" in creating the challenged statements. The Clause was "incorporated" via Fourteenth Amendment Due Process. And the later provision requires "state action" before it is operative as a bar to the admissibility of evidence. (See Perry v. New Hampshire and Colorado v. Connelly.) I don't see how the Clause -- a provision which is applicable to the states only because of the Due Process Clause of the Fourteenth Am. -- can act as a hearsay admissibility bar when the provision that makes it operative as a limitation on state sovereignty applies only if "state action" (in creating evidence) is present.

In any event, I am looking forward to reading Professor Fisher's brief and those of supporting amici.

Anonymous said...

paul, even when I disagree I respect your opinion so I want to ask a question that I genuinely do not understand. Regardless of whether or not the State court should have held that teachers are state agents, they did in fact hold so. On what basis does SCOTUS have the /power/ to overturn a State Supreme Court's valid interpretation of its own state law?

I know that SCOTUS has granted cert on just this question. My question is what statue or Constitutional provision grants them the authority to overturn the Ohio court on its legal conclusion.

paul said...

I think we discussed this issue in a previous post? But here goes (again):

The Court is deciding if the teachers were state actors (or, according to the too narrowly phrased first question, law enforcement agents) for purpose of the Confrontation Clause.

The fact that the Ohio court may have found them to be state actors (or, more precisely, law enforcement agents) for purpose of Ohio's mandatory reporting law is not binding on the Court in its interpretation of the Confrontation Clause. Or, stated differently, the Ohio court's exercise in statutory interpretation is not an adequate and independent state-law basis precluding review by the Court of the federal constitutional question.

I hope that makes sense.

paul said...

I previously argued on this blog (and in an amicus brief filed with the California Supreme Court in 2005 in Cage) that persons required by law to report suspected abuse were not, by virtue of those laws alone, state actors in general, or law enforcement agents in particular, for purpose of determining the applicability of the Confrontation Clause (CC) to hearsay statements obtained by such mandated reporters.

Upon further consideration, and as nonpartisan observer, I believe there is a reasonable argument that mandated reporters are state actors for purpose of the CC.

I reach this conclusion because nearly every jurisdiction imposes criminal penalties (ranging from fines to felonies) for failure to report suspected abuse, and for falsely reporting abuse.

Thus, a mandated reporter who observes a child with a black eye (that could have been caused innocently or criminally) is placed in the following position because of the mandated reporting law:

Either (1) report the injury WITHOUT questioning the child as to the cause (and risk criminal liability for false reporting) or (2) question the child as to the cause BEFORE reporting.

Thus, while mandated reporting laws do not expressly require questioning of the child, when one considers the potential criminal liability (for false reporting and failing to report), those laws have the effect of pressuring/coercing a mandated reporter (who observes a child with injuries that could have been innocently caused or caused by a criminal act) to engage in limited questioning as to the cause of the injuries.

I believe the potential imposition of criminal penalties (for false reporting and failing to report), transform what would otherwise be questioning by a purely private party into questioning by a state actor, albeit not an agent of law enforcement pursuant to principles of agency law.

That conclusion -- that mandated reporters are state actors when they question a child who they suspect was injured as a result of a criminal act -- requires the Court, once again, to determine which iteration of the primary purpose test is most consistent with the text and history of the CC.

As I first advocated on this blog, and as four Justices subsequently agreed in Williams, a hearsay declarant (such as a child with a black eye who is questioned by his teacher or any other professional or citizen designated as a mandatory reporter) should not be deemed a "witness[] against" a criminal defendant unless the primary purpose of the questioning was to accuse a "targeted" person of a crime or, stated somewhat differently, to build a case against a particular person for whom there exists "reasonable suspicion" to believe engaged in criminal conduct, to wit, the infliction of the black eye on the child. (I do not believe that the statement must have been made under "formal" circumstances in order for the child to be deemed a "witness[] against.")

Until the threshold of "reasonable suspicion" is met, the questioning does not result in the child being a "witness[] against" within the meaning of the CC. Or stated another way, until the "reasonable suspicion" threshold is met, the statements are not "testimonial" (as that term is used in Crawford as a proxy for the actual text of the CC).

If the Court adopts a different version of the primary purpose test that does not include the "targeted" limitation (i.e., the "reasonable suspicion" threshold), the black-eyed child's statements identifying his criminal assailant would most likely be "testimonial" and, thus, assuming the child understood that he was accusing someone of a crime, inadmissible at his attacker's criminal trial, even if they were reliable (when considered in light of other evidence admitted at trial or the circumstances in which they were uttered), even if they were critical to ascertaining the defendant's guilt, and even though the child was unavailable to testify at trial because of no fault of his own.

Anonymous said...

You did respond in the other thread paul; I had forgotten about that. Thank you for kindly taking the time to respond again. In the meantime, I came across Castle Rock vs Gonzales (2005). There is an extensive discussion between the majority and the dissent about when SCOTUS should defer to another court's interpretation of state law. Castle Rock involved a federal circuit's interpretation of a state law. Now, one could distinguish Clark on the grounds it involves a state court's interpretation of state law. Nevertheless, Justice Scalia's majority opinion--writing 7-2--convinces me that SCOTUS will have no problem interpreting the Ohio law de novo.

The most interesting aspect to the first certified question in Clark now is Justice Ginsburg vote. Given that she dissented in Castle Rock, consistency would require her to defer to the Ohio Supreme Court. Let's see if she does.

Richard Friedman said...

I can easily believe that if the Court reaches this part of the case, and if it decides that a crucial question under the Confrontation Clause is whether the audience of the statement was an agent of the state, that question is to be decided as a matter of federal constitutional law for purposes of the Confrontation Clause and not to be precluded by the state's own characterization. But:

(1) I'd still expect the state characterization to carry some weight.

(2) Much more fundamentally, as I've said many times before, I think that it would be a very poor interpretation of the Clause to limit it to statements made to government agents. Statements made to private persons, in full anticipation of prosecutorial use, can be just as testimonial as statements made directly to a government agent. It is entirely predictable that if only statements to a government agent are considered within the Clause, a system of private testimony takers will arise, and the confrontation right will become essentially a matter of witness choice. ("Give us a video tape, we'll take it to court, you can go away, and you never have to appear.") As many times as I've made this point, I'm not sure I've ever seen a response to it.

None of which is to deny that who is the audience of a statement is a crucial factor in determining whether the statement is testimonial. It's just to say that a rule that only statements to government agents can be testimonial would be a disaster.

Anonymous said...

It is easy to understand your focus on the Confrontation Clause. But -- in what state would the hearsay rules permit this private testimony taking?

Anonymous said...

Maybe I'm missing something, but two things seem evident to me:

First, I don't think it would be wise for SCOTUS to defer to the Ohio Supreme Court's determination that the teachers were state actors. If SCOTUS was to leave to state courts the question of whether a questioner was a state actor or not for purposes of the CC, it would lead to the CC being applied inconsistently among the states. The question should be a matter of federal law.

Second, even if one accepts the argument that the mandatory reporting statute makes the teachers state actors to the extent they are acting under the statute, if the statute mandates only the reporting of suspected child-abuse, wouldn't the questioning of the child fall outside the scope of the statute's mandate, and therefore, not be state action?

paul said...

@ Professor Friedman

A system of "private testimony takers" that was intentionally designed as a conduit (from the private declarant to a private government-surrogate recipient) for the purpose of getting the statement into the hands of the government should be deemed an ineffective evasion of the CC's state action requirement.

Trial courts are adeqautely equipped to make this fact-bound determination.

Even Justice Thomas has an "evasion" (of the confrontation right) exception to his inflexible formality/solemnity requirement. And although I have not yet seen a case applying that exception, I can envision how it would operate at the trial court level.

Like a "private testimony taker" evasion exception (to the state actor requirement), it would require a fact-bound analysis -- something that trial courts do everyday in a variety of contexts.

@ Anonymous @12:11 PM

See my post above.

Because of the potential criminal penalties that attach to mandatory reporting laws (for false reporting and failing to report), designated reporters (a category that, in 18 states, includes all citizens) are effectively compelled to question the injured child to ascertain the cause of the injury. This is especially true if the injury is (unlike whip marks on a child's back that were obviously the result of criminal conduct by a third party) ambiguous, meaning that it (such as a black eye observed by a teacher when the child arrives at school) could have been caused in an innocent, non-criminal, manner or could have been the result of criminal conduct.

In these ambiguous injury situations the mandated reporter can either (1) ignore the injury and not report (thereby risking criminal prosecution for failing to report), (2) report the injury without questioning the injured party as to the cause (thereby risking criminal prosecution for falsely reporting), or (3) question the injured party as to the cause of his injury to determine if it happened innocently or was the result of criminal conduct and, if the later, report (thereby eliminating potential criminal liability for failing to report and falsely reporting).

So, yes, on their face mandatory reporting laws don't mandate questioning. But when one considers the potential criminal liability (for false reporting and failing to report) their practical effect is, to some extent, to pressure, compel, or coerce the designated reporter to question the injured party as to the cause of their injury. And this pressure is most acute in the case of ambiguous injuries.

Critical analysis of my argument is appreciated.

Richard Friedman said...

In response to the 9:22 Anonymous comment: The fact is that lots of states have adopted laws that, absent constitutional constraint, would allow statements of the sort that I mention; for example, some states have provisions for statements by those of "tender years" or those reporting domestic-violence. There is no reason to think that states wouldn't take advantage of the leeway that the Supreme Court gives them. I said that the confrontation right would become a matter of witness choice; I suppose I should have said it would become a matter of choice by the witness and the state.

In response to Paul's comment:

(1) I'm not sure what would be the basis for calling such a system of testimony takers an evasion; if the statements are not testimonial, then arguably there's nothing wrong with setting up a system to take and report such non-testimonial statements.

(2) If, as Paul seems to recognize, there is something wrong with taking such statements systematically, isn't it really that everybody realizes that the statement is made in anticipation of evidentiary use?

(3) Is there really a material difference between a situation in which someone takes a statement in a given case in which the declarant understands it will be transmitted for evidentiary use and a situation in which this is done systematically? Would we want to police that line? Suppose victims' rights groups publicize: "If you are hurt, have a friend make a video tape of you and bring it to the prosecutor. Then you won't have to come to court." What then? Is there any reason to suppose this wouldn't happen if it were allowed?

(4) Given that we disapprove of the confrontation right being defeated by a systematic private conduit, why on earth would we allow it to be defeated by a conduit mandated by the state, whether the person performing the function is deemed a state agent or not?

(5) Woe unto us if in a central aspect of the confrontation right it becomes a matter of case-by-case determination. It just wouldn't have much meaning.

Anonymous said...

Anonymous @12:11 says.

"If SCOTUS was to leave to state courts the question of whether a questioner was a state actor or not for purposes of the CC, it would lead to the CC being applied inconsistently among the states."

We get to that same inconsistency in any event. The reason is that unlike a doctor or a nurse, a teachers professional responsibilities encompass a wide range of behaviors many of them more personal than professional. There is a reason the teacher is often called "the local parent". Imagine if SCOTUS said that "teachers" were witnesses for CC purposes? Well, what teachers? All of them? Only in the classroom? What about the teacher who is also a coach? or the teacher who is also an administrator? A teacher is a very very generalized concept. Moreover, the specific duties that teachers have varies from state to state. So the upshot would be is that one wouldn't get rid of state variation in terms of who was a witness for CC purposes--it would just be shifted from the foreground to the background as states varied in their definition of "teachers". So the only way there would be any consistency is if SCOTUS declared that teachers were not witnesses.

Here's the rub. If one believes that who is a witness for CC purposes should turn on a matter of federal constitutional law, how can one incorporate into such a federal definition a category of persons whose own definition lies in the hands of the various states? If whether a person is a witness for CC turns on whether a person is a state actor, inconsistency is the name of the beast.

paul said...

Professor Friedman,

When all is said and done, it seems to me that each Justice must decide if the testimonial approach adopted in Crawford (and refined in Davis, Bryant, et al.) is the most accurate reflection of the historical meaning of the term "witnesses against."

If their opinions in Williams, Bullcoming and Melendez-Diaz are any indication, I believe that four Justices (Roberts, Kennedy, Alito & Breyer) do not feel that the Crawford testimonial approach is an accurate reflection of the history (in particular Raleigh's Trial) that led to the adoption of the CC.

Rather, as I have argued, ad nauseum, a hearsay declarant is not a "witness[] against" unless the primary purpose of their statement was to accuse a "targeted" person of a crime. This formulation very closely resembles, if it is not identical to, the accusatory hearsay of Lord Cobham implicating Raleigh.

In addition to this historically-based primary purpose test, the government must have played some role, however minimal, in connection with the creation of the challenged hearsay. This clearly occurred when the Crown used coercive interrogation against incarcerated Cobham to get him to implicate Raleigh, and when the Crown introduced that tainted, unreliable, hearsay against Raleigh at his trial without affording him an opportunity to "confront" his accuser. Thus, there is a very clear historical basis for requiring "state action" (in the creation and introduction into evidence) before the CC can serve as a bar to admissibility of hearsay. (In addition to the fact that the CC was "incorporated" via 14th Am. DP and the later can't serve as an admissibility bar unless a "state actor" played a role in creating the challenged evidence.)

Finally, a point on which I believe we both agree, the declarant must have some understanding that they are acting as a witness against the accused when they make their statement.

Ohio v. Clark provides the Justices with yet another opportunity to revisit the historical accuracy upon which the Crawford testimonial approach is based. Many esteemed academics have criticized Crawford's historical foundation. But no one disputes the significance of Raleigh's Trial as part of this historical picture.

Whether or not the four Justices who have embraced the "targeted" approach will take the next (historically sound) step and incorporate a state action requirement into the CC hopefully will be answered in Clark. Indeed, I suspect that Justice Thomas will also hold that state action (in terms of the creation of the hearsay) is required before the CC can function as an admissibility bar.

If anything else, this constitutional question has simply highlighted the role that history plays in interpreting the Constitution. And how difficult it can be to accurately, and objectively, ascertain what, precisely, that history reflects.

All the best.



fern and charlie nesson said...

Richie, you make a number of points, to which we are pleased to respond.
(1) The Nessons are just plain wrong, .... There's no need to refer to the rule against hearsay in describing the confrontation right, which long predates the hearsay rule.

Response: What makes you think (a) that the confrontation right long predates the hearsay rule? And do you deny that Crawford calls for exclusion of testimonial hearsay? You can call it whatever you want. In fact, what do you call it?

(2) The Clause is meant to ensure that witnesses are brought face to face with the accused rather than being allowed to testify in any other way, such as by speaking privately to officials.

Response: Yes, and how can you say this and yet not recognize the Clause as a production rule?

(3) If [production of a minimally adequate case is] what the confrontation right meant, it would have become apparent long ago.

Response: It was. Raleigh and Kirby are good authority for that. How do you dispute our reading of those cases? Do you not recognize that twentieth century confrontation doctrine has been a mess?

(4) And the Confrontation Clause wouldn't have been worded as it was.

Response: The wording of the clause says that the prosecution must confront the defendant with witnesses, not the other way around. Do you just pretend this isn't so?

(5) the Nessons believe the Constitution would have nothing to say if the prosecution presented a bunch of videotapes of people who choose not to come to court but want to bring their accusations of the defendant to he attention of the jury, so long as the prosecution presents sufficient evidence to support a conviction. That's unlike anything we've ever seen ...

Response: Yes. You ignore the operation of hearsay to exclude these statements. If there is a hearsay exception under state law that admits them, then they corroborate but do not constitute the state's case. Hearsay to corroborate has been around for a long time,

(6) and it's pretty bad.

Response: Raleigh's conviction was pretty bad because there was no evidence other than the hearsay. Evans' conviction (Dutton v. Evans) was not "pretty bad" because there was good (non hearsay) evidence constitutionally sufficient to convict him. The hearsay introduced against him was corroborative. What is "really bad" is your willingness to tolerate bad convictions based on hearsay alone, just so long as it is not 'testimonial' hearsay.

Richard D. Friedman said...

Seeing the Nessons’ comment reminded me that I had been meaning to respond to a couple of points in Paul’s last comment, but I was too rushed when he posted it. So I’ll start with that, and then I’ll begin responding to the Nessons, but I’ll have to do that in pieces.

I won’t respond to most of Paul’s last comment, because it goes over old ground, but I do want to focus on two points.

First, he says he expects we agree that “ the declarant must have some understanding that they are acting as a witness against the accused when they make their statement.” Well, I agree in part. I think that for a statement to be testimonial the declarant has to have some understanding of the likely use of the statement as some form of evidence. But there is no need that the declarant understand that she was “acting as a witness against the accused.” If the declarant gives the police a full description of a crime but offers nothing to identify the perpetrator, that’s testimonial. Or suppose an investigator for the state approaches a person and says, “We believe you have information that may be significant proof in a criminal case, and we want to take a formal statement from you, so that you don’t have to come to court. If it turns out that your statement inculpates the eventual accused, we’ll use it against him. If it turns out to exculpate him, we’ll give him note and presumably he’ll use it. But either way, you won’t have to come to court.” If in fact the statement inculpates the accused and is used against him, the confrontation right should apply.

Second, Paul says that “no one disputes the significance of Raleigh's Trial as part of this historical picture.” Well, I sort of do. Sure, Raleigh’s case was a very significant one and was well known to the drafters of the Confrontation Clause and its state predecessors. But it was one case, and an early one at that, among many. There were nearly two centuries of development between Raleigh’s case and the codifications of the confrontation right in American constitutions. Raleigh was a part of the picture, but only a part, and it was a densely filled-in picture at that.

On to the Nessons. For now, I’ll just reply to their first point. They ask: “What makes you think (a) that the confrontation right long predates the hearsay rule? And do you deny that Crawford calls for exclusion of testimonial hearsay? You can call it whatever you want. In fact, what do you call it?” I’ve written many times about the confrontation right long predating the hearsay rule. Dial-In Testimony, 2002 U Pa L Rev at 1201-09, is one example. I think I’ll just stand on the demonstration of the point there. I really don’t think there’s much doubt about it. Clearly Crawford calls for the exclusion of statements now labeled as hearsay that are testimonial in nature, but it doesn’t do so on the basis that they’re considered hearsay. I’d say that Crawford prevents the use against an accused of testimony given by a witness with respect to whom the accused has not had an opportunity for confrontation – and recognizing that a statement may be characterized as giving testimony, even though it was not part of a judicial proceeding, if it was made in the anticipation that it would be used as evidence in some later proceeding.

charlie nesson said...

Richie, your stand on the demonstration you made in Dial-In Testimony, 2002 U Pa L Rev at 1201-09, "about the confrontation right long predating the hearsay rule", clarifies our difference. your are talking about development of an evidentiary rule to exclude hearsay, i.e., the hearsay 'rule'; we are talking about Raleigh's concern about being convicted solely on the basis of hearsay.

[you say] Similarly, the law against hearsay has not played a role in this account. [because you have left it out. Raleigh's case was all about the inadequacy of hearsay to constitute a legal case for a jury to resolve. quote after quote] Hearsay doctrine, like evidentiary law more generally, was not well developed even at the time the clause was adopted, much less during the previous centuries. [we are not talking about hearsay 'doctrine' but whether hearsay alone could make a legal case] The tendency to meld the confrontation [1209] right and hearsay, as we shall show, is a latter-day development. [doctrinally the two don't mix until Mattox, which is where the confusion begins] As this historical account and the language of the Confrontation Clause indicate, the clause was not an attempt to constitutionalize the nascent law of hearsay. Rather, it plainly expressed the basic procedural principle [here we go, now he's going to tell us] that if a person acts as a witness against an accused, the accused must have an opportunity to confront that person.

[The history you recount does not demonstrate any such principle as "if a person acts as a witness against an accused, the accused must have an opportunity to confront that person" unless you limit the reach of what it means to "act as a witness against an accused" by testifying against him in court before the jury. that's what gives rise to a right of cross examination, which applies to all witnesses who testify against him.]



c&f nesson said...

Raleight quotes, from Jardine, Criminal Trials (1847)

"In all this I find not myself touched, scarce named; and the course of proof is strange; if witnesses are to speak by relation of one another, by this means you may have any man's life in a week; and i may be massacred by mean hearsay.
[at 429]

"It is only Cobham's accusation, never subscribed, never avowed, never sworn to by him; all your suspicions and inferences are but to fortify his accusations. [430]

"Now if you yourselves ... like to be hazarded in your lives, disabled in your posterities -- your lands goods and all you have confiscated, --your wives, children and servants left crying to the world; if you would be content all this should befal you u[on a trial by suspicions and presumptions, -- upon an accusation not subscribed by your accuser, --without the open testimony of a single witness, then so judge me as you would yourselves be judged. [at 442]"

Raleigh's objection was to the legal inadequacy of the prosecution's case against him, based as it was only on hearsay.

Richard D. Friedman said...

I still mean to respond to all the questions that Charlie and Fern have posed for me. But given that I'm nearly 40 years removed from Charlie's Evidence class -- in which I did very well, I'm proud to say -- and giving my own exams now, with one still unwritten, I've had to push that aside. I've got to offer some quick replies to these latest comments, though.

Yes, Raleigh's statement can be interpreted as saying, "Put aside Cobham's statement, and you've got nothing on me." And let's suppose that we can assume that the argument by Raleigh, a non-lawyer litigant, reflects the law. But Raleigh was claiming a strong case -- that they had nothing else on him. His statement indicates nothing whatsoever about what happens is he had a weaker position, in which the prosecution did have adequate other proof against him. So, just as a logical matter, Raleigh's statement doesn't prove what the Nessons want to draw from it -- which as I understand it is that if the prosecution proves a legally sufficient case against the defendant then it is free to add to that out-of-court testimony, not subject to confrontation, given by as many witnesses as it wishes. If that were so, then I think it would have shown up in the cases, with prosecutors saying, “I can use this out-of-court statement because look at all the good evidence I’ve presented.” You never see anything of the sort in the old cases. Statute after statute beginning in the sixteenth century guaranteed the accused’s right to have the witnesses brought face-to-face with him. They never referred to the quantum of other evidence against the accused. This was not, or at least not merely, what the Nessons would like to turn it into, a right to cross-examine the witnesses who showed up at trial. The whole point of these statutes was to ensure that the witnesses were in fact brought to trial.

And yes, Raleigh did speak of hearsay. But you’ll find rather few references to hearsay going back that far. There really wasn’t a developed law of hearsay, which requires some conception of what hearsay is and some set of limitations on a rule excluding hearsay (because it’s never been true that all hearsay is inadmissible, which would not be feasible). I’m not sure that the Nessons disagree with this. But there was a well-developed law of how witnesses must testify.

I think that careful examination of all the historical materials, especially from the 16th century on – not just occasional passages from Raleigh’s argument, but the whole run of treason cases, the practice in mundane cases, the numerous treason statutes, and commentaries – makes it very clear that the confrontation right was an expression of the English manner of giving evidence, which they regarded as one of the great glories of their system: Witnesses against an accused give their testimony face to face in open court. For example, Sollom Emlyn writing in 1730 in his great collection of state trials: “ “In other Countries, the Witnesses are examin'd in private, and in the Prisoner's Absence; with us, they are produced face to face, and deliver their Evidence in open Court, the Prisoner himself being present, and at liberty to cross-examine them....” You don’t find in any of these statements a qualifier to the effect, “But of course, if the prosecution produces enough other evidence to make a sufficient case of guilt, never mind.”

Anonymous said...

There is a more fundamental error in the Nesson's position--they attempt to isolate changes in the criminal law from legal developments in other areas of the law. The idea of forcing people into court as witnesses is something not isolated to the criminal law. One area of law were witnesses were becoming increasingly important to the legal system at the time of the Constitutional Convention was marriage. The founders were indubitably well aware of the 1753 marriage act in England that forbid clandestine marriages and required the publication of banns, which was a radical change in the law from the prior English tradition of private marriage vows known as "handwaiting". In fact, the colonies were at the forefront of this movement. North Carolina had passed a similar law in 1741.

It is plain error in my view to treat the Confrontation clause (because it is a criminal provision) as arising solely out of concerns for criminal justice. The adoption of the Confrontation Clause was part of a much larger movement in the legal system at the time. The key issue in both the criminal law and in marriage law during the Colonial period was to force people to declare their intentions publicly. In this regard the Confrontation Clause (a witness against) is best viewed as the legal counterpoint to the benign demand for witness at marriage. To be sure, the Raleigh case was an important justification for the Conformational Clause--but the demand for the Clause itself arose from broader concerns than mere criminal justice.

fern and charlie nesson said...

Friedman Amicus Brief:
Children who lack the understanding of the potential consequences of their statements and the gravity of their consequences should not be deemed to be a witness within the meaning of the Confrontation Clause.

Reports of the child’s statements may nevertheless be admitted ….



Richie, you find yourself agreeing with fern and me, even though you don’t realize it. We maintain that the confrontation clause bars conviction based on hearsay alone. Hearsay, we say, is insufficient to “bear witness” of the prosecution’s case to the jury. You seem to agree, at least for child hearsay. You say the incompetent child is not, by definition, a ‘witness’ at all. But surely you do not mean that the prosecution case should be submitted to the jury based only on the child’s hearsay because that would condone conviction without any “witness against” at all!

Once you agree that the child testimony is not ‘competent’ to prove the crime, you must necessarily ask the ‘sufficiency’ question: Is there ‘competent’ evidence to prove the defendant guilty? Hearsay is ‘incompetent’ to do so, and not just child hearsay. This is the great confrontation principle for Raleigh fought to articulate.

As you say, incompetent hearsay may have some probative value, and may thus be properly considered by the jury, which determines all matters of credibility and reasonable inference relating to the defendant’s guilt. As a federal constitutional matter, hearsay may be admitted (or not, depending on state law) to ‘corroborate’ an otherwise competently proved prosecution case.

We don’t want convictions based solely on such evidence, and we don’t want to exclude such evidence from the jury’s consideration.

We accomplish both goals by recognizing the role of such evidence as corroborative but not competent to convict.

The state must confront the defendant with competent witnesses against him sufficient, if believed by the jury, to prove his crime.

Do you disagree?

fern and charlie nesson said...

Richie, Jeff,

We love it that counsel for both sides and the SG's office are on this email chain. i'd like to see us deliberate what is sense and what is nonsense here, and on your blog, and on the evidence faculty discussion list. Rule 37 declares that the Clerk will not file a reply brief for an amicus curiae.

As Paul Rothstein cogently pointed out on your confrontation blog:
If their opinions in Williams, Bullcoming and Melendez-Diaz are any indication, I believe that four Justices (Roberts, Kennedy, Alito & Breyer) do not feel that the Crawford testimonial approach is an accurate reflection of the history (in particular Raleigh's Trial) that led to the adoption of the CC.

In other words, the big question implicitly before the Court is the continued viability of Crawford’s hearsay approach. Surely this is worth discussing among counsel and true friends of the court. Fern and I are proud to have brought this issue to the surface in our brief formally filed with the Court, and we are delighted to further debate the wisdom (or lack thereof) of construing the Confrontation Clause to be a constitutional hearsay rule instead of a 'mere' production requirement.

Jeff, you dismiss our brief in a throw-away footnote, asserting without explanation: "Transforming the Confrontation Clause into a mere 'production requirement' would flout the Clause's text, history, and precedent." (emphasis supplied)

(a) text: The wording of the clause says that the prosecution must confront the defendant with witnesses, not the other way around; 'witnesses' refers to those who testify in court against the defendant, consistent with usage in other clauses of the bill of rights, not to out-of-court hearsay declarants. You read “cross-examination” into the clause when it is not there. Flout that!

[ history and precedent in the following post]

fern and charlie nesson said...

(b) history:: we can't do better than to quote Wigmore's seminal history of the hearsay rule (harvard law review 1904) at length:

During the 1500's and early 1600's much is found to be said, in the trials, about the number of witnesses, their sufficiency in quantity and quality. Juries were just beginning to depend for their verdict upon what was laid before them at the trial, and it was thus natural enough that they should begin to ask themselves, and to be urged by counsel to consider, whether they had been furnished with sufficient material for a right decision.

Much begins to be thought and said, in statutes and otherwise, about having witnesses " good and lawful," " good and pregnant," "good and sufficient." …
But now that their verdict depended so much on what was laid before them at the trial, and now that the sufficiency of this evidence, in quantity and quality, began to be canvassed, it came to be asked whether a hearsay thus laid before them would suffice. …

(1) In the first place, then, there is no exclusion of hearsay statements. Through the 1500's and down beyond the middle of the 1600's, hearsay statements are constantly received, even against opposition. They are often objected to by accused persons, and are sometimes said by the judge to be of no value or to be insufficient of themselves, and are even occasionally excluded. …
(2) In the meantime, the appreciation of the impropriety of using hearsay statements by persons not called is growing steadily. By the second decade after the Restoration,' this notion receives a fairly constant enforcement, both in civil and in criminal cases.
(3) At the same time, and along with this general rule of exclusion, there is still a doctrine, clearly recognized, that a hearsay statement may be used as confirmatory or corroboratory of other testimony. Here we have the survival of that notion about sufficiency and quantity, already referred to. A hearsay statement, by itself, is insufficient as the sole foundation for a conclusion; by itself it "can condemn no man," and so, by itself, it is excluded; but, when it merely supplements other good evidence already in, it is receivable.


(c) precedent: Raleigh is our strongest precedent. As you conceded, richie, "Yes, Raleigh's statement can be interpreted as saying, "Put aside Cobham's statement, and you've got nothing on me."' Exactly. Jeff, you dismiss a 'mere' production requirement lest "the prosecution could put a single eyewitness on the stand and then present the rest of its case by affidavit." Yes, that is exactly the point. Had the prosecution produced an eye-witness to testify against Raleigh, his nascent right to be confronted with the witnesses against would have been satisfied, without concern for whether corroborative hearsay was introduced. The eye-witness would offer competent proof. Raleigh would no longer say "you've got nothing on me" but hearsay.

By “precedent” you must mean Mattox (and progeny), in which the Court first misconstrued the Confrontation Clause as a hearsay rule, followed by a century of constitutional fusion and squabbling among justices, and now epitomized by the nonsical idea that application of the constitutional clause should turn on whether a reasonable child in the unavailable declarant’s position would have foreseen that his statement would be used as evidence in future criminal proceedings.

Fern & Charlie Nesson

fern and charlie nesson said...

Dear Fred,
Strands of misunderstanding run through opinions and academic discussion of the Confrontation Clause and hearsay. Fern and I thank you for responding to our posting in a way that allows us to further address the confusion.

The confrontation clause recognizes that witnesses sworn and testifying before a jury are competent to prove a defendant guilty of a crime. Witnesses testify to the elements of a charged crime in order to establish warrant for the court to submit the prosecution’s charge to the jury for judgment, guilty or not. The aggregation of admitted witness statements constitutes the body of evidence. At the close of the evidence, the judge determines whether the prosecution’s accusation should be submitted to the jury. The question for the judge to determine is whether there is evidence competent to prove each element of the crime. This requires the judge to consider whether there is sworn testimony of witnesses with personal knowledge that warrants conclusion beyond reasonable doubt, if believed. The credibility of the witnesses who have testified has nothing to do with this determination by the judge. All issues of credibility are left to the jury. The judge determines only that in the event of a guilty jury verdict, a solid framework of evidence has been heard and recorded to support it.

Hearsay is not competent for this purpose. Hearsay does not warrant a conclusion of criminal guilt, with resulting loss of freedom.

The right to confrontation requires the prosecution to prove its case to a jury in open court with competent evidence. The history of the legal articulation of this right is often said to be response to proof by formal statements recorded before magistrates. While true, the inference drawn is often backwards, that such testimonial statements limit the reach of the responsive clause. The strength of this confrontation principle is represented by historical rejection of the best hearsay the king’s prosecutors could produce, to wit, citizen reports given to a judicial magistrate under sworn oath. Compared to the rumor and secret source of accusations sufficient in the dark says of Inquisition and Star Chamber, statements recorded before magistrates was a great advance. But even this high-quality, formalized, sworn hearsay succumbs to the confrontation principle. Hearsay is not competent alone to prove a defendant’s guilt.

fern and charlie nesson said...

This is not to say that hearsay is inadmissible. Although hearsay alone is not competent to prove criminal guilt, it may well be considered by a jury along with other evidence which is competent to prove the point. Credible hearsay is competent to corroborate a conclusion for which there is competent proof. Hearsay evidence in this respect is unlike evidence tainted by illegal search, subject to 4th amendment exclusion, or a coerced confession, subject to 5th amendment exclusion. Credible hearsay is not constitutionally tainted evidence.

Wigmore is talking about the hearsay rule, not the confrontation clause. He is telling the story of cross-examination accompanying the rise of the right to counsel. He charts the evolution of judicial effort to discriminate in administrable fashion between credible and incredible hearsay, which corresponds to the legal embodiment of a right to cross-examine in hearsay exclusionary rules. This is our modern hearsay rule, with all is nuanced exclusions and exceptions.

Wigmore champions cross examination as the greatest engine for truth. He is the seminal articulator of its glory. When wigmore speaks of “the vital importance of the rule securing the right of cross-examination” he is speaking about the rule against hearsay. And indeed, it is a majestic structure with its nuanced definition and numerous exceptions, developed through court practice and legal decision over a long time, and ardently defended against “reformers” who advocate rule-changes to allow hearsay to be freely admitted in trial. The right to cross-examine is the rule against hearsay.

Raleigh’s case, in retrospect, stands for the principle that a prosecution charge may not be submitted for jury consideration in the absence of evidence legally competent to support it. That becomes the demand of the Confrontation Clause.

Confrontation relates to the legality of submitting the prosecution charge to the jury, hearsay relates to the jury’s basis in evidence to resolve it.

All respect,

Fern and Charlie

fern and charlie nesson said...

Today i had the pleasure of talking about our brief with Alex Whiting. Alex is a prosecutor who teaches evidence and trial. He offered a testing hypothetical, much like Roger's example of an element of an offense proved only by a 'business record.' Alex asked what the outcome under our approach would be to a prosecution based solely on the hearsay report of the statement of a co-conspirator? Like Roger's example, this too serves only to confirm our construction. The statement of a co-conspirator during the pendency and in furtherance of the conspiracy is regarded as a statement of the defendant.

Alex also offered a reason, beyond purpose, text, history, and logic, why our construction of the Confrontation Clause might be preferred to Scalia's 'testimonial hearsay' construction, -- coherence. Thank you, Alex.

Peter Murray offers this comment, shared with his permission:
Dear Charles -
This comes to you from New Zealand, where Debby and I are spending the month of February. Given conditions in New England, we recommend it!

I read your brief to the USSCt with great interest. Basically, you are arguing for a use or sufficiency standard instead of the current admissibility standard. I agree with you. It is the use of the evidence to ground a conviction, not whether the fact finder learns of the evidence that counts. As you argue, if any element of the conviction finds its sole support from unconfronted evidence, the conviction would violate the Confrontation Clause.

Interestingly enough, the focus on use or sufficiency of evidence rather than admissibility is much more common in civil law fact analysis. By our obsession with admissibility, common law jurists often overlook the more fundamental issue of sufficiency.
There is a precedent for a constitutional sufficiency standard in the US Constitution, Article III, Section 3 on Treason, where the Constitution states something like - no person shall be convicted of treason except on testimony of at least two witnesses in open court. As you can see, this is the kind of standard you are arguing for - one of sufficiency, not admissibility. Your argument is that the Confrontation Clause requires that no one can be convicted of a crime except by confronted evidence.

For the sake of Justice Scalia, my suspicion is that at the time the Constitution was written, issues of sufficiency of evidence were of greater prominence than they have become after two centuries of an admissibility culture.
Good luck, and good on you!

charles & fern

fern and charlie nesson said...

Posted with Raymond's permission:


Dear Professor Nesson,

Thank you so much for forwarding the amicus brief. I was pleased to have the chance to read it--it is excellent. You make several exceptionally important points.

In general, I agree with you, especially on the point that statements from otherwise incompetent victims, such as children, should be admitted as corroboratory evidence. I made a similar suggestion in an amicus in Giles v. California (2008) submitted on behalf of the National Association of Counsel for Children. But it failed to gain traction at the time.

I agree that, as you observe, the Court has created a rather arbitrary and historically unsupported construct that attempts to sort statements into "testimonial" and "non-testimonial" buckets. And as you also correctly note, there is little historical reason to view cross-examination as the sine qua non of confrontation. Raleigh wasn't demanding the chance to cross examine Lord Cobham--he wanted his accuser to appear live in court to level the accusation (something, as you noted, he did not think Cobham would actually do).

I thought your summary of the Raleigh's case to be very compelling. The view you propose in your amicus walks a reasonable middle ground--it does not allow for prosecution by hearsay as Raleigh faced. Nor does it require complete exclusion of victim statements.

Historically, this is also consistent with my prior research looking at evidence practices at Old Bailey. See History of Children's Hearsay, 82 Indiana Law Journal 1029 (2007). Contrary to where Justice Scalia stands on this, I'm not convinced that the Framers where so shortsighted that they believed that that victim's statements should be categorically excluded on a "confrontation" basis, versus merely not be permitted as the basis for a prosecution. I think your point of allowing such statements as corroboratory evidence (but not as the sole/primary evidence) is historically defensible.

I wish you and your wife the best of luck in your research and efforts. Thank you for your great kindness of keeping me posted on your work. It is compelling, thoughtful work on a topic that needs a voice like yours to lend it attention.

Best regards,

Ray

Raymond A. LaMagna

GIBSON DUNN

Gibson, Dunn & Crutcher LLP
333 South Grand Avenue, Los Angeles, CA 90071-3197
Tel +1 213.229.7101 • Fax +1 213.229.6101
RLaMagna@gibsondunn.com • www.gibsondunn.com

fern and charlie nesson said...

KAGAN: We can all obviously agree that three year olds don't form any kind of intent to make testimonial statements. But that would suggest that the Confrontation Clause just doesn't come into play at all with respect to any people without the capacity to form that kind of legal intent. That seems not right to me.

RichieL Does that seem right to you?

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