Thursday, January 08, 2015

Respondent's brief in Ohio v. Clark

Here is the brief of the respondent Clark in Ohio v. Clark.  Briefs of amici in support of respondent are due the 14th.


paul said...

As usual, a very well-written brief by Professor Fisher. He and his Stanford team are first-rate Supreme Court advocates -- among the best in America.

It was nice to see that Prof. Fisher seems to concede that "resemblance" to Raleigh's Case is critical in determining which hearsay declarants are "witnesses against" a criminal defendant under the CC.

And his realization that at least four Justices will not deem hearsay "testimonial" (under the Crawford framework) unless the "primary purpose" of the investigative questioning was to "accus[e] a targeted individual of engaging in criminal conduct" is a good start to the Court finally agreeing on a coherent CC framework. (See Respondent's Br. 42-43.)

Lastly, he realizes that the Williams plurality might join Justice Thomas in requiring some degree of "formality" before hearsay can be deemed "testimonial," i.e., before it will sufficiently resemble the circumstances under which the Crown extracted the accusation (against Raleigh) from incarcerated Cobham's mouth. If that five Justice majority coalesces, Hammon might have to be overruled because, although the accussing-a-"targeted"-person-of-a crime primary purpose test was met in that case, the circumstances surrounding the government's eliciting the unsworn accusatory hearsay from the victim may not have been sufficiently "formal."

Finally, with respect to when a person has been "targeted," as I have stated on this blog for several years, that occurs when the (state actor/agent) questioner has developed "reasonable suspicion" that a particular person committed a particular crime. So, for example, in Hammon the police had reasonable suspicion to detain Hershel Hammon at the time they questioned his wife, Amy. Thus, the primary purpose of their questioning was to accuse a "targeted" person (Hershel) of a crime (domestic violence).

But the questioning of Amy didn't occur under sufficiently "formal" circumstances to satisfy Justice Thomas' conception of "formality." And it is certainly possible that the Williams plurality might adopt Justice Thomas' "formality" formulation in addition to their "targeted" person standard.

In the Clark case, assuming the teachers were state actors (because of their state-created mandatory reporting obligation), the primary purpose of their questions of the injured child were not to accuse a "targeted" person of a crime, at least until such time that they developed reasonable suspicion that a particular person (Dee) inflicted those injuries in violation of law. Moreover, there doesn't appear to be sufficient "formality" attending the questioning by the teachers to satisfy Justice Thomas or, if they adopt that requirement, the Williams plurality.

Chad Squitieri (UVA) said...

I found it interesting that the unavailability being "entirely of the State's own making" was a relevant consideration (Summary Part IV at 21). From a policy standpoint the argument is strong, as it would be an easy fix on the part of the state. It also narrows the issue at hand, and I would be interested in reading Professor Friedman's response to Footnote 6 (at 33).

Digging deeper though, this argument almost reminds me of the "close relationship" between the forensic labs and investigators in Melendez-Diaz/Bullcoming in that the relevant actors are potentially interrelated, especially when teachers are given the type of duty discussed in the Texas Attorney General bulletin (Part IV.B at 57). It seems there was a hint of this in the Brief with the discussion of providing a roadmap for states to systematically evade the adversarial process (Part IV.B at 57-58) though I am likely reading too much into it.

Regarding the teacher's perspective (Part II.A.2.a at 35) it seems the Court could use Clark to make clear that it is the marginal purpose (or "the means" used to achieve an ultimate goal) that counts under the primary purpose test, not the "ultimate goal" itself.

The studies regarding abusive parents and "programming" children (Part III.1) touches on an interesting point as well regarding the additional layer of hearsay (that of the parent to the child when "programming" the child, followed by the child repeating it elsewhere).

Overall I second the above comment that this was another very well-written brief by Professor Fisher.

paul said...

The fact that the child declarant's unavailability is solely because Ohio law -- which, arguably, unreasonably and contrary to Founding-era procedure -- deemed him incompetent to testify at trial is, under the Crawford (testimonial or nontestimonial) framework, irrelevant to a determination of whether he was a "witness against" the defendant (under the CC) at the time he made his hearsay accusation.

Perhaps this fact could support a post-conviction due process, i.e., fundamental fairness, argument if one was before the Court. But under Crawford's binary testimonial/nontestimonial approach it is legally irrelevant to a CC analysis.

I would note, however. that under Justice Thomas's designed to "evade" confrontation exception (to his formality rule) perhaps one could argue that, by defining unavailability so broadly, Ohio was creating a situation that, in some instances involving child hearsay, would permit an hearsay accusation to be admitted even though, but for the broad definition, the child declarant would have been available to testify at trial. I just don't believe that any Justice will believe that this was a purpose of Ohio lawmakers.

Rather, Ohio, perhaps rightly/wrongly so, presumes a child incompetent and, in turn, his testimony unreliable when compared to that of an adult. But, under the Crawford regime, reliability is irrelevant to the CC determination. Although, it still remains a relevant factor under the Due Process Clause -- a issue not before the Court in this case.

Bottom line: I don't see the manner in which Ohio defines competency to testify at trial playing a role in the outcome of this case.

Anonymous said...

I haven't had time to read the brief but I am puzzled by a part of Paul's first comment and I want to make sure I understand it correctly.

I take it Paul that you are saying that for something to be testimonial it needs to involve two factors. (1) It must target a specific person and (2)it must be formal testimony. Thus, under that standard, every time the police question someone with "Who did this?" The response by the declarant at the time can never be testimony for CC purposes because at that split second in time the cops were not targeting a specific person. However, if they ask a follow-up question such as, "Where is X?" or "How did X harm you?" the answers to such questions would be testimonial because now the police are targeting a specific person.

Is that a fair understanding of your views?

paul said...

"Where is X?" may not be asked for the primary purpose of "accusing" the person who was identified by the preceding "Who did this?" question.

An interrogation (by a state actor) with a primary purpose to locate an identified criminal (who is on the loose) does not produce a testimonial statement. (See Bryant & Davis.)

But the "How did X harm you?" question, following the identification of the person who inflicted the criminal injury (via the "Who did this?" question), most likely has the primary purpose of producing an accusation against the identified suspect -- X. It resembles the Crown asking Cobham questions designed to elicit answers that would implicate Raleigh -- the suspected criminal being "targeted" by the government.

All in all, I believe you get the gist of my argument.

Anonymous said...

Paul, the problem is not whether the plurality in Williams will adoption Thomas' formality requirement, the problem is whether Thomas will adopt the plurality's primary purpose test. Unless Thomas does a complete 180, this is highly unlikely. If you remember, Thomas agreed with Kagan's dissent, and stated that the plurality's primary purpose test "lacks any grounding in constitutional text, in history, or in logic."

Don't see your new majority forming anytime soon.

Anonymous said...

I've read the brief and I have two quite distinct reactions to it. From a policy point of view I think that Professor Fisher sounds all the right notes and makes all the strong arguments. However, I keep trying to hook up his legal analysis with what the court has ruled in the past on the CC and I'm just not getting five votes. In fairness, however, this is less because Fisher's legal analysis is weak and more because CC jurisprudence is so messed up. When the court itself is so fractured I really can't blame an advocator for throwing arguments at the wall and hoping something sticks.

So perhaps making the strong policy arguments and then hoping the court will find some legal way to support them is the best way forward. I'm cynical, however, because I can't see the court really making that great an effort when the victim is so emotionally sympathetic. I'd like to be wrong, of course, but certainly there is nothing in Fisher's brief that makes me feel he will obviously carry the day.

paul said...

I absolutely agree. Thomas won't budge. Why should he. He holds the Confrontation Clause trump card, a/k/a the one element "formality" test.

And he will hold the decisive vote in Clark, unless the case is resolved on the ground that the teachers were not state actors and, as I have previously argued on this blog for several years, the Confrontation Clause, like the Due Process Clause, can't serve as an admission bar in the absence of some conduct by some state actor or their agent in the creation of the out of court evidence.

However, it should be noted that there was a hint (albeit a small one) in Thomas's opinion in Williams that he is open to allowing the primary purpose of a government interrogation to play a role (in addition to formality).

In the past, Justices have done a 180 on constitutional issues, including the Confrontation Clause (compare Harlan's opinion in Green to his opinion in Dutton). So hope springs eternal.

paul said...

I agree. From a strictly intuitive, normative, perspective the idea that a court can prevent a person from testifying on the ground that they are not competent (I.e., that their proposed testimony would be too unreliable to put before a jury), but then permit the prosecution to introduce that incompetant person's accusatory hearsay allegation rubs me and all fairminded persons the wrong way. It just doesn't seem fair.

Unfortunately, the Court's CC framework, as explicated in Crawford, isn't concerned with reliability/substantive fairness. It is simply a procedural requirement that in any given case may, or may not, result in an objectively fair outcome.

After Crawford, fundamental fairness arguments regarding the admission of hearsay (even unreliable hearsay) must be couched in due process terms.

And no due process argument is before the Court in Clark.

Perhaps Professor Fisher wishes he hadn't been so successful in Crawford. Or at least his present client - defendant Clark - might feel that way.

Be careful what you wish for.