Sunday, February 22, 2015

Responses to the Nessons

[Slightly edited, Feb. 24, 2015]

Charlie and Fern Nesson have been energetically promoting their view of the Confrontation Clause, on this blog and in other forums.  I briefly responded some time ago to some of their contentions (see comments to the posting of November 25, 2014, Top side briefs and joint appendix in Ohio v. Clark; the Nessons' amicus brief, by the way, was mistakenly identified as a bottom-side brief and styled as one in favor of the respondent, but it is clearly a top-side brief in favor of the petitioner State). I promised more comments later, and here they are.  Given the volume of the Nessons' writings in the last few weeks, I’m sure I could fill up a great deal of time and space replying to further commentary by them, but I intend this to be my last shot on the issue.  Silence does not suggest assent!

The Nesssons’ basic theory is that the Confrontation Clause should be read as a requirement that
the prosecution present a sufficient case – that is, enough to survive a motion for judgment of acquittal –  without relying on hearsay.  Once it does that, then under their theory the Clause does not constrain the introduction of further evidence, even of testimonial statements by witnesses who have not confronted the accused.  I think the theory has no basis in the language of the Clause, and on cursory inspection none in its history, either.  It would yield bad both results on both sides, allowing statements to be admitted when they shouldn’t be and excluding them when they should be admitted.

1.  As an introductory matter, I’ll respond to this question by the Nessons:  "Do you not recognize that twentieth century confrontation doctrine has been a mess?"

Of course it was a mess in the twentieth century.  I suppose, though, the Nessons mean to bring in the twenty-first century as well.  There my answer is more nuanced.  I think Crawford v. Washington got it right for the most part; Melendez-Diaz v. Massachusetts got it exactly right; Davis v. Washington began to muddle things up by speaking of primary purpose; Giles v. California made a bad mistake in not giving fuller force to forfeiture doctrine; Michigan v. Bryant further muddled things in various ways; and Justice Thomas’s insistence on a narrow formality test created confusion in Williams v. Illinois.  So overall I’m disappointed with the way matters have developed since Crawford; see my recent piece, Come Back to the Boat, Justice Breyer!   But Crawford is not the problem.  I think the muddle was created in large part by 200 years of lack of attention to the confrontation principle, with a focus instead on the oddities of hearsay law.  I suppose we shouldn’t be surprised that matters didn’t get set aright instantly with Crawford.

By the way, the Nessons claim coherence as one of the virtues of their approach.  I’m not sure that’s right – note their treatment of conspirator statements, discussed below – but at best coherence comes at a steep price, including, as I’ll show below, a lot of intolerable results (both pro-prosecution and pro-defense).  But there’s nothing incoherent about a testimonial approach, if properly developed.  Its essence can be stated simply while standing on one leg:
A testimonial statement (essentially, one made in reasonable anticipation of litigation use) may not be introduced against an accused unless the accused has an opportunity to be confronted by the witness who made the statement, and that opportunity must occur at trial if reasonably possible.  The accused may, however, forfeit the right by engaging in serious intentional misconduct that foreseeably renders confrontation impractical.
That’s mighty coherent, which is not to say that it would produce no close cases.

2.  I actually agree with the Nessons (and with Raymond LaMagna, a message from whom they have posted) that originally the principal value claimed for confrontation was the fact of bringing the witnesses face-to-face with the accused, not cross-examination.  (Wigmore, on whom the Nessons rely, belittled the face-to-face idea).  This is not surprising because the right to counsel developed late in felony cases.  But I think this fact is less important than might at first appear. Sir Thomas Smith’s description of a trial in the middle of the 16th century describes an “altercation” between accuser and accused, so the accused certainly did have the opportunity to address the accuser in a challenging, adversarial way.  And in Dial-In Testimony, 150 U.Pa. L. Rev. 1171, 1205 & n.125 (2002), Bridget McCormack and I showed that by the middle of the 17th century it was accepted in treason cases that the accused, even though not represented by counsel, would have an opportunity to pose questions to the prosecution witnesses.  In any event, there is simply nothing incompatible between the testimonial approach and the emphasis on bringing the witnesses face-to-face.  Indeed, the essence of the theory is that witnesses must testify face-to-face and not in other ways, such as by speaking privately to government officials as under the old Continental systems.

When I made this point in a prior comment, the Nessons responded: “Yes, and how can you say this and yet not recognize the Clause as a production rule?”  My reply: Sure, you can call the Clause a production rule if you want, in the sense that it says, “Prosecutor, if you want to present testimony from this witness, you have to produce the witness in court.”  It does not say, “If you present a barely sufficient case in court, then you can add onto it all the out-of-court testimony you want.” 

3.  LaMagna’s message says, as others have, that the distinction between testimonial and nontestimonial hearsay is arbitrary.  I think those who make this argument are thrown off by terminology.  The confrontation right is about witnesses.  That, of course, is the key term used by the Confrontation Clause; it does not refer to hearsay.  I think lots of history, much of it summarized in the Dial-In article, makes clear that the Confrontation Clause was meant to bring witnesses to trial.  The confrontation right was established, as I have said many times before, long before anything resembling the modern law of hearsay was.  (The confrontation right may be seen quite clearly in ancient times, as in the reference in the Book of Acts, 25:16, to insistence on witnesses being brought face-to-face; hearsay law didn’t develop in anything close to its modern form until about 1800.)  It’s no surprise, then, that the Clause spoke in terms of witnesses and not in terms of hearsay.  Now, who are witnesses?  They’re people who testify (in many languages, "witness" and "testify" have the same root) – and the Clause insists that they do so face-to-face with the accused rather than behind closed doors.  They’re not people who make causal statements going about their daily business.  That’s the basic distinction that Crawford drew, and it’s not at all arbitrary; if the Court had spoken in terms of "witness-y" statements, it might have been accused of butchering the English language, but I don't think anybody would have said that it was drawing an arbitrary distinction.  The term “testimonial hearsay” is a modern-day coinage, an anachronistic term that is meant to capture the idea of what happens when a person effectively acts as a witness without coming to trial.

4.  I said that if production of a minimally adequate case is what the confrontation right meant, it would have become apparent long ago.  The Nessons responded: “It was. Raleigh and Kirby are good authority for that. How do you dispute our reading of those cases?”

In reply, I’ll first amplify on my point.  If the confrontation right meant what the Nessons say it does, cases over the centuries would have been argued far differently.  When a prosecutor offered a testimonial statement made out of court, there would have been debate over whether the prosecution had presented a minimally adequate case at trial to prove the proposition in question, and if so, the out-of-court statement would have been admitted.  There would have been, for example, considerable litigation over just what the prosecution had to prove by other evidence.   Would it really be enough that the prosecution presented enough to withstand a motion for judgment of acquittal, and once that standard was satisfied the prosecution could present all the out-of-court statements (testimonial or not) that it wanted?  Or would it be necessary for admission of an out-of-court statement that the prosecution had proven every single material proposition contained in the statement – and if so had it done that in the particular case?  I just don’t think you see any of this at all in the cases.

I’ve already responded to the reading of Raleigh.  So briefly: Sure, Raleigh was able to argue, in effect, “Cobham’s testimony is no good, and without that you’ve got an inadequate case against me.”  But just as a matter of simple logic that doesn’t suggest that he was conceding – or that the historical revulsion to his treatment amounts to a concession – that if a barely adequate case were presented against him through other evidence then it would be just fine to present Cobham’s testimony without confrontation.

I think the response to the Kirby argument is similar.  There, an element of the crime – that stamps were stolen – was proven by the confession, made in another case, of another party to the transaction, and the Supreme Court held this was improper.  There’s nothing in the case suggesting that if there had been sufficient proper proof of the theft to get to the jury then it would be fine to introduce the confession as well.

5.  I also said that if production of a minimally adequate case was what the confrontation right was about, the Confrontation Clause wouldn't have been worded as it was.  The Nessons responded: “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?”

Actually, not only do I not pretend it isn’t so, I (successfully) litigated a Supreme Court case, Briscoe v. Virginia, to ensure that the point, which had been established in Melendez-Diaz, remained firmly established.  I’m always careful to say that the Clause gives the accused the right “to be confronted with” the witnesses against him, not “to confront” the witnesses against him.

But note that it’s “the witnesses against him” – not just some of the witnesses against him.  There is no suggestion in the language of the Clause, none whatsoever, that if the prosecution presents a minimally adequate case then other prosecution witnesses do not have to confront the accused.

The Confrontation Clause mimicked the language used in some of the early state constitutions.  Other early state constitutions used the formula that was more familiar – from, among other sources, treason statutes, saying that the witnesses had to be brought “face to face” with the accused.  Bridget McCormack and I quoted several of these in Dial-In Testimony, 150 U.Pa. L. Rev. at 1207 nn. 134, 135.  All of them used the definite article.  None contained any suggestion that production of a sufficient case might excuse production of other witnesses whose testimony the prosecution wished to use.  And note a Massachusetts statute of 1647, quoted id. at 1206, providing that “in all capital cases all witnesses shall be present wheresoever they dwell” (emphasis added).  If one wanted to write a provision requiring merely that sufficient proof of all elements of a crime be presented by live testimony, none of these formulations would have been appropriate.

6.  The Nessons rely heavily on a passage from a 1904 article by Wigmore, repeated verbatim in § 1364 of his treatise, in which Wigmore says that in the late 17th century there was “still a doctrine, clearly recognized, that a hearsay statement may be used as confirmatory or corroboratory of other testimony.”  They do not quote the sentence that immediately follows this passage, both in the article and in the treatise:
This limited doctrine as to using [a hearsay statement] in corroboration survived for a long time in a still more limited shape, i.e., in the rule that a witness’ own prior consistent statements could be used in corroboration of his testimony on the stand, and the latter was probably accepted as late as the end of the 1700s.
So even taken at face value, Wigmore contends at most that there had been, well before the time of the Confrontation Clause, a doctrine generally allowing hearsay (he does not distinguish between testimonial and non-testimonial statements) as corroboration of other testimony.  Wigmore does not appear to say that the hearsay could be used to corroborate circumstantial evidence; he seems to be speaking only of corroboration of testimony.  Nor does he suggest that if the prosecution proved a sufficient case for the matter to be submitted to the jury, there would be no constraint on the use of hearsay.  In any event, he acknowledges that the doctrine he describes withered away decades before the Confrontation Clause.  The remnant was a doctrine – entirely consistent with the testimonial approach – that if the declarant testifies at trial consistently with the prior statement, the statement is admissible as corroboration.  (Crawford actually goes further, and in my view too far, in suggesting that there is no confrontation problem in admitting a prior testimonial statement if the maker of the statement testifies at trial, even if inconsistently with the prior statement.)  And in fact, Knox’s Trial, 7 Howell’s St. Tr. 763, 790 (1679), the first of the four cases that Wigmore cites for the broader doctrine, involves only the narrower situation of a witness’s former statement.  The other cases are far less significant, even with respect to the earlier period and even with respect to the supposed doctrine described by Wigmore, than he contended.  They provide no support at all for the proposition that, even in this earlier period, out-of-court testimonial statements were acceptable so long as they corroborated admissible evidence.  To show involves going deep into the weeds; here is a link to a sort-of extended footnote on this point.

7.  I said previously, "The Nessons are just plain wrong in contending that Crawford continues to confound confrontation and hearsay."  They responded by pointing to my recent article, The Mold That Shapes Hearsay Law.  They claim that the thesis of that piece “makes Crawford nothing more than a constitutional back-up hearsay rule . . . to ‘plug the holes’ [not a phrase I used, by the way] left when the hearsay exceptions let testimonial hearsay slip by.”  This rendition distorts my article beyond recognition.  I argued (among other points) that the confrontation principle – the idea that a party has a right to demand that adverse witnesses testify face-to-face – shaped hearsay law, so that to a surprising degree the bounds of the various exemptions conform to that principle.  But over time, as the confrontation principle became obscured, the degree of this conformity loosened up.  This in no sense makes the confrontation principle a constitutional backup to the hearsay rule.  On the contrary, I believe the confrontation right existed long before the hearsay rule; it exists under the European Convention on Human rights, so it governs in jurisdictions where nothing resembling the hearsay rule applies; and if, as I hope, the hearsay rule as we know it is eliminated, the right will still exist. (I have an article soon to come out in DePaul Law Review, titled Jack Weinstein and the Missing Pieces of the Hearsay Puzzle, discussing this.)

The Nessons’ argument on this score is particularly perplexing to me because their own theory of confrontation is so heavily dependent on a definition of hearsay.  Here is a passage from their amicus brief in Clark:
Confrontation cases fall into two categories. In one category are the cases in which the non-hearsay and circumstantial evidence against the defendant is sufficient to convict. In this category, hearsay may corroborate the prosecution’s case but is not essential to it. This means that, even without the hearsay, the prosecution would survive a motion for dismissal at the close of the prosecution’s case.

    The second category consists of cases in which there is a hole in the prosecution’s proof that it tries to fill with hearsay. Without the hearsay, the prosecution’s case is legally insufficient. In this category, the hearsay, if admitted in evidence, is not merely corroborative of an otherwise sufficient case, but rather is essential to it. The admission of hearsay in such a case as a substitute for live testimony should violate the Confrontation Clause.
8.  As I understand the Nessons’ theory, its restrictive aspect – that an element of the prosecution’s case cannot be proved by hearsay alone – applies whether or not a statement falls within a traditional exception (and whether or not it is testimonial in nature).  Some impractical results, representing remarkable and unjustified changes from long-prevailing practices, would follow.

Others have already commented on two illustrations.  Roger Park raised the case of business records.  The Nessons shrugged aside the particular illustration presented by Roger on the basis that it involved a jurisdictional issue.  But of course that is not always the case.  It is often part of a prosecutor’s case to prove that a given transaction occurred at a particular time, and perhaps at a particular price.  For centuries, the shopbook rule has made clear that this may be done by bringing in records that can be shown to have been prepared as part of a business routine, rather than in contemplation of litigation.  Under the testimonial approach, by contrast, these statements are easily handled: Statements that are not made in contemplation of litigation are not testimonial (contrast most lab reports), and the Confrontation Clause has nothing to do with them.

The other, raised by Alex Whiting, involves conspirator statements.  The Nessons shrug this aside, too, saying that a statement made during the course of and in furtherance of a conspiracy of which the accused is a part is deemed to be a statement of the accused.  Well, that’s what the prevailing hearsay law says, but one of the virtues of the testimonial approach is that it frees us from having to spout such fictions.  Of course if A and B are both members of a conspiracy and B makes a statement that may be deemed to advance the conspiracy’s goals, that statement is not truly A’s statement.  The fictitious quality of a rule deeming such a statement to be one made by A is augmented by courts’ willingness to perceive very far flung conspiracies and to be creative in imagining how given statements may have advanced the aims of the conspiracy.  I should emphasize that I am not suggesting that conspirators’ statements should be inadmissible.  On the contrary, I think they should be, and the courts’ tendency to stretch the hearsay exemption for them is perfectly understandable.  Though these statements are often dubious, often they are very probative evidence.  The reason they should be admitted against an accused is not that they are in any meaningful sense a statement of the accused but that they are not testimonial in nature; they are statements made in the ordinary course of daily (dirty) business.

A third case is dying declarations.  These have been admitted for three centuries or so, and I don’t think any theory that put a flat ban on them would be happily tolerated.  They often provide critical information not corroborated by any other evidence.  As I understand it, the Nesssons’ theory would bar prosecution based on a dying declaration.   Perhaps they would concede to reality, at the price of undermining coherence, by creating an exception to their theory.  (Crawford, similarly, suggested that dying declarations may be a sui generis exception to the treatment of testimonial statements.  I have argued repeatedly that these cases would be better handled by applying forfeiture doctrine to them.  It would require a significant alteration of the holding in Giles v. California to achieve this result; this is one reason among several to hope for such an alteration.)

                                                                   * * *

The time I've spent responding to the Nessons reflects my longstanding connections to both of them and my personal regard for the.  But I suppose I've conveyed that I don't think much of their theory.


paul said...

With all due respect to the Nesson's, I think Professor Friedman does a pretty good job of undermining the validity of their (innovative) theory.

But, I do have a question for Professor Friedman (which I have probably previously posed on this blog):

What about the declarant in Dutton? He wasn't a CC "witness." His accusatory statement was in no way similar to testimony. Nor was it a "casual" statement by someone going about their daily (dirty or clean) business. So why doesn't the CC bar admission of this statement?

Likewise, what about the unidentified declarant's statement (to Dyer) accusing Raleigh of plotting to cut the King's throat? Once again, no CC admission bar. And, like in Dutton, the statement is not similar to testimony or a mere casual statement by someone going about their daily affairs. So why no CC bar?

In Dutton and in Raleigh's case, can't a reasonable argument be made that, viewed objectively, the respective declarants could have anticipated the recipients of the accusatory statement passing that information along to the authorities and, in turn, the authorities using the statements against the accused?

And if such a reasonable anticipation can (reasonably) be deemed to exist, isn't there another, more fundamental, reason why the CC isn't a bar to these highly accusatory (and, arguably, highly unreliable) statements?

I believe there is.

What removes these accusatory statements from the scope of the CC is the fact that the government (not necessarily a formal police officer that, Professor Friedman has pointed out didn't always exist) played no role whatsoever in the creation of this evidence.

Some minimal connection between the creation of the hearsay and some conduct on the part of the government is a prerequisite to the appliaction of the CC's admission bar. No government conduct connected to the statement = No CC application.

The government action/state action requirement is not only justified based on history, it is consistent with the text of many of the other provisions of the Bill of Rights. It is also supported by the 14th Amendment's incorporation theory as exemplified by the Court's recent decision in Perry v. New Hampshire.

No one has yet to explain why the CC, having been "incorporated" against the states by the 14th Am. would apply in the absence of state action (in the creation of the hearsay statement), yet the 14th Am's Due Process Clause (which served as the basis for such incorporation) has, as Perry points out, no applicability as an evidence admission bar when the government was not involved in the creation of the evidence.

Perhaps, the Court in Clark will address (at least in dicta) the question of whether or not government action is required (in the creation of the testimonial hearsay) before the CC's admission bar applies.

Richard D. Friedman said...

I've already responded, probably multiple times, to Paul's related points about the involvement of government agents, the state action doctrine, and the Perry case. But I'll add a brief word about his comments on Raleigh and Dutton.

In The Mold That Shapes Hearsay Law, cited in my main post, I analyzed at some length the statement in Raleigh to Dyer by an unidentified declarant. I did so on the assumption that the statement should not be considered testimonial, though I noted that the matter “is not completely free from doubt.” This was my explanation, and it should suffice here:
"If the statement was made with the anticipation that it would in fact be passed on and
used in a prosecution, then it should be considered testimonial. It could be that the statement was a surreptitious attempt to plant evidence that would be used to help prosecute Raleigh. So far as I know, however, there is no evidence that this was true of the Portuguese gentleman's statement. Also, one could argue that when a person makes a statement accusing another of a crime, and does so beyond a closed circle of people whom he can trust not to pass the information on to the authorities, the statement is necessarily testimonial, because there is a substantial probability that it will indeed be passed on. I might find such a rule rather attractive, but I do not believe the Supreme Court is likely to adopt it in the foreseeable future."

In Dutton, too, I think one could make a similar argument that the statement in question – “If it hadn’t been for that dirty son-of-a-bitch, Alex Evans, we wouldn't be in this now“– should be considered testimonial, on the ground that the declarant should have foreseen the possibility that the recipient of the statement, a fellow prisoner, would pass it on to the authorities. On the other hand, Williams, the declarant, presumably did not expect the statement to be passed on, for otherwise he would not have made it. And one could take the view that the matter ought to be viewed from the perspective of a reasonable person acting in the heat of the moment in the position of the declarant, not one analyzing the situation afterwards in an armchair. This is essentially how I’ve analyzed the Supreme Court’s treatment of the 911 call in Davis v. Washington.

In other words, how these statements are treated for purposes of the testimonial approach depends on how the details of that approach are filled in. These are important details, to be sure, but they are not fundamental aspects of the theory; the theory can tolerate more or less breadth in these respects. (And note, by the way, that Dutton was a 5-4 case.)

But just in passing I’ll say that the confrontation right cannot tolerate a result that would require involvement of a government agent in the creation of a statement for the statement to be testimonial. Otherwise the unidentified Portuguese gentleman could create evidence to be used against Raleigh by writing an unsolicited letter to Attorney General Coke: “You have never heard of me, but please accept this formal letter as my testimony if you decide to prosecute Raleigh, because I do not wish to appear face to face with him. He and Cobham have conspired to overthrow the king . . . .” And the 21st-century of the Portuguese gentleman would no doubt send, rather than a letter, a video of him making the statement.

fern and charlie nesson said...

paul, with all due respect, which of richie's numbered points do you regard as most effectively undermining the validity of our (innovative) theory?
fern & charlie

fern and charlie nesson said...

richie, you post your response to us with the following declaration: "I intend this to be my last shot on the issue. Silence does not suggest assent!"

but then paul raises a point of disagreement to which you immediately respond.

is what you mean by your declaration that you will not respond further to us? have we offended?

do you feel offense at debating the vitality of Crawford? or offense in the manner in which we have undertaken to do so?

no offense is intended.


fern and charlie nesson said...

perhaps you are saying that your blog is not the place for this debate?

paul said...

First, I will respectfully respond to the Nesson's. In short, I agree that the text of the CC can be read to impose a production rule on the prsosecution. I also believe that the production rule is supported by history and precedent. But I agree with Professor Friedman that the production rule must be read in the context of, and limited by, the term "witnesses." Thus, the critical question, as Professor Friedman states, is which declarants are "witnesses" for purpose of the CC.

I also don't believe that there is a sufficiently strong textual or historical anchor supporting your sufficiency rule.

I find your argument innovative in that, to my knowledge, it has never been made before. But I believe that Professor Friedman's emphasis on the term "witnesses" (vs. your emphasis of the term "confronted with") is more persuasive.

Turning to Professor Friedman's response to my argument regarding state action.

I would ask all interested parties to contrast his assertion that "the confrontation right cannot tolerate a result that would require involvement of a government agent in the creation of a statement for the [CC's admission bar to apply to hearsay]" with the Court's holdings that the federal constitution CAN tolerate the admission at a criminal defendant's trial of (1) evidence obtained by a private party by means of an unreasonable search or seizure; (2) evidence obtained by a private party without complying with the constitutional rule designed to protect the privilege against self-incrimination; and (3) evidence created by a private party of an unnecessarily suggestive and, therefore, unreliable out-of-court identification of an accused.

In each instance the evidence in question would be inadmissible (under 4th, 5th & 14th Am. principles) if the product of state action, But, in each instance, the evidence is admissible without violating the federal constitution because the creation/obtaining of the evidence was completely unconnected to any action on the part of any state actor.

There is no federal constitutional reason that the CC's scope should not also be limited by the requirement of state action. If, as the Court has clearly stated in Perry, the DPC cannot operate as a bar to the admission of evidence absent sufficient state action, the CC -- a provision that has no applicability to the states but for the DPC -- is limited to cases where the hearsay in question is the product of some conduct on the part of a state actor.

The first question presented in Clark will, hopefully, open the door to further guidance from the Court regarding my state action argument.

Professor Friedman might have a good normative argument based upon broad principles of fairness as to why an admission bar should apply absent state action. But the foundation of his argument must be found, if at all, in a court-created substantive due process rule because it can't be located in the text or history of the CC itself.

Richard D. Friedman said...

Let me be clear -- of course the Nessons have not given offense, and I think that this blog is a very nice forum for an exchange on confrontation-related issues. It's just that I've already spent a great deal of time responding to the Nessons, to the disregard of other briefs in the case, life is finite, I don't think their arguments hold water, and I have to move on.

I also don't want to spend more time responding to comments by Paul to which I have already responded, but his comment seemed to raise a couple of new points that I thought I should address. I tried to avoid spending much space going over old ground. I'll mention here that I already responded to his argument on state action, in a post of October 26, 2014, State Action and the Confrontation Clause, I now realize I hadn't responded specifically to his later discussion of Perry v. New Hampshire, though I think my response on that point is pretty clear from the post. Perry involved a privately-arranged identification that the accused said should be excluded because it was unduly suggestive. The Supreme Court said (simplifying somewhat) no sate action, therefore no problem. This has no bearing on the Confrontation Clause. The essence of the wrong in the case of a suggestive identification is the the fact of the police rigging the procedure. It is always important to bear in mind that, by contrast, the Confrontation Clause has nothing to say about police practices. The police did nothing wrong -- indeed, they were doing their job -- interviewing Sylvia Crawford and Amy Hammon out of court, and securing lab reports in Melendez-Diaz and the cases that followed it. The essence of the wrong in each case was that the state court admitted the out-of-court testimonial statements, and allowed them to form a basis for conviction, without giving the defendants the right to be confronted by the adverse witnesses.

paul said...

I agree with Professor Friedman, the issue has been discussed ad nauseam. But for those of you who want to read more exchanges on this topic, type the phrase "state action" into the "Search This Blog" box. You will find 3 posts, together with comments, on the state action question.

fern and charlie nesson said...


Ohio v. Clark presents an opportunity for the Supreme Court to survey the confusion its confrontation doctrine has generated, and to set confrontation doctrine right.
Confrontation in its archetypal form––where a victim accuses the defendant of a crime in open court before a judge and jury––is the critical threshold at the core of an American criminal trial. Confusion of confrontation with cross-examination has eviscerated that threshold right. What was meant to be a critical constraint upon the state, ensuring that accusations of crime leveled against a citizen are made live in court before the jury that will judge him, has instead been construed to permit out-of-court accusations and proof by hearsay alone. We argue that the Court should use the opportunity in reviewing Ohio v. Clark to restore the historical and constitutional function of the Confrontation Clause as a check on state prosecutorial power.

fern and charlie nesson said...

Paul Rothman says, "I will respectfully respond to the Nesson's. In short, I agree that the text of the CC can be read to impose a production rule on the prosecution. I also believe that the production rule is supported by history and precedent."

Thank you, Paul.

Paul continues: "But I agree with Professor Friedman that the production rule must be read in the context of, and limited by, the term "witnesses." Thus, the critical question, as Professor Friedman states, is which declarants are "witnesses" for purpose of the CC."

Again, thank you, Paul, for teeing up this issue.

fern and charlie nesson said...

Who are 'the witnesses against' ?

All agree that "the witnesses against" includes at least those who testify under oath at trial before the jury against the defendant. These are the witnesses actually called by the prosecution whose testimony is recorded in the record and made available for inspection and review by appellate courts, the media and the public following a jury conviction. We believe that these are "the witnesses against." The Confrontation Clause guarantees to citizens the right to which Raleigh laid claim: the right not to be put at risk of jury verdict in the absence of testimony from live face-to-face accusers to support it. This, we believe, is the informing purpose of the Confrontation Clause.

The interpretive issue in contention is whether "the witnesses against" who are required to confront the accused include not only the prosecution's actual witnesses, but also include all out-of-court declarants of hearsay the prosecution seeks to admit. Scalia/Friedman say yes. They make three interpretational missteps: (1) They wrongly assume that the purpose of Confrontation Clause is to exclude prosecution offers of proof in the form of ex parte affidavits; (2) They transpose the right 'to be confronted" into a right "to 'confront"; (3) they confound 'confrontation' with 'cross-examination. With these three steps they transform "the accused shall enjoy the right . . . to be confronted with the witnesses against him" to "the accused shall enjoy the right to cross-examine the declarants of all (testimonial) hearsay accusations against him."

The Confrontation Clause should be understood as condemnation of the total absence of live testimonial proof of guilt. That was Raleigh's complaint, not a hearsay objection to the possible eventual consideration of hearsay by his jury. He objected, vociferously, to being convicted in the total absence of live testimonial proof of his guilt. Proof by out-of-court ex parte examination violates the Confrontation Clause only when it is the only proof of guilt. Otherwise we are talking only non-constitutional hearsay law.

Instead, Scalia/Friedman are driven to their expansive interpretation by their mistaken assumption that the purpose of the Confrontation Clause is to exclude from evidence out-of-court ex parte examinations. Reading the Confrontation Clause to exclude reports of such examinations requires them to expand the phrase "the witnesses against" to include the declarants of such statements, and so they do.

Scalia, for the Court in Crawford, following Friedman, Confrontation: The Search for Basic Principles, 86 Geo. L.J. 1011, assumes from the outset that the Confrontation Clause establishes a constitutional evidentiary rule of admissibility. He starts with the assertion: "the principal evil at which the Confrontation Clause was directed was [ DRUM ROLL, here of Raleigh and fundamental right, but no ...]
the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.

Scalia sees the constitutional mission as regulation of hearsay:
"Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices. ... Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence.

This misconception of purpose leads Scalia/Friedman to misconceive the Confrontation Clause as a constitutional hearsay rule, and to manhandle its language to accommodate their misconception of it.


fern and charlie nesson said...

Friedman asserts that he is "always careful" to say that the Clause gives the accused the right “to be confronted with” the witnesses against him, not “to confront” the witnesses against him.

Not so!

Friedman: Confrontation: The Search for Basic Principles, 86 Geo. L.J. 1011
To what extent does the witness's failure to testify to the substance of a prior statement mean that the defendant has had an inadequate opportunity to confront the witness if the prior statement is admitted against him?

Giving the accused the right to confront the witnesses against him is a fundamental part of the way we do judicial business.

If the accused's own wrongful conduct is responsible for his inability to confront the witness, then he should be deemed to have forfeited the confrontation right with respect to her statements.

If the witness later becomes unavailable, there should usually be no constitutional obstacle to use of the deposition transcript, because the accused had an adequate opportunity to confront the witness.

The statement could not be admitted against an accused unless he had an adequate opportunity to confront the witness.

[T]he accused could not invoke the Clause if his own wrongful conduct caused his inability to confront the witness.

Friedman Amicus Brief in Crawford
Like the right to counsel and the right to a jury trial, the right to confront witnesses is subject to waiver, and it is also subject to forfeiture, for the accused has no ground to complain if his own wrongdoing caused his inability to confront the witness.

Friedman Amicus Brief in Giles v. California
Under the view presented here, then, the Confrontation Clause prohibits use of a testimonial statement against an accused to prove the truth of what it asserts unless the accused either has had or will have an opportunity to confront the witness (which should occur at trial unless the witness is then unavailable) or has rendered the confrontation unfeasible.

Friedman, DIAL-IN TESTIMONY, 150 U. Pa. L. Rev. 1171
The right of an accused to confront the witnesses against him has received its fullest development within the Anglo-American tradition, but it has also been a critical feature of other judicial systems.

But we suspect that courts and prosecutors had a residual sense that such a use of the exception would violate the defendant's right to confront the witnesses against him.

Taking the text of the Confrontation Clause and of the whole Sixth Amendment seriously, then, it appears that the Clause sets forth a simple categorical rule that an accused has a right - subject to waiver or forfeiture - to confront the witnesses against him the prosecution may not use the statement against the accused to prove the truth of its contents unless the accused has had an adequate opportunity to confront the witness.

If so, did the accused forfeit the right to confront the witness by wrongdoing that prevented her from testifying?

One falsehood spoils a thousand truths. ~Ashanti Proverb


fern and charlie nesson said...

Friedman asserts: "The Nessons are just plain wrong in contending that Crawford continues to confound confrontation and hearsay. They claim that the thesis of [The Mold That Shapes Hearsay Law] makes Crawford nothing more than a constitutional back-up hearsay rule to ‘plug the holes’ [not a phrase I used, by the way] left when the hearsay exceptions let testimonial hearsay slip by. This rendition distorts my article beyond recognition."

Richie, you come close here to questioning our academic integrity. Here is your piece more fully quoted. Let readers judge whether we have mistaken or misquoted you.

From Friedman, The Mold That Shapes Hearsay Law:

Focusing primarily on evidence offered against an accused, I have argued that there is usually good reason to exclude hearsay when it is testimonial in nature and the opposing party has not had an adequate opportunity for cross-examination, and that there is usually not very good reason to exclude the evidence otherwise. This Part argues that, to a considerable and perhaps surprising extent, prevailing doctrine, as stated in the Federal Rules of Evidence, reflects this dichotomy. The correlation is not perfect, to be sure, and over time as the confrontation principle became obscured, it loosened up in some settings. ... I want to focus primarily on the degree to which hearsay law and the Confrontation Clause draw a similar line between testimonial and nontestimonial statements....

I will consider three primary examples. First is the family of exceptions for spontaneous declarations, which emerged in the nineteenth century. .... But by the end of the twentieth century, many courts were using these exemptions to allow in statements that had been made a considerable time after the event in question and quite clearly in contemplation of litigation.

Second is the group of exceptions that includes most notably those for records of regularly conducted activities and for public records. Almost by definition, most of these are nontestimonial ... But in the modem day, there are some categories of statements, most notably forensic laboratory reports, that are made routinely and in contemplation of litigation. Some courts recognized that these exceptions were not meant to justify admission of reports made for prosecutorial use; others did not. ...

Finally, consider the hearsay exception for declarations against interest. Traditionally, the rule did not apply to statements tending to expose the declarant to criminal liability. Nevertheless, courts in the decades after adoption of the Federal Rules of Evidence did not uniformly exclude statements made to the authorities by absent declarants who inculpated themselves as well as another. ...

In each of these three settings, then, an older conception of hearsay law would not have allowed admissibility of testimonial hearsay. By the beginning of this century, in the absence of a coherent theory of the confrontation right, the resistance to allowing testimonial statements had softened sufficiently that in these contexts courts often let them slip by. Crawford and its progeny effectively plugged these holes with respect to prosecution evidence.


fern and charlie nesson said...

Friedman asserts that the Nesson's theory "would yield bad results on both sides, (a) allowing statements to be admitted when they shouldn’t be, and (b) excluding them when they should be admitted."

(a) admitting statements that shouldn’t be admitted:
Friedman for some reason assumes that once the prosecution has satisfied the demand of the Confrontation Clause by presenting even a "barely sufficient" live case, the floodgates somehow open to allow the prosecutor to put in all manner of hearsay before the jury. He imagines that "once that standard was satisfied the prosecution could present all the out-of-court statements (testimonial or not) that it wanted." He repeats it: “If you present a barely sufficient case in court, then you can add onto it all the out-of-court testimony you want.” He gives no example, and indeed advances the absence of any judicial concern for this supposed problem as argument that our construction of the Confrontation Clause is wrong.

What are the hearsay statements that he imagines rushing through the floodgate we open? They must be statements that are both "testimonial" (as Friedman/Scalia choose to define the term (or knot)), and not excluded by any evidentiary hearsay rule. Only if they make through that sieve will they even potentially qualify as "statements admitted when they shouldn't be" as a result of the prosecution having successfully borne its burden of confronting the defendant with witnesses called to the stand to testify against him. And whether they "should or shouldn't be" is the very question on which the Scalia/Friedman 'testimonial' misunderstanding of confrontation demands articulated analysis of what is and is not "testimonial", e.g., Ohio v. Clark.

(b) excluding hearsay statements that should be admitted

Friedman offers three examples purporting to show that "if an element of the prosecution’s case cannot be proved by hearsay alone, some impractical results, representing remarkable and unjustified changes from long-prevailing practices, would follow."

(1) 'Dying Declarations': the 'exception' that proves our rule:

Giles v. California exposed the nonsensical conception of confrontation underlying the Scalia/Friedman testimonial approach. Giles was charged with the murder of his girl friend. He claimed self-defense. As proof to negate the defendant's claim of self-defense, the prosecutor was allowed to introduce statements that the victim had made three weeks before the fatal shooting to a police officer investigating a domestic violence report.

In an amazing display of illogic, the justices (and you, Richie) simply assumed that the defendant had a right to confront the homicide victim. But, a defendant in a homicide prosecution has no constitutional right to be confronted live in court by the homicide victim. The victim of a homicide can never be a witness against the defendant in the homicide trial because the victim of the homicide is dead, by definition. The crime of homicide is not complete until the victim dies. Failing to recognize this, the justices (and commentators in support) debate whether the defendant could be found to have forfeited his right to confront the victim without having first been convicted of her murder, and get utterly lost in the circularity of the question as they have constructed it. The only legal questions posed by the admission of a homicide victim's statement are, first, whether it is admissible or excludable under state hearsay law, and second, if admitted in evidence, whether it is alone or with other evidence sufficient to support a conviction, again an issue in the first instance of state law. There is no confrontation issue posed simply by the admission of the statement of a homicide victim in the homicide trial because the Confrontation Clause imposes no duty on the prosecution to produce the victim.

paul said...

I agree with the Nesson's most recent comment as they acknowledge that the CC was meant to be a critical constraint on state power.

So, for example, in their archetypal example (of the confrontation right) of a victim accusing a defendant in open court, before the trier of fact, of a crime each of the following elements are present:

1. There is sufficient state action in the creation of the accusatory statement. The victim is required by the state to take the witness stand. The victim's statements at trial are not volunteered (i.e., spontaneously blurted out). But are elicited by the state through interrogation (on direct and re-direct examination). Thus, not only is the state involved in the admission of the statements (through the state court system), but is actively involved in the creation of those statements via structured questioning; and

2. The primary purpose (if not the sole purpose) of the prosecutor's structured questioning is to accuse a targeted person (i.e., the defendant on trial -- a person for whom there is, at a minimum, probable cause to believe has committed the crime charged) of a crime; and

3. The victim knows that they are acting as a witness against a particular person; and

4. The victim's statements are made in a formal setting, with the victim subject to oath or affirmation.

State Action + Primary Purpose to Target + Knowledge + Formality.

The more that one ignores or diminishes these "core" in-court elements (in order to accomplish the policy goal of bringing more out-of-court statements with the scope of the Clause), the more that the "historical ... function of the Confrontation Clause as a check on state prosecutorial power" (to use the Nesson's words) is violated.

The accusatory hearsay in Raleigh's case, in Crawford, in Davis, in Melendez-Diaz was sufficiently close to the core (i.e., sufficiently resembled the historical abuses that the Clause was designed to address & sufficiently hewed close to the "elements" that are present when a witness is called by the state to testify at a criminal trial).

But the hearsay in Dutton, introduced by the Crown against Raleigh (through the statement of Dyer), and made by the child victim in White to private parties unconnected to the government were so far removed from the "core," bore virtually no resemblance to the historical abuses that the CC was designed to address, and/or were so lacking in one or more of the core "elements" (that I outlined above), that the CC could not serve as a bar to their admission. Any such federal constitutional bar would have to be found, if at all, in the Due Process Clauses.

fern and charlie nesson said...

The nonsense of trying to make sense of a constitutional right of a defendant to be confronted by the dead homicide victim continued in Michigan v. Bryant. Had the Confrontation question been properly framed as whether the prosecutor was responsible for producing Bryant's victim live at trial, the issue would have been solved with no fuss. As in Giles, production at trial of the dead victim is not even a theoretical possibility. Whether the victim's dying accusation against the defendant should have been admitted is a question of hearsay law, not constitutional law. Likewise, the question of whether the evidence, once admitted, is sufficient to allow the jury to convict, is a question of evidentiary sufficiency under state law. A state could decide that the homicide victim's hearsay, taken together with the other evidence offered by the prosecution, like the physical evidence from Bryant's screen porch, could support a jury verdict beyond reasonable doubt. The absence of the hearsay declarant did not create a doubt beyond the jury's capacity to resolve.

Dying declarations are an exception to the hearsay rule because they are out-of-court statements offered for their truth. They are also an exception to the rule that testimony must be sworn because contemplation of immediately impending death was substitute. They are not an exception to the rule of confrontation because the clause imposes no duty on the state to produce the victim of a homicide to confront the defendant. Dying Declarations are statements of persons who cannot be produced. The Confrontation Clause has nothing to say about them. Think of them not as 'exception' to confrontation but rather as 'exclusion'.

(2) Co-conspirators Statements:
Friedman advances Alex Whiting's question to us about how our approach handles co-conspirator statements. We respond with the agency theory of conspiracy, according to which a statement made by a co-conspirator during the course of and in furtherance of a conspiracy of which the accused is a part is deemed to be a statement of the accused. Richie, you dismiss as spouting fictions. But your concern seems not with the theory of agency but rather with ridiculous extensions of it that prosecutorial judges have foisted upon us. He says, "The fictitious quality of a rule ... is augmented by courts’ willingness to perceive very far flung conspiracies and to be creative in imagining how given statements may have advanced the aims of the conspiracy." True, but this is not reason to misconstrue the Confrontation Clause.

(3) Business records: give us a good example.

Roger Park asked: "Suppose that an essential element of a federal crime is movement in interstate commerce. The only evidence on that point is a business
record. What result? "

We responded: "Roger, the business record in your hypo proves a jurisdictional element, not an element of guilt. Nexus with interstate commerce is a jurisdictional element of the charged federal offense. It establishes the federal government's authority to prosecute the charged offense. Whether or not prosecution of a charge falls within federal jurisdiction is a legal question, properly addressed to the judge, not to the jury. If the jurisdictional issue is submitted to a jury, there need be no greater constriction on the evidence the jury is permitted to consider than on the judge, which means that hearsay proof is permissible. Proof by business record in your hypo is fine."

Friedman complains: "The Nessons shrugged aside the particular illustration presented by Roger on the basis that it involved a jurisdictional issue. But of course that is not always the case."

Richie: We challenge you:

• Come up with a single specific case in which our view of confrontation would stop a serious prosecution because of inability to prove a substantive element of a serious crime with a business record.

fern & charlie nesson

Anonymous said...

Lyle has a preview of tomorrow's arguments here.

In any event, I find all the chatter about "past abuses" ironic given that what this case is about is preventing current abuses--to whit, using children as stooges to advance prosecutor careers under the name of reducing the scourge of child abuse. There is nothing to put Clark on the hook except the amorphous comments of a three year old child who not only was unable to understand the legal context of his remarks but which remains unclear that he even understood the question posed by the teachers.

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