Friday, February 13, 2015

Thoughts on Clark: If L.P. were grown up

    Here are some thoughts on the Clark case prompted by reading the reply brief.

    For those who are not yet familiar with the facts of the case:  L.P., a boy not yet 3½, came to preschool with marks on his face suggestive of physical abuse.  Ultimately, when asked by a school administrator, he said something to the effect that “Dee” – Clark, his mother’s boyfriend – had caused the injuries.  L.P. was deemed in competent to testify at trial, but the trial court admitted evidence of his statement identifying Clark.  The Ohio Supreme Court held that this violated the Confrontation Clause.

    In this post I will address issues that I hope the Supreme Court doesn’t reach in Clark.  These are issues that have nothing to do with the fact that the declarant, L.P., was a very young child.

    So let’s suppose that L.P., instead of being just three years old and in preschool, was, say, 18 and in high school, and that everything else was the same in the actual case.  Then I think L.P.’s statement to a school administrator, identifying Dee as the source of his injury, should clearly be considered testimonial.  Note several points along the way to this conclusion.

    First, the proper perspective for determining whether the statement is testimonial is from the vantage point of a reasonable person in the position of the declarant.  I think this is always true.  I don’t think there’s any incompatibility between this position and the position taken by the Supreme Court in Michigan v. Bryant, that the perspectives of both the declarant and the interrogator (assuming there was one) should govern:  Ultimately, it is the declarant’s perspective that matters, but the apparent purpose of the questioner is a key determinant of what the declarant understands the likely consequences of the statement to be.   By the way, note the irony that usually, as in Bryant, it is the defendant who wants the Court to emphasize the declarant’s perspective (because at the outset the declarant understands better than does the questioner that what the declarant is about to say has significance for prosecution), but in the context of a child’s statement, as in the actual Clark case, it’s the prosecutor who wants to emphasize that perspective (because, while the questioner may understand the significance for prosecution of what the child says, the child is clueless).  See p. 8 of the reply brief.

    Second, in the hypothetical setting of the 18-year-old, I think the statement would fall within the “primary purpose” test.  Looming over everything would be the realization, on the part of L.P. as well as of the administrator, that L.P. was making an accusation of a serious crime to a person who would likely pass the accusation on to the police.  The State’s suggestion, p. 18 pf the reply brief, that the statement’s “primary purpose” is not prosecutorial because it was informal should be rejected on grounds already indicated in Davis v. Washington – what maybe considered the informal manner in which the statement was solicited and made does not alter the reality that it was made with the understanding of the significant legal consequences that it might cause.  And the State’s argument, also on p. 18 of the reply brief, that the statement was not testimonial because the primary purpose was a protective one should also be rejected, if for no other reason that the principal way in which the victim would likely be protected would be through the adjudicative system.

    Beyond that, though, I wish the Court would stop talking about purpose and instead talk about reasonable anticipation.  For one thing, I think it is incoherent, or at least nearly so, to speak about the primary purpose of a reasonable person in the position of the declarant.  The reasonable person is not the particular declarant but a hypothetical person in the same situation.  How can one say what the primary purpose of such a person would be in making a statement?  One can imagine different reasonable people being primarily motivated by different purposes to make a given statement.  Furthermore, it is often difficult at best to determine which of several purposes may have primarily motivated a given person.  And most significantly, I don’t think purpose is what determines the testimonial quality of a statement; anticipation is.  If the declarant knows that by making a statement he is creating evidence that will be used in prosecution, than he is testifying, whether he is pleased by that result or not.  I elaborated on this point years ago in an article titled Grappling with the Meaning of "Testimonial", 71 Brooklyn L. Rev. 241, 251-53 (2005).  Clearly an 18-year-old talking to a school administrator about a physical assault committed on him would anticipate the likelihood that the statement would be passed on and be used by the criminal justice system.  If there is any doubt about that now, there wouldn’t be if administrators could testify at trial about such statements without constitutional constraint, because such uses would soon become common knowledge (not only through actual trials but through TV shows and other popular media).

    Third, much of the reply brief reads as if the State is assuming that only statements made in response to interrogations can be testimonial.  But that is not true, and the Supreme Court has made this clear.  Davis, footnote 1.

    Even within the set of statements made in response to interrogation, the State appears to be trying to confine the category of testimonial statements to those made to the police.  See p. 8 of the reply brief.  There is no basis for such a limitation.  Indeed, testimonial statements should not be limited to statements made to governmental agents. The question throughout – a coherent one that usually will yield clear answers, though naturally there will be close and debatable cases – is whether a reasonable person in the position of the declarant would anticipate prosecutorial use.  (The result in Davis, that the very stressed statements made at the beginning of the 911 call there were not testimonial, can be fit within this framework by viewing the matter from the vantage point that the declarant actually occupied, speaking in the heat of the moment, rather than as if she considered the probable use of her statement after the fact, reflecting calmly while sitting in an armchair.  I argued this in Crawford, Davis, and Way Beyond, 15 J. L. & Policy 553, 562-63 (2007).)

    Limiting the category of testimonial statements to those made to police officers makes no sense at all, and would be an obvious invitation to abuse.  Bear in mind that there were no police forces or prosecutors in the modern sense in the centuries leading up to the Confrontation Clause.  Clearly the right existed in Biblical times.  If we were to return to a time when all of government but some adjudicative system were eliminated, the argument in favor of a right to have adverse witnesses brought face to face would remain undiminished.  And if the set of testimonial statements were limited to those made to some defined category of government employees, then prosecutors would have an incentive to gather evidence through agents not fitting within that category.

    But beyond that, if only statements to government agents could be considered testimonial (as the State seems to assume, in its first Question Presented and elsewhere), then a whole cottage industry would grow up of private evidence takers – that is, people who would offer to take (presumably on videotape) statements by victims and other observers and then relay them to court, without the makers of the statements ever having to take an oath or face the accused or the jury or be subjected to cross-examination.  I have raised this prospect many times.  I am not sure anybody has ever argued in response that this prospect is not realistic, or that it would be a tolerable result.   Indeed, it seems to me that the result would be inevitable, and that it would essentially turn the confrontation right into a matter of choice by the declarant.

    The key here, as always, is to understand the systemic consequences of any rule that is chosen.  A rule that statements to private people are not testimonial allows a system in which one can talk to a private person in the full knowledge (and even with the sole purpose) that the statement will be used in prosecution.  How is that not testifying?  And how can that possibly be acceptable?  Any attempt to salvage a government-audience-only rule by attaching to it an exception for bad-faith attempts at evasion (comparable to the evasion rule suggested by Justice Thomas in Davis, 547 U.S. at 838, 840, as a safety valve for the very rigorous formality test on which he insists) would be inadequate, unless bad faith were interpreted so loosely as to make the rule meaningless.

    Fourth, in determining the reasonable expectations of the speaker, all the circumstances are relevant – and that includes the content of the statement itself.  The State is just plain wrong when it says, p. 5 of the reply brief, that the accusatorial nature of the statement is irrelevant to whether the statement is testimonial.  True, a statement does not have to be accusatory to be testimonial.  If, for example, a speaker says to a known police officer investigating a notorious murder (readers of a certain age will recognize the reference), “I saw my neighbor drive quickly to his house, park the car at an odd angle, rush into his house, rush out a few minutes later, and drive quickly away,” there is nothing accusatory about the statement.  But it certainly should be considered testimonial in the circumstances; the speaker understood that she was providing information of use to the prosecutorial system, and if the substance of her statement is presented at trial without her coming to court she has been able to testify by talking to a police officer out of court.  That does not suggest, however, that the accusatory nature of a statement has no bearing on whether it is testimonial.  A statement that is accusatory may be objectively likely to be used for prosecutorial purposes even though made in circumstances in which a non-accusatory statement would not be likely to be used for such purposes.  Suppose someone comes home after a weekend away and twenty minutes later calls a non-emergency police line.   A statement, “There’s a cat trapped in a tree” should not be considered testimonial. A statement, “My house has been burgled.  Here’s what is missing . . . .” should be.  Similarly, a statement by our posited 18-year-old to a school administrator,“I don’t like my English teacher and would like to switch” is not testimonial; a statement, “Dee punched me repeatedly,” is testimonial.

    I think it would be unfortunate if the Court decides any of these issues in the context of the Clark case.  The inclination to admit the statement by the real (three-year-old) L.P. is understandably very strong, especially given the trial court’s ruling that he was not competent to be a trial witness – and perhaps also given a desire not to compel children in a position like his to be trial witnesses.  If the Court believes that the only way to allow admission of his statement without him being a trial witness is to hold his statement to be nontestimonial, and that the only way to do that is by a generally applicable ruling that narrows the category of testimonial statements, then the general standards for statements being deemed testimonial will be drawn too narrowly.  (I think this is closely analagous to what happened in Michigan v. Bryant.  The impulse to admit the statements there -- in which a shooting victim identified his assailant several hours before dying -- should have been addressed as a matter of forfeiture.  But the decision in Giles v. California had foreclosed this result, and the Bryant court compensated by adopting an unduly narrow conception of what is testimonial.)  I am hoping that in Clark the Court decides issues bearing only on statements by young children.  Of course, I think the best way to resolve the case is in accordance with the theory laid out in the amicus brief I did with Steve Ceci and the essay from which it was drawn.  I hope to post more comments later on child-specific issues.

   A few stray points:  (1) The State says in the reply brief, p. 6, that the aim of the Confrontaiton clause was to prevent ex parte examinations.  That is wrong, or at least subject to misunderstanding.  The Clause was not meant to constrain investigative behavior.  There is nothing wrong with the authorities examining a witness behind closed doors.  The confrontation right means that such an examination can't be used at trial in lieu of live testimony.

   (2) The Raleigh case involved what all acknowledge to be a violation of the confrontation right, use against Raleigh of the out-of-court testimonial statement by Lord Cobham.  It also involved testimony by one Dyer to a casual-seeming statement by an unknown Portuguese gentleman to the effect that Raleigh was in a conspiracy with Cobham.  The State contends, p. 8 of the reply brief, that Dyer's testimony did not create a confrontation problem.   Subject to some qualification, I agree.  I have recently stated my reasons in The Mold That Shapes Hearsay Analysis, 66 Fl. L. Rev. 433, 459-62 (2014).

   (3) The State is also right, of course, that unreliability shouldn’t trigger Confrontation Clause analysis.  P. 11 of the reply brief. Sometimes, though, those who argue for applicability of the confrontation right in a given case feel the need to point out that the statement involved is not particularly reliable; doing so responds to the concern that if the Court believes the statement is very reliable it will have a strong impulse to hold it admissible, and perhaps to approach skeptically any theory of the Clause that would exclude it.


paul said...

A few points:

1. Per Bryant, the primary purpose "of the interrogation," based upon the "totality of the circumstances," including the declarant and questioner's perspectives, the formality of the setting, any exigencies, etc. determine whether the hearsay is testimonial.

2. The Court has not yet determined whether hearsay that is not connected to some interrogation is within the scope of the CC. (Footnote 11 in Bryant puts footnote 1 in Davis in its proper perspective.)

3. The Court has not yet determined whether hearsay that is not connected to some conduct by some "state actor" can ever be subject to CC scrutiny.

I believe that the State of Ohio's argument that the questioner must be a "police officer" (or other government official performing an investigative function) is too narrow.

But I believe that a "state actor" must engage in some conduct that was connected to the creation of the hearsay before the declarant will be deemed a witness within the meaning of the CC.

The CC is applicable to the states only because of the 14th Am's Due Process Clause (DPC). And, as the Court recently reiterated in Perry v. New Hampshire, the DPC is not concerned with the admissibility of evidence that was created without any "state action."

Professor Friedman's reasonable concern about "private evidence takers" becoming the norm if "state action" is deemed a prerequisite to the application of the CC can be easily addressed.

Trial court's can be tasked with determining whether the primary purpose of the private recipient of the hearsay was to act as a conduit (of the hearsay) to the police, the prosecution, the court or any other arm of the government. If that was the primary purpose of the private recipient, the CC will still apply notwithstanding the absence of "state action" in the creation of the hearsay. This mere conduit rule would dovetail with Justice Thomas's "evasion" of confrontation exception to his formaility test.

4. At bottom, I believe that a hearsay declarant is a CC witness only if (A) the creation of the hearsay is connected to some conduct on the part of a "state actor," (B) the primary purpose of the questioning/conduct by a state actor was to accuse a "targeted" person of a crime, (C) there is some degree of "formality" attending the creation of the hearsay, and (D) the declarant had some minimal "understanding" that they were providing information that might be used by the government against a particular person.

With respect to at what point a person is "targeted," I would use the well-established "reasonable suspicion" standard.

Once the state actor questioner has reasonable suspicion to believe that a particular person committed a particular crime, any hearsay that is connected to additional (post-reasonable suspicion) questioning will be testimonial, assuming the formality and understanding elements are satisfied.

5. In Clark, the questioning teachers were state actors because the state mandated duty to report coupled with the state's threat of criminal prosecution for failing to report or false reporting. In effect, the state threats required the teachers to not only report, but to question L.P.

But the teachers didn't have any purpose in targeting anyone when they question L.P. as to who inflicted the injuries on him. And there was insufficient formality attendent with the questioning.

Thus, L.P., even if had the requisite minimal understanding of the accusatorial import of his statement, was not a CC "witness."

Richard D. Friedman said...

In response to a few of Paul's points (I think we've been round and round on the others, state action, targeting, and all the rest, so I won't address them here):

1. I think it's clear that statements not made in response to interrogation can be testimonial. I don't think the Bryant footnote he cites undercuts the Davis footnote on this point at all. I think it's pretty obvious that if someone makes a video, saying, "Here is my testimony. I'm doing this so I don't have to answer a lot of questions . . . ," that the statement is almost certainly testimonial for purposes of the Confrontation Clause. If not, what kind of a system have we created? One in which anybody who understands the practice can knowingly create evidence and avoid confrontation simply by acting on his or her own. The theory is also ahistorical; the right has long been recognized with respect to statements not made in response to interrogation.

2. When there is an interrogation, I think that courts are going to have to work out a way to. make sense of Bryant’s indication that the purpose of the interrogation is determinative. It’s difficult in any event because interrogator and speaker may have very different purposes and understandings. I think the most sensible understanding, consistent with the totality of the circumstances test, is to think of the understanding of a reasonable person in the position of the speaker, given all the circumstances, including manifestations of the interrogator’s purpose. (I do think, for reasons I have said, it is best to speak of the speaker’s understanding rather than purpose, but this test can be applied to the speaker’s purpose.

3. It seems to me that Paul’s “conduit” theory in his point 3 concedes the point that in some circumstances statements to private persons can be testimonial. I don’t think looking at the matter from the point of view of the private recipient is correct, but that takes us back to the second point.

Susan Bird said...

Thanks for going beyond Lab Tests, tho critical, too.