Wednesday, March 04, 2015


When the Supreme Court first mentioned solemnity as a criterion for determining whether a statement is testimonial, I thought that it was misplaced:  It’s not as if one has to be solemn to be a witness.   If that were so, the word would soon go out:  “Laugh and smile a lot when you make your video for the police.  Try to tell a joke or two.  Then you won’t have to come to court to testify.”

But now I realize that solemnity, properly interpreted, can express the essence of what makes a statement testimonial – that is, the act of witnessing.  And I believe Justice Scalia used it in this sense in the Clark argument, when he suggested that lack of solemnity was what made L.P.’s statement non-testimonial.  (Transcript, p. 4.)

I believe the proper way to think of solemnity in this context is not as a matter of tone or mood but as appreciation of the potential consequences of one’s statement and the gravity of those consequences.   Steve Ceci and I have argued, in our amicus brief and in the law review essay on which it was based, that for a person to be capable of being a witness he or she must  be capable of recognizing the truths in the following causal chain: 
As a result of my statement, my listeners may believe that what I say happen did in fact happen; as a result of that belief they may take action; and as an ultimate result of that action, the person whose conduct I am describing may suffer serious adverse consequences.  Accordingly, my listeners, or others, regard it as important that I speak truthfully.
Our emphasis in the brief and essay was on the capacity of the speaker.  But let’s move beyond that question – let’s assume an adult who is plainly capable of being a witness.  I think recognition of a similar chain of causation (by a posited reasonable person) is what determines whether the given statement is testimonial.  That is, if a reasonable person in the position of the speaker would realize that as an ultimate result of the statement the legal system may plausibly take action of significant consequence, and therefore the speaker is regarded as under an obligation to speak truthfully, the statement should be deemed testimonial.   The speaker is self-consciously creating evidence that may be used in adjudication; that is witnessing.    If the legal system allows a statement made under such circumstances to be admitted against an accused without the speaker confronting the accused, then we have created a system in which a prosecution witness can testify without confrontation.

I think solemnity viewed in this way can clear up a good deal of misunderstanding about what it takes to bring a statement within the Confrontation Clause.  Consider first the alleged limitation of the Clause to statements made to government agents.  At the Clark argument Justice Scalia said that it’s “clearly not true” that “no person who's not an agent of the government can trigger a Confrontation Clause protection”; “[i]t’s a question of solemnity,” he said, “but . . . solemnity has nothing to do with whether you’re a civilian . . . or a policeman.” (Transcript, pp. 4-5.)  Exactly right.  It may be true that most of the time in which someone makes a testimonial statement it is to a government agent, but in numerous circumstances one may say that a reasonable person in the position of the speaker would appreciate the solemnity of her statement, because of its potential litigation consequences, even though the immediate audience was only a private person (or no one at all).

Similarly, I think solemnity does the work that is sometimes mistakenly loaded onto the term “formal”.  In deciding Hammon v. Indiana, the Court said, “It was formal enough that Amy’s interrogation was conducted in a separate room, away from her husband (who tried to intervene), with the officer receiving her replies for use in his ‘investigat[ion].’”  In other words:  The potential consequences of the statement were clear, which gave it the solemnity of testimony.  There is no need for a separate inquiry into formality.


Anonymous said...

I'm puzzled by this change in your view. It is the legal system that creates the witness for without the law there would be no crime and hence no witness to a crime. So it shouldn't matter how solemn the occasion was when the statement was made; the solemnity of a statement is derived from the use to which it is put. It is the legal system itself that confers solemnity to the statement when it decides that the statement is going to used against someone.

A person may attempt a joke on the stand while they are under sworn oath. That joke is still a legally solemn statement--a jury may interpret it in many different ways. A person can be as grave as they want to be and if the statement never enters court it is legally null.

paul said...


Under your solemnity-premised-on-use definition, every hearsay statement (testimonial/nontestimonial & reliable/unreliable) would be excluded from a criminal trial unless the defendant had a prior opportunity to cross-examine the declarant.

Did I misconstrue your position?

Richard D. Friedman said...

I agree with Paul that the fact that the legal system makes later use of a statement cannot be sufficient to bring a statement within the Confrontation Clause, because that would be true of all hearsay.

There's no change in my underlying view, just a change in my perception of the value of solemnity as an organizing principle.

Let's bear in mind that a core purpose of the Clause was to ensure that witnesses are brought into trial rather than testifying ex parte beforehand. So, was the person testifying beforehand? That's got to be determined on the basis of what the context was then.

Anonymous said...

@paul yes, you do misconstrue my position.

The Confrontation clause requires confrontation unless some other rule of hearsay present at the time of the Founding applies. Confrontation means putting them on the stand.

My disagreement with the Professor when it comes to very young children (~ five years or younger) is that I think that as a matter of psychological development they cannot be witnesses in any meaningful legal sense. I use the term witness here in its generic legal sense, not strictly testimonial. As I said before, the professor wants to save children as a "source of evidence" and I think that can't be done in any honorable fashion. I don't think shifting the problem to the DPC solves anything; that idea is misdirection. I don't think that a "soft cross" solves the problem either. To repeat for emphasis it is not simply that children can't testify--they can't witness.

Richard D. Friedman said...

I agree with the anonymous commentator that some very young children can't be witnesses, but I guess we mean different things by that. I agree they lack the capacity to be witnesses for purposes of the Confrontation Clause. I gather that the commentator thinks that beyond that they lack the capacity to generate evidence that is of use to the adjudicative system. But I believe, and the research shows, that their statements can be highly probative. Probative doesn't mean reliable -- it means that their statements can substantially alter the probability of a material proposition, as perceived by a reasonable trier of fact. It is a terrible loss for the adjudicative system to just throw that evidence away. But it would be fundamentally unfair to the accused to deny him any opportunity of examination, without which no individualized assessment of the value of the evidence can be made.

Anonymous said...

Professor Friedman:

I agree that a soft-cross is better than nothing if one presumes that the child as a source of evidence must be accounted for in the legal system. However, I don't see the elimination of the child as a source of evidence as a "terrible loss for the adjudicative system". I think it would be a net gain.

At a philosophical level I resist the logic that runs something like this: in order to prosecute crimes there has to be evidence, so it behooves the system to put as much evidence in front of the jury that it can and let them sort it out. Some sources of evidence can be so arbitrary, so capricious, so subject to manipulation that the source is irredeemably tainted. Under Daubert a judge would not allow the jury to hear evidence that was the result of scrying. For all intents and purposes crossing the child--soft or hard--is scrying.

Despite millions of dollars and thousands of pages of testimony two different jury could not sentence Jodi Arias to death. There is a strong case that the adjudicative system is better off with less, not more sources of evidence. Trials will be quicker, costs will be less, and justice will be more speedy. It is sobering to think about all the other cases of domestic violence that could have been prosecuted but were not because of the costs generated by the Clark case.

Richard D. Friedman said...

I’m not sure I ever heard the word “scry” before – in any event, I had to look it up. For those as ignorant as I, it means to foretell the future, as with a crystal ball.

I don't think the outlook is that there are going to be trials so there has to be evidence. I think it is more that there is evidence that may point in the direction of a crime having been committed, so should it be thrown away? I am nowhere near as pessimistic about the value of statements by very young children as is the anonymous commentator. At least when they are not the product of suggestion, such statements can be very valuable. (L.P.'s statement appears clearly not to have been the product of suggestion by anyone at the preschool.) Steve Ceci and I wrote on the subject at considerable length some years ago; I think our views were rather complex and nuanced. (We had not yet developed the quasi-witness approach, but our focus was in part on older children.) Here is a link:

One of the views we emphasized there was that in some cases a trial judge ought to determine, even though a child has asserted that abuse had occurred, that there is not sufficient evidence for a jury to reach that conclusion beyond a reasonable doubt. I continue to believe that this is a better approach than outright exclusion of the evidence. But it is not sufficient; if the evidence of the child's statement is admitted, the accused ought to have the right of out-of-court examination that we have advocated. (I would not characterize it as soft cross, because it is not attorney-directed, but I understand the label.)

Anonymous said...

"(L.P.'s statement appears clearly not to have been the product of suggestion by anyone at the preschool.)"

I don't agree with that and I don't think that Professor Fisher thinks that either. At oral argument he clearly states that he think that teachers were "fishing". He gets challenged on that by Ginsburg and then inexplicably backs down.

The trial transcript clearly indicates the teachers suggested to the child. The first question out of the teachers mouth is "Who did this to you?" That's a suggestive interrogation because it requires the child to respond with name. It's true that it didn't require the child to respond with any specific name but by asking for a name it eliminates the possibility of an accident. It was without foundation because the teacher had no ascertained that the injuries had been caused by anyone rather than an accident. It's also a vague question because there is no indication in the transcript that the "this" in the question referred to the physical injuries. It is the teacher who draws the connection between the injuries and Clark, not the child.

You stated earlier that a child as a source of evidence was important because such evidence could be probative but this case directly contradicts that. Indeed, even the teacher admitted that she felt that LP was "bewildered" by her questioning. That's her exact word, the child was "bewildered". How a bewildered three year old child can provide probative evidence of anything is beyond me.

Richard D. Friedman said...

I take the point that the questioning was suggestive to the extent that it assumed that somebody had done something to L.P. But as I understand it, at least from the preschool staff's point of view, it seemed clear that someone had done something to him; the "fell down" explanation did not seem credible. I think other evidence supports that. I don't think the defense ever contended that accident was an explanation for the injuries.

That L.P. was bewildered goes to the question of whether what was going on was a testimonial encounter. It does not rob the evidence of all probative value. L.P. may well have been bewildered by what was happening and yet answered truthfully. The question of probative value comes down to this: Is the probability that L.P. would identify Dee as the assailant greater on the assumption that Dee did in fact hit L.P. than on the assumption that Dee did not do so. (This is simply the likelihood ratio.) I think a reasonable observer could plainly answer yes, and that the ratio is substantially greater than one. We oculd, of course, argue extensively over how different from one that ratio is. But that's what trials are for -- and that's why the defense ought to have an expert of its choice examine the child, to help in the assessment of that ratio.