Monday, March 02, 2015

The Clark argument

Update, March 3:  Here is a link to the transcript.

I attended the argument in Ohio v. Clark today.  I thought the case was well argued on all sides (including by Mathew Meyer for the State; he was put on the case, as I understand it, only seven days ago).  Here are a few impressions.

The State got nowhere with its argument that there was no confrontation violation because the preschool teacher was not an agent of the state.  Justice Scalia said it was "clearly not true" that a statement could not be testimonial unless made to an agent of the state. Meyer responded that Crawford implies that the recipient of the statement must be a government agent, but he did not press the point.  It was never raised again.

Justice Scalia also said that the question was one of solemnity, and he asked, apparently rhetorically, how could this child ever have testimonial intent.  Later Justice Kagan said something like, "We can all agree that a 3-year-old child doesn't have testimonial intent."  Jeff Fisher, for Clark, made the argument as well as it could be made that the child may have understood punishment.  (In fact, I don't think that L.P. could understand that his words to a preschool teacher might wind up in punishment of Dee.)  But I think that no one on the Court indicated a view that the presumed intent or state of mind of the child would lead to considering L.P.'s statement testimonial.

Some of the justices clearly thought the case -- or at least cases of this sort -- do not end with the question of whether the statement is a confrontation violation.  Justice Kennedy first raised the question of whether there was a due process violation.  Justice Kagan asked at one point "is there another inquiry?"  I'm not certain, but she may have been suggesting that a due process inquiry was appropriate.  towards the end of the argument, Justice Breyer, saying that this case presented a"a tragedy either way," said explicitly that it was "tailor-made for the Due Process Clause."  And shortly after that Justice Sotomayor said something to the effect of, "Are you raising the right challenge?  Is this really the Confrontation Clause?"  One particularly interesting aspect of the argument, as suggested by these comments and others, was that although none of the justices seemed ready to say this was a confrontation violation neither was any of them saying, "There's no problem here; just admit this evidence for what it's worth."

Fisher indicated that in his view there was a good deal of flexibility in his view of what the Confrontation Clause required here. He said we start with Maryland v. Craig, and he indicated that he did not think it was necessary that the questioning be actually conducted by a lawyer.    I think Fisher was trying to make the softened-cross that he advocates look a lot like the forensic interview that Steve Ceci and I have advocated. In a post last night, I compared the two approaches.  Among the advantages I see to the quasi-witness approach is that it avoids distorting the Confrontation Clause, in two respects, really -- no need to stretch the Clause to reach statements by a 3-year-old, and no need to diminish the impact of the Clause when it does apply.  The justices' comments today indicated that they also see the virtue of applying a due process standard in this realm.

Justice Kagan posed a hypo that was very similar to the one I presented in a post a couple of weeks ago: Imagine similar facts but L.P. were 13 and the teacher told him of an obligation to report.  (I used an 18-year-old without the explicit statement.)  She thought the statement would be clearly testimonial, Meyer indicated that it might be, and nobody indicated a contrary view.  Later, Justice Alito noted how different that hypothetical was from the actual case.

Finally, some of the justices indicated a good deal of discomfort with the "primary purpose" test, in part because of the difficulty of separating out purposes.  It was by no means clear that this is the case that they will choose to use to clean that up.

I'll have more to say about the argument later, but on the whole I was heartened; I think the aspects on which I'm reporting here suggest that, whatever the outcome of this case, the Court may move doctrine in a productive direction.


Anonymous said...

The argument did not go as poorly as I feared but at the same time I was bothered by it. I felt that Fisher conceded way too much and I felt that Myers made several factual statement that were clearly not supported by the trial record and no one called him out on those mistakes.

My biggest gripe is that I felt that too many people--and even Fisher--are willing to concede or assume that a teacher is the great neutral tit in the sky, operating out of the benevolence of her heart with only the thought of protecting the child. That vision is sheer nonsense. Teachers go through a lot of training, they are college graduates, they understand the law in their field--they have to in order get licensed. I absolutely would not have conceded Alito point about diplomatic immunity. There is an inherent circle here. If teachers were the kind of people who would ask these questions directed at the protection of the child absent a mandatory reporting law then why does the law exist?! Legislatures are not known for passing laws that require everyone to do what they are already doing voluntarily. The answer is because teachers were not asking these question in the due course of their duties. That's just a plain and simple historical fact which anyone who knows the history of these laws knows. And yet everyone--even Fisher--treated the teachers as the white knight. It might not be outcome determinative but I think it was a major mistake to just blithely accept the notion that a teacher is a neutral party. It might be what we all want to be truth but the reality is very different.

paul said...

I think at least five Justices will determine that, viewed objectively, under the totality of the circumstances:

1. The primary purpose of the 3 year old declarant (when he identified his attacker) was not to build a case against anyone;

2. The primary purpose of the teacher (when she asked the child "Who did this?") was not to build a case against anyone; and

3. The informal circumstances of the interaction between the child and the teacher support 1 and 2.

The Court does not have to resolve whether or not the teacher was a state actor (by virtue of the mandatory reporting law). The Court can assume that she was without deciding the question. The Court can simply decide whether under the primary purpose test (at least whatever version of that test five Justices apply) the child was a "witness" under the CC. Or, in the words of Crawford, the child's hearsay was "testimonial."

Also, as I have been saying on this blog, the fact that the child was incompetent to testify at trial, but his hearsay accusation was admitted, raises concerns about the reliability of the accusation. But those concerns are (under the testimonial approach) irrelevant under the CC.

To the extent the federal constitution is concerned with the admission at a criminal trial of unreliable, nontestimonial, hearsay accusations, that concern would be addressed under the Due Process Clause -- an issue not raised in Clark.

In my opinion, Justices Alito and Kagan asked the most pointed and relevant questions during the argument.

Finally, I would add that, based upon their questions, I believe that every Justice (including Justice Scalia) will find some rationale/theory to ensure that the child's accusation is not barred by the CC.

Richard D. Friedman said...

A few points. First, in response to the anonymous contributor:

I don't think that Fisher conceded at all that the teacher is a great neutral. On the contrary, he emphasized, at considerable length, that teachers are trained to gather evidence. (And by the way, I suppose the laws exist not so much to make sure the questions are asked, though perhaps that's part of it, but to make sure the reports get made.)

And I don't think that Fisher conceded at all Alito's point about diplomatic immunity. It was an odd question, and I thought Fisher handled it very well. He basically said that even if prosecution isn't a possibility some serious legal proceeding is, and that's enough to make a statement testimonial.

As for Paul's comment: I'm always hesitant to predict, but I don't disagree with him that it may be that no justice finds a Confrontation Clause violation here. If I had to guess, I would say that they will rely on the factor emphasized by Justice Scalia -- lack of solemnity (which, notice, is the consideration we emphasize in contending that the child is incapable of being a witness). So that would be good. I wouldn't be surprised if they never speak in terms of primary purpose in this case, and I wouldn't be surprised if they start to walk away from a "primary purpose" test. So that would also be good. There was no support on the Court for a holding that the teacher was not a state actor, and no opposition to Justice Scalia's statement that clearly there is no state-actor requirement. So that's also good. They may also indicate that there is a possible DP violation; as Paul notes, that wasn't raised in this case. But at least the possibility of finding a DP violation in cases of this sort is likely to be preserved. So that's good as well.

One point I'll note right now, and will want to emphasize later in a post: The DP violation, I think, lies not in the evidence being particularly unreliable. It lies in the defendant not having any opportunity to examine the child through a designated representative. If the child were a competent witness, he could do so through adverse examination at trial. That possibility not being open to him, he should (as we've argued) have the type of opportunity he would have with respect to a nonhuman source of evidence -- an out-of-court examination by a qualified expert.

fern and charlie nesson said...

As Lyle Denniston rightly reports on Scotusblog, "the hearing ended without any clarity on what an alternative analysis might be."

In fact, no justice so much as suggested a possibility!

Which leads us to hope that the justices have yet to read our amicus brief.

fern and charlie nesson said...

Alternative - Distinguish use of hearsay to corroborate guilt from hearsay as sole proof guilt.

In the face of the justices fruitless entanglement of confrontation and hearsay, you express optimism for productive development of 'testimonial' hearsay constitutional doctrine and refuse to consider this alternative.

paul said...

I agree with Professor Friedman that the Court is not likely to hold that the teacher was (or was not) not a state actor. (As I previously argued on this blog, I believe that she was because of the fact that the mandatory reporting law had the practical effect of mandating that she also question the injured child.)

I don't believe that the Court will use this case to definitvely resolve whether state action is a threshold requirement for the CC's admission bar to apply.

But while we are on the subject of state action and Justice Scalia's comment, consider the following hypothetical:

Victim (V) is injured by a drunk driver (D). V hires an attorney to file a civil lawsuit against the D. V is interviewed by a private investigator (PI) who works for the private attorney. V provides the PI with a detailed statement regarding having been struck by the D. V dies before being interviewed by any state actor.

In the meantime, the state charges the D with the crime of DUI causing injury. The state learns of the PI interview. The state seeks to introduce the V's statement to the PI at the D's criminal trial.

It is stipulated that the V's sole purpose in providing the statement to the PI was to build a civil case against the D. It is also stipulated that the PI's sole purpose in questioning the V was to build a civil case against the D.

Is the V a CC "witness"? Or stated in language from Crawford, does the procedure that was used (by the PI and the V) bear any "resemblance" to the abusive government practices that the CC was designed prevent?

I don't believe that a sufficient resemblance exists to justify a conclusion that the V was a CC witness. But, as I stated above, I don't believe that the Court will dive into the thicket of state action in Clark.

I also agree with the Nesson's comment above: The Justices seemed to be strugling with the question of what test should be used to determine if a hearsay declarant is a CC witness. At times some expressed concern about the utility of the primary purpose inquiry. But, at times, some asked questions that were directly tied to that inquiry.

In the end, as I stated above, I believe a majority of the Court will stick with some version of the primary purpose test, if for no reason other than that is the analytical method that eight of them have been using (albeit in different permutations) since 2006. I don't think they will use the Clark case to change course. But in the wacky world of the CC, who knows?

Richard Friedman said...

In response to Fern and Charlie: (1) It isn't as if I haven't considered your theory; I have considered at great length. I just don't think it holds any water.

(2) It's asking too much of a one-hour oral argument that clarity be achieved in understanding the contours of an approach the justices have never considered before and that was not presented to it by a party to the case. But it certainly did seem that a bunch of the justices were thinking a due-process approach to cases of this sort might be useful.

In response to Paul's hypo: This is very much like one Justice Kennedy posed near the beginning of the Crawford argument. I think it's testimonial because it's said in anticipation of litigation use, and that should be enough. (Jeff Fisher gave a similar answer in response to Justice Alito yesterday.) The state tried a "resemblance" argument in Hammon v. Indiana and I don't think it went anywhere. But in any event, I agree that they're unlikely to resolve this type of matter in the Clark case.

fern and charlie nesson said...

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

RichieL Does that seem right to you?

fern and charlie nesson said...

Richie: Please respond directly to this, which you never have:

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."

Richard D. Friedman said...

I do think that the Confrontation Clause itself does not come into play with respect to people without the capacity to have the intent to make testimonial statements. (But I'm treating intent loosely here, because I think the question is reasonable anticipation rather than purpose.) Note that after Kagan made the statement that the Nessons quote she said that there had to be another question with respect to people of diminished capacity to decide whether a statement is testimonial.

So I certainly agree with Justice Kagan that once you decide that a person of diminished capacity lacks the "intent" to make a testimonial statement you have to ask further questions. I would ask them as a matter of due process, rather than trying to shoehorn something into the Confrontation Clause that doesn't belong. It may be that Justice Kagan's sense that it isn't right that people of diminished capacity are outside the scope of the Confrontation Clause really reflects a view that it isn't right that the accused has no right of examination at all with respect to such people. And with that, of course, I agree completely.

I absolutely have responded directly to the Nessons' points numbered 2 and 3. Their suggestion that I (and Justice Scalia)answer yes to the question whether "witnesses" under the Confrontation Clause "include[s] all out-of-court declarants of hearsay the prosecution seeks to admit" obviously does not reflect my views, or those of Justice Scalia; if they stuck the word "testimonial" in there before "hearsay" they'd come closer. And their point numbered (1) is an unduly narrow statement of what I think the purpose of the Clause was.