A Ninth Circuit decision -- room for improvement

 The United States Court of Appeals for the Ninth Circuit just issued a decision, not designated for publication, in United States v. Riggs, that is worth commenting on, both for its good aspects and a couple of curious ones.

Riggs was accused of killing his boyfriend, Martinez; the death apparently occurred in Indian country, which is why the case was in federal court.  The prosecution was allowed to introduce statements Martinez made to the police after two prior alleged assaults.  The Ninth Circuit properly held that Martinez’s statements on these occasions were testimonial.  In each case, “Martinez was alone with the officers and safe from harm during the questioning.”  Good!

The court then adds that “even if there was an ongoing emergency when the officers initially arrived on the scene, by the time Martinez identified Riggs as the assailant, it was clear that ‘what appeared to be a public threat [was] actually a private dispute’ with no ongoing emergency. Michigan v. Bryant, 562 U.S. 344, 365 (2011).”  That this was a private dispute and not an ongoing emergency appears clear.  But I think it’s an unfortunate relic of Bryant that courts continue to look at these matters largely from the point of view of the inquiring police officer rather from that of the speaker – who knew all along that there was not a continuing emergency.

And then the court says that the district court should have redacted the statements to exclude the portions that had become testimonial.  But what happened to the first part of the court’s discussion, in which it indicated that there never was an emergency?  Moreover, the court goes on to hold that Martinez’s statements were not admissible under the excited-utterance, medical-diagnosis, or residual exceptions.  But why was the court discussing these at all?  If, as the first part of its discussion seems to indicate, Martinez’s statements were testimonial, then their hearsay status shouldn’t matter.  I hope the court doesn’t think that those exceptions are also exceptions to the confrontation right.  Maybe all it meant was that if parts of the statements were not testimonial (notwithstanding the beginning of its discussion), then the hearsay status would have to be determined – but the court doesn’t make this at all clear.

One other aspect:  The setup of the case resembles Giles v. California – that is, a killing, and prior statements to the police by the victim alleging domestic violence by the accused.  I think it should be open to the trial court to determine that the accused wrongfully rendered the victim unavailable and therefore forfeited the confrontation right.  Giles makes that impossible unless the trial court determines that the accused rendered the victim unavailable for the purpose of preventing testimony – but it makes that determination somewhat easier in the context of domestic violence.  But the Riggs court doesn’t even mention the possibility of forfeiture.

An unpublished opinion, I know, but by a panel of one of our federal courts of appeals, and I think it's suggestive of how courts' Confrontation Clause analysis could improve.

Failure to preserve: Why does this keep happening?

Occasionally, but too often, a perfectly good Confrontation Clause objection is held unreviewable and lost because defense counsel fails to preserve it, usually by objecting but only on hearsay grounds.  A frustratingly good example is presented by a decision issued yesterday by a Texas appellate court, Edwards v. State (Tx. Apps. 13th Dist.).

Edwards was convicted on gun-smuggling charges and sentenced to forty years in prison.  Important evidence against him was a statement to a detective by an apparent confederate, Simmons, that Edwards was his supplier.  So there was no doubt that the statement was testimonial, and there's no suggestion that Edwards either had an opportunity for confrontation or forfeited the right.  (And, for good measure, it appears that Simmons was available, because Edwards contended that the State could have subpoenaed him.) The confrontation violation was clear.  

Unfortunately, the objection by Edwards's counsel did not explicitly mention the Confrontation Clause as a ground.  The trial court, in overruling it, explicitly referred to it as a hearsay objection, and the debate appears to have been over whether the statement fell within Texas's exception for statements against penal interest, Tex. R. Evid. 803(24)Cwhich, unlike its federal counterpart, Fed. R. Evid. 804(b)(3), does not require unavailability.

The appellate court held that the Confrontation Clause issue was not preserved for review, because the objection did not cite the Clause specifically.  Two thoughts about that decision.  First, it seems somewhat stingy on its own terms.  Counsel did repeatedly complain that the State could have subpoenaed Simmons, and also that cross-examination was not possible; the appellate court might have interpreted these as sufficient to implicate the Clause.  Brooks v. State, 132 S.W.3d 702, 705 (Tex. Apps. 5th Dist. 2004), cited by Edwards in his appellate brief, is quite directly on point and offered ample authority for doing so.  But even apart from that, this would seem to be a very good case for applying the doctrine of "fundamental error," the rubric Texas uses for what other jurisdictions call "plain error."  (Edwards, perhaps confident that the issue was preserved given Brooks, did not invoke the possibility of fundamental-error review.)

So this strikes me as quite a bad decision.  But I feel like a coach after a close loss saying, "Don't complain about bad calls.  You've got to put yourself in a position where bad calls won't hurt."  Twenty years after Crawford, it certainly seems that defense counsel should be aware that there is this thing called the Confrontation Clause that they should at least think about when they're objecting to an out-of-court statement. Had trial counsel just mumbled the words "Confrontation Clause" this situation would not have arisen.  Why does this keep happening?      

I don't have a comprehensive answer, but I'll offer one speculation.  The traditional way of teaching hearsay is to go into some depth on the definition of hearsay, then into greater depth on the exceptions to the hearsay rule, and somewhere along the way, perhaps near the end, acknowledge that the Clause exists.  I think many Evidence teachers still do that, and so I suspect that a good many lawyers are insufficiently sensitized to the Clause.  Before Crawford, maybe this was justified. Since then, I believe, it really isn't.  ("Are there any textbooks that avoid this pitfall?" you may ask.  Oh, so glad you asked.)