tag:blogger.com,1999:blog-9532013.post110997034453120696..comments2024-03-28T04:12:44.103-04:00Comments on The Confrontation Blog: Forfeiture, the Prosecutorial Duty to Mitigate, and Rae CarruthRichard D. Friedmanhttp://www.blogger.com/profile/08376534293308240526noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-9532013.post-1110404973709833962005-03-09T16:49:00.000-05:002005-03-09T16:49:00.000-05:00I think the difficulty of Brooks's analysis is the...I think the difficulty of Brooks's analysis is the assumption that the accused is asking to be spared the consequences of his own misconduct. Let's think about it this way. There are three possible basic manners in which the witness's tesitmony may be given, in descending order of preference: (1) Live, at trial, subject to confrontation, including cross-examination. (2) In a deposition or other pre-trial proceeding, subject to confrontation, including cross-examination. (3) In some other pre-trial statement, without confrontation. Possibility (3) is obviously unacceptable absent forfeiture. By hypothesis, the accused has by misconduct prevented possibility (1). But why does that mean that the prosecution should be able to invoke possibility (3), even though it could easily have arranged possiblity (2)?<br /><br />In other words, to be precise the consequence of the accused's misconduct is not that the witness is unavailable to testify subject to confrontation; it is only that the witness is unavailable to testify <I>at trial.</I> This point is particularly important because we know that the prosecution presumably would arrange for possibility (2) if the witness's testimony was important, the witness appeared likely to be unavailable to testify, and there were no forfeiting conduct. The rule I am suggesitng therefore maintains in the context of a forfeiutre contention the incentive that the prosecutor ordinarily has to preserve confrontation to the extent reasonable.<br /><br />Brooks raises a very interesting hypothetical of the witness who is available until shortly before trial and only then intimidated by the defense. But I don't think this creates a problem. The prosecution ordinarily bears the risk that one of its witnesses will become unavailable for trial; if the porsecution has declined to take the witness's deposition and she suddenly becomes incapacitated through nobody's fault, that is tough luck on the prosecutor; next time, consider taking a deposition. But the prosecutor should not be held to take the risk that by misconduct the accused will prevent the witness from testifying. So, at least until a time when pre-trial depositions become common for most witnesses, I don't think the prosecution should be held accountable in that circumstance. There may be close cases, in which the witness's knees are beginning to buckle, and the prosecution should know that, though the witness would be willing to give a deposition now, she may not have the fortitude to testify by the time trial comes around.<br /><br />Notice also that, perhaps unlike Paige Nichols, I do not subscribe to the view that the prosecution bears the burden of proving that it would never have been able to take the witness's testimony subject to confrontation. Rather, as I said in my first comment on this post, I think the accused should have the burden of showing what the proseuction could have done and when.Richard D. Friedmanhttps://www.blogger.com/profile/08376534293308240526noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-1110344787573125082005-03-09T00:06:00.000-05:002005-03-09T00:06:00.000-05:00I disagree with Brooks. Yes, it's often said that...I disagree with Brooks. Yes, it's often said that the confrontation right is primarily a trial right, but we must understand the particular sense in which this is true. Usually we expect confrontation to occur at trial, and it is at trial that we are able to determie that there is a violation of the confrontation right; until a testimonial statement has been introduced without affording the accused the opportunity for confrontation, there has not been a violation. But the opportunity for confrontation may be offered beforehand, and a wise prosecutor, knowing that a witness may be unable to testify at trial, will sometimes ensure that the witness's testimony may be presented at trial by taking her deposition and offering the accused the chance to attend and to cross-examine.<br /><br />So if the witness is likely to become unavailable through no fault of the accused, the prosecutor has a strong incentive to take the witness's deposition; if this is not done and the witness is indeed unable to testify at trial, then the prosecutor cannot present any pre-trial testimonial statements that the witness made. Now, why should the prosecutor's incentive be any different given that the witness's prospective inability to appear at trial appears to be attributable to the wrongdoing of the accused? No good reason, so far as I can tell. That is, the prosecutor should not be allowed to think, "Well, it would be feasible for me to take the witness's deposition right now, and if she were likely to die through nobody's fault I would of course do so, because otherwise I would not be able to use her testimonial statement at trial. But I think that if the witness does die the court is likely to conclude that her death is attributable to the fault of the accused. So I'll sit back and relax; no need to bother about a deposition. If the witness lives, she can testify at trial, and if she dies forfeiture doctrine will defeat the confrontation right. La di-da."Richard D. Friedmanhttps://www.blogger.com/profile/08376534293308240526noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-1110302023573530562005-03-08T12:13:00.000-05:002005-03-08T12:13:00.000-05:00I generally agree with Paige Nichols' analysis -- ...I generally agree with Paige Nichols' analysis -- the issue of what the prosecution could have done could be considered as part of the unavailability question or as a separate question. But I am inclined to treat it separately, and I think the burden on this point should be on the defendant. Here is the dialectic as I see it:<br /><br />The prosecution offers the statement. The defense objects on confrontation grounds. The prosecution raises the forfeiture issue, and has the burden of demonstrating that the witness is unavailable to testify at trial, that the accused engaged in wrongful conduct, and that that conduct played a role in the witness's unavailability. Then the defense says, "But you could have done something earlier," and it has the burden of showing what it is the prosecution could have done and when.<br /><br />One important benefit of this approach is that, to borrow analysis offered some years ago by Kevin W. Saunders, in <I>The Mythic Difficulty in Proving a Negative</I>, 15 Seton Hall L. Rev. 276 (1985), it is much harder to prove a universal statement than to prove an existential statement. An example of a universal statement is, "There was never a time after the shooting when confrontation practically could have been afforded." An example of an existential statement would be, "There existed an opportunity to provide confrontation; a deposition could have been held feasibly any time between December 2 and December 9."Richard D. Friedmanhttps://www.blogger.com/profile/08376534293308240526noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-1110294176081947222005-03-08T10:02:00.000-05:002005-03-08T10:02:00.000-05:00I am intrigued by this proposition because it init...I am intrigued by this proposition because it initially looks as if the accused’s wrongdoing might not warrant a forfeiture finding if the prosecution’s “wrongdoing”—failing to produce the declarant at a time when cross-examination might have been possible—trumps the accused’s wrongdoing, thus making it unfair to invoke the forfeiture doctrine.<br /><br />I wonder if this proposed rule really creates a third prong to the usual forfeiture inquiry, or is it simply part of the unavailability/cause analysis? The usual questions we ask are: (1) is the declarant unavailable?; and (2) did the accused cause the declarant’s unavailability? Professor Friedman’s proposed rule might suggest a third question: (3) notwithstanding “yes” answers to (1) and (2), did the prosecution fail to exercise a reasonable opportunity to preserve the right of confrontation in whole or in part?<br /><br />But it seems that the proposed rule might be more closely connected to the usual unavailability/cause questions. This is particularly true if we view the declarant’s status as a continuing state from the time the declarant makes testimonial statements (or from the time the prosecution is aware of such statements) through trial. This view puts the burden on the prosecution to prove that the accused’s wrongdoing rendered the declarant unavailable for cross-examination during this entire period of time. And the prosecution will be less able to bear that burden if it made no effort to produce the declarant at any point during this time. The Supreme Court has held that where the prosecution makes “absolutely no effort to obtain the presence” of a witness, then the prosecution cannot claim that the witness is unavailable, because “[t]he right of confrontation may not be dispensed with so lightly.” Barber v. Page, 390 U.S. 719, 722-25 (1969); see also Motes v. United States, 178 U.S. 458, 470-74 (1900) (forfeiture finding inappropriate where witness’s absence was attributable to the government’s negligence in failing to procure witness).<br /><br />Thus, in the Rae Carruth scenario, to prove that the accused forfeited his right to confrontation, the prosecution must prove that the victim was unavailable for cross-examination at any time after she made her statements. And if the prosecution did not test the victim’s availability during that time, it should now be much harder for the prosecution to claim that she was unavailable.<br /><br />This point is especially important in child sex cases where the prosecution claims that the child is unavailable to testify at trial because of the psychological trauma caused by the alleged sexual abuse. In the absence of any effort on the prosecution’s part to produce the child for confrontation by, for example, calling the child as a witness at an appropriate proceeding or engaging an expert to prepare the child for confrontation—at any time prior to or during trial—no forfeiture finding should be made. Again, the prosecution’s failure to attempt production of the child does not excuse or trump the accused’s alleged wrongdoing; rather, it weighs heavily against a finding that the prosecution has sustained its burden of proving that the accused’s alleged wrongdoing in fact rendered the child perpetually unavailable.Anonymousnoreply@blogger.com