tag:blogger.com,1999:blog-95320132024-03-18T01:48:31.646-04:00The Confrontation BlogThis blog is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004). Crawford transformed the doctrine of the Confrontation Clause, but it left many open questions that are, and will continue to be, the subject of a great deal of litigation and academic commentary.Richard D. Friedmanhttp://www.blogger.com/profile/08376534293308240526noreply@blogger.comBlogger330125tag:blogger.com,1999:blog-9532013.post-55213322751458548572024-01-23T13:35:00.002-05:002024-01-23T13:35:53.402-05:00People v Washington: pending Michigan case with multiple interesting issues<p> I have <a href="https://confrontationright.blogspot.com/2022/12/a-useful-opinion-on-statements-not.html" target="_blank">previously posted</a> about a Michigan case, <i>People v. Washington</i>. It is now in the state supreme court, and will be argued in March; I have filed an amicus brief and hope to argue as amicus as well. The case is an interesting one on several points (and good fodder for exams!).</p><p>You can find papers in the case <a href="https://www.courts.michigan.gov/courts/supreme-court/case-information-2023-2024-term/march-case-information/165296-people-of-mi-v-lantz-howard-washington/" target="_blank">here</a>.</p><p>Washington blew past a toll at a border crossing between the US and Canada. Some time later, Canadian officers brought him back. None of them testified at trial. But the American officer in charge, Paul Stockwell, testified that he had communications with the lead Canadian officer, Matthew Lavers, and that as a result he took custody of Washington and body armor that the Canadian officers brought along with him. Washington was charged with possession of body armor by a person who has been convicted of a violent felony. (He also made statements to his mother acknowledging that he had had the body armor; the admissibility of those is in question on other grounds.) </p><p>The court of appeals held that the evidence concerning the Lavers-Stockwell exchange violated the Confrontation Clause, and the State has appealed. There are several issues related to the Clause.</p><p>First, nothing Lavers said was formally introduced, but in context, the evidence made clear that Lavers told Stockwell that Lavers had been found in possession of body armor. So, as indicated in my prior post, I think the court of appeals was correct in treating the evidence as tantamount to admission of Lavers’s statement. The dissent in the court of appeals and the State have confused matters by speaking of this case as involving an “implied assertion.” I never find that term useful, and it is particularly misleading here. It is usually used to refer to the conduct of an out-of-court person who does not assert a material proposition but acts in a way arguably reflecting belief in that proposition – think of the classic example of the sea captain embarking on a voyage with his family after inspecting a ship, offered to prove that the ship was seaworthy. But here, it is clear that Lavers asserted that Washington was in position of the body armor. (Indeed, other evidence in the record, not admitted at trial, is explicit on the point.) What is left to implication is not the connection between his conduct and the material proposition, but the connection between the in-court testimony and his assertion. Here, the implication is very clear.</p><p>Second, was Lavers’s statement testimonial? The State argues that the Canadian officers had no reason to believe that Washington’s possession of the body armor was a crime. But Washington had sped past a toll barrier and got into an altercation with the Canadian officers. They returned him in force – half a dozen officers or more in three vehicles. They plainly regarded this as more than a simple case of toll jumping, and they must have known that the body armor would be at least relevant information in any potential prosecution of Washington.</p><p>Third, was Lavers’s statement presented for the truth of what it asserts? The State, as prosecutors often do, contends that the statement was used to show Stockwell’s subsequent conduct (though in another part of its brief it says that “Stockwell did not processor criminally charge Defendant based on the information provided by Lavers.”). This is a move that is often rejected by courts, but too often accepted. (Note, for example, just from yesterday, <i><a href="https://www.supremecourt.ohio.gov/rod/docs/pdf/11/2024/2024-Ohio-209.pdf" target="_blank">State v. Glavic</a></i>, 2024 WL 229787 (Ohio Ct of Apps Jan 22 2024).) In most cases, as here, the prosecution really has no need to explain the officer’s subsequent conduct – and here it is clear that the jury would take the evidence for its most obvious use, as proof that Washington had been found in possession of the body armor.</p><p><span style="white-space: normal;">Finally, the State argues that the circumstantial evidence – Washington being brought back, with the body armor in the car – is enough to prove possession. Two responses: First, whether or not that is so, that is not all the prosecution presented concerning the handoff; it also presented the evidence about Lavers’s communication with Stockwell, which taken together with proof that Stockwell took custody of Washington and the armor amounted to proving that Washington had been found in possession of the armor. Second, the circumstantial evidence argument cannot be correct. That would be something like proving that a defendant committed a crime because shortly after a police officer who had been there was leading him off in handcuffs. </span></p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com0tag:blogger.com,1999:blog-9532013.post-51102902098675309202024-01-10T12:40:00.005-05:002024-01-10T12:41:29.519-05:00Argument in Smith v. Arizona; a preliminary report<p> The Supreme Court heard argument this morning in <i>Smith v. Arizona</i>. It's going to be a couple of days until I can give a fuller report, but for now: I think it is highly likely that Smith will get a reversal. I don't think more than one or two justices, if that, will adopt the principle that admission of a testimonial statement in support of an opinion is not admission for the truth of what the statement asserts, when the statement supports the opinion only if it is true. The Court seemed more interested in the enduring question of what are the bounds of the category of testimonial statements. And Justice Kavanaugh asked each of the three advocates what they thought of Justice Thomas's formality-solemnity test. But the Court seemed strongly disposed to conclude that the question of whether the statements here are testimonial had not been preserved for review; the Court might be prepared to take another case to reconsider thee "primary purpose" test, but I don't believe it will be here.</p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com3tag:blogger.com,1999:blog-9532013.post-39455358199080904322024-01-04T12:41:00.000-05:002024-01-04T12:41:15.638-05:00Comments on the Arizona and SG briefs in Smith v. Arizona, Part 2<p> Arizona and the SG, and some of the other supporting amici
as well, raise once more the supposed multi-witness problem – <i>i.e., </i>the idea
that if the Confrontation Clause is deemed to require that an analyst in the
position of Rast testify subject to confrontation then there will often have to
be a parade of lab witnesses. I have
often (most recently in my amicus brief in this case at 24-26) responded to
this supposed concern, which I believe is raised largely as a scare tactic. A few quick points. </p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">First, there’s no data presented suggesting that this is a
problem in reality.<span style="mso-spacerun: yes;"> </span>On the contrary, I’ve
presented <a href="https://tinyurl.com/5avv3zzf" target="_blank">data indicating that it isn’t</a>.<span style="mso-spacerun: yes;">
</span>Part of the reason is that very often defendants have no interest in
having a lab witness testify live.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal">Second, only those who make testimonial statements that the
prosecution chooses to present need testify subject to confrontation.<span style="mso-spacerun: yes;"> </span><i>See</i> <i>Melendez-Diaz</i>, 557 U.S. at
311 n. 1.<span style="mso-spacerun: yes;"> </span>Yes, there may be a question
of whether the prosecution has left such large gaps in its proof that there isn’t
enough to support a conviction, but that is not in itself a confrontation
problem.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal">Third, most lab tests are performed by a single lab analyst –
and if a lab is worried about multiple analysts having to testify, it can organize
itself in a vertically integrated way, even for DNA tests.<span style="mso-spacerun: yes;"> </span>(Note the case of the army lab, highlighted
in my brief.)<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal">Fourth, in most cases (not all, as the SG points out, but
most), retesting is a possibility, so that if in fact a lab witness has to
testify and one who otherwise would do so is unavailable, or multiple witnesses
would have to testify, it’s a simple matter to have an available witness retest
and testify.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal">Fifth, the state can reduce any burden by various means.<span style="mso-spacerun: yes;"> </span>Notice-and-demand statutes help.<span style="mso-spacerun: yes;"> </span>If a lab is far away from where many trials
are conducted then – even assuming it is not practical to locate a lab closer –
a lab tech who must testify in several cases can do so on one trip by giving
depositions. <span style="mso-spacerun: yes;"> </span>Courts can be flexible
about scheduling. <o:p></o:p></p>
<p class="MsoNormal">Finally, even assuming there is some extra expense, that
has no constitutional significance.<span style="mso-spacerun: yes;">
</span>We have to remember that all times that lab witnesses are witnesses like
any other, and they are providing testimony that may be crucial in convicting a
person, perhaps leading to a multi-year sentence.<span style="mso-spacerun: yes;"> </span>It is not asking too much to require them
occasionally to testify in front of the person whose future they may be
affecting so gravely.<o:p></o:p></p>
<p class="MsoNormal">One other, somewhat related point:<span style="mso-spacerun: yes;"> </span>The SG says that in many cases the jury would
not even understand what the lab tech reports.<span style="mso-spacerun: yes;">
</span>So what?<span style="mso-spacerun: yes;"> </span>If a witness testifies
in a foreign language, most jurors will not understand the testimony without translation.<span style="mso-spacerun: yes;"> </span>We still require confrontation by the
witness.<span style="mso-spacerun: yes;"> </span>Here, the lab tech is providing
crucial information; maybe she can translate it herself, maybe another witness
can, but in any event the accused has a right to examine her about how she came
to make the assertions she did.<o:p></o:p></p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com1tag:blogger.com,1999:blog-9532013.post-10345076912955059942023-12-28T19:43:00.000-05:002023-12-28T19:43:00.476-05:00 Thoughts on the Criminal Justice Legal Foundation brief in Smith v. Arizona<p><b> </b>I’m
hoping to write more in a few days on the Arizona and SG briefs in <i>Smith v.
Arizona</i>. But my old friend Eric
Freedman has called to my particular attention the amicus brief of the Criminal
Justice Legal Foundation (CJLF), which makes some dramatic assertions, and I
want to offer a few thoughts on it.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal"><span style="mso-tab-count: 1;"> </span>As I
understand it, the CJLF advocates doing away with the
testimonial-non-testimonial distinction, and instead treating the confrontation
right as simply a rule of trial procedure – that is, prescribing what rights
the accused has with respect to those witnesses whom the prosecution chooses to
present at trial, or maybe also with respect to those who testify at very
formal proceedings.<span style="mso-spacerun: yes;"> </span>As I will explain
below, I disagree sharply with this, and I believe it ignores a whole lot of
history.<span style="mso-spacerun: yes;"> </span>But first let me note that
there are some aspects of the brief with which I agree.<o:p></o:p></p>
<p class="MsoNormal"><span style="mso-tab-count: 1;"> </span>One of
these is that the current doctrine is murky and gives too little guidance.<span style="mso-spacerun: yes;"> </span>That shouldn’t be a reason to throw out <i>Crawford</i>
(and the CJLF brief relies a lot on dissents and the views of <i>Crawford</i>-skeptic
judges).<span style="mso-spacerun: yes;"> </span>It does mean that current
doctrine can be improved on.<span style="mso-spacerun: yes;"> </span>I agree
with the CJLF that the “primary purpose” test is ahistorical and does not work
well.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal"><span style="mso-tab-count: 1;"> </span>I also
agree that <i>Crawford</i> does not account well for the allowance of dying
declarations.<span style="mso-spacerun: yes;"> </span>I agree with the CJLF that
there is a long history of allowing them, and I believe that there would not be
much support for a doctrine that did not do so.<span style="mso-spacerun: yes;">
</span><i>Crawford</i> made room for them by suggesting that they constituted a
<i>sui generis</i> exception to the general principle that the maker of a
testimonial statement presented against an accused must be subject to
confrontation, and I agree with the CJLF that this is a patchwork, not a
satisfying account.<span style="mso-spacerun: yes;"> </span>(A patchwork can be
an acceptable second-best solution, though.) As I have often argued, the
solution seems rather simple:<span style="mso-spacerun: yes;"> </span>Dying
declarations should be considered as an aspect of forfeiture doctrine.<span style="mso-spacerun: yes;"> </span>The imminence requirement should be
considered as marking a boundary of the state’s duty to mitigate by providing an
opportunity for confrontation.<span style="mso-spacerun: yes;"> </span>I’ve
explained this approach in numerous places, including <a href="https://repository.law.umich.edu/articles/145/" target="_blank">this article</a>.<span style="mso-spacerun: yes;"> </span>Adopting this view would mean walking back from <i>Giles v.
California</i>, but so far as I am concerned that would be a very good
thing. I’ll also note that the CJLF
gives no account of why, even before hearsay law had gelled, courts imposed
stringent requirements on dying declarations.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal"><span style="mso-tab-count: 1;"> </span>Now, the
CJLF says that nowhere in the early materials do we see anything like the line
between testimonial and nontestimonial.<span style="mso-spacerun: yes;">
</span>I think this misconceives a few hundred years of history.<span style="mso-spacerun: yes;"> </span>Until the late 18<sup>th</sup> century, there
was no well-formed hearsay doctrine, nothing resembling the elaborate doctrine
we have today.<span style="mso-spacerun: yes;"> </span>But there <i>was</i> an elaborate
law governing witnesses.<span style="mso-spacerun: yes;"> </span>What do
witnesses do?<span style="mso-spacerun: yes;"> </span>They testify.<span style="mso-spacerun: yes;"> </span>Many sources make clear that it was regarded
as one of the glories of the English system that it insisted that witnesses
give testimony face to face with the adverse party, in open court if reasonably
possible, and not in any other way.<span style="mso-spacerun: yes;"> </span>The
idea of the Confrontation Clause was not just to say, “Here are the witnesses
whom the prosecution has produced at trial; you may face them and cross-examine
them.”<span style="mso-spacerun: yes;"> </span>Rather, it was to <i>ensure</i> a
system in which witnesses would be brought in to trial, or if necessary another
formal testimonial proceeding such as a deposition.<o:p></o:p></p>
<p class="MsoNormal"><span style="mso-tab-count: 1;"> </span>So we
have to think in systemic terms:<span style="mso-spacerun: yes;"> </span>What
are the consequences of allowing, or not allowing, this
evidence for how witnesses testify? What then do we make of Rast’s
notes, which the CJLF says are not close to being covered by the Confrontation
Clause? If they are not, then anyone in
Rast’s position knows, “If I do not testify at trial (and perhaps even if I do)
my notes may be used by a prosecutor against the person who is charged with
possessing this substance.” Then in any
realistic sense we have created a system in which a lab analyst can testify against
an accused by writing out lab notes. Without
ever taking an oath, or facing the accused, or answering questions under
cross-examination, she can knowingly make factual assertions that she
understands will be used as evidence to convict a person of a crime. We could expect that lab analysts would often
testify in this way, and other witnesses as well. This would be not only a clear violation of
the confrontation right but a profound alteration of our method of trials.</p><p class="MsoNormal"><o:p></o:p></p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com2tag:blogger.com,1999:blog-9532013.post-86737611422133199632023-12-27T23:47:00.003-05:002024-01-03T17:31:56.515-05:00Comments on the Arizona and SG briefs in Smith v. Arizona, Part 1<p><i>Smith v. Arizona</i>, in which I am hoping the Supreme
Court will clear up some of the confusion created by its splintered decision in
<i>Williams v. Illinois</i>, will be argued on January 10. As a reminder: Smith was convicted of drug-related crimes in
large part on the basis of the testimony of a lab analyst, Longoni. But Longoni did not perform the tests on the
materials in question, nor write a report on those tests. Instead, Longoni relied on writings by
another lab analyst, Rast, who was no longer with the lab (for unexplained
reasons) at the time of trial. The state
court held that this was OK, and that Rast’s findings were not being used for
the truth of what they asserted but only in support of Longoni’s opinion.</p><p class="MsoNormal"><o:p></o:p></p>
<p class="MsoNormal">Arizona, the respondent, filed its brief on Dec. 13, and the
supporting amicus briefs were filed a week later.<span style="mso-spacerun: yes;"> </span>You can find all the briefs in the case
through the Supreme Court’s docket sheet, <a href="https://www.supremecourt.gov/docket/docketfiles/html/public/22-899.html" target="_blank">here</a>.<o:p></o:p></p>
<p class="MsoNormal">Below, somewhat belatedly, is the first portion of comments on Arizona’s
brief and the one submitted on behalf of the United States by the Solicitor
General’s Office.<span style="mso-spacerun: yes;"> I hope to offer more within a few days. </span>The SG’s brief argues
for reversal, but on narrow grounds, without upsetting the supposed distinction
between offering a testimonial statement for its truth and offering it in
support of an expert’s opinion, even when, as is almost always the case, the
statement supports the opinion only if true.<o:p></o:p></p>
<p class="MsoNormal">Both Arizona and the SG try to make an argument that the
procedure here uses a long-accepted method of proof.<span style="mso-spacerun: yes;"> </span>I believe the attempt fails.<span style="mso-spacerun: yes;"> </span>Notably, they come up with at most a single
case (and that one a civil one) from the founding era or anywhere close of an expert being allowed to
testify to an opinion on the basis of facts asserted in a testimonial statement
that was not itself admissible evidence.<span style="mso-spacerun: yes;">
</span>They do make clear that experts have to rely on general underlying information,
to be found in treatises and the like.<span style="mso-spacerun: yes;">
</span>(Just as, by the way, ordinary percipient
witnesses rely on what they’ve been told about the world by other people.)<span style="mso-spacerun: yes;"> </span>And they cite a couple of civil cases from
the founding era and a few from well after in which <i>maybe</i> experts were allowed
to offer opinions on the basis of otherwise inadmissible statements of case-specific
information.<span style="mso-spacerun: yes;"> </span>(This is not clear, because
the cases do not dwell on whether those statements could have been admitted on their
own; and in at least some, e.g., one involving “daily price lists,” they probably
could have been.) But they do nothing to undermine the well-established fact,
which the drafters of Fed. R. Evid. 703 openly acknowledged, that that Rule,
allowing an expert to rely on otherwise inadmissible evidence if it is of the
type ordinarily relied on by experts in the field, went against the great
weight of the common law.<span style="mso-spacerun: yes;"> </span>Note, for
example, the discussion and citations in my amicus brief <span style="mso-spacerun: yes;"> </span>in this case at 6-7 and 17.<o:p></o:p></p>
<p class="MsoNormal">Arizona and the SG contend that Arizona law and the Federal
Rules take the position that in situations such as that involved here the out-of-court
statement is presented only in support of the expert’s opinion, not for the truth
of what it asserts.<span style="mso-spacerun: yes;"> </span>But a court,
ultimately the Supreme Court, construing and applying the Confrontation Clause
must make its own assessment on that point.<span style="mso-spacerun: yes;">
</span>And the simple fact is that, assuming that only if the out-of-court
statement is true does it support the opinion, then, as five justices
recognized in <i>Williams</i>, there is no real distinction between presenting
the statement in support of the opinion and presenting it for its truth.<span style="mso-spacerun: yes;"> </span>The logic of the jury, assuming it accepts
the opinion, has to be: “Predicate Fact F is true, and therefore Opinion O is
more likely true.”<span style="mso-spacerun: yes;"> </span>There are innumerable
other situations in which a predicate fact supports the probative value of
other evidence (“The letter was sent to the intended addressee, and therefore it
gave notice”) and there is no doubt that the predicate facts is being proven for
its truth.<span style="mso-spacerun: yes;"> </span>This situation is no
different.<span style="mso-spacerun: yes;"> </span>Neither Arizona nor the SG
suggest any way in which telling the jury in a case like <i>Smith</i> to use the
out-of-court statement only in support of the opinion actually alters what the
jury can or will do with it.<o:p></o:p></p>
<p class="MsoNormal">Arizona and some of the other bottom-side amici suggest that the statements by Rast on which Longoni relied were not
testimonial.<span style="mso-spacerun: yes;"> </span>The Court should reject
this argument as well.<span style="mso-spacerun: yes;"> </span>I’ll assume for
purposes of argument that Longoni did not rely at all on Rast’s report, but
only on her notes.<span style="mso-spacerun: yes;"> </span>So let’s understand right
off that if those are not deemed testimonial, then a prosecution has a surefire
way of never having to present for confrontation the lab technician who
performed the test in question and recorded the results:<span style="mso-spacerun: yes;"> </span>Simply give those notes to some other lab tech,
who can then testify in court to a conclusion based on the facts asserted by
the first tech (and which might, as in this case, follow obviously <i>assuming</i>
the truth of those facts).<span style="mso-spacerun: yes;"> </span>Then we have
a system in which a lab witness can testify – creating evidence knowing it will
likely be used in prosecution – just by writing lab notes.<o:p></o:p></p>
<p class="MsoNormal"><span style="mso-tab-count: 1;"> </span>But, Arizona argues, the notes are not formal and they are not solemn.<span style="mso-spacerun: yes;"> </span>Though sometimes the Supreme Court has spoken
of formality as a requirement for a statement to be testimonial, I think that
is potentially misleading.<span style="mso-spacerun: yes;"> </span>Suppose a <span style="mso-spacerun: yes;"> </span>statement is given very informally, but in
full knowledge, and even with the purpose, that it will be used as evidence in
prosecution.<span style="mso-spacerun: yes;"> </span>Then it seems clear that it
ought to be deemed testimonial.<span style="mso-spacerun: yes;"> </span>Formality,
as I have often said, is not a requirement for a statement to <i>be</i>
testimonial.<span style="mso-spacerun: yes;"> </span>Rather, certain
formalities, if you want to call them that – the oath, subjection to confrontation,
presence at a formal testimonial event – are necessary for testimony to be <i>acceptable</i>.<span style="mso-spacerun: yes;"> </span>As for solemnity, I think that gets closer to
the mark, if properly conceived.<span style="mso-spacerun: yes;"> </span>I think
solemnity in this context means appreciation of the gravity of the consequences
of the statement (which is why we ask witnesses to “solemnly swear.”)<span style="mso-spacerun: yes;"> </span>And notes can have this solemnity; if they
can be used as prosecutorial evidence, and the writer of them understands that –
which would of course be true if Rast’s notes are deemed admissible – then the
writer understands that her notes may be a critical factor in convicting a
person of crime.<span style="mso-spacerun: yes;"> </span>That’s enough for the
statement to be considered testimonial.<o:p></o:p></p><p class="MsoNormal">More later.</p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com1tag:blogger.com,1999:blog-9532013.post-83126700601778542692023-11-20T18:05:00.004-05:002023-11-20T18:05:36.504-05:00Smith v. Arizona -- top-side briefs filed<p>Petitioner filed his brief in <i>Smith v. Arizona </i>last week, and today a bunch of amici, most in support of Petitioner, filed theirs. You can get to them all by going to the <a href="https://www.supremecourt.gov/docket/docketfiles/html/public/22-899.html" target="_blank">Supreme Court's docket sheet</a>. Among the briefs are one by the United States, in support of neither party, disputing some of Petitioner's arguments but contending that the case should be remanded, are rather unusual position for the U.S. in a criminal case. Among those in support of the Petitioner are one on behalf of the National Association of Criminal Defense Lawyers, with Jeff Fisher on the brief, and (to the surprise of nobody who has been reading this blog) one by me, on behalf of myself. I hope to offer further comments on the U.S.'s brief over the next few weeks. The State's brief is due December 13, the remaining amicus briefs December 20, and argument will be January 10. Stay tuned.</p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com1tag:blogger.com,1999:blog-9532013.post-88636188597190619282023-09-30T13:45:00.000-04:002023-09-30T13:45:30.805-04:00Smith v. Arizona -- cert grant in a case that might clear up the Williams mess<p> Yesterday, the Supreme Court granted <i>certiorari</i> in <i>Smith v. Arizona</i>, No. 22-899, a case that might help provide some clarity much needed since the Court's decision in <i>Williams v. Illinois. </i>Here are some preliminary thoughts.</p><p><i>Williams</i> involved a DNA report in a cold-hit case. Five justices concluded that the report was not testimonial, but no rationale leading to that proposition gained the support of a majority. Four of those five justices also concluded that the prosecution did not use the report for the truth of a matter asserted in it. The primary reason that they cited in favor of that conclusion was that the prosecution used the report in support of the opinion offered by an expert who testified at trial; this, they believed, was not using it for the truth of what it asserted. Although five justices rejected this analysis, some courts have adhered to it -- and one of those is <a href="https://www.azcourts.gov/coa1/Decisions/Search-Decisions" target="_blank">the Arizona Court of Appeals in the <i>Smith</i> case</a>. Smith was tried on various drug charges. A forensic analyst from a state lab testified to what the substances were, but the factual predicates of his testimony were drawn from the report of another analyst, who (for reasons apparently not explained) no longer worked for the lab. Not a problem, thought the court; the testifying analyst was giving his "independent opinion" and the report was only used in support of this opinion.</p><p>I have written several times previously on this blog about the theory that presenting (whether by formal admission or otherwise) a lab report in support of an expert's opinion is not presenting it for the truth. If the report supports the opinion only if it is true, then, as <a href="http://confrontationright.blogspot.com/2011/07/initial-thoughts-on-williams.html" target="_blank">I have said</a>, I think it is a sham to say it is not being presented for the truth. This is what I have called <a href="http://confrontationright.blogspot.com/2005/12/expertise-end-run-and-people-v.html" target="_blank">the expertise end run</a>, one example of the <a href="http://confrontationright.blogspot.com/2006/01/not-for-truth-end-run.html" target="_blank">not-for-the-truth end run</a>. I thought it should have been disposed of nearly 18 years ago once the New York Court of Appeals issued its very fine opinion in <i><a href="http://confrontationright.blogspot.com/2005/12/expertise-end-run-and-people-v.html">People v. Goldstein</a>.</i> (Among my other posts on the topic are <a href="http://confrontationright.blogspot.com/2005/07/expert-opinion-problem.html" target="_blank">this one</a> and <a href="http://confrontationright.blogspot.com/2018/05/continuing-confusion-on-lab-tests.html" target="_blank">this one</a>.) <i>Smith</i> provides an opportunity to put the issue finally to rest.</p><p>By the way, the report in <i>Smith</i> was not formally introduced into evidence. In the context of a case like this, in which the substance of the report is clearly conveyed to the jury and is a predicate for the testifying expert's opinion, that should not matter. See especially <a href="http://confrontationright.blogspot.com/2011/06/when-is-statement-presented-for.html" target="_blank">this post</a> and also <a href="http://confrontationright.blogspot.com/2011/07/initial-thoughts-on-williams.html" target="_blank">this one</a></p><p>Another issue raised by the <i>Smith</i> petition is that the Arizona court said, as the four justices did in <i>Williams</i>, that if the accused wanted to examine the absent analyst he could have called the analyst himself. That idea should have been completely disposed of by <i>Melendez-Diaz v. Massachusetts</i>, which proclaimed that "the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court." The two are not close to equivalent; for a full elaboration of this argument, see <a href="http://confrontationright.blogspot.com/2009/09/petitioners-brief-in-briscoe-filed.html" target="_blank">my brief for the petitioners in <i>Briscoe v. Virginia</i></a>. It appears the dissenters in <i>Melendez-Diaz </i>took another shot at the issue by granting certiorari in <i>Briscoe </i>, but the Court slapped that attempt down by remanding the case for reconsideration in light of <i>Melendez-Diaz</i>. We can hope this issue as well will finally be resolved, though I'm not sure how the Court can be much clearer than it already has been.</p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com4tag:blogger.com,1999:blog-9532013.post-48499184066441357102023-06-23T15:16:00.002-04:002023-06-23T15:16:19.668-04:00Samia v. United States: The Supreme Court cuts back on Bruton<p>The Supreme Court today decided <i><a href="https://www.supremecourt.gov/opinions/slipopinion/22" target="_blank">Samia v. United States</a>, </i>and in doing so cut back substantially on the rule of <i><a href="https://supreme.justia.com/cases/federal/us/391/123/">Bruton v. United States</a> </i>(1968) and essentially nullified <i><a href="https://supreme.justia.com/cases/federal/us/523/185/">Gray v. Maryland</a> </i>(1998) a <i>Bruton</i> follow-on. A premise underlying all these cases is that a confession of one defendant cannot be introduced against another defendant. That has been clear since the <i>Case of Thomas Tong</i>, 84 Eng. Rep. 1061 (1662), though before <i>Crawford</i> some courts tended to forget it. In <i>Bruton </i>two defendants were tried jointly, the confession was introduced, and the trial court instructed the jury not to use it against the non-confessing defendant. That was not good enough, said the Supreme Court; though usually we assume that a jury will follow instructions, in a case such as this that is too dangerous an assumption to make. Thus, if the confession is to be introduced against the defendant who made it, the other defendant must have a different trier of fact -- perhaps, though not inevitably, at a separate trial. <i>Gray</i> was similar to <i>Bruton</i> but instead of the confession being read unaltered the word "deleted" was inserted. Not good enough, said the Court, given that the jury would easily understand the reference. <i>Samia</i> is similar except that the confession was recounted by referring to an "other person" rather than identifying Samia by name. The Court, in a 6-3 decision per Justice Thomas, held that this was acceptable.</p><p>Justice Thomas's opinion spent a great deal of space demonstrating that, during an earlier historical period courts found it perfectly acceptable to rely on limiting instructions when a confession was admissible against one defendant but not another. Justice Barrett, concurring in part and concurring int he judgment, did not join this part of the opinion; she pointed out that Justice Thomas's sources did not reach back to the framing era, and they did not, at least not explicitly, consider constitutional considerations. Justice Thomas spent much less energy attempting to distinguish <i>Gray</i>. Justice Kagan, joined by Justices Sotomayor and Jackson in dissent, found the attempted distinctions inexplicable and unprincipled. She also pointed out that there was now no need for the majority to overrule <i>Bruton</i> because the prosecution could always replace the name of the non-confessing defendant with words such as "a woman" and avoid the problem.</p><p>Justice Jackson also dissented separately. She pointed out that the majority skipped over the fact of a Confrontation Clause violation and treated <i>Bruton</i> improperly as an exception to a general rule rather than as an ordinary implementation of the law of the Confrontation Clause. I think she may be overstating hte difference of opinion. Although Justice Thomas's opinion is less clear on the point than it might have been, I believe that it takes as a premise that if the confession had been introduced against Samia, a non-confessing defendant, without a limiting instruction, there would have been a Confrontation Clause violation. So the issue is one of remedy. The majority here thinks that the limiting instruction – which does in effect render the evidence inadmissible against the non-confessing defendant – suffices. The minority disagrees. I do not take anything in the majority opinion as suggesting that a statement presents a confrontation problem only if it identifies the defendant against whom it is offered. I would not be surprised if some prosecutors try to make the opinion say something like that, but it doesn't.</p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com1tag:blogger.com,1999:blog-9532013.post-44693211265181307862023-03-06T18:59:00.002-05:002023-03-06T18:59:24.450-05:00Cert denied in Shields. What should counsel do at preliminary hearing?<p><span> </span>This morning, the Supreme Court denied certiorari in Shields v. Kentucky, No. 22-450, on which I have previously posted, <a href="https://confrontationright.blogspot.com/2022/12/shields-v-kentucky-cert-petition-to.html">here</a> and <a href="https://confrontationright.blogspot.com/2023/02/shields-v-kentucky-bio-reply-and-ready.html">here</a>. As usual, the Court did not give any explanation; there were no dissents from the denial.</p><p><span> </span>In <i>Shields</i>, the prosecution presented an elderly witness at preliminary hearing, without giving notice to the defense, making the discovery that would be required before trial, or indicating that it was presenting her in the thought of preserving her testimony in case she became unavailable by the time of trial. As it happened, she did indeed die before the scheduled trial date, and the issue was whether the prosecution should therefore be able to present her testimony form the hearing. The Kentucky Supreme Court said yes, and the U.S. Supreme Court has now declined to review that ruling.</p><p><span> </span>The Court may have believed that this case was a bad vehicle for considering the issue of whether, or when, a preliminary hearing gives an adequate opportunity for confrontation; the evidence against the defendant, though not without some difficulties, was very strong. But it could well be that the Court is simply disinclined for now to consider the issue.</p><p><span> </span>The uncertainty puts defense counsel in a difficult position. Ordinarily, counsel is not expected to cross-examine aggressively at a preliminary hearing, because usually it is a foregone conclusion that the accused will be bound over for trial, and in some states cross addressed to credibility issues is not even permitted. But if counsel holds back at the hearing and the witness becomes unavailable before trial, the courts might hold that the hearing gave an adequate opportunity for cross and the testimony from there is admissible.</p><p><span> </span>I believe, therefore, that defense counsel should make it a regular practice to present the conundrum to the court:</p><p><span> <span> </span></span>(a) If counsel is prepared to conduct a full cross, she can ask the court whether it will allow that, noting that if it is allowed she will have to do so or risk being held later to have had her opportunity if the witness becomes unavailable before trial. Most often, I believe, the court will say that the full cross is not allowed; neither the court, nor the prosecution, nor the defense is likely to want to have cross conducted then. </p><p><span> </span>If, however, the prosecution wishes the hearing to serve a preservation function, in case the witness becomes unavailable before trial, then it would have to so indicate to the court, and then the defendant should be given a full opportunity for cross. In my <a href="https://www.supremecourt.gov/DocketPDF/22/22-450/250088/20221215153835496_Shields%20v%20Kentucky%20Friedman%20amicus%20brief%20in%20support%20of%20petition.pdf">amicus brief in support of the petition in <i>Shields</i></a>, I laid out conditions that I think ought to be required if preliminary-hearing testimony is to satisfy the confrontation right. One of them is that the prosecution should indicate that it wants the hearing testimony to serve a preservation function. What I am suggesting here would essentially require the prosecution to make that declaration if it wants the testimony to serve that function. </p><p><span> </span><span> (b) If counsel has been given inadequate opportunity to prepare for cross -- inadequate time, inadequate opportunity to consult with the accused, incomplete discovery -- she should so state on the record, and ask the court either to confirm that or to postpone the hearing so that she will have an adequate opportunity. Once again, in most cases neither the court nor the prosecution is likely to want to complicate matters, but if the prosecution wants to maintain the preservation function it will have to so indicate.</span><br /></p><p><span><span> I'd be very grateful to learn of readers' responses to these suggestions, and of the experience any counsel have in this situation.</span><br /></span></p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com0tag:blogger.com,1999:blog-9532013.post-28379654279495382272023-02-17T16:36:00.004-05:002023-02-17T16:36:20.065-05:00Another good decision in a fresh-accusation case<p> There are, in my view, a lot of bad decisions involving fresh accusations, made shortly after the alleged crime, often to a 911 operator or a responding police officer. I believe the "primary purpose" test insisted on by the Supreme Court muddies up this field and makes it too easy for trial courts to admit out-of-court statements that any reasonable observer would likely understand from the beginning were likely to be used as evidence in a prosecution. Several months ago, I posted about a <a href="https://confrontationright.blogspot.com/2022/08/a-good-decision-in-fresh-accusation-case.html">good decision</a> by the Minnesota Court of Appeals. And now there's another, <i><a href="https://law.justia.com/cases/ohio/eighth-district-court-of-appeals/2023/110942.html">State v. Johnson</a></i>, issued by the Ohio Court of Appeals, 8th District. But it's 2-1, and the fact that there was even an issue is one more demonstration of the weakness of the "primary purpose" test.</p><p>This is a domestic-violence case. The complainant fled the house, went to her parents', and there made a 911 call that included the statements at issue. The majority, in an opinion by Judge Eileen Gallagher, did the best it could within the confines of the "primary purpose" test and held the statement testimonial. The dissenting judge, Sean Gallagher, thought the primary purpose of the complainant was to get police protection.</p><p>In my view, the majority was clearly right in deeming these statements testimonial. Any reasonable person in the position of the complainant must have known that the statements would likely be used to arrest the accused and ultimately might be used in prosecuting him. If they can be used without the complainant coming to testify, then we have a system in which a witness can find a safe place, make a 911 call, and make extensive statements that will be used to convict the person she accuses. In what way is that not testifying against him? </p><p>The primary-purpose test asks for an unmanageable inquiry into the psyche of the speaker, and as sometimes applied (as by the dissent here, in a well-written and perceptive but, I think, misguided opinion), relies on an untenable distinction between seeking police intervention for protection and creating testimony. The sooner it is discarded, and replaced by a test that depends on the reasonable anticipation of a person in the position of the speaker, the better. </p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com0tag:blogger.com,1999:blog-9532013.post-51565407966024681862023-02-17T16:16:00.001-05:002023-02-17T16:16:40.868-05:00Shields v. Kentucky: BIO, reply, and ready for conference<p> I reported in an <a href="https://www.blogger.com/u/1/blog/post/edit/9532013/8937821383792690356">earlier post</a> on the cert petition in <i>Shields v. Kentucky</i>. The Commonwealth has now filed its <a href="https://www.supremecourt.gov/DocketPDF/22/22-450/253196/20230126120933068_22-450%20Brief%20in%20Opposition%20Final.pdf" target="_blank">brief in opposition</a>, and Shields has filed a <a href="https://www.supremecourt.gov/DocketPDF/22/22-450/254838/20230215124327115_22-450%20Reply%20Brief%20Final.pdf">reply</a>. The case materials have been distributed for the Court's conference of March 3. So we should know whether the petition will be granted on Monday, March 6.</p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com0tag:blogger.com,1999:blog-9532013.post-14156417053250276402022-12-27T07:03:00.003-05:002022-12-27T07:03:41.556-05:00A useful opinion on statements not reported explicitly at trial<p>On the first of this month, the Michigan Court of Appeals issued a useful decision, <a href="https://caselaw.findlaw.com/mi-court-of-appeals/2062812.html" target="_blank"><i>People v. Washington</i></a>, concerning the situation in which a prosecution witness does not explicitly report the content of an out-of-court testimonial statement but nevertheless conveys its substance. A 2-1 majority of the panel properly held that such testimony violates the Confrontation Clause. (I didn't want to post on the case when it first came out, because I used it for a series of exam questions.) And I'm glad to say that the brief for Washington was drafted by two students in the University of Michigan Law School's Criminal Appellate Advocacy clinic, Greg Momjian and Erica Arensman, under the supervision of Doug Baker; it was argued by Kierston Nunn.<br /></p><p style="text-align: left;">The defendant, Washington, was convicted of possession or use of body armor by a person who had previously been convicted of a violent felony. A toll-both operator on the Canadian side of the Blue Water Bridge, which connects Port Huron, Michigan, and Sarnia, Ontario, testified that she had seen a Ford pickup truck blow through her lane, following close on another car. She immediately notified her supervisor, and several officers gave chase. <br /></p><p style="text-align: left;">Paul Stockwell, a supervisory officer with U.S. Customs and Border Protection, testified that on the American side of the bridge he met Matt Lavers, one of a crew of Canadian officers, and that they had Washington in a cruiser. Neither Lavers nor any other member of the crew testified at trial. Stockwell's testimony included this exchange:<br /></p><p style="margin-left: 40px; text-align: left;">[The Prosecutor]: At some point did Officer Lavers from the Canadian services hand you any other evidence?</p><p style="margin-left: 40px; text-align: left;">Officer Stockwell: Yes, he did.</p><p style="margin-left: 40px; text-align: left;">[The Prosecutor]: What did he hand you?</p><p style="margin-left: 40px; text-align: left;">* * *</p><p style="margin-left: 40px; text-align: left;">Officer Stockwell: A body armor.</p><p style="margin-left: 40px; text-align: left;">* * *</p><p style="margin-left: 40px; text-align: left;">[The
Prosecutor]: Now, without saying anything about what was said, the only
question I have for you is were there communications between you and
Officer Lavers?</p><p style="margin-left: 40px; text-align: left;">Officer Stockwell: There were.</p><p style="margin-left: 40px; text-align: left;">[The Prosecutor]: Okay. And ․ based on those communications you took custody of [defendant]?</p><p style="margin-left: 40px; text-align: left;">Officer Stockwell: Yes, we did.</p><p style="margin-left: 40px; text-align: left;">[The Prosecutor]: And you took possession of the body armor that was turned over at the same time?</p><p style="margin-left: 40px; text-align: left;">Officer Stockwell: Yes, sir.</p><p>The testimony took that form because, in response to an in limine motion to exclude evidence of the armor (a bulletproof vest) the trial court had ruled that Stockwell could testify as to what was turned over to him so long as he did not testify as to what was said. Washington was convicted and appealed. The court of appeals, in an opinion by Judge Elizabeth Gleicher (Judge Sima Patel concurring), reversed.</p><p>First, and most significantly, note that no statement by Lavers was actually introduced. But, the majority pointed out, there would have been a clear violation of the Confrontation Clause had the prosecution asked Stockwell, "What did Officer Lavers tell you about the body armor?" And, the court noted, Stockwell's actual testimony "conveyed precisely the same information: that Washington had been wearing the body armor
when caught by the Canadian authorities."</p><p>This has to be right, I think: What would otherwise be a Confrontation Clause violation cannot be excused by the fact that the in-court witness does not purport to report the actual statement made, if the effect of the testimony is to convey the substance of that statement to the trier of fact. It seems plainly obvious that it cannot be that the Confrontation Clause is violated only when the in-court witness purports to be repeating the statement verbatim; if that were true, the Clause would be rendered a virtual nullity with respect to unrecorded oral statements, because the in-court witness would not usually remember the statement verbatim anyway. And similarly it cannot be that the Clause can be evaded by asking the in-court witness, "Please summarize in your own words what [the absent witness] said." Now in <i>Washington</i>, and in similar cases, the prosecution did not explicitly ask the in-court witness to communicate the substance of what the out-of-court witness said. But in some circumstances, as in <i>Washington</i>, that is, as the majority said, precisely the effect of a series of questions that leads to an inference as to what was said. Here, the prosecutor asked Stockwell whether Lavers made a statement and what Stockwell did as a result. What could the jury infer in the circumstances but that Lavers said he had found Washington wearing the vest? Indeed, if that were not the inference to be drawn then the case should never have gone to the jury, because there was not other evidence that would support the inference that Washington was found wearing the vest.</p><p>Judge Jane Markey, in dissent, argued that implied assertions are not hearsay and should not be deemed to create a confrontation problem. It seems to me that this is a rather clear category error. What are commonly called implied assertions (and perhaps should more accurately be called inferred assertions) are a type of conduct that is not intended to assert the proposition at issue but that indicates the actor's belief in the truth of that proposition. So, most notably, in the famous case of <i>Wright v. Tatham</i> (H.L. 1838), letters written to the decedent Marsden assertedly indicated the writers' belief that Marsden was of sound mind, but none of the letters asserted that proposition. The <i>Wright</i> majority deemed these to be hearsay, but under modern law, they would not be (see FRE 801(a) ("intended . . . as an assertion"). And there would not be a confrontation problem. (Notice that conduct of this sort is almost inevitably not testimonial; witnesses who testify intend to make assertions.) But this is an altogether different matter from what is at stake in the <i>Washington</i> case and others like it: In <i>Wright</i>-type cases, the out-of-court actor did not assert the proposition at issue, and the evidence of the actor's conduct is thought to imply his or her belief in the proposition. In <i>Washington</i>-type cases, the out-of-court witness presumably <i>did</i> assert the proposition at issue ("Washington was wearing this vest"), and that fact is inferred from the evidence actually presented at court. These are altogether different situations.</p><p>Judge Markey raised other issues, standard ones in confrontation cases, but I don't think either has merit, and both were rejected by the majority. First, she contended that the evidence of Lavers's communication to Stockwell was not o<span style="font-family: inherit;">ffered for the truth </span>of the presumed assertion but rather only to explain why Stockwell took Washington into custody. This is the "why the officer did that" end run that prosecutors often offer and on which I have commented before. In most cases, including this one, there is no reason why the jury needs to know that. And besides, as the majority pointed out, "Stockwell took Washington into
custody because Washington was in possession of body armor." </p><p>Second, Judge Markey contended that the presumed statement of Lavers was not testimonial because "the purpose of the communication was simply to provide Officer Stockwell
with the information necessary for Officer Stock<span style="font-size: small;">well to formally take
defendant into custody from Canadian authorities and proceed with the
charging process under Michigan law." But, as the majority said, "The 'explanation' for Stockwell's conduct is relevant only because it
inculpated Washington." Under a proper view of what is</span><span style="font-family: inherit;"><span style="font-size: small;"> testimonial</span><span style="font-size: 11pt; line-height: 107%;"><span style="font-size: small;"> – I am tempted to say under any reasonable view</span></span></span><span style="font-family: inherit;"><span style="font-size: 11pt; line-height: 107%;"><span style="font-size: small;"> – if one officer passes on information to another on the understanding that the other will use the information in prosecution of a crime, and presumably will transmit the first officer's report of that information to the trier of fact, that conduct is testimonial. If not, we have created a system </span></span></span>in which a witness can testify by passing information to an officer, without even an intention that the witness will show up at trial. That's a clear violation of the confrontation right. <br /></p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com1tag:blogger.com,1999:blog-9532013.post-89378213837926903562022-12-26T08:00:00.000-05:002022-12-26T08:00:56.133-05:00Shields v. Kentucky: A cert petition to watch on preliminary-hearing testimony<p>Jonathan Ellis and Gregory DuBoff of the McGuire Woods firm have filed an excellent cert petition in <i>Shields v. Kentucky</i>, No. 22-450. The question is whether, or in what circumstances, testimony of a prosecution witness at a preliminary hearing may be used at trial if the witness is then unavailable. This is an issue on which the Supreme Court has not given any guidance since <i>Crawford</i>, and the petition ably shows that the lower courts are in clear dispute.</p><p>Shields was charged with murdering his uncle, and the prosecution presented the testimony of Shields's elderly aunt, the decedent's widow, at the preliminary hearing. It did so without advance notice, or any indication that it was seeking to preserve the aunt's testimony for trial, and without making disclosures of exculpatory evidence that would have been required by trial. Cross-examination was perfunctory. The Commonwealth never attempted to take a deposition. The aunt died before the time scheduled for trial. Shields entered a conditional plea of guilty, allowing him to appeal the trial court's ruling that the preliminary-hearing testimony was admissible. The Kentucky Supreme Court affirmed.</p><p>My own view is that preliminary-hearing testimony of a prosecution witness who has become unavailable by the time of trial should be allowed if and only if certain conditions (apart from the obvious ones that the accused has a right to be present, to be represented by counsel, and to have the witness testify under oath) are satisfied. The purposes of a preliminary hearing and of trial, and defense counsel's goals, are very different -- it is usually, as it was here, a foregone conclusion that the defendant would be bound over for trial. Accordingly, preliminary-hearing testimony cannot be a substitute for trial testimony unless (1) the prosecution has given the accused notice that it intends to use the testimony, if necessary, for preservation; (2) the notice is given in sufficient time to allow adequate preparation; (3) the prosecution has made relevant disclosures that would be required by the time of trial, at least those that would be constitutionally required; and (4) there were no limitations beyond those that would apply at trial. In addition, I think that probably, if the accused is able to show that developments subsequent to the preliminary hearing would have opened up significant lines of cross-examination, that would justify a holding that the earlier testimony is not adequate.</p><p>I've expressed these views in an amicus brief in support of the petition. You can find the papers filed so far in the case -- including the petition, my amicus brief, and two other amicus briefs filed in support of the petition, by clicking <a href="https://www.scotusblog.com/case-files/cases/shields-v-kentucky/" target="_blank">here</a>.<br /></p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com0tag:blogger.com,1999:blog-9532013.post-15710492592970686752022-12-26T07:59:00.000-05:002022-12-26T07:59:54.629-05:00Samia v. United States: Cert granted in a Bruton-type case<p> Earlier this month, the Supreme Court granted cert in <i>Samia v. United States</i>, in which it may resolve one of the issues left open by <i>Bruton v. United States</i>, 391 U.S. 123 (1968), <i>Richardson v. Marsh</i>, 481 U.S. 200 (1987), and <i>Gray v. Maryland</i>, 523 U.S. 185 (1998).</p><p>Samia was tried along with two other defendants for murder for hire and related crimes. One of the co-defendants had made a confession that named Samia. The court instructed the jury not to consider it against Samia, but under <i>Bruton</i>, that alone would not have been sufficient. Nor, under <i>Gray</i>, would it have sufficed if the confession had been redacted with Samia's name replaced by some indication such as "[name deleted]." But under <i>Richardson</i>, if it had been redacted to remove all references to Samia, that would have been acceptable. Samia's case falls between <i>Gray</i> and <i>Richardson</i>; the trial court allowed redactions so that the confession as reported to the jury included references in forms such "somebody else" and "the other person he was with." Given other evidence in the case, it could be readily inferred that the references were to Samia.<br /></p><p>I'm going to guess that the cert grant suggests that the Supreme Court will come down on Samia's side. We should know before the end of the term.<br /></p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com1tag:blogger.com,1999:blog-9532013.post-35414443550023679652022-08-02T09:13:00.002-04:002023-02-17T16:18:01.518-05:00 A good decision in a fresh-accusation case<p>I use the term <i>fresh accusations</i> to cover statements made shortly after an event asserting that someone committed a crime. Often, though not inevitably, they are made to a police officer or 911 operator. They are especially common in domestic-violence cases. I believe that <i><a href="https://supreme.justia.com/cases/federal/us/547/813/" target="_blank">Davis v. Washington</a></i> left the law in this area in a very unsatisfactory state. If a court resolves that the statement was made primarily to resolve an "ongoing emergency," then it will call the statement non-testimonial. And courts will very often seize on any facts that allow them to characterize a statement as having been made in response to an emergency. </p><p>So <i><a href="https://www.mncourts.gov/CourtOfAppeals/RecentOpinions.aspx?ext=." target="_blank">State v. Tapper</a></i>, a unanimous decision by the Minnesota Court of Appeals, is a welcome development in this respect, though it should be utterly unsurprising. This was a domestic-violence case, and the statements in question were made to a responding officer after a 911 call. But the court recognized that this particular incident had ended and that the complainant was not in immediate danger; she was outside her apartment with the officer and her ex-husband, the alleged assailant, was apparently asleep inside. Her children were inside and she said that she would not leave them, but she did not "express fear for their safety or indicate they [had] been harmed by Tapper in the past." She had suffered injuries – she was covered with blood and reported that her head was "messed up," but most of the conversation concerned what Tapper had done on the incident in question an on prior ones. She was sniffling at the beginning of the conversation, wiping her eyes and nose and breathing rapidly, but soon she was able to speak calmly, and she answered the officer's questions coherently. Some courts might have used these factors – the presence of the kids in the apartment with the alleged assailant, the complainant's injuries, and her demeanor at the beginning of the conversation – to justify a conclusion that the statement wasn't testimonial. But it clearly was, and the Minnesota appellate court, like the trial court, recognized this. Too bad it designated the decision as non-precedential! </p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com2tag:blogger.com,1999:blog-9532013.post-23399755107846312342022-05-17T13:43:00.000-04:002022-05-17T13:43:09.168-04:00A good decision from the Fifth Circuit on the "why we acted the way we did" end run<p>I have written before -- most recently <a href="http://confrontationright.blogspot.com/2022/02/the-why-i-acted-way-i-did-end-run.html" target="_blank">here </a>-- about how too often a court allows a prosecutor to introduce a testimonial statements on the ground that it is not offered for the truth, when the prosecution has no real need to prove the proposition for which the evidence supposedly is offered. In particular, courts often allow prosecutors to use such statements to prove the reason for authorities’ conduct, especially why they investigated the accused.</p><p>This is a particularly difficult problem, because a testimonial statement can be introduced for a legitimate purpose that the prosecution has, other than to prove the statement’s truth, and one cannot say that explaining officials’ conduct is utterly immaterial. So some degree of balancing tends to come in; if the prosecution’s need is flimsy, usually the court should recognize the very substantial probability that the jury will use the statement for its truth and so the statement should not be admitted. But courts tend not to do a good job of balancing when the confrontation right is at stake; the temptation to admit probative evidence is often too great, and that is one reason the categorical rule of Crawford was necessary.</p><p>Some courts get it, though. Eric Freedman, who has been keeping me informed for more than four decades, has called to my attention the fine opinion Judge Jerry Smith for a unanimous panel of the Fifth Circuit in <a href="https://www.ca5.uscourts.gov/opinions/pub/21/21-50122-CR0.pdf" target="_blank">United States v. Hamann</a>, which is not only keenly aware of the problem but emphasizes a categorical rule that, if followed, would solve a good deal of it.</p><p>Hamann was charged with conspiracy to distribute meth. An investigator, Stanley, testified to a statement by a confidential source to the effect that “Cali,” understood to be Hamann, was “moving multiple ounces” of meth and to also to statements by local law enforcement that an unknown declarant had said Hamann “was selling narcotics.” Stanley also testified to details concerning a controlled purchase that was used to establish probable cause for a search warrant – but this testimony was second- or third-hand, because Stanley did not observe the transaction. The panel had little difficulty that Stanley was thus able to testify to out-of-court testimonial statements. The fact that he did not recount an “identifiable statement” concerning the controlled purchase did not matter, given that he described the purchase in detail despite not having observed it, making it inferrable what he purported to have been told. All good.</p><p>The more serious question was whether the statements were used for the truth of what they asserted. The panel noted that prosecutors often try to introduce evidence highly probative of guilt “[u]nder the guise of explaining why police began their investigation or conducted it a certain way.” But even if the evidence is relevant for this purpose, the panel said, quoting the court’s earlier decisions, the trial court must be “circumspect in its use”; the evidence would be deemed admitted for the truth of what it asserted if it “specifically links a defendant to the crime” or, put another way, “points directly at the defendant and his guilt.” Thus, “[t]he government must advance a specific reason why it needs to provide inculpatory ‘context’ for its investigation.” The defendant might open the door by challenging the adequacy of the investigation, but “[o]therwise, there is no reason why it cannot begin its account by explaining that it got a search warrant or that ‘a tip prompted’ it to begin investigating a suspect.” </p><p>Application of these principles here was straightforward. Hamann had never contended that the investigation was inadequate. And so the panel said, “We perceive no reason why the government could not have begun its case-in-chief by explaining that officers arrived at the motel to execute a search warrant and found Hamann and Davis together in the parking lot holding distributable amounts of meth.” The prosecution’s “inculpatory prequel” was far from circumspect, and highly prejudicial. Hamann hadn’t had an opportunity to cross-examine the confidential source or the non-testifying source (and neither was shown to be unavailable). So there was a clear Confrontation Clause violation, which the panel concluded was not harmless.</p><p>The panel made clear that it was simply reaffirming principles it had often stated, but the vigor with which it stated them is notable; it said that “ the government has repeatedly failed to take the lesson” and it “remind[ed] prosecutors to take note” – it could and probably should have have included trial courts in these statements. And the decision appears to state not only a stern and skeptical attitude but a very useful per se rule: If a testimonial statement specifically links an accused to a crime, and the accused does not challenge the adequacy of an investigation, then the statement may not be introduced on the basis that it explains the official conduct. That does not solve the whole problem, but it does take care of a good large part of it.</p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com1tag:blogger.com,1999:blog-9532013.post-17906452748126351452022-02-22T11:27:00.002-05:002022-02-22T11:27:49.251-05:00An encouraging cert denial in an autopsy case<p><span style="font-family: inherit;">It's always a mistake to read too much into a denial of certiorari, but I find encouraging the Supreme Court's denial this morning in <i>Lee v. Garlick</i>. This is a homicide case, and at trial the prosecution was allowed to introduce and rely on an autopsy report that indicated that stab wounds were the cause of death; that was crucial evidence, because it was clear that the accused, Garlick, had stabbed the victim and that another person had hit him repeatedly in the head. But the report was introduced through a medical examiner who had played no role in the autopsy or in preparation of the report. Garlick was convicted, the New York courts upheld the judgment, and the Supreme Court denied cert; in <a href="https://www.blogger.com/u/1/blog/post/edit/9532013/1836394911837347660" target="_blank">a prior post</a>, I referred briefly to the case and posted the petition. (That one included a link to a useful research memo by Cody Reaves, a recent Michigan Law alum, on the topic. Among my other prior postings on autopsy reports is <a href="https://www.blogger.com/u/1/blog/post/edit/9532013/2623107816182871189" target="_blank">this one</a>.) But Garlick sought federal habeas relief. The district judge, acting over the recommendation of a magistrate judge (who thought the point was not sufficiently well established for habeas), granted the petition. And <a href="https://casetext.com/case/garlick-v-lee-2" target="_blank">a panel of the Second Circuit unanimously affirmed</a>. The decision basically says – correctly, in my view – that the New York courts have been clearly wrong in treating autopsy reports in murder cases as non-testimonial. Michael Hutter of Albany Law School, who called my attention to this phase of the case, has pointed out to me that one of the judges on the panel, Richard Wesley, is a former judge of the New York Court of Appeals, though he had left that court before it began issuing decisions on this question.</span></p><p><span style="font-family: inherit;">It was this Second Circuit decision that the Supreme Court declined to review today. Although I've thought for fifteen years or so that the Court ought to resolve definitively (and affirmatively!) the question of whether autopsy reports in homicide cases are testimonial (note my failed cert petition in <i><a href="https://www.blogger.com/u/1/blog/post/edit/9532013/117081988324732318" target="_blank">Craig v. Ohio</a></i>, I think it's probably better if the issue comes up cleanly, not enmeshed in the rigorous standards for granting habeas.</span></p><p><span style="font-family: inherit;">Beyond that, I think the cert denial is also good news because the Supreme Court evidently didn't turn a hair at a federal appellate decision holding that it is clearly established that autopsy reports are testimonial. What is more, the decision was a forthright, boundary-pushing one, in the right direction. The panel waved at the "primary purpose" test but did not rely at all on it; instead, it seems to have regarded the case, quite appropriately, as a simple, straightforward application of <i><a href="https://supreme.justia.com/cases/federal/us/557/305/" target="_blank">Melendez-Diaz v. Massachusetts</a>, </i>and the key sentence applies what I regard as the appropriate standard: "<span style="background-color: #fafafa; color: #212529;">The circumstances under which the autopsy report was created would lead any objective witness to 'believe that the [report] would be available for use at a later trial.'"</span></span> And this is from the same court that years ago had issued an <a href="https://casetext.com/case/us-v-feliz-7" target="_blank">atrocious decision</a>, after <i>Crawford</i> but before <i>Melendez-Diaz</i>, saying that autopsy reports should be admitted as business records; the <i>Garlick</i> court didn't even feel the need to cite that case. So all in all, I think it's great that this decision stands.</p><p>By the way, it now appears that when the Supreme Court resolves this issue, and all other Confrontation Clause issues, it will be with Justice Breyer's successor. For some years, he has been one of the Court's steadiest skeptics about <i>Crawford</i>. Justice Kennedy was another. I'm hoping that the changes in membership will lead to better, sturdier decisions. And one of them should be a clear affirmation that when an autopsy report points to homicide as the cause of death, it's clearly testimonial, whatever other purposes it might serve.</p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com2tag:blogger.com,1999:blog-9532013.post-26054083606662938512022-02-09T14:07:00.001-05:002022-02-09T14:07:12.087-05:00The "why I acted the way I did" end-run<p> Prosecutors often try to get in testimonial evidence from absent witnesses by arguing that it is not offered for the truth of what it asserts but explains why a testifying officer acted the way he or she did. This points to one of the great vulnerabilities of the confrontation right: A prosecutor has an incentive to come up with some ground on which the evidence is relevant, other than for its truth, and given the low bar of relevance it is not hard to do so. The courts therefore have to be closely vigilant to ensure that the right is not eviscerated in this way, state categorical rules as to when an asserted ground of not-for-the-truth relevance does not support admissibility of the evidence. One frequently used such ground is the supposed need of the investigating officer to explain why the officer acted in the way he or she did. But in most cases, there really is no need for such an explanation. Tell us what you did, officer, and what happened after that. Presumably you detected criminal activity, and the jury will know all it needs to about why you acted the way you did. If the defendant raises some doubts about why you acted in a given way, well that may be a different story. But short of that, there's no need to get into it. </p><p>Some courts have realized this. The Mississippi Court of Appeals issued a decision yesterday, <i><a href="https://courts.ms.gov/images/Opinions/CO159035.pdf" target="_blank">Lowe v. State</a></i>, that collects some of the cases. In Lowe, a confidential informant told the officer that she could buy drugs from the defendant and had done so in the past. The officer testified at trial but the CI did not. The trial court allowed the statements in to explain the officer's conduct. The appellate court seems not to have had any difficulty with the prediction -- it should have -- but it recognized that the statement of past conduct was testimonial and there was no need for it; its admission was a violation of the Confrontation Clause, though the court held the error harmless. </p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com4tag:blogger.com,1999:blog-9532013.post-65198385344550350152022-01-21T20:08:00.001-05:002022-01-24T16:04:22.978-05:00Hemphill v. New York: the right call<p> </p><p class="MsoNormal">Apologies for being silent so long.<o:p></o:p></p>
<p class="MsoNormal">The Supreme Court decided <i><a href="https://www.supremecourt.gov/opinions/21pdf/20-637_new_6khn.pdf" target="_blank">Hemphill v. New York</a></i> this
week.<span style="mso-spacerun: yes;"> </span>The Court held that the Confrontation
Clause does not tolerate the admissibility of an out-of-court testimonial statement
on the basis of a judicial determination that doing so is necessary to correct
what the court deems to be a misleading contention by the defense.<span style="mso-spacerun: yes;"> </span>On this point, the Court stood 8-0.<span style="mso-spacerun: yes;"> </span>Justice Thomas dissented alone, and on other
grounds; he believed that the defense had not properly preserved the issue.<o:p></o:p></p>
<p class="MsoNormal">Briefly, Hemphill was accused of murder, but there was
substantial evidence that another man, Morris, had committed the crime.<span style="mso-spacerun: yes;"> </span>Indeed, Morris had originally been charged
with the murder, but then was allowed to plead guilty to a much lower-level
weapons charge.<span style="mso-spacerun: yes;"> </span>Hemphill’s attorney
referred to the fact that police had found cartridges from a 9 mm. handgun, the
type of weapon used in the killing, by Morris’s bedside.<span style="mso-spacerun: yes;"> </span>The trial court then allowed the prosecution
to prove that at his plea hearing Morris had said he brought another type of
weapon, a .357 magnum revolver, to the scene of the crime; Morris was
unavailable at the time of Hemphill’s trial and Hemphill had never had an
opportunity to be confronted by him, but the court thought this was necessary
to dispel a misleading inference created by Hemphill’s contention.<span style="mso-spacerun: yes;"> </span>The intermediate appellate court and the Court
of Appeals agreed, but the U.S. Supreme Court did not. <o:p></o:p></p>
<p class="MsoNormal">The case should have been regarded as an easy one on the
merits, and the Court treated it as such.<span style="mso-spacerun: yes;">
</span>Justice Sotomayor’s opinion for the Court declared:<o:p></o:p></p>
<p class="MsoNormal" style="margin-left: 0.5in;">For Confrontation Clause purposes,
it was not for the judge to determine whether Hemphill’s theory that Morris was
the shooter was unreliable, incredible or otherwise misleading in light of the
State’s proffered, unconfronted plea evidence.<span style="mso-spacerun: yes;">
</span>Nor, under the Clause, was it the judge’s role to decide that this evidence
was reasonably necessary to correct that misleading impression.<span style="mso-spacerun: yes;"> </span>Such inquiries are antithetical to the
Confrontation Clause.<o:p></o:p></p>
<p class="MsoNormal">Exactly right.<span style="mso-spacerun: yes;"> </span>On the
whole, <i>Hemphill</i> is a welcome development, because of the result, because
of the lack of any dissent on the confrontation point, and because it is an
unqualified endorsement and application of <i>Crawford</i>.<span style="mso-spacerun: yes;"> </span>In contrast, say, to Justice Sotomayor’s
majority opinion in <i>Michigan v. Bryant</i>, there is nothing in her opinion
for the Court here that suggests buyer’s remorse about <i>Crawford.</i> On the
contrary, it speaks approvingly of “<i>Crawford</i>’s emphatic rejection of the
reliability-based approach of <i>Ohio v. Roberts</i>,” and underlines the point
by saying:<o:p></o:p></p>
<p class="MsoNormal" style="margin-left: 0.5in;">If <i>Crawford</i> stands for
anything, it is that the history, text, and purpose of the Confrontation Clause
bar judges from substituting their own determinations of reliability for the
method the Constitution guarantees.<o:p></o:p></p>
<p class="MsoNormal">(I wish the Court would stop talking about reliability in
this context; even cross-examined eyewitness testimony is not reliable.<span style="mso-spacerun: yes;"> </span>Speaking of accuracy would be an
improvement.<span style="mso-spacerun: yes;"> </span>But oh well, old habits die
hard.)<o:p></o:p></p>
<p class="MsoNormal">The Court made clear that it was not holding invalid the
traditional rule of completeness as applied to portions of testimonial statements that
would otherwise be inadmissible under the Confrontation Clause.<span style="mso-spacerun: yes;"> </span>Rather, it reserved the issue.<span style="mso-spacerun: yes;"> </span>In my view, such an application poses no
problem under the Clause; it would be absurd if an accused were allowed to
introduce the portion of a statement up to but not including “But . . . “ and
then object to the latter part on the basis that he did not have an opportunity
to be confronted by the maker of the statement. <span style="mso-spacerun: yes;"> </span>Justice Alito, joined by Justice Kavanaugh, wrote
a separate concurred to endorse this position, but they joined the majority opinion
as well.<o:p></o:p></p>
<p class="MsoNormal">One aspect of the case is somewhere between rankling and
troubling.<span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span>Although the statement at issue was made in a
plea hearing, the State contended below that it was not testimonial because it
did not “incriminate or point a finger at all against Mr. Hemphill.”<span style="mso-spacerun: yes;"> </span>Before the Supreme Court, the State did not
deny that the statement was testimonial, and in a footnote Justice Sotomayor
wrote that the Court “expresses no view on the matter.” <span style="mso-spacerun: yes;"> </span>Justice Alito’s concurrence makes clear in its
first sentence that its conclusion that admission of the statement violated the
Confrontation Clause is drawn “assuming Morris’s statement was testimonial.” So
this point-a-finger idea is a clear reference to Justice Alito’s suggestion in <i>Williams
v. Illinois</i> that a statement is not testimonial if it is not aimed at a “targeted
individual.”<span style="mso-spacerun: yes;"> </span>Though Justice Alito’s <i>Williams</i>
opinion spoke for four justices and was on the prevailing side, that point was
explicitly rejected by five justices, so I am disappointed to see that he is
keeping it alive and that the Court evidently felt that to achieve virtual
unanimity it was necessary to keep the point alive.<span style="mso-spacerun: yes;"> </span>Apparently, Justice Alito wants to be able to
contend in the future that if in a similar case Morris was sworn before a grand
jury investigating the incident and asserted that he was at the scene with a
.357 and not a 9 mm gun, that would not be testimonial, and neither would a sworn
statement by another observer describing the scene of the incident and saying that
the shooter appeared to take deliberate aim and was a young male wearing a blue
sweater.<span style="mso-spacerun: yes;"> </span>(By the way, I think the lab
report was in fact targeted at a given individual – the person who had the DNA
profile described; there is presumably only one person with that profile, but
many, many young men may wear blue sweaters.)<span style="mso-spacerun: yes;">
</span>I hope that if the issue is again presented, a majority of the Court
will again slap the theory down.<span style="mso-spacerun: yes;"> </span>It’s
unfortunate that it still has breath.<o:p></o:p></p>
<p class="MsoNormal">But on the whole, <i>Hemphill</i> is good news.<o:p></o:p></p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com2tag:blogger.com,1999:blog-9532013.post-63327253522042771732021-07-02T12:36:00.000-04:002021-07-02T12:36:04.893-04:00Hemphill v. New York, pending Supreme Court case: Top-side briefs<p>It's been quite a while since I've posted anything on this blog, for no particular good reason. I will try to pick up the pace.</p><p>For now, I'll note that top-side briefs have recently been filed in <i>Hemphill v. New York</i>, No. 20-637, on which the Supreme Court granted cert in April. An easy way to get access to all the documents in the case is through the Supreme Court's docket sheet for the case, which you can find <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-637.html">here</a>. The decisions below are part of the appendix to the petition for <i>certiorari</i>. Petitioner's brief (Jeff Fisher as lead counsel) was filed June 22, and a bunch of top-side amicus briefs, including one by me, were filed June 29. </p><p>Briefly, <i>Hemphill</i> was accused of murder. He contended that another person, Morris, had fired the fatal shot, and highlighted evidence that police had found a 9-mm cartridge, the type used in the shooting, by Morris's bedside. On the theory that this gave the jury a misleading impression, the trial court then allowed the prosecution to introduce a statement made by Morris at an allocution hearing in which Morris asserted that he had brought a .357-caliber handgun to the scene. Hemphill never had an opportunity to be confronted by Morris. Hemphill was convicted and the New York courts affirmed.</p><p>I'm sure I'll have more to say later, but for now I'll just say this: I believe Hemphill's confrontation rights were clearly violated. If Hemphill had introduced part of a statement by Morris, then the prosecution could be allowed to introduce another part of the statement that in fairness should be considered alongside the first part. But that does not represent the facts of the case. The doctrine emerging from New York is that if the trial court believes that the defense has made a misleading presentation of fact then the prosecution is relieved from the Confrontation Clause in presenting rebuttal evidence. And that's just plain wrong. </p>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com8tag:blogger.com,1999:blog-9532013.post-6006451425069059002020-06-23T18:21:00.001-04:002020-06-23T18:21:19.134-04:00A significant decision on remote testimony<span style="background: white; color: black; font-family: "open sans";">Yesterday, the Michigan Supreme Court issued its decision in <a href="https://drive.google.com/file/d/1aoE1gxEKliyEbOPmz5cOzUhunRoMMvZJ/view?usp=sharing" style="-webkit-text-stroke-width: 0px; color: #0066cc; font-family: Times New Roman; font-size: 16px; font-style: italic; font-variant: normal; font-weight: 400; letter-spacing: normal; orphans: 2; text-align: left; text-decoration: underline; text-indent: 0px; text-transform: none; white-space: normal; word-spacing: 0px;" target="_blank">People v. Jemison</a>, a case that I have mentioned in a <a href="http://confrontationright.blogspot.com/2020/05/remote-testimony-and-coronavirus-crisis.html" target="_blank">prior post</a> and in which I
appeared as amicus.<span style="mso-spacerun: yes;"> </span>The opinion, by
Chief Justice McCormack (a former colleague and co-author of mine) is excellent
– and it was unanimous, with one justice not participating.</span><br />
<br />
<span style="background: white; color: black; font-family: "open sans";">Briefly, Jemison was convicted of rape.<span style="mso-spacerun: yes;">
</span>One of the witnesses against him was a DNA analyst, who was in Utah and testified,
over objection, via Skype.<span style="mso-spacerun: yes;"> </span>The court
held that this violated both federal and state protections of the confrontation
right.<span style="mso-spacerun: yes;"> </span>Two aspects of the decision are particularly
notable.<span style="mso-spacerun: yes;"> </span></span><br />
<span style="background: white; color: black; font-family: "open sans";"><br /></span>
<span style="background: white; color: black; font-family: "open sans";">First, the decision is clear, crisp, and categorical, appropriately so:<span style="mso-spacerun: yes;"> </span>There was no doubt that there was testimony
involved here – the only difference from in-court testimony was that this was
by Skype – and so the confrontation right was invoked.<span style="mso-spacerun: yes;"> </span>And an opportunity for face-to-face confrontation
is an essential aspect of the confrontation right.<span style="mso-spacerun: yes;"> </span>That wasn’t provided, so there was a violation.<span style="mso-spacerun: yes;"> </span>Period.<span style="mso-spacerun: yes;">
</span>It didn’t matter that the expert was a witness, nor that it would have
been expensive to bring him to Michigan to testify.<span style="mso-spacerun: yes;"> </span>(Indeed, the court notes the perverse incentive
that would be created by allowing the state to choose an out-of-state expert
and then plead cost to prevent face-to-face confrontation.)<span style="mso-spacerun: yes;"> </span>The court doesn’t discuss the situation in
which it might be unfeasible to create confrontation – which I think would only
be where both the witness and the accused effectively can’t travel – but by implication
that wouldn’t matter either; the prosecution and not the defense bears the risk
of this rare occurrence.<span style="mso-spacerun: yes;"> </span>And though the
court considered the case during the pandemic crisis (it was argued March 5),
there is no suggestion in the opinion that the greater appeal of remote
testimony in such circumstances would alter the result.<span style="mso-spacerun: yes;"> </span>(I <a href="http://confrontationright.blogspot.com/2020/05/remote-testimony-and-coronavirus-crisis.html" target="_blank">previously posted</a> on this issue; the confrontation
right can be fully satisfied so long as the accused, counsel, and the witness
are in the same room, so social distance can be maintained.)</span><br />
<span style="background: white; color: black; font-family: "open sans";"><br /></span>
<br />
<span style="background: white; color: black; font-family: "open sans";">Second, and also appropriately, the decision limits <i><a href="https://supreme.justia.com/cases/federal/us/497/836/" target="_blank">Maryland v. Craig</a></i>
to its particular setting – a witness who is both a child and an alleged, with
a case-specific showing of the necessity of remote testimony – and casts doubt
on its continuing validity in light of <i><a href="https://supreme.justia.com/cases/federal/us/541/36/" target="_blank">Crawford</a></i>.<span style="mso-spacerun: yes;"> </span>The court says that “<i>Crawford</i> did not
specifically overrule <i>Craig</i>, but it took out its legs.”<span style="mso-spacerun: yes;"> </span>That’s certainly accurate: The categorical,
procedural approach of <i>Crawford</i> is entirely antithetical to the balancing,
reliability-oriented approach that underlay <i>Craig.</i> <span style="mso-spacerun: yes;"> </span>Indeed, the court goes further.<span style="mso-spacerun: yes;"> </span>After quoting passages from Justice Scalia’s <i>Craig</i>
dissent that certainly sound like precursors to his majority opinion in <i>Crawford</i>
– <span style="mso-spacerun: yes;"> </span>he said that “the Confrontation Clause
does not guarantee reliable evidence” but rather “specific trial procedures
that were thought to assure reliable evidence” and that the text “simply does
not permit” interest-balancing – the <i>Jemison</i> court says that in <i>Crawford</i>
“his dissent from <i>Craig</i> became the Court’s view.”<span style="mso-spacerun: yes;"> </span>(In passing, the Court notes that even if <i>Craig</i>
were applicable, the result would be the same; there was no case-specific
necessity for remote testimony.)</span><br />
<br />
<span style="background: white; color: black; font-family: "open sans";">The court remanded for a determination of harmless error.<span style="mso-spacerun: yes;"> </span>But on the questions of principle
transcending the facts of this case, the opinion was about as clear and as
strong as one could hope.</span><br />
<span style="background: white; color: black; font-family: "open sans";"><br /></span>
<span style="background: white; color: black; font-family: "open sans";">To be clear, I don’t think it’s implausible that at some point the
technology and our knowledge of the impact of remote confrontation will get to
a point where we can say that remote confrontation is a satisfactory substitute
for actual, face-to-face confrontation.<span style="mso-spacerun: yes;">
</span>But we’re not there yet.</span>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com8tag:blogger.com,1999:blog-9532013.post-45933822247051746402020-06-04T12:41:00.001-04:002020-06-23T13:24:24.553-04:00The dying, blinking witness<br />
<span style="font-family: inherit;">Chris Miller, an excellent former student of mine, has pointed
out <a href="http://www.michbar.org/file/opinions/us_appeals/2020/052220/73159.pdf" target="_blank">Woods v. Cook</a>, a recent Sixth Circuit opinion of interest by Judge Sutton,
who is sensitive to Confrontation Clause issues. This was an “eye blink” case: A shooting victim, Chandler, was grievously
wounded, and was able to communicate only by blinking his eyes. Five days after the shooting, in a police
interview, Chandler identified Woods as the assailant; two days later, he
suffered the first of a series of strokes, and he died ten days after the
interview. His eye-blink statement was
admitted against him at a murder trial in Ohio court, he was convicted, and
the Ohio courts affirmed the judgment.
He brought a federal habeas petition, which the district court denied,
and now a Sixth Circuit panel has unanimously affirmed that judgment.</span><br />
<br />
<span style="font-family: inherit;">In the circumstances, it is not surprising that the Ohio
courts deemed the identification to be within the dying-declaration exception
to the hearsay rule. Chandler did not
die all that soon after the statement, but he was in bad shape, and as the exception is usually articulated (including in Fed. R. Evid. 804(b)(2), all it requires
with respect to imminence is that the declarant believed death to be imminent. So maybe Chandler believed his death to be
imminent.</span><br />
<br />
<span style="font-family: inherit;">And what about the Confrontation Clause? The federal courts were treating this case
under the constrained standards of habeas, but that doesn’t seem to have made
much difference to the federal judges.
<i><a href="https://supreme.justia.com/cases/federal/us/541/36/" target="_blank">Crawford</a></i> and <i><a href="https://supreme.justia.com/cases/federal/us/554/353/" target="_blank">Giles v. California</a></i> both indicated that there is a dying declaration
exception to the confrontation right, which I think is unfortunate – I’ve
written enough about this before, that these cases ought instead to be
considered applications of forfeiture doctrine, but the cramped view of forfeiture
adopted by <i>Giles </i>made that impossible.</span><br />
<br />
<span style="font-family: inherit;">But let’s put that issue aside. My difficulty with the outcome in this case –
and it was not one that could be appropriately considered in a federal habeas
case -- is that there was ample opportunity to take Chandler’s deposition. Does that sound grotesque? Clearly, the police had no compunction
against taking a statement from Chandler that was intended for prosecutorial
purposes; the session was videotaped (so indicates the decision of the Ohio Court
of Appeals) and the police showed him a photo of Woods. So how about bringing in the defendant and
counsel? It could have been done. And in the old days, the courts would have
insisted on it. Consider <i><a href="file:///C:/Users/rdfrd/AppData/Local/Packages/Microsoft.MicrosoftEdge_8wekyb3d8bbwe/TempState/Downloads/171EngRep354%20(1).pdf" target="_blank">R. v. Forbes</a></i>,
171 Eng. Rep. 354 (1814): A dying victim
was giving a statement, and the accused was brought before him partway
through. The court held that only the portion
from that point on could be admitted. To
similar effect, consider <i><a href="https://drive.google.com/file/d/1bdvrZvQG9t5wY268exL4FEy1ZF7CMuNk/view?usp=sharing" target="_blank">R. v. Smith</a></i>, 171 Eng. Rep. 357 (1817). There, the dying victim (though he was not
yet under apprehension of death) made a statement to two justices of the
peace. When it was almost over, the
defendant was brought in, and the statement was read over to the victim, who
assented to it. The defendant ought to
be present, said the court, but given that he was present when the victim
assented to what he had previously said, and had an opportunity for
cross-examination, that was good enough.
</span><br />
<span style="font-size: 11pt; line-height: 107%;"><span style="font-family: inherit;"></span><br /></span>
<span style="font-size: 11pt; line-height: 107%;"><span style="font-family: inherit;">In some cases, there is no time to arrange for a
deposition. But where there is, and the
authorities are willing to take a testimonial statement from the victim, the
right of confrontation, including cross-examination ought to be preserved.</span></span><b></b><i></i><u></u><sub></sub><sup></sup><strike></strike>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com7tag:blogger.com,1999:blog-9532013.post-65067556311660562042020-05-04T17:21:00.000-04:002020-05-04T17:21:34.788-04:00Remote testimony and the coronavirus crisis<br />
The coronavirus crisis has created increased interest in the
subject of remote testimony – testimony in which the witness is not in the
courtroom but rather testifies from a remote location, with the testimony electronically
transmitted to the courtroom. <span style="mso-spacerun: yes;"> </span>I hope
courts will not use the crisis as an occasion for undermining the confrontation
right, even temporarily – especially because, as I will explain, there is a
rather simple solution in this setting.<br />
<br />
I wrote at length some years ago about remote testimony in a <a href="https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1157&context=articles" target="_blank">law review article</a>.<span style="mso-spacerun: yes;"> </span>And, as it happens, in early March (while courts were still holding ordinary sessions) I participated,
as amicus, in an argument on the subject in the Michigan Supreme Court in <i>People
v. Jemison</i>.<span style="mso-spacerun: yes;"> </span>You can see the main briefs of the parties, and my amicus brief,<a href="https://courts.michigan.gov/Courts/MichiganSupremeCourt/oral-arguments/2019-2020/Pages/157812.aspx" target="_blank"> here</a>.<span style="mso-spacerun: yes;"> (The video of the argument is available <a href="https://www.youtube.com/watch?v=wd2XdEPL97s" target="_blank">here</a>.) </span>My amicus brief lays out my general views on
the subject. <br />
<br />
In sum, though <i><a href="https://www.law.cornell.edu/supct/html/89-478.ZS.html" target="_blank">Maryland v. Craig </a></i>allowed remote testimony by
children in cases of demonstrated trauma, <i>Craig</i> is in tension with <i>Crawford</i>,
which was decided afterwards, and should not be extended, especially by lower
courts.<span style="mso-spacerun: yes;"> </span>The Supreme Court declined to transmit
to Congress a proposed amendment to the Federal Rules of Criminal Procedure
that would have allowed for remote testimony in some cases; Justice Scalia, writing
in support of that decision, explained that “virtual confrontation” did not
appear to satisfy the confrontation right.<span style="mso-spacerun: yes;">
</span>I don’t believe there is any need to take an absolute stand that virtual
confrontation will never be deemed acceptable for adult witnesses.<span style="mso-spacerun: yes;"> </span>But at this point I don’t believe that we are
close to having enough scientific knowledge to be confident that virtual
confrontation is an adequate substitute for taking testimony the traditional
way.<span style="mso-spacerun: yes;"> </span>And if it is to be allowed, it
should only be in cases of compelling need (<i>Jemison</i> does not come close), and
only under a careful protocol that ensures satisfactory technical specifications
and also proper procedures with respect to such matters as how much may be seen
and who may be in the room with the witness.<br />
<br />
Now, how about the current crisis?<span style="mso-spacerun: yes;"> </span>Here, the impetus for remote testimony is not
to protect the witness from trauma (as under <i>Craig</i>), or to save time and money,
or that for some reason, such as a witness who is desperately ill or beyond the
subpoena power, it appears difficult or unfeasible to bring the witness to the
courtroom.<span style="mso-spacerun: yes;"> </span>Rather, here the
consideration is the necessity of keeping people a sufficient distance apart.<span style="mso-spacerun: yes;"> </span>But to satisfy the confrontation right, it is
not necessary that the witness be in a full courtroom.<span style="mso-spacerun: yes;"> </span>All that is required is that the witness, the
defendant, and defense counsel be in the same room when the witness testifies;
presumably the prosecutor would want to be as well.<span style="mso-spacerun: yes;"> </span>Perhaps a videographer would be as well,
though that might not be necessary.<span style="mso-spacerun: yes;"> </span>And
it would not be necessary that the judge be in the room; a remote hookup should
suffice, and in fact even that would not be absolutely essential. <span style="mso-spacerun: yes;"> </span>It has long been established that when the
witness cannot be brought to the courtroom, a deposition, at which the accused
has had an opportunity for confrontation, is sufficient, and <i>Crawford</i> maintains
this rule. Getting the witness to the defendant, or the defendant and counsel to the witness, does involve some transportation, but most witnesses in criminal cases do not live far from defendants, and this should not be a major consideration, even under current conditions, though one could imagine that in an occasional case it might make sense to postpone the trial for a few months.<br />
<br />
In most jurisdictions, depositions in a criminal case are relatively
rare.<span style="mso-spacerun: yes;"> </span>But this is an occasion on which
they ought to be held routinely.<br />
<b></b><i></i><u></u><sub></sub><sup></sup><strike></strike>Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com10tag:blogger.com,1999:blog-9532013.post-1824606706104033812019-09-04T15:21:00.000-04:002019-09-04T15:21:24.529-04:00Laird Kirkpatrick on forensic reports I <a href="http://confrontationright.blogspot.com/2018/11/first-word-from-justice-gorsuch-on.html" target="_blank">previously posted</a> an entry about <i>Stuart v. Alabama</i> and Justice Gorsuch's dissent from the denial of certiorari in that case. Laird Kirkpatrick, who for decades has been one of the nation's outstanding Evidence scholars, has written a very fine analysis of that dissent and what it, and other auguries, suggest about the law governing the Confrontation Clause implications of forensic reports. I'm attaching it <a href="https://umich.app.box.com/s/40alxawlqt6y3l32rdy1z49qk96sgg1f" target="_blank">here</a>. It has been <a href="https://lawreviewblog.uchicago.edu/2019/08/27/the-admissibility-of-forensic-reports-in-the-post-justice-scalia-supreme-court-by-laird-kirkpatrick/" target="_blank">published</a>, without footnotes (and a slightly inaccurate bio; Laird has been teaching for a long time, but not at GW until the first decade of this century) in the University of Chicago Law Review Online. He makes many excellent points. I think his treatments of the "targeted individual" and formality tests are particularly telling. And he gives reason to think that the Court may not be ready to turn its back on <i>Crawford</i> and <i>Melendez-Diaz</i>.Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com68tag:blogger.com,1999:blog-9532013.post-15127277718936729922019-08-28T14:36:00.000-04:002019-08-28T14:36:30.995-04:00BIO and reply in support of petition in White v. LouisianaI <a href="https://www.blogger.com/blogger.g?blogID=9532013#editor/target=post;postID=3398629185046796741;onPublishedMenu=allposts;onClosedMenu=allposts;postNum=3;src=postname" target="_blank">previously blogged</a> about <i>White v. Louisiana</i>, in which a cert petition is pending. You can find the documents <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-8862.html" target="_blank">here</a>. They now include the State's Brief in Opposition and the Reply Brief in support of the petition. The case has gotten a good bit of attention. We'll learn soon if the Court will take the case. I think it should; the egregious result in this case is itself a demonstration that this area of confrontation law badly needs cleaning up.Richard D. Friedmanhttp://www.blogger.com/profile/09512800093689534416noreply@blogger.com24