Justin McShane on the state's Bullcoming brief

Justin McShane of Harrisburg, PA, has attempted to comment on the State's brief, but each comment is limited to about 4000 characters, and he had more to say than that, so I'll post his comments here. I hope to add my own comments tomorrow, but meanwhile here is what Justin has to say:

Disclosure: I was one of the amici that filed a brief in support of Bullcoming with NACDL/NCDD.

Here is my analysis of the Respondent’s brief:

1. They spend in an inordinate amount of time trying to explain how GC EtOH determination is non-testimonial. (This is an argument that at least a majority (if not all) of the sitting justices at the time of M-D rejected in the case of GC-MS. For example, the least favorite fan of M-D in J. Breyer even states that such analysis is testimonial, he just believes that the application of the Confrontation Clause is situational— that lab reports are sufficiently reliable— and if the Confrontation Clause does not yield to “practical realities,” then the system may be over-taxed.)

1.1 They try to rationalize that this method of analytical measurement and testing was not made for the primary purpose of litigation in criminal court. (Why else was it analyzed?)

1.2 Failing that they try to say somehow that if it is unsworn and not in an affidavit that somehow it being “less formal” that the right to Confrontation based upon its contained assertions is not guaranteed. (Perhaps this meant to appeal to Thomas’s opinion of concurrence in M-D.)

1.3 If that fails, then they urge the Court to roll back to 1986 in Inadi (and really back to Roberts in 1980) in favor of the subjective “sufficient reliability” test and abandon the Davis rule (which they may do any way in Bryant), in favor instead of a notion that the applicable test should be whether or not it was generated in substitution of live testimony, then it would be testimonial (which begs the question that how does the particular facts in Bullcoming dictate a result of it being anything other than testimonial even if we now use this rationale which they urge to be adopted?)

1.4 But why stop to 1986 or even 1980, they next argue. Let’s go all the way back to the bail statute of 1554 and argue that Confrontation only applies to pre-trial ex pate judicial examinations of a witness in lieu of the witness’s appearance at trial. Confrontation doesn’t apply at trial at all. (Maybe trying to appeal to Scalia’s originalism, but forgetting he put together Crawford, Davis, M-D, and held the majority together with Briscoe)

1.5 Failing that that somehow the mere fact that the analysts are “public officials” and the computer is “non-adversarial,” and the mistaken belief that the analysis requires no interpretation whatsoever, then Confrontation is excused.

1.6 Failing that (perhaps attempting to seize upon the Scalia’s and Thomas’s perceived desire to narrow the Exclusionary Rule in modern 4th Amendment analysis), they argue that the right to Confrontation should be seen as a prophylactic rule (which is really amazing to me, because a classic definition of a prophylactic rule is one that gives more protection than such right might abstractly seem to require on its face, in order to safeguard that constitutional right or improve detection of violations of that right). Clearly, it is not prophylactic even as applied in the case of M-D or even Briscoe.

2. It is not until page 52 of the 59 page brief that we get to anything that remotely addresses the question presented and certified by the SCOTUS which is “Whether the Confrontation Clause permits the prosecution to introduce *****testimonial statements***** of a non testifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.” Note that contained within the certified question itself from the SCOTUS that the SCOTUS itself even states that it is a “testimonial statement.” In sum, they argue:

2.1 Retesting (by the same lab and probably the same analyst) is the same as cross-examination (which is really admirably ignorant of the process). In fact, they assert that retesting (by the same lab and probably the same analyst) is actually better and more effective than Confrontation of the particular witness, meaning the actual analyst who did the testing.

2.2 The sky will fall and evil doers will run amuck. Bullcoming, if decided in accordance with Crawford and M-D, will be an extinction level event just like the solar flare in the movie “Knowing.” (I am being facetious, but you argue the absurd with the absurd, I suppose)

2.3 Any old analyst is just as good as the particular analyst who performed the test even if that surrogate has no idea what actually happened in the testing itself.

2.4 It was all harmless error because let's face it he was drunk. If they finally fail, they ask that it be remanded for the state court to determine whether or not it was all harmless beyond a reasonable doubt given these facts.

That's my take on it.

[As an aside, I really appreciate the blog and your efforts to bring Confrontation and other important and timely issues to the forefront.]

Justin J. McShane
www.TheTruthAboutForensicScience.com
www.TheMcShaneFirm.com
www.PADUIBlog.com

State's brief in Bullcoming

The State has filed its brief in Bullcoming v. New Mexico, and you can read it by clicking here. I expect to offer some comments on it later.

A cert petition on the scope of unavailability

Along with local counsel in Maryland, I filed a cert petition this week in Benitez v. Maryland, concerning how unavailability should be determined for purposes of the Confrontation Clause. You can see the petition by clicking here. You can read the decision that it seeks to review (by the Maryland Court of Special Appeals), by clicking here.

Top-side amicus briefs in Bullcoming

Top-side amicus briefs – that is, the ones in support of the petitioner – were filed yesterday in Bullcoming v. New Mexico. Here they all are.

To see the brief filed by five evidence professors, under the lead of Jennifer Mnookin, click here.

To see the brief of 26 defender organizations, led by the Public Defender Service for the District of Columbia, click here.

To see the brief of the National Association of Criminal Defense Lawyers, the National College for DUI Defense, and the New Mexico Criminal Defense Lawyers Association, click here.

To see the brief of the Innocence Network, click here.

And to see the brief that I filed, click here.

Is there a multi-witness problem with respect to forensic lab tests?

While litigating Briscoe v. Virginia, I conducted – through a research assistant, Andrew Mackie-Mason, now a student at the University of Chicago – a study of transcripts of Michigan drug trials. Michigan adheres to constitutional procedures with respect to forensic lab results; it does not allow prosecutors to prove such results, over the objection of the accused, by introducing the lab report without presenting the testimony, subject to confrontation, of the author. The principal aim of that study was to find out, given this condition, how often a lab witness actually had to appear at trial. The results – reported in my main brief in Briscoe – showed that in the great majority of cases no lab witness appeared. In some cases, the state presented no evidence of lab results; more frequently, the state presented lab results by introducing a written report, the prosecution not wanting to bring the author of the report in as a live witness and the accused consenting to admissibility of the report. The study also demonstrated that when a lab witness does testify at trial, the defense nearly always cross-examines.

In the pending case of Bullcoming v. New Mexico, No. 09-150, the state presented a forensic lab report and also live testimony of a witness from the lab – but the witness did not perform the test and had no personal knowledge of the conduct of it. Like the petitioner in Bullcoming (represented by Jeff Fisher), I believe this procedure was unconstitutional. Anticipating that, as they have done in Melendez-Diaz and Briscoe, many states will contend that adhering to constitutional procedures would be prohibitively expensive, I have, through a group of student research assistants, conducted a more extensive study of Michigan trials. (Let me give due credit right off: The students who did the work are Wencong Fa, Tasha Francis, Justin Gillett, Regan Nunez, Matthew Parelman (who assembled and organized the data), Kimberly Parks, Luke Rachlin, Joe Reiter, Liza Roe, Alex Su, Sean Stiff, and Anna Walker.) This study was primarily intended to determine, in a state that recognizes that forensic laboratory witnesses are not exempt from the accused's right to be confronted with a witness who made a statement admitted against him, whether there was a significant multi-witness problem. That is, is a chain of witnesses from the lab routinely necessary to prove the results of a forensic lab test? The answer is resoundingly negative.

As in the prior study, we used transcripts provided by the State Appellate Defenders’ Office (“SADO”) – my gratitude to Jonathan Sacks, Deputy Director of the Detroit office of SADO, and to other members of the SADO staff, for making this possible. SADO, which is appointed in a random selection of approximately 25% of indigent trial appeals from every county in the state, maintains electronic copies of trial transcripts from its cases. In this study, the students examined all the trial transcripts to which they were able to get access in the Detroit office in three categories: trials involving drug charges from February 14, 2000 to July 15, 2010; trials involving charges of operating under the influence of liquor (OUIL) from February 3, 2003 to April 20, 2010; and trials involving rape charges with penetration (first- and third- degree criminal sexual conduct) spanning from September 15, 1997 to November 25, 2010. I chose drug cases because they generate more presentations of forensic laboratory tests than any other kind. I chose OUIL cases (which we have referred to more informally as DUI) because Bullcoming itself is a case of this type and because forensic lab results are commonly presented in them. And I chose rape cases involving penetration because they are probably the type of case in which DNA tests – a particularly complex form of lab testing – are most frequently presented.

The detailed results of the study are presented on a spreadsheet that you can examine by clicking here. Here is a summary of the results.

The students examined a total of 154 drug cases. In 116 of these, the prosecution presented lab results presented at trial. But in only 59 of these cases did lab analyst actually testify at trial. In 49 of those cases, only one lab witness testified at trial, and never did more than one lab witness testify at trial with respect to a single test. In nine trials, two lab witnesses testified to two separate tests, and in one trial four lab witnesses testified to four separate tests. So all in all, this makes 71 lab witnesses in 154 trials, or about .46 per trial.

Of the 55 DUI trials examined, 41 included the presentation of lab results at trial. In 26 of these cases, one or more lab analysts testified live. In four cases, two witnesses testified live at trial, and there were never more than two. In only one of these four cases did the two witnesses testify with respect to a single test. (In another case, not included among those four, three analysts, in addition to the one who testified live at trial, testified via video-conference. Together, the four witnesses in that case testified to two tests.) In all, 30 witnesses testified live at these trials, for an average of about .55 per trial. I believe there is a ready explanation for why this number is somewhat higher than in drug cases. Very few DUI cases go to trial. Given the relative simplicity of these cases, when one does go to trial there is a rather high probability that it is because the defense believes that for some reason the lab evidence is problematic.

Of the 104 rape cases examined, 25 included DNA lab results presented at trial. These are, of course, particularly serious prosecutions, and DNA testing is more complex than the other types studied. Therefore, it is not surprising that, as compared to the other two classes of cases, analysts testify live at a higher percentage of the trials at which lab results are presented and that it is more common that more than one lab witness will testify at trial with respect to a given test. (Usually when this happens, they are testifying to different phases, one to screening for DNA and the other to profiling; given that the ultimate forensic result is one result (the identification of the DNA) – in contrast to the identification of two separate substances or two different tests of the same condition – it is appropriate for present purposes to consider this one test.) Of the 25 cases, 21 trials included live testimony by lab witnesses – one witness in 12 cases, two witnesses in eight cases, and three witnesses in one case. That is a total of 31 live witnesses in the 104 trials, or about .30 witnesses per trial; if we restrict our attention to the 25 cases in which DNA results were presented, the average is 1.24 witnesses per trial.

The Michigan appellate courts have been very good in insisting that a lab report cannot be introduced, over the objection of the accused, through the testimony of a surrogate witness who had no personal knowledge of the matters reported, and I understand from discussions with SADO lawyers that only rarely do Michigan prosecutors violate this rule. To double-check, I asked the students to look at the appellate opinions in the cases they examined to see whether a violation of the confrontation right was claimed. (Given the way SADO's briefs are filed, it was far easier finding the opinions rather than the briefs themselves.) In some of the newer cases, the court of appeals has not yet ruled (indicated by "Not found" in the last column on the spreadsheet), but in well over 200 of them it has, and in only one of those, People v. Frey, 2009 WL 2244521 (Mich. App.), appeal denied, 775 N.W.2d 788 (Mich. 2009) (marked in red on the spreadsheet), did the court discuss a claimed Confrontation Clause violation. (That court held there was no plain error when the analyst who performed part of a DNA test did not testify at trial – but the analyst who did testify at trial was present while the test was performed.) So it appears that only very rarely has there been what even the excellent, aggressive SADO lawyers believe is plausibly a confrontation violation.

I do not want to over-claim for this study. To make it feasible in a limited amount of time, I have relied on a large group of students, and my instructions developed somewhat as we learned more. I am sure, therefore, there is some variability in the way the cases have been reported. (Some, for example, affirmatively noted when lab results were admitted by stipulation, and some did not.) I suppose some small inaccuracies are inevitable. But I think the basic results are very strong, and would not be materially altered by discovering small glitches: In Michigan, the defense often consents to the presentation of lab results without the need for live testimony. In drug and DUI trials, even when a lab witness testifies at trial, there is virtually never more than one such witness per test, and when DNA results are presented through live testimony there is virtually always either one or two witnesses.

As in the prior study, what we cannot tell from this data is how often live witnesses are presented because that is the preference of the prosecution; for all that appears from the data, it could be that virtually always when a live lab witness testifies it is because the prosecution chooses to bring the witness in.

Petitioner's Brief and Joint Appendix in Bullcoming

Jeff Fisher, for the Petitioner, has filed the opening brief on the merits in Bullcoming v. New Mexico, the case involving a surrogate witness to a lab test. You can read it by clicking here. And you can see the Joint Appendix by clicking here. Amicus briefs supporting the Petitioner are due on Tuesday, December 7.

Retaliatory killing and forfeiture

A couple of people have pointed out to me the decision of the Sixth Circuit yesterday in United States v. Hendrickson. There are numerous interesting features of the case, but I'll focus on just one: The defendant was charged with killing two people in retaliation for providing information against him in a prior case. In trying to gain admission of the victims' statements in this case, the Government apparently did not even make a serious attempt to contend that forfeiture doctrine does not apply -- because the killings could not have been designed to prevent testimony in that prior case. I suppose that's right as a strict matter of reading the Giles case, and perhaps that's the conclusion that the Supreme Court would come to if it were to look at this issue. But to me, it's just one more case highlighting the misfortune of Giles. The insult to the integrity of the judicial system -- on which Giles, unfortunately in my view, places great weight -- does not seem significantly less when a person kills in retaliation for testimony than when he kills to prevent it.

Audio recording in Bryant

I just learned from Scotusblog that the Supreme Court is now making audio recordings of arguments available the week of argument. You can hear the argument in Bryant by clicking here.

Reactions to the Bryant argument -- Part 2

Here are further comments on the Bryant argument.

The consequences of holding this statement non-testimonial – Justice Ginsburg asked an important question: What if the speaker had survived? Lori Palmer, for the state, answered straightforwardly that this would not alter what happened at the time of the statement, so in her view it would still be non-testimonial. But then she said the statement would be excluded by the rules of hearsay unless the speaker were unavailable. Not true! In this case, the Michigan courts held that the statement passed the hearsay bar as an excited utterance. In nearly all cases, the courts will find some way to except a highly probative statement from the rule against hearsay; given the existence of a residual exception, they don't have to work hard. And the consequence of this is that even if the speaker is alive and well and living around the corner, or if he decides to take a vacation during trial, under the state's view there is no bar to admissibility – not only no constitutional bar but really no bar at all.

The perspective question – There was extensive discussion of what might be called the perspective question. The justices asked whose purpose matters, the speaker or the questioner's. As indicated in my first set of comments, I think the optimal test operates in terms not of the purpose of the speaker but rather of the understanding, or anticipation, of a reasonable person in the speaker's position. But the basic question remains the same: Do we test whether it is testimonial from the perspective of the speaker or of the questioner, if there is one? To say that the test should be an objective one does not really answer this, because the question remains – objective based on the information available to whom, the speaker or a questioner? I've stated ad nauseum the reasons why I believe the perspective of the speaker – the person who is arguably a witness for purposes of the Confrontation Clause – is the proper one, and the interrogator's perspective makes no sense. I won't repeat these reasons here. I will say that I don't believe the state, or the Solicitor General, or any justice made a genuine argument that the proper perspective is that of an interrogator. And in this case, once we take the speaker's perspective, I think it becomes very clear that this statement was testimonial. Which ties into . . .

Emergency – It's important to recognize – as I think Peter Van Hoek, arguing for Bryant, made clear – that a defendant contending that the emergency doctrine articulated in Davis does not apply is not suggesting any criticism of the police officers on the scene: The doctrine (unlike, say, the exigent circumstances doctrine of the Fourth Amendment) is not a standard for police conduct, but rather a measure of whether a statement should be deemed testimonial for Confrontation Clause purposes. The emergency doctrine is not an exception to the confrontation right, but rather a marking of its outer bounds. I think the best way of accommodating it with sound confrontation doctrine is to say that in some circumstances the need to respond to the emergency is so urgent that a reasonable person in the speaker's position would not, at that time, be anticipating prosecutorial use of the statement. But whether we look at it that way or simply ask the question in terms of primary purpose, the application in this case is clear, once the speaker perspective is taken: The statement was not responsive to Covington's medical situation. And that was the only exigent circumstance he faced, because he knew the shooter was not around and there was no reason to suppose – certainly he gave no indication – that the shooter was on a rampage. The only purpose the statement served was to bring the shooter to justice. I think that's core testimonial. (Even if we look at it from the (misguided) interrogator's perspective, it's at best a dubious case for calling the interrogation emergency-oriented. The officers were reconstructing past events and do not seem to have been at all oriented to resolving an exigent situation.)

Dying declarations and forfeiture – Justice Ginsburg wondered whether the state might be able to renew the argument that the statement was a dying declaration; she understood that a conscientious application of Crawford raises the potential value of a dying-declaration argument for the prosecution. It is conceivable that the Court will remand for that purpose (though as I understand it, there is nothing in the record suggesting that Covington thought he was on the verge of death).

Justice Scalia expressed doubt as to whether there is a dying-declaration exception to the confrontation right (as opposed to a hearsay exception). Frankly, that surprised me, for two reasons. First, Justice Scalia's majority opinion in Giles v. California relies heavily on the establishment of the exception at common law, and in Crawford he indicated that the exception might be sui generis, an exception applicable to testimonial statements that was established by the time of the framing. Second, dying declarations have been admissible for a couple hundred years, and in many circumstances keeping them out is a very unappealing result. I have argued rather strenuously that in fact there should not be a dying declaration exception to the confrontation right, and that the function should be served by a robust doctrine of forfeiture. But the majority opinion in Giles forecloses that possibility; unless the Court revisits the Giles issue (which I hope it does), either the Court will incorporate the traditional dying-declaration exception into confrontation doctrine, or it will exclude statements that have long been admissible (which I don't think it will do), or it will interpret the scope of "testimonial" unduly narrowly to get these statements in.

Let's see how this all plays out in Bryant. Under the doctrine that I regard as optimal, there would be a good chance that Bryant would be held to have forfeited the confrontation right: If the trial court concluded, to whatever degree of certainty is held appropriate, that Bryant killed Covington, then he should be held to have forfeited the confrontation right, because he has no valid, equitable complaint based upon the foreseeable consequences of his own serious misconduct. In some circumstances, even if the accused kills a potential witness, he can contend plausibly that he still didn't forfeit the right because the state had and forsook reasonable opportunities to preserve the right in whole or part, as by taking a deposition. But as I understand the facts here, there was no such opportunity. Covington underwent surgery almost immediately after reaching the hospital, and he died several hours later; I am guessing that he never recovered consciousness, but in any event there was no chance for a deposition (even if a court were to hold that the state, if it can do nothing else, should hold a deposition in the absence of the accused, who in this case was not found till many months later). So I believe that – again, assuming a predicate finding that Bryant killed Covington – the only truly equitable result is to hold that Bryant forfeited the confrontation right. But Giles seems to foreclose this possibility, because it holds that forfeiture does not apply unless the accused killed the witness with the design of rendering the witness unavailable to testify, and there is no indication that Bryant killed Covington for the purpose of preventing Covington from testifying.

That leaves the troubling possibility that – with the Court having made forfeiture doctrine inapplicable and with the facts apparently not supporting application of a dying-declaration exception – some justices will be inclined to adopt a narrowing definition of "testimonial". I remain hopeful that at least four justices will let the judgment of the Michigan Supreme Court stand. But if that happens, the long-term damage to the confrontation right will be attributable in significant part to the mistake made by the Court in adopting too restrictive a view of forfeiture in Giles.

Reactions to the Bryant argument -- Part 1

I will not make any prediction on the ultimate outcome of Bryant, but here is a first installment of reactions to the argument. More to follow later, but I’m posting this so I don’t have to wait til I’ve written everything.

More than in any previous argument in the Crawford line, in this one the Court was really focusing on the basic questions that go into determining what makes a statement testimonial for purposes of the Confrontation Clause. If the justices write on the case – not inevitable, because there is the possibility of a 4-4 split – they may well resolve some of these issues.

Underpinnings of Crawford; relation of confrontation and hearsay law – Justice Breyer indicated misgivings about how Crawford has developed. He wondered why, if a state treated a matter as within a hearsay exception, the Confrontation Clause should require exclusion.

There was some irony here, because Justice Breyer’s concurrence in Lilly v. Virginia, 527 U.S. 116 (1999), was one of the first opinions to indicate that tying confrontation doctrine to hearsay law might be a mistake. I do hope that Justice Breyer will return to his earlier insight, and will recognize the fundamental nature of the confrontation right as articulated by Crawford.

The right of confrontation is a basic part of our criminal procedure, prescribing how witnesses against an accused must testify – not in a police station, not in their living rooms, not on the pavement of a gas station while talking to police, but in open court (or if necessary another formal procedure), under oath, subject to cross-examination, and in the presence of the accused. I think the key point is this: If a speaker makes an out-of-court statement in given circumstances knowing full well that it is likely to be used against an accused, and the statement is in fact so used, then we have created a system in which speakers can testify against an accused by making statements in those circumstances.

Of course, the confrontation right applies only to statements that are testimonial in nature, not (as Justice Breyer seemed to worry) to the vast majority of hearsay statements. Thus, conspirator statements (an example he cited), even those made to undercover police officers, are not testimonial, because a reasonable person in the position of the speaker would not anticipate prosecutorial use. But where a statement is testimonial, it simply does not do to rely on the hearsay law of the jurisdiction. In formal terms, of course, that is abdicating constitutional responsibility to the rulemakers of the states. In practical terms, it should be recognized that the modern law of hearsay is essentially a sieve – just about anything can get through. Justice Breyer listed a few hearsay exceptions, but the list is long and it is topped off by a residual exception. It would, in my view, be a great misfortune to return to a period in which we hope that courts applying hearsay law will do the work of protecting a fundamental aspect of our criminal procedure.

History – There was a brief allusion to history. I think the history is clear: Neither at the time of the founding nor for many years afterwards — really, I think, nearly two centuries – would a common law court have plausibly admitted the statement at issue in this case. The NACDL amicus brief does an excellent job on this. The res gestae doctrine had not yet developed at the time of the framing. The Brasier case, from 1779, involved a statement made shortly after the crime, with the assailant at large, and the court is very clear in regarding the statement as testimonial and in holding it inadmissible. In the first decades of the development of the res gestae doctrine, the doctrine did not allow narratives of past events. (For example, in the Bedingfield case of 1879, even a statement made seconds after the event was (controversially by then) held inadmissible.) Gradually, courts loosened up – but really, it wasn’t until the late 20th century that a court would have seriously considered admitting a statement like this (putting aside considerations of dying declarations and forfeiture).

It’s also worth emphasizing in this context a point made by Crawford -- putting aside the dying declaration exception and forfeiture, none of the doctrines admitting hearsay that were established at the time of the framing (for example, a develolping doctrine governing business records) were applicable to testimonial statements.

Formality – The state put its primary reliance on a formality test. It appeared to me highly unlikely that a majority of the Court would accept that line of reasoning, and for good reason. As I’ve said (many times) before, a formality test gets things backwards and misses the point of the Confrontation Clause, which was to ensure that testimony be given under proper (formal) conditions; if a statement should otherwise be characterized as testimonial, lack of formality means not that the statement is non-testimonial but rather that it was not given under acceptable conditions. A formality test is also very manipulable – government agents can get around the confrontation clause just by taking testimony under informal conditions. It also distorts incentives – it gives police the incentive to postpone gaining control over a situation until they have taken witness statements made in anticipation of trial. As I have explained before, I believe that if Davis is read as establishing a formality standard – not inevitable, because Davis said merely that it did not deny that formality was essential for a statement to be testimonial – it is best understood as having no independent content beyond the requirement that reasonable person in the position of the speaker would anticipate that the statement would be used for prosecutorial purposes.

Purpose – Justice Alito suggested it makes no sense to ask what the primary purpose of the speaker is. Well, I sure don’t think that test is optimal. I believe the decisive question should be not what the primary purpose of the speaker was but rather what the understanding of a reasonable person in the speaker’s position would be. (And given Davis, I think we have to say that we take the reasonable person in the actual circumstances, acting in the heat of the moment.) Asking about the understanding of a reasonable person avoids the difficult weighing of purposes on which Justice Alito was commenting. It also avoids an inquiry into the subjective frame of mind of the speaker. Even more importantly, it is better justified as a matter of principle: in some circumstances, a witness might not want to create testimony (for example, if it is an unwelcome part of a plea bargain), but if he realizes that in fact he is creating a narrative statement that will be used in prosecution, he is testifying. In this case, I think a reasonable person in Covington’s position clearly would have understood that his statement would be used in prosecuting the assailant.

That's all I can do for now. I'll present comments on the proper perspective - speaker's or interrogtor's -- and on emergency and maybe one or two other issues later on.

Bryant Transcript

The Supreme Court held argument today in Michigan v. Bryant. You can read the transcriupt by clicking here. I will post some comments on the argument, tonight or tomorrow.

Bryant argument on Tuesday

Michigan v. Bryant will be argued in the U.S. Supreme Court on Tuesday. I will be second chair to Peter Van Hoek, lead counsel for respondent Bryant. Here are a few thoughts in advance of the argument. These are my own views entirely, and none should be attributed to Bryant or to Peter.

First, a quick review of the facts. Responding to a 911 call, police arrived at a gas station here they found Anthony Covington lying on the ground, bleeding and in pain. In response to their inquiries as to what happened, he told him that he had been shot about half an hour before at the house of “Rick” – arguably a reference to Bryant – six blocks and had driven himself to the spot where the police found him. Covington died later that day. His statement to the police was a crucial piece of evidence in convicting Bryant of murder.

The question here is whether the statement was testimonial for purposes of the Confrontation Clause. I believe that on careful analysis the answer is clearly in the affirmative.

The basic question, in my view, is whether a reasonable person in Covington’s position would realize that his statement was likely to be used in investigating or prosecuting a crime. And I think there can be no doubt that the answer is yes: Covington was giving information about a gunshot assault on him. The case is not like Davis v. Washington, for at least two basic reasons. In Davis, the assault was in progress or just concluded at the time of the statement; here it was a closed incident in the past. And in Davis, the victim was unprotected and presumably seeking protection from the assailant; here, by contrast, Covington was in no need of protection, because the police were already around him.

In part for this reason, the fact that Bryant was at large does not alter this analysis. A rule that a statement is not testimonial if the accused is not already in custody would lack logical support and it would create a badly distorted incentive for the police – to delay taking a suspect, even a dangerous one, into custody while they are gathering evidence.

Nor does the fact that Covington was in dire medical condition alter the analysis. If his statements were ones that could aid in treating his medical condition, then the case would look different, but this was a simple statement describing the crime. There is no remaining contention in the case that the statement was a dying declaration – and even if it were, that would be a separate question from whether the statement was testimonial. If the doctrine governing forfeiture that I regard as ideal were in place, a court might conclude as a preliminary matter that Bryant forfeited the confrontation right by killing Covington. But that possibility – which is also a separate question from the one of whether the statement is testimonial – has been foreclosed by the Court’s decision in Giles v. California, because there is no evidence suggesting that Bryant killed Covington for the purpose of rendering him unavailable as a witness.

It should be borne in mind in this context that nothing in the state’s argument depends on the fact that Covington in fact died before trial. In the state’s view, if he had made a full recovery – or if, though he needed prompt medical attention his life was never in serious danger – and he or the state simply decided that he would not testify at trial, the case would look the same, and because the statement would be characterized as non-testimonial, nothing in the Confrontation Clause would preclude admitting the statement. Indeed, when stripped of the fact that the victim died before trial, this case looks very much like Hammon v. Indiana -- a statement describing an alleged crime made some time after the incident, by a person who was allegedly a victim injured during the crime, made at the scene to police who arrived in response to a 911 call and were able to protect the speaker at the time of the statement. If such a statement is admissible, then I believe we have defeated the purpose of the Confrontation Clause: We will have in effect created a system in which a person who observes a crime may create narrative evidence that will be used at trial to convict a person with no need ever to take an oath or face the accused or cross-examination -- all the person need do is make a statement to the police describing the incident shortly after it occurs.

As in Hammon, the statement be regarded as non-testimonial on the ground that it was not sufficiently formal. I’ve addressed this point enough times in enough places I’ll just make two quick points. First, formality as an independent requirement for characterizing a statement as testimonial makes no sense, because the very point of the confrontation right is to ensure that testimony is given under proper conditions, including the required formalities. If a statement was made in the reasonable anticipation that it would be used for prosecution, the absence of formalities does not mean that the statement is not testimonial; it just means that the statement was not given under acceptable conditions for testimony.

Finally, I want to point out that virtually all the arguments made on the state’s side proceed from the premise, usually made only implicitly, that the question whether a statement is deemed testimonial should be determined form the perspective of the questioner (assuming there is one). Again, this is a point that I have addressed many times (including in my amicus brief in this case). I think that perspective makes no sense at all, and Davis does not stand for it. This case could make a solid contribution to the development of the doctrine of the Confrontation Clause if it establishes that the proper way of determining whether a statement is testimonial is to look at the situation from the point of view of a reasonable person in the position of the declarant.

Cert grant on the surrogate witness issue

I just realize I didn't post the first part of this message a few hours ago, when I thought I did!

The Supreme Court granted cert today in Bullcoming v. New Mexico, No. 09-10876. This is likely to be a very significant follow-up to Melendez-Diaz, posing the issue of whether forensic lab results may be introduced through a surrogate witness. That is, given that the results must be proved through a live witness, may that witness be an analyst who has no first-hand knowledge about the matters as to which he is testifying?

Here are the following documents in Bullcoming: the cert petition, the state’s brief in opposition to the petition, and the reply brief in support of the petition.

And, while I'm at it, here is a decision of the state same court, issued the same day as Bullcoming, in a companion case, State v. Aragon, 225 P.3d 1280. In Bullcoming, the court holds that one analyst can testify to the facts reported by an absent analyst; in Aragon, the court holds that one analyst cannot pass on the absent analyst's opinions. I do not believe the distinction will hold.

Decision on remand in Briscoe

The Virginia Supreme Court today issued its decision in Briscoe on remand from the United States Supreme Court. You can read it by clicking here">. The court held that the former Virginia statutory scheme (under which the defendant had to call a lab analyst as his witness if he wanted to examine the analyst) was unconstitutional. This, of course, was the point that I sought to establish in bringing the petition for certiorari; Melendez-Diaz made the point clear, and now the Virginia Supreme Court has drawn the obvious conclusion.

The court held that the error was harmless in Briscoe’s case, but Cypress’s conviction was reversed. I expect his case will plead out.

State's reply brief in Bryant

The state has filed a reply brief in Michigan v. Bryant. Like its main brief, the reply is refreshingly short. You can read it by clicking here. Below is a summary of the three points made by the brief, and my thoughts on each.

First, the state argues that the perspective for judging whether a statement is testimonial should be an objective one. Nobody disputes that. But the state conflates the subjective-objective question with the entirely different (I will resist the temptation to call it orthogonal) question of the perspective from which the determination should be made. For various reasons that I have summarized in several places, including this blog and my amicus brief in Bryant, I believe it is important that the determination be made from the perspective of the speaker. The state equates a speaker-oriented determination with a subjective one. But that equation does not follow: The proper question, I believe, is what the anticipation would be of a reasonable person in the position of the speaker.

Note that to say that the determination is objective does not avoid the question of asking this question: On the basis of what body of information is the determination made? It makes no sense (again, I will not review the reasons here) for that body of information to be what was available at the time to the police interrogator, even assuming there is one. Rather, the body of information should be what was available at the time to the speaker. A subjective determination would ask: What was the speaker’s purpose (or anticipation) when he or she made the statement? An objective test asks a question like this: Would a reasonable person knowing the information available to the speaker at the time anticipate the statement would be used in investigating or prosecuting the crime?

As I see it, the only way the state could have even a hope of victory is if the Court were to adopt (or implicitly apply) an interrogator’s perspective – that is, basing the determination on the information available to the interrogator at the time of the questioning. Thus, I think this case – more than Crawford, Davis, Hammon, Melendez-Diaz, or Briscoe – may provide a vehicle for deciding the perspective question. But the Court need not decide that question; it could well decide that even from the officers’ perspective it was clear from the outset that the conversation was not designed to relieve an emergency but to assist in prosecution of a crime.

The state’s second main point in its reply is that the emergency doctrine of Davis is not limited to criminal events. But even assuming that is so, it should not help the state. The victim’s statements did not – and were not reasonably calculated to – assist treatment of his medical condition. They were clearly likely to be used to assist in prosecution of the crime (and were so intended).

Finally, the state engages in a debate with Bryant over the contours of the res gestae exception to the hearsay rule. The doctrine is a 19th century creation, long post-dating the Confrontation Clause. Over the course of that century – far too late to be of assistance to the state – the courts loosened up in admitting statements made some time after the incident. Indeed, the significance of this line of cases is that at the time of the Clause and for decades after – even after the broad and newly developing rule against hearsay began to shroud the principle underlying he confrontation right – courts did not admit statements describing past criminal activity, even though the interval was very short. The fact that by the time they did start doing so they tended to talk in terms of the rule against hearsay rather than of the confrontation right is of no assistance here to the state.

Bottom-side amicus briefs in Bryant

Yesterday was the due date for amicus briefs supporting the respondent (the defendant) in Michigan v. Bryant. I filed one, which you can read by clicking here, and the National Association of Criminal Defense Lawyers filed another, which you can read by clicking here. If I learn that there are others, I will post them as well.

Respondent's brief in Bryant

Here is the brief, filed yesterday, of respondent Bryant in Michigan v. Bryant. Amicus briefs supporting Bryant are due on the 23rd. I expect to file one.

Cert denied in Pendergrass (and reply brief)

As reported in a comment by an anonymous reader, the Supreme Court denied cert this morning in Pendergrass v. Indiana. I may have mroe to say on this later. For now, I'll simply say that the basic issue presented by the case -- who must testify as to the results of a forensic lab test -- is an important one that the Court will have to resolve sooner or later.

I never posted Pendergrass's reply brief in support of certiorari, but for completeness will do it now; you can see it by clicking here. Personally, I think the issue is well enough joined that the Court could have taken this case if it were disposed to resolve the matter now. It may be that both sides from Melendez-Diaz are a little wary given the addition of yet another new Justice.

State's BIO in Pendergrass

The state has filed its Brief in Opposition in Pendergrass v. Indiana. You can read it by clicking here.

Sooner or later, the Court is going to have to address the basic issue raised by this case -- whether a prosecutor may prove an event or condition (here, the conduct and results of a lab test) by presenting the testimony of a person who did not observe that event or condition.

State-side amicus briefs in Bryant

The Solicitor General's Office and 36 states have filed amicus briefs on the state's side in Michigan v. Bryant. You can read the SG's brief by clicking here and the states' brief by clicking here. Both briefs, like that of Michigan, take the perspective of the interrogator in determining whether the statement is testimonial. I think this is a basic error, and I hope the Court does not fall into it.

I assume that if SG Kagan is confirmed to the Court she will be recused from sitting on this case, given that her name is now on the cover of a brief submitted in it. And that means that it is possible that the Court will ultimately be equally divided, which would leave the decision below untouched.