Smith v. Arizona: The Supreme Court decisively rejects the “in support of the opinion” end run

 

                The Supreme Court decided Smith v. Arizona on Friday.  On the whole, it was a very good decision.  The Court reversed unanimously, with seven justices, all but the Chief Justice and Justice Alito, signing on to the principal parts of Justice Kagan’s opinion for the majority.  On the principal question presented, whether the prosecution can avoid the Confrontation Clause on the ground that a statement is offered in support of an expert opinion, even though the statement supports the opinion only if it is true, that opinion was emphatic and clear: The answer is no.

This post will analyze the justices’ treatment of that question; I will later put up another post addressing their treatment of another question that was not presented by the petition but that gained a great deal of attention at argument, whether the statements in question were testimonial.  Throughout this post I’ll assume that they were indeed testimonial (as I believe they were).

(An aside:  I say “principal question” because the petition also raised the question of whether Smith’s failure to subpoena Rast made any difference for Confrontation Clause analysis.  The petition presented this question because the Arizona appellate court noted that Smith “could have called [Rast] to the stand and questioned her, but he chose not to do so.”  But the Court devoted only one footnote to this question because, as it noted, the state rightly did not defend this rationale.  Melendez-Diaz v.Massachusetts made clear that the defendant’s right to subpoena a witness does not satisfy the confrontation right.)

                Smith was accused of drug-possession crimes.  To prove that the substances in question were illicit drugs, the prosecution relied on the testimony of a lab analyst, Longoni.  But Longoni did not do any testing himself; instead, he based his opinion on statements made by another lab analyst, Rast.  For reasons that were never explained, Rast was no longer employed by the lab at the time of trial, and the state did not attempt to secure her live testimony.  The state argued that, to the extent Rast’s statements were presented to the jury, they were not presented for the truth of matters they asserted, but rather in support of Longoni’s “independent” opinion.  The Arizona courts accepted this argument, even though Rast’s statements would provide no support for Longoni’s opinion unless they were true. But five justices had rejected that theory in Williams v. Illinois; that did not fully resolve the matter, though, because four of those five were in the minority, Justice Thomas joining the other four in concluding (on different grounds from those four) that the lab report there was not testimonial.  So the principal question on which the Smith Court granted cert was whether that was a valid argument. 

                We can assume that, strictly as a matter of modern rules of evidence, Longoni’s testimony would be admissible, under FRE 703 or its state counterparts, or at least would be given a proper foundation. (Arizona has a rule substantively identical to FRE 703.)  But, Justice Kagan noted, “Evidentiary rules . . . do not control the inquiry into whether a statement is admitted for its truth,” because that inquiry “marks the scope of a federal constitutional right.”   (Of course, the same inquiry also is crucial in implementing hearsay law, but she was focusing on the confrontation right.) And “federal constitutional rights are not typically defined . . . by reference to non-constitutional bodies of law like evidence rules.” The “not typically,” she explained in a footnote, was to take into account one qualification: “If an evidentiary rule reflects a long-established understanding, then it might shed light on the meaning of the Confrontation Clause.” But that could not be so here, because Rule 703 “is a product of the late 20^th-century, and was understood from the start to depart from past practice.” (This done with a citation to my amicus brief, which only encourages me to keep on submitting them.)

                So, were Rast’s statements presented for their truth?  Justice Kagan – properly, I think – found this a very easy question:

If an expert for the prosecution conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts. How could it be otherwise?

Put another way, she said, the truth of the basis testimony (here Rast’s statements, the basis for Longoni’s opinions) is what makes it useful to the prosecution, because “that is what supplies the predicate for – and thus gives value to – the state expert’s opinion.”  And looked at from another perspective, if the jurors believe the basis evidence to be true, that will lead them to give more credit to the in-court expert’s opinion, and if they believe it false, it will do the opposite.  Thus – a critical passage quoting Justice Thomas’s separate opinion in Williams – “'[t]here is no meaningful distinction between disclosing an out-of-court statement’ to ‘explain an expert’s opinion’ and ‘disclosing that statement for its truth.’” Whatever “label” the state uses,  “in all respects the two purposes merge.”

                The Court then took some of the facts of the case as an “almost-too-perfect illustration” of the general principles it had articulated. Longoni’s entire testimony was predicated on Rast’s findings. If those findings were false, Longoni’s opinion “would have counted for nothing.” Longoni was effectively “Rast’s mouthpiece.” 

                Further, if the practice in this case were approved, it would “allow for easy evasion of the Confrontation Clause,” making Melendez-Diaz and Bullcoming v. New Mexico “a dead letter”: “[E]very testimonial lab report could come into evidence through any trained surrogate, however remote from the case.”

                The Court noted that its decision did not deny experts like Longoni any useful role at trial.  They could testify in general about forensic guidelines and techniques.  If the expert worked in the particular lab, as Longoni did, they could testify from personal knowledge about how that lab operates, including how it maintains chains of custody.  And the expert could be asked hypothetical questions, as to what conclusions followed assuming a given predicate.  Justice Alito jumped on this last possibility, as discussed below.  I believe the Court’s catalog of possibilities, which it did not contend was necessarily exclusive, was completely accurate.  But note – what presumably set Justice Alito off – none of the possibilities appear to allow the prosecution to prove lab results in a particular case without presenting testimony subject to confrontation of an analyst who observed the key case-specific facts.  And that is as it should be.

                So that was clear and straightforward and really excellent.  I’ll raise one sort-of nit.  The Court refers a couple of times (as it has before) to “testimonial hearsay” as being at the core of the Confrontation Clause.  I wish the Court would avoid that phrase, because it tends to minimize the separation between the confrontation right and hearsay doctrine, and that separation was crucial to Crawford.  (Justice Alito’s opinion says that the majority opinion takes the view that “basis testimony is always hearsay,” and that he would remand because Longoni’s testimony “is hearsay under any mainstream conception.”) I understand the temptation – for there to be a Confrontation Clause violation, there has to be a statement that was made out of court and that is offered for the truth of a matter that it asserts, and that’s the basic definition of hearsay.  But that just suggests that the two doctrines have an overlapping area of concern.  If there is a Confrontation Clause violation, it is not because the statement would be deemed to be hearsay – and if a statement avoids exclusion under the hearsay rule, that says nothing about its standing under the Confrontation Clause.

                And now let’s consider Justice Alito’s opinion.  He begins by saying that “the Court inflicts a needless, unwarranted, and crippling wound on modern evidence law.”  Wow! What is that wound?  Well, at considerable length he shows that the presentation of expert testimony in traditional common law was largely dependent on hypothetical questions, and these created significant problems.  So along came Rule 703, and it “replaced” hypotheticals.  And now the Court has “disinterred that procedural monstrosity,” in an “assault on modern evidence law.”

                OK, let’s first bear in mind that it’s just one rule, not all of modern evidence law that’s affected.  And it’s only the implementation of that rule with respect to some prosecution evidence that’s affected:  Evidence in civil trials, or evidence presented by a criminal defendant, has nothing to do with this case, and even with respect to prosecution evidence this decision will have no effect at all if the statement at issue is not testimonial. (Think of a routine blood test taken without any indication that it is for evidentiary purposes, perhaps even before the crime is committed.  And also note that if the in-court expert’s opinion doesn’t depend on the truth of the statement, neither Rule 703 nor the Confrontation Clause comes into play.)  And Rule 703 did not do away with hypotheticals; indeed, the Advisory Committee Note explicitly refers to hypothetical as continuing to be one way of presenting expert evidence.  Putting aside the Confrontation Clause for the moment, it did not even do away in all circumstances with the need to ask a hypothetical question, because the predicate for operation of Rule 703, that experts in the field would rely on the particular type of facts or data in forming an opinion on the subject, will not always be satisfied.  (Note also the Advisory Committee Note to Rule 705, which says that the instances in which counsel is required to make prior disclosure of the facts or data underlying an opinion “are reduced.” 

                What Smith holds is that if (1) a prosecutor seeks to introduce an in-court witness’s opinion, and (2) that witness did not observe the facts supporting the opinion, and (3) the factual basis supporting the opinion is contained in an out-of-court testimonial statement, and (4) that statement supports the opinion only if it is true, and (5) the in-court witness testifies to the substance of that statement but (6) the author of the statement does not testify in court, then there is a Confrontation Clause violation (absent forfeiture, we might add).  That is hardly an assault on modern evidence law.  Nor does it constitute a “trashing” of Rule 703, as Justice Alito suggested at oral argument.  Now, it is true that if there were no Confrontation Clause, Rule 703 would presumably allow the evidence even in this situation.  But so what?  Rule 703 is not only a latter-day creation; it was written at a time when there was no clear conception of what the Confrontation Clause meant, so it is not surprising that it did not take the Clause into account.  And as the Court indicates, and Justice Alito does not deny, the Constitution trumps evidentiary rules, not the other way around.

                But then, eager though Justice Alito is to protect application of Rule 703, how did he get around the Confrontation Clause?  Well, he says, under Rule 703, the evidence is admissible only to support the opinion, and on request the trial judge must instruct the jury to consider it only for that purpose, not for the truth.  So there’s no Confrontation Clause violation; we presume jurors will follow instructions.

                The problem, which he ignores altogether, is that such an instruction makes no sense at all, for a reason indicated by the majority’s quotation from Justice Thomas’s Williams opinion – if the statement supports the opinion only if true, there is “no meaningful distinction” between admitting the statement for its truth and admitting it in support of the opinion.  (Justice Alito overstates the case when he says that “the Court seems to think that all basis testimony is necessarily offered for its truth.”)  This is not a matter of distrusting the jury; it’s a matter of simple logic.  If we instructed the jurors to stand with both feet on the ground while one foot is in the air, it would not be incompetence of the jurors that would prevent them from complying.

                But after all that, Justice Alito still concluded that the trial court erred.  He equates the requirements of the Confrontation Clause in this area (apart from the question of whether the statement in question is testimonial) with those of the Federal Rules of Evidence – a false conjunction, as I have indicated – and says that Longoni could have disclosed the information in Rast’s statements, if, under Rule 703, the court found that the probative value of that information substantially outweighed its prejudicial potential.  “But,” he then said,

he could not testify that any of the information in the report was correct—for instance, that Rast actually performed the tests she recorded or that she did so correctly. Nor could he testify that the items she tested were the ones seized from Smith. Longoni did not have personal knowledge of any of these facts, and it is unclear what “reliable” scientific “methods” could lead him to intuit their truth from Rast’s records. Fed. Rule Evid. 702(c) (defining a permissible expert opinion).

And in this case, Justice Alito says, he agrees with the Court that Longoni “stepped over the line and at times testified to the truth of the matter asserted,” because at times he asserted as true various assertions made by Rast, such as the methods as procedures she followed, the tests she performed, and the results she got.   

Wow again.  First, let’s not slide over what strikes me as a rather large irony.  I have always thought – and I hope readers will correct me if they think I’m wrong – that given certain findings (that the in-court expert is making the type of reasonable reliance on an outside statement that experts in the field make, and that the probative value of the statement outweighs the prejudicial effect) Rule 703 does in fact allow the in-court witness to testify to the truth of that statement, the hearsay rule notwithstanding.  That is why the Rule says that if the reasonable-reliance predicate is satisfied, the underlying facts or data “need not be admissible,” and why Rule 703 is sometimes thought of as an extra hearsay exception.  I suppose one could say that the witness would be allowed to testify, “I relied on this statement, but I’m not saying it is true.”  But what sense does that make?  Unless it’s believed to be true, it provides no support for the opinion.  So is that the type of testimony Justice Alito wants experts to give under Rule 703?  And if so, who is undercutting the usefulness of that Rule, not only when prosecutors attempt to use it to get in testimonial evidence, but across the board?

Second, how far apart in the end is Justice Alito from the majority?  He says that Longoni’s testimony was improper, because in trying to support his opinion he really was testifying to the truth of statements made by the absent Rast.  Gee, sounds a fair amount like the majority.  So I wonder just what is it he thinks Longoni should have been able to do that the majority doesn’t?  Perhaps readers can enlighten me.

A related question:  What if, as Rules 703 and 705 allow, Longoni just testifies to an opinion, without disclosing the underlying statements.  Would the Confrontation Clause tolerate that?  I think it’s clear that under Rules 703 and 705 the defense should be allowed to ask what the basis for the testimony is – and that as soon as the witness discloses the basis we are back in the same position.

In the end, I wonder to what extent Justice Alito and for that matter the Chief Justice too, were motivated by the fact that they appear to have lost this part of the battle.  They were part of a foursome in Melendez-Diaz, Bullcoming, and Williams, and by picking up Justice Thomas’s vote in Williams they were able to get the result they wanted.  But four members of the Court have since left, two from the Melendez-Diaz majority and two from the minority, and all four junior justices joined the Smith majority (on the Melendez-Diaz majority side, Justice Gorsuch for Justice Scalia and Justice Barrett for Justice Ginsburg, and on the minority side Justice Kavanaugh for Justice Kennedy and Justice Jackson for Justice Breyer).  So Justice Alito can snarl all he wants, but on this issue at least he now speaks for only two justices.

The Smith argument and the meaning of "testimonial"

     I believe that the Supreme Court will decide Smith v. Arizona on the assumption, made in the Question Presented in the petition for certiorari, that Rast’s statements were testimonial.  (And I believe they clearly were testimonial.) The state did not challenge that proposition in the Arizona courts, at least not more than very inferentially, and it was not argued there.  I believe the oral argument revealed no disposition on the part of the Court to use this case, at least at this point, to do anything substantive with respect to the question of what statements are testimonial.  But it wouldn’t be surprising if a remand invited the Arizona courts to take another look; the Court sure was interested in the question at argument.  So I’ll offer some comments here. 

     Justice Kavanaugh repeatedly raised the question of whether the Court should adopt Justice Thomas’s view of what is testimonial, dependent on formality or solemnity.  Eric Feigin for the SG and Alex Samuels for the state were hospitable to the idea; Hari Santhanam said, accurately in my view, that the test is too narrow and would not apply to many statements that fit within the core of what is testimonial.  At least that is true, I believe, given how Thomas applied the test in Williams v. Illinois.  But I think that if the Court were to adopt a test based on solemnity and if – very big if – it would apply such a test appropriately, then it might get to a better place.

      I’ve often written on this subject, and I'll do so again, rather briefly, now.  Let’s focus on formality.  Formality is not what makes a statement testimonial; it’s what makes testimony acceptable.  The oath, presence of the accused, and cross-examinations may all be considered incidents of formality, and they are all essential for prosecution testimony to satisfy the standards of our system.  But that does not mean that a statement given informally is not testimonial.  Suppose a police officer says to someone who has witnessed a crime, “I’d like you to tell me what happened.  You can tell me very informally.  You don’t have to take an oath.  I won’t record it, and I won’t take notes.  That way, you won’t have to come to court.  I’ll remember what you say, and I’ll tell the jury.”  That has to be testimonial; if it isn’t, then we have a system in which a witness can knowingly create evidence for use in prosecution by having such an informal conversation and not take an oath, confront the accused, or be subject to cross-examination.  That’s pretty much unthinkable in our system.  Now, I suppose you could say well, that’s really sufficiently formal to be considered testimonial because the witness expected prosecutorial use of the statement – it was “made in contemplation of legal proceedings,” as Justice Thomas put it in his concurring opinion in White v. Illinois (1992).  That would be OK by me, and I think it would get close to a good definition of testimonial, but it seems clear to me that the word formality here is misplaced and is not really doing the work; it’s the expectation of evidentiary use that is.

     If we take a narrower view of formality, in which some set of hoops must be jumped through for the statement to be deemed formal, then we will have virtually nullified the Confrontation Clause, because any witness wanting to create evidence for use at trial, or any investigator seeking to generate such evidence, can simply avoid the hoops.  Is an oath or certification a prerequisite for a statement to be deemed formal, as Justice Thomas suggested in Williams v. Illinois?  Then just avoid oath and certification.  Frankly, I am still mystified by Justice Thomas’s characterization of the lab report in Williams as not testimonial because insufficiently formal.  You can find the report here.  Notice that it’s on letterhead stationery, identified as a report of a laboratory examination, addressed to a forensic science center, and signed by two reviewers, and signed by two reviewers, one of whom is identified as the director of the forensics laboratory and the other as director of the identity laboratory.  In addition, it bears a case number and refers to the materials tested as exhibits and as evidence.  If the Court were to adopt the view that this is not enough to render a lab report testimonial, then it would be a simple matter for labs always to avoid the rule of Melendez-Diaz v. Massachusetts (2009):  Just avoid saying sworn or certified, and you never have to come to court.

     Now let’s talk about solemnity.  It’s not entirely clear what Justice Thomas means when he uses this word.  If he means it as a synonym for formality, then the same concerns apply.  But another, more useful, view of solemnity is possible.  If one takes solemnity to mean appreciation of the gravity of the consequences of making the statement, then it seems to me that gets at the essence of what testimonial means.  That is, if the speaker understands that her statement will likely be used in prosecution, and that it might help convict a person and lead to punishment, then it ought to be deemed to be testimonial.  More on this below, but it seems far preferable to an inherently ambiguous “primary purpose” test.

     Apart from the question of whether the Court should move in the direction of adopting a test based on formality or solemnity, the Court was interested in the question of whether the statements at issue in Smith itself were testimonial.  Justice Barrett particularly pressed the point:  What if a police officer jots down notes only for her own use to help think about the case, without intending them to be incorporated into a report?  (Samuels argued that in fact the in-court expert, Longoni, relied only on the notes of the absent analyst, Rast, rather than on her report; Hari Santhanam, for Smith,  without conceding that point, argued that the two were closely interconnected.)  Justice Kagan said it must depend on the facts of the case; some notes would be testimonial and some not.

     I would take a more categorical approach.  Yes, I think that if a lab tech, understanding that a sample is being tested for possible prosecution, jots down notes before writing a report, or if a police officer jots down notes about a crime scene to help her think about the case, it should be deemed testimonial.  No, such notes might not be formal, in the narrow sense of the word, but that shouldn’t matter.  But they are written in contemplation of being used in prosecution.  And if they are held admissible in favor of a prosecutor, and admitted, then we have a system in which a lab tech or police officer can create evidence for use in court by writing down such notes, and everybody would understand that this is what can be done.  In any realistic sense, the lab tech or officer is testifying by marking down the notes.  Eric Feigin, arguing for the United States as amicus, appeared to acknowledge this point when he said that there is a “chicken-and-egg problem,” because expert opinions will be aware of the Court’s decisions.  In other words, if the Court says that such notes are not testimonial, and that therefore the Confrontation Clause does not restrain their admissibility, then presumably they will be admitted as a regular matter, and they will be created with the expectation – and indeed the purpose – of being used as evidence at trial.

    This points to a complication.  If we are trying to determine the expectation, or the purpose, with which a statement is made by one involved in the criminal justice process, then whether or not the statement would be admissible at trial is a critical factor.   But notice the apparent paradox: If the maker knows the statement would be deemed testimonial, and so not admissible, then it could not be made with the anticipation, or purpose, of being used as evidence at trial.  So wouldn’t that mean that it is not testimonial?  And if the maker knows that the statement would not be deemed testimonial, and so would be admissible, then it likely would be made with the anticipation of purpose of being used as evidence at trial.  So wouldn’t that mean that it is testimonial?  I think there are two plausible approaches that would avoid this paradox.

    One is to ask not about potential use as evidence at trial but only about potential use in the prosecutorial process.  Even if the statement is testimonial, the maker could well anticipate that it would be used as part of that process.  I think that should be enough to render the statement testimonial. If a person makes a statement knowing that it will be used in the criminal justice process, then I believe it is enough to say that the person is acting as a witness as part of the case, by contributing to its resolution, whether or not the statement is formally introduced at a formal trial.

      The other is to assume hypothetically that evidentiary or procedural rules would not prevent the statement from being admitted at trial and ask whether a person in the position of the maker of the statement would reasonably anticipate use at trial. If the answer is affirmative, the statement should be deemed testimonial; the combination of an affirmative answer and admissibility would mean that in our adjudicative system a person could make a statement knowing that it would be used as prosecution evidence at trial and never confront the accused or be subjected to cross-examination.

      I have spoken about purpose as well as anticipation because the Supreme Court has phrased its test in terms of "primary purpose."  But I think that is an unfortunate choice, and if the Court ultimately takes a hard look at the question it should  do away with that test.  Trying to pick one purpose as primary is, as Justice Thomas suggested in Davis v. Washington (2006), a fool's errand.   But more fundamentally,  I believe any test should be expressed in terms of anticipation rather than of purpose.  I gave reasons for this long ago in an article titled Grappling with the Meaning of "Testimonial", 71 Brooklyn L. Rev. 241, 251-53 (2005), which you can see here, and I won't add more now.  

The argument in Smith v. Arizona: The Question Presented

 

     I put up a short post on the argument in Smith v. Arizona  right after the case was decided, and intended to present a fuller account soon after that.  Time has gotten away from me, but better late than never.  (And by the way, there were some interesting comments to that short post from a forensic scientist; I just noticed those while preparing this post.  I’ll respond to those on the prior thread.)

     Perhaps the most notable aspect of the argument was how interested the Court was in the question of whether the statements at issue were testimonial, rather than in the question actually presented, whether the statements satisfy the Confrontation Clause because they were introduced in support of the testifying expert’s opinion.  In the end, I doubt that the Court will use this case to revise the standard for what is testimonial, or even that it will determine that the statements at issue here were not testimonial.  And I think it is highly likely that Smith will get a reversal, with the Court holding that the statements should be deemed for Confrontation Clause purposes to have been presented for the truth of what they asserted.  But it is possible that a remand will leave it open for the Arizona courts to consider whether the statements were in fact testimonial.  I’ll comment in this post on the issue actually before the Court.  I’ll then present another post on the question of whether the statements were testimonial and the standards that should be used in determining that.

     The essence of the case is that one lab analyst, Rast, performed tests on certain items and wrote notes and a report stating her findings, but a second witness, Longoni, who had nothing to do with the testing or report, testified to an opinion, on the basis of the facts reported by Rast, that the items contained controlled substances.  The state courts held that the references to Rast’s findings should be deemed to be presented in support of Longoni’s “independent opinion,” and not for the truth of what they asserted, and that therefore there was not a Confrontation Clause problem.

     The problem, though, is that in this case Rast’s statements supported Longoni’s opinion only if they were true.  When a statement is offered to prove the truth of what it asserts, that proposition is most often an intermediate point on the way to some other conclusion, and this is no different; here, the other conclusion (itself an intermediate point on the way to the conclusion of guilt) is Longoni’s opinion.  I think it was quite clear that most of the Court understood this to be so; Justice Jackson was particularly vigorous in pushing the point.  I’m not sure that I could point to a single justice who thought otherwise.

        Justice Alito did say that Hari Santhanam, Smith’s counsel, was going out of his way to “trash” Rule of Evidence 703.  (Federal and Arizona Rule 703 are substantively the same; I’ll just refer generically to Rule 703.) And Alex Samuels, arguing for the state, suggested that a holding in favor of Smith would undermine Rule 703 beyond criminal cases.  These concerns seem to me entirely unfounded.  Rule 703 is very useful in its sphere.  It allows an expert to form an opinion on the basis of otherwise inadmissible information, if it is of a type on which experts in the field reasonably rely, and sometimes it allows the expert to testify to that information.  That’s good.  A holding for Smith would not have any impact on the operation of the rule in civil cases, or in favor of an accused – nor even in favor of a prosecutor so long as it did not result in a testimonial statement being used for the truth of what it asserts.  (For example, an expert could form an opinion as to public attitudes on a given issue on the basis of statements by people in a survey, whether or not those statements would otherwise be admissible.)  But Rule 703, a relatively recent creation, has to be subsidiary to the Confrontation Clause:  It can’t allow a testimonial statement to be presented against an accused for the truth of what it asserts.  And if the statement supports the opinion only if the statement is true, that’s just what is happening.

        Samuels repeatedly emphasized the possibility of giving a limiting instruction, telling the jury not to use the statement for its truth but only in support of the opinion, and the fact that the defense in this case never asked for one.  But a limiting instruction in this context is meaningless:  If the jury is told to use the statement in support of the opinion but not for the truth of what it asserts, then it is being told it may do something that is in fact logically impossible.  Santhanam addressed this point on rebuttal when he said that a limiting instruction is appropriate only when there is a valid use of the evidence, and here there was none.

        A related matter: Samuels said that Arizona law is clear in this situation that Rast’s statements are not admissible for the truth of what they assert.  But remember Lincoln’s line about how many legs a dog has if you call a tail a leg.  Four; calling a tail a leg doesn’t make it a leg.  The state saying that the statement is not being presented for its truth doesn’t make that fact so if that’s the only use the jury could have made of it.  A court protecting the Confrontation Clause cannot be controlled by state pronouncements of this sort.  Santhanam gave a similar, and effective response to a question posed by Justice Alito as to what the result would be if a judge said, “I’m not going to use this for the truth, only in support of the expert’s opinion.”  The judge saying that’s so can’t make it so. 

        Justice Alito also seemed to suggest at one point that Smith’s argument would invalidate hypothetical questions posed to prosecution expert witnesses.  It’s possible that I misunderstood him, but in any event there is no cause for concern with that.  An expert can give testimony of the form, “If factual predicate X is true, then my opinion is Y.”  It is then up to the prosecution to present valid evidence of predicate X.

        As for the state’s repeated characterization of Longoni’s opinion as independent:  It is only independent in the sense that Longoni presumably drew his own conclusions from the facts reported by Rast.  But those facts were essential for the opinion.  I believe that Justice Jackson was driving at much the same point when she asked a long hypothetical – she is a former Breyer clerk, and his successor in more ways than one – that seemed aimed at presenting a situation in which the opinion of the expert testifying live was clearly dependent  on facts provided by the absent expert, but not on the absent expert’s opinion.  Samuels said the result would depend on whether the live expert was adding anything.  But I think that’s plainly wrong.  The question is whether a testimonial statement of the absent expert is being used for the truth of what it asserts, whether as a predicate for the live expert’s opinion or for any other reason.  Also, as I pointed out in my amicus brief, in this case given the facts asserted by Rast the conclusion to which Longoni testified followed pretty much immediately.  I think all the talk of an independent opinion is really a sham.  (I do not mean to be critical at all of Samuels, who I thought did a very good, professional job with a weak case.) 

        Eric Feigin of the Solicitor General’s Office, arguing for the United States as amicus, sought to strike a middle position.  (The fact that the United States was coming in on neither side, rather than in support of the state, as it usually does, was itself noteworthy, as Justice Kagan, a former SG pointedly remarked.)  He strongly intimated, without quite saying, that Smith was entitled to a reversal because Longoni explicitly endorsed statements by Rast.  But he argued that Longoni could have testified to the usual practice, and to the fact that he had no reason to believe anything different was done in this case.  He would then be exposed to cross-examination to emphasize that he knew nothing about the particular case from personal knowledge.  That seems right to me  – the jury can infer that something was done on a particular occasion from the fact that this is how the organization usually does it – but a couple of points.  First, the Chief Justice asked why that type of cross wasn’t sufficient in this case.  I think the answer is that in this case the state presented more – it presented the testimonial statements of an out-of-court witness and effectively asked the jury to believe the truth of those statements. So the fact that Longoni could be cross-examined on what he did or didn’t know is neither here nor there.  Second, if we take the SG’s suggestion, it still does not get the prosecution all the way home.  If the prosecution wants to present machine-generated data and graphs, which presumably are not testimonial in themselves, it would still have to satisfy a chain-of-custody problem.  And this usual-practice approach would not help getting Rast’s statements in.

People v Washington: pending Michigan case with multiple interesting issues

 I have previously posted about a Michigan case, People v. Washington.  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!).

You can find papers in the case here.

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.) 

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.

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.

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.

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, State v. Glavic, 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.

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.  

Argument in Smith v. Arizona; a preliminary report

 The Supreme Court heard argument this morning in Smith v. Arizona.  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.

Comments on the Arizona and SG briefs in Smith v. Arizona, Part 2

 Arizona and the SG, and some of the other supporting amici as well, raise once more the supposed multi-witness problem – i.e., 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. 

First, there’s no data presented suggesting that this is a problem in reality.  On the contrary, I’ve presented data indicating that it isn’t.  Part of the reason is that very often defendants have no interest in having a lab witness testify live. 

Second, only those who make testimonial statements that the prosecution chooses to present need testify subject to confrontation.   See Melendez-Diaz, 557 U.S. at 311 n. 1.  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. 

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.  (Note the case of the army lab, highlighted in my brief.) 

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. 

Fifth, the state can reduce any burden by various means.  Notice-and-demand statutes help.  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.  Courts can be flexible about scheduling.

Finally, even assuming there is some extra expense, that has no constitutional significance.  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.  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.

One other, somewhat related point:  The SG says that in many cases the jury would not even understand what the lab tech reports.  So what?  If a witness testifies in a foreign language, most jurors will not understand the testimony without translation.  We still require confrontation by the witness.  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.

Thoughts on the Criminal Justice Legal Foundation brief in Smith v. Arizona

              I’m hoping to write more in a few days on the Arizona and SG briefs in Smith v. Arizona.  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.

              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.  As I will explain below, I disagree sharply with this, and I believe it ignores a whole lot of history.  But first let me note that there are some aspects of the brief with which I agree.

              One of these is that the current doctrine is murky and gives too little guidance.  That shouldn’t be a reason to throw out Crawford (and the CJLF brief relies a lot on dissents and the views of Crawford-skeptic judges).  It does mean that current doctrine can be improved on.  I agree with the CJLF that the “primary purpose” test is ahistorical and does not work well. 

              I also agree that Crawford does not account well for the allowance of dying declarations.  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.  Crawford made room for them by suggesting that they constituted a sui generis 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.  (A patchwork can be an acceptable second-best solution, though.) As I have often argued, the solution seems rather simple:  Dying declarations should be considered as an aspect of forfeiture doctrine.  The imminence requirement should be considered as marking a boundary of the state’s duty to mitigate by providing an opportunity for confrontation.  I’ve explained this approach in numerous places, including this article.  Adopting this view would mean walking back from Giles v. California, 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.

              Now, the CJLF says that nowhere in the early materials do we see anything like the line between testimonial and nontestimonial.  I think this misconceives a few hundred years of history.  Until the late 18^th century, there was no well-formed hearsay doctrine, nothing resembling the elaborate doctrine we have today.  But there was an elaborate law governing witnesses.  What do witnesses do?  They testify.  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.  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.”  Rather, it was to ensure a system in which witnesses would be brought in to trial, or if necessary another formal testimonial proceeding such as a deposition.

              So we have to think in systemic terms:  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.

Comments on the Arizona and SG briefs in Smith v. Arizona, Part 1

Smith v. Arizona, in which I am hoping the Supreme Court will clear up some of the confusion created by its splintered decision in Williams v. Illinois, 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.

Arizona, the respondent, filed its brief on Dec. 13, and the supporting amicus briefs were filed a week later.  You can find all the briefs in the case through the Supreme Court’s docket sheet, here.

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.  I hope to offer more within a few days. 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.

Both Arizona and the SG try to make an argument that the procedure here uses a long-accepted method of proof.  I believe the attempt fails.  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.  They do make clear that experts have to rely on general underlying information, to be found in treatises and the like.  (Just as, by the way, ordinary percipient witnesses rely on what they’ve been told about the world by other people.)  And they cite a couple of civil cases from the founding era and a few from well after in which maybe experts were allowed to offer opinions on the basis of otherwise inadmissible statements of case-specific information.  (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.  Note, for example, the discussion and citations in my amicus brief  in this case at 6-7 and 17.

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.  But a court, ultimately the Supreme Court, construing and applying the Confrontation Clause must make its own assessment on that point.  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 Williams, there is no real distinction between presenting the statement in support of the opinion and presenting it for its truth.  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.”  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.  This situation is no different.  Neither Arizona nor the SG suggest any way in which telling the jury in a case like Smith to use the out-of-court statement only in support of the opinion actually alters what the jury can or will do with it.

Arizona and some of the other bottom-side amici suggest that the statements by Rast on which Longoni relied were not testimonial.  The Court should reject this argument as well.  I’ll assume for purposes of argument that Longoni did not rely at all on Rast’s report, but only on her notes.  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:  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 assuming the truth of those facts).  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.

 But, Arizona argues, the notes are not formal and they are not solemn.  Though sometimes the Supreme Court has spoken of formality as a requirement for a statement to be testimonial, I think that is potentially misleading.  Suppose a  statement is given very informally, but in full knowledge, and even with the purpose, that it will be used as evidence in prosecution.  Then it seems clear that it ought to be deemed testimonial.  Formality, as I have often said, is not a requirement for a statement to be testimonial.  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 acceptable.  As for solemnity, I think that gets closer to the mark, if properly conceived.  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.”)  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.  That’s enough for the statement to be considered testimonial.

More later.

Smith v. Arizona -- top-side briefs filed

Petitioner filed his brief in Smith v. Arizona 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 Supreme Court's docket sheet.  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.

Smith v. Arizona -- cert grant in a case that might clear up the Williams mess

 Yesterday, the Supreme Court granted certiorari in Smith v. Arizona, No. 22-899, a case that might help provide some clarity much needed since the Court's decision in Williams v. Illinois.  Here are some preliminary thoughts.

Williams 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 the Arizona Court of Appeals in the Smith case.  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.

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 I have said, I think it is a sham to say it is not being presented for the truth.  This is what I have called the expertise end run, one example of the not-for-the-truth end run.  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 People v. Goldstein. (Among my other posts on the topic are this one and this one.) Smith provides an opportunity to put the issue finally to rest.

By the way, the report in Smith 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 this post and also this one

Another issue raised by the Smith petition is that the Arizona court said, as the four justices did in Williams, 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 Melendez-Diaz v. Massachusetts, 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 my brief for the petitioners in Briscoe v. Virginia. It appears the dissenters in Melendez-Diaz took another shot at the issue by granting certiorari in Briscoe , but the Court slapped that attempt down by remanding the case for reconsideration in light of Melendez-Diaz.  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.

Samia v. United States: The Supreme Court cuts back on Bruton

The Supreme Court today decided Samia v. United States, and in doing so cut back substantially on the rule of Bruton v. United States (1968) and essentially nullified Gray v. Maryland (1998) a Bruton 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 Case of Thomas Tong, 84 Eng. Rep. 1061 (1662), though before Crawford some courts tended to forget it.  In Bruton 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.  Gray was similar to Bruton 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.  Samia 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.

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 Gray.  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 Bruton because the prosecution could always replace the name of the non-confessing defendant with words such as "a woman" and avoid the problem.

Justice Jackson also dissented separately.  She pointed out that the majority skipped over the fact of a Confrontation Clause violation and treated Bruton 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.

Cert denied in Shields. What should counsel do at preliminary hearing?

    This morning, the Supreme Court denied certiorari in Shields v. Kentucky, No. 22-450, on which I have previously posted, here and here.  As usual, the Court did not give any explanation; there were no dissents from the denial.

    In Shields, 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.

    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.

    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.

    I believe, therefore, that defense counsel should make it a regular practice to present the conundrum to the court:

        (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.   

    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 amicus brief in support of the petition in Shields, 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. 

        (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.

    I'd be very grateful to learn of readers' responses to these suggestions, and of the experience any counsel have in this situation.

Another good decision in a fresh-accusation case

 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 good decision by the Minnesota Court of Appeals.  And now there's another, State v. Johnson, 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.

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.

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?  

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. 

Shields v. Kentucky: BIO, reply, and ready for conference

 I reported in an earlier post on the cert petition in Shields v. Kentucky. The Commonwealth has now filed its brief in opposition, and Shields has filed a reply.  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.

A useful opinion on statements not reported explicitly at trial

On the first of this month, the Michigan Court of Appeals issued a useful decision, People v. Washington, 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.

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.    

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:

[The Prosecutor]: At some point did Officer Lavers from the Canadian services hand you any other evidence?

Officer Stockwell: Yes, he did.

[The Prosecutor]: What did he hand you?

* * *

Officer Stockwell: A body armor.

* * *

[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?

Officer Stockwell: There were.

[The Prosecutor]: Okay. And ․ based on those communications you took custody of [defendant]?

Officer Stockwell: Yes, we did.

[The Prosecutor]: And you took possession of the body armor that was turned over at the same time?

Officer Stockwell: Yes, sir.

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.

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."

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 Washington, 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 Washington, 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.

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 Wright v. Tatham (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 Wright 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 Washington case and others like it:  In Wright-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 Washington-type cases, the out-of-court witness presumably did 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.

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 offered for the truth 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." 

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 Stockwell 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 testimonial – I am tempted to say under any reasonable view – 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 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.

Shields v. Kentucky: A cert petition to watch on preliminary-hearing testimony

Jonathan Ellis and Gregory DuBoff of the McGuire Woods firm have filed an excellent cert petition in Shields v. Kentucky, 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 Crawford, and the petition ably shows that the lower courts are in clear dispute.

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.

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.

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 here.

Samia v. United States: Cert granted in a Bruton-type case

 Earlier this month, the Supreme Court granted cert in Samia v. United States, in which it may resolve one of the issues left open by Bruton v. United States, 391 U.S. 123 (1968), Richardson v. Marsh, 481 U.S. 200 (1987), and Gray v. Maryland, 523 U.S. 185 (1998).

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 Bruton, that alone would not have been sufficient.  Nor, under Gray, would it have sufficed if the confession had been redacted with Samia's name replaced by some indication such as "[name deleted]."  But under Richardson, if it had been redacted to remove all references to Samia, that would have been acceptable.  Samia's case falls between Gray and Richardson; 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.

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.