I've been asked about the role, if any, that Crawford plays in sentencing proceedings, in light of Blakely and Booker. I don't know much about sentencing, so I asked Jeff Fisher, who argued and won both Crawford and Blakely and follows both areas closely, to comment. He has graciously complied, and I am posting his comments below, with a follow-up by me.
___________
I've been asked several times recently whether Crawford applies to
evidence the prosecution offers to prove sentencing facts in the
post-Blakely, post-Booker world. I think the answer depends on what
kind of sentencing fact (or sentencing system) we're talking about:
1. If the fact is covered by Blakely -- that is, the fact is necessary
in a given state system to permit a judge to impose a sentence above an
otherwise binding threshold -- then Crawford should apply. I have not
seen any decisions on this yet, but the thrust of Blakely is that such
facts are effectively elements of an aggravated offense. That being so,
the right to confrontation, as well as other constitutional and
evidentiary rights, apply.
2. If the fact is covered by Booker -- that is, the fact is necessary
to a sentencing guideline calculation, but that guideline calculation
does not bind the judge in imposing the sentence -- then the question is
harder. But, in my view, if the sentencing judge thinks that the fact
at issue, if found, will cause him to impose a higher sentence under a
combination of the guidelines and the factors in 18 USC § 3553(a), then
there is a strong argument that Crawford ought to apply at least as a
discretionary matter. This is essentially the conclusion a district
court recently reached in United States v. Gray, 2005 WL 613645
(S.D.W.Va. March 17, 2005). Indeed, if the judge thinks that a fact at
issue will require him, as a matter of statutory reasonableness on
appellate review, to impose a higher sentence, then Crawford may well
apply as a matter of right.
3. Finally, if the fact covered by neither Blakely nor Booker -- that
is, if the fact is simply something the judge is finding under an
indeterminate sentencing system -- then Crawford does not apply because
the Confrontation Clause does not apply. But the due process
reliability requirements still apply. And I think Crawford's
description of the importance of cross-examination in ensuring the
reliability of testimonial evidence ought to figure into that
reliability analysis. But, again, I have not yet seen any cases one way
or another on this.
____________
An additional comment: Suppose a witness testifies for the prosecution at a sentencing hearing in a jurisdiction fitting into Jeff's categories 2 0r 3. After direct testimony, the judge excuses the witness, saying, "Thank you. That strikes me as very reliable. You are excused. There is no need for cross-examination." It seems to me that this would be a constitutional violation -- if not of the Confrontation Clause, because the Clause is deemed categorically inapplicable in this setting, then of a generalized due process right. Then why shouldn't the result be the same if instead of testimony given from the stand the statement is a testimonial one made beforehand? One difference might be that if the testimonial statement was made earlier the witness might be unavailable by the time of the sentencing hearing. But I am not sure that should make a difference. Suppose that the witness testifies on direct at the sentencing hearing, as above, and just after direct is concluded she suddenly dies, through nobody's fault. If this occurred at trial, the direct testimony could not be used in the prosecution's favor. I am inclined to think that the result should be the same, even if the Confrontation Clause is deemed inapplicable, when the witness dies before cross at the sentencing hearing, and if that is so the result should be the same if the testimonial statement was made before rather than at the hearing.
RF
Monday, April 04, 2005
Friday, April 01, 2005
Crawford Pleads Guilty
John Hansen ("Skelly") of Olympia, Washington, has informed me that, on remand, Michael Crawford has pled guilty to one count of first-degree assault and has been sentenced to ten years in prison. This is four years less than his original sentence. You can read a report on this in Skelly's blog, or here.
Monday, March 28, 2005
A Strange Federal Opinion on Dying Declarations and Forfeiture
In United States v. Jordan, 2005 WL 513501 (D. Co. March 3, 2005), a judge of the United States for the District of Colorado has issued one of the stranger opinions I have seen concerning dying declarations and the forfeiture doctrine.
The accused is charged with stabbing a fellow inmate, Stone, to death. Afraid that he was dying, and in fact on the verge of death, Stone made several statements accusing Jordan of the crime. There does not seem to have been much dispute, and the court dquarely concluded, that the statements fell within the dying declaration exception to the hearsay rule, Fed. Rule of Evidence 804(b)(2). That did not ensure admissibility, though, for the court held that Stone’s statements to an investigating Bureau of Prisons agent were “patently testimonial.” This seems clearly correct; indeed, I believe that his statement to the same effect to a paramedic ought also to have been considered testimonial, but that issue does not have any impact on the outcome of the case.
The court then considered the status of dying declarations under Crawford. It quite accurately said, “Whether driven by reliability or necessity or both, admission of a testimonial dying declaration after Crawford goes against the sweeping prohibitions set forth in that case.” But it also noted that Crawford nevertheless preserved the possibility of maintaining as an historically based anomaly an exception to the confrontation right for such declarations. And yet the court rejected this argument, asserting that “the dying declaration exception was not in existence at the time the Framers designed the Bill of Rights.” Not only is this statement strikingly inaccurate – see, e.g., R. v. Woodcock, 1 Leach 500, 168 E.R. 352 (K.B. 1789) – but it also seems quite squarely in conflict with the court’s statement made just a few paragraphs before: “The dying declaration became an exception to the rule against hearsay in the early 18th Century.” And the court followed its inaccurate assertion with a series of non sequiturs:
But the Jordan court also declined to apply forfeiture doctrine. It relied on Fed. R. Evid. 804(b)(6), which applies only if the wrongdoing on which the forfeiture contention is based "was intended to, and did, procure the unavailability of the declarant as a witness." But in the context of the case, it was wrong for the court to give anything more than persuasive weight to the Federal Rule. The statements were, as noted above, dying declarations within the meaning of Fed. R. Evid. 804(b)(2). Even assuming that – as the court held, and as I think proper – this does not relieve the confrontation problem, it certainly does resolve the hearsay problem. There is therefore no need to find a further way around the Federal Rules' presumptive ban on hearsay. The court, in short, should not have looked to the Federal Rules' expression of forfeiture doctrine. Whether the confrontation right is forfeited is a matter of federal constitutional law, and there is no reason why the constitutional standard of forfeiture must conform to the Federal Rules' expression of the doctrine. Therefore, even if it is true that, as the court said, there are no cases holding "that a murder whose by-product is the unavailability of a witness to that killing is covered by the rule [i.e., Rule 804(b)(6)]," this does not answer the constitutional question. As I have indicated in the post on Forfeiture and dying declarations, there are already several post-Crawford cases holding that a murder defendant may forfeit the confrontation right by committing he very killing with which he is now charged. And for reasons expressed in that same post, I believe these decisions are correct: The constitutional right should be forfeited if the accused's wrongdoing rendered the witness unable to testify subjeect to confrontation, whether or not that wrongdoing was motivated by the desire to achieve that result.
Ultimately, the strangest aspect of the Jordan case is the outcome. For hundreds of years, dying declarations have been admitted against homicide defendants. The courts have not usually articulated sound reasons for this result, but it is one that has strong intuitive appeal, as implicitly recognized by Crawford. Had the Jordan court held that in the circumstances of this case the statement could not be admitted because the prosecution had failed to mitigate the problem created by Jordan's wrongdoing, the decision would have had relatively narrow implications and would have been on firm theoretical grounds, see the post on Forfeiture, the Prosecutorial Duty to Mitigate, and Rae Carruth, however dubious might be the factual conclusion that mitigation was a reasonable possibility. But instead, the court's decision appears to preclude any use of a dying declaration identifying a killer and made to an investigator (and in my view the logic should carry beyond that, whether the audience was a public official or not), unless the prosecution can show that the assailant was motivated by the desire to prevent the victim from testifying. That is not a result most courts will find at all attractive. If the Government decides to appeal, my guess is that this decision will be dead on arrival at the 10th Circuit.
The accused is charged with stabbing a fellow inmate, Stone, to death. Afraid that he was dying, and in fact on the verge of death, Stone made several statements accusing Jordan of the crime. There does not seem to have been much dispute, and the court dquarely concluded, that the statements fell within the dying declaration exception to the hearsay rule, Fed. Rule of Evidence 804(b)(2). That did not ensure admissibility, though, for the court held that Stone’s statements to an investigating Bureau of Prisons agent were “patently testimonial.” This seems clearly correct; indeed, I believe that his statement to the same effect to a paramedic ought also to have been considered testimonial, but that issue does not have any impact on the outcome of the case.
The court then considered the status of dying declarations under Crawford. It quite accurately said, “Whether driven by reliability or necessity or both, admission of a testimonial dying declaration after Crawford goes against the sweeping prohibitions set forth in that case.” But it also noted that Crawford nevertheless preserved the possibility of maintaining as an historically based anomaly an exception to the confrontation right for such declarations. And yet the court rejected this argument, asserting that “the dying declaration exception was not in existence at the time the Framers designed the Bill of Rights.” Not only is this statement strikingly inaccurate – see, e.g., R. v. Woodcock, 1 Leach 500, 168 E.R. 352 (K.B. 1789) – but it also seems quite squarely in conflict with the court’s statement made just a few paragraphs before: “The dying declaration became an exception to the rule against hearsay in the early 18th Century.” And the court followed its inaccurate assertion with a series of non sequiturs:
At the time of enactment of the Sixth Amendment, "sworn statements of witnesses before coroners" were admissible despite not being subject to cross-examination. [124 S.Ct.] at 1376. Crawford requires both necessity (unavailability) and an opportunity for cross-examination (Sixth Amendment confrontation to test reliability). Based on my reading of Crawford, in the case of a dying declaration, the presence of only one will not suffice. Inability to test Stone's statements through the constitutionally rooted crucible of cross-examination is fatal to application of the dying declaration exception to the hearsay rule in this case.I agree with the Jordan court that the dying declaration exception makes little sense and that it does not square well at all with the theory of Crawford. (See the post on Forfeiture and dying declarations.) But it is plain that the doctrine did exist at the time of the Sixth Amendment, that Crawford acknowledges this, and that Crawford at least holds open the possibility that, notwithstanding the absence of an opportunity for cross-examination, statements fitting within the exception ought to be admissible on historical grounds. I do not believe that this invitation should be taken up, largely because forfeiture dotrine achieves much the same results in a far more persuasive manner.
But the Jordan court also declined to apply forfeiture doctrine. It relied on Fed. R. Evid. 804(b)(6), which applies only if the wrongdoing on which the forfeiture contention is based "was intended to, and did, procure the unavailability of the declarant as a witness." But in the context of the case, it was wrong for the court to give anything more than persuasive weight to the Federal Rule. The statements were, as noted above, dying declarations within the meaning of Fed. R. Evid. 804(b)(2). Even assuming that – as the court held, and as I think proper – this does not relieve the confrontation problem, it certainly does resolve the hearsay problem. There is therefore no need to find a further way around the Federal Rules' presumptive ban on hearsay. The court, in short, should not have looked to the Federal Rules' expression of forfeiture doctrine. Whether the confrontation right is forfeited is a matter of federal constitutional law, and there is no reason why the constitutional standard of forfeiture must conform to the Federal Rules' expression of the doctrine. Therefore, even if it is true that, as the court said, there are no cases holding "that a murder whose by-product is the unavailability of a witness to that killing is covered by the rule [i.e., Rule 804(b)(6)]," this does not answer the constitutional question. As I have indicated in the post on Forfeiture and dying declarations, there are already several post-Crawford cases holding that a murder defendant may forfeit the confrontation right by committing he very killing with which he is now charged. And for reasons expressed in that same post, I believe these decisions are correct: The constitutional right should be forfeited if the accused's wrongdoing rendered the witness unable to testify subjeect to confrontation, whether or not that wrongdoing was motivated by the desire to achieve that result.
Ultimately, the strangest aspect of the Jordan case is the outcome. For hundreds of years, dying declarations have been admitted against homicide defendants. The courts have not usually articulated sound reasons for this result, but it is one that has strong intuitive appeal, as implicitly recognized by Crawford. Had the Jordan court held that in the circumstances of this case the statement could not be admitted because the prosecution had failed to mitigate the problem created by Jordan's wrongdoing, the decision would have had relatively narrow implications and would have been on firm theoretical grounds, see the post on Forfeiture, the Prosecutorial Duty to Mitigate, and Rae Carruth, however dubious might be the factual conclusion that mitigation was a reasonable possibility. But instead, the court's decision appears to preclude any use of a dying declaration identifying a killer and made to an investigator (and in my view the logic should carry beyond that, whether the audience was a public official or not), unless the prosecution can show that the assailant was motivated by the desire to prevent the victim from testifying. That is not a result most courts will find at all attractive. If the Government decides to appeal, my guess is that this decision will be dead on arrival at the 10th Circuit.
Wednesday, March 16, 2005
Shifting the Burden
Some prosecutors, eager to introduce an out-of-court testimonial statement at trial but not eager to put the witness on the stand, have attempted to shift to the accused the burden of producing the witness. "We'll introduce the statement," they effectively say, "and we'll ensure that the witness is close at hand. Then, if the accused wants to confront the witness he can call her to the witness stand. He may choose not to do so, but that his his choice, and he has no complaint that he has been denied his confrontation right." In Bratton v. State, 2005 WL 459019 (Tex. App. Dallas Feb. 28,2005), the court rejected this tactic, as had State v. Cox, 876 So.2d 932 (La. App. 3d Cir. 2004) ("Simply stated, if the State needed to have Mrs. Sykes' testimony to enable the State to introduce the statement into evidence, the State could have called Mrs. Sykes as a witness.") For short, though the courts rejected it, I'll refer to this as the Bratton-Cox procedure.
In neither of these cases did the court give a very full explanation. The Bratton court said that "as the party seeking to admit" the out-of-court statements, the prosecution bore the burden of showing that they were admissible, and to do that Crawford required that they show that the declarants were unavailable and that the accused had a prior opportunity for cross-examination. But here, by the prosecution's own acknowledgment, the witnesses were available, and the accused had not had an oportunity to cross-examine. Well, yes, but this really doesn't meet the argument -- the prosecution is contending that the acucsed has an oportunity at trial to examine the witnesses adersarially. If that opportunity is sufficient, then there is no confrontation violation. Indeed, Crawford, in footnote 9, took pains to "reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)."
Given the citation in Crawford, I will call this rule the Green rule, though I am not sure that this is historically accurate. (Green itself did not hold as broadly as Crawford suggested it did; it reserved the question of whether the confrontation right precluded introduction of the prior statement if the witness professed inability to remember, and this question was decided in the negative in United States v. Owens, 484 U.S. 554 (1988).) I believe that the Green rule is wrong-headed, and that the Court has failed to take into account the extent to which cross-examination is impaired if before it begins the witness is no longer adhering to the substance of the prior statement. See Prior Statements of a Witness: A Nettlesome Corner of the Hearsay Thicket, 1995 S.Ct. Rev. 277. But that rule seems likely to be with us for the foreseeable future: So far as the Confrontation Clause is concerned, then, it is now acceptable for the prosecution to put a witness on the stand and then introduce for its truth a prior statement made by the witness even though the witness does not now testify that the substance of the statement is true. I may address the merits of this rule in another post. But for now, the question is this: Given the Green rule, is the Bratton-Cox procedure acceptable -- that is, may the prosecution present an out-of-court testimonial statement without putting the witness on the stand or ensuring any earlier opoprtunity for cross-examination, but with the assurance that the witness is available to be called as a witness by the defense? I think that, even given the Green rule, the Bratton-Cox procedure is unacceptable.
In a case like Green or Owens, the prosecution presents the witness live, the witness gives testimony that is unsatisfactory to the prosecution, and the prosecution introduces the prior statement. Alternately, the prosecutor might introduce the prior statement through another witness after the primary witness has left the stand and then recall the primary witness, or perhaps it would suffice to announce to the court and the defense before cross begins that the prior statement will be introduced. Thus, without the accused having to lift a finger, and even absent cross-examination of the witness, the witness's testimony presents a discrepancy: The prior statement made an assertion that the current testimony does not confirm. This was critical to the conclusion in Green.:
I do not believe this argument is persuasive (the jury may well conclude that the witness has failed to adhere to the prior statement for reasons carrying no suggestion that the prior statement is false) , and it does not even meet the facts of Green very well. (The witness, Porter, had previously identified Green as his drug supplier; at trial he did not identify someone else but rather said he couldn't remember.) But put those concerns aside.
The fact is that in a case like Green or Owens, the accused has the disparity to work with even before beginning cross-examination. The accused may, as I contend in the article cited above, be severely impaired in his ability to cross-examine, but at least the cross-examination can be conducted without bearing undue risk or cost. Now consider the Bratton-Cox procedure. The prior statement has been introduced, and the prosecution intends to do nothing more about the witness. If the accused wants, he may present the witness as part of his own case. This, I contend, is an opportunity inferior to the one envisioned by Green or Owens-- and a fortiori inferior to the usual opportunity in which the witness testifies to the material propositions from the stand and is then cross-examined.
One critical problem should not arise. The accused should not be precluded from asking leading questions by the fact that he called the witness; simply from the fact that the prior statement was introduced by the prosecution, the witness should be deemed hostile to the accused, or identified with the prosecution, for purposes of Fed. R. Evid. 611(c) and its state counterparts. If a court failed to recognize this, I think that would be sufficient to make out a confrontation violation. But let us assume that the court would allow leading questions, and instead focus on these other problems posed by the Bratton-Cox procedure.
1. Adverse questioning would be delayed. As an often-quoted passage puts it. "The chief merit of cross examination is not that at some future time it gives the party opponent the right to dissect adverse testimony. Its principal virtue is in its immediate application of the testing process. Its strokes fall while the iron is hot." State v. Saporen, 205 Minn. 358, 362, 285 N.W. 898, 901 (1939) (emphasis added).
2. The accused may have to disrupt the presentation of his case to put on a witness who may be hostile or at least unhelpful.
3. The accused may appear to the jury to be over-reaching by putting the witness on the stand. This is especially true if the witness is a child or otherwise appears vulnerable. When the prosecution puts a witness on the stand, it is usually to tell her story; if the accused puts a hostile witness on the stand, it may appear that the purpose is to bludgeon her.
4. If the accused does not get something good out of the examination, the jury will likely notice and draw an inference against him: "Well, he certainly didn't get anything out of her worth bringing her in." By contrast, if the prosecution calls the witness, it is a simple matter for counsel to rise to ask a few questions without arousing expectations.
5. The accused incurs a substantial risk that calling the witness to the stand will make not only appearances but the weight of the evidence worse from his point of view. When a witness testifies live for the prosecution, the worst from the accused's standpoint has presumably occurred before the cross-examination begins; the prosecution has gotten from the witness however much it can that will help its case. Taking proper care, defense counsel can be reasonably sure that no further harm will be done, and cross is an opportunity to improve the situation, to undermine the damage that the witness has done by her testimony on direct, supplemented by any prior statement that has been admitted. But if only the prior statement has been presented to the jury before defense counsel rises, the situation is altogether different. Now defense counsel faces substantial uncertainty. If she puts the witness on the stand, it is possible that the witness will begin by disavowing the former statement, or otherwise failing to reconfirm it. It is also possible that the witness will begin by reaffirming the prior statement but that effective adverse questioning will undercut her credibility substantially. Either of these possiblities is good from the point of view of the defense. But there is a third possibility as well -- that the witness will begin by reaffirming the prior statement and not be impeached substantially. In that case, the defense will have done itself a great deal of harm by calling the witness to the stand. A lawyer wary of doing harm will often not take the chance.
In neither of these cases did the court give a very full explanation. The Bratton court said that "as the party seeking to admit" the out-of-court statements, the prosecution bore the burden of showing that they were admissible, and to do that Crawford required that they show that the declarants were unavailable and that the accused had a prior opportunity for cross-examination. But here, by the prosecution's own acknowledgment, the witnesses were available, and the accused had not had an oportunity to cross-examine. Well, yes, but this really doesn't meet the argument -- the prosecution is contending that the acucsed has an oportunity at trial to examine the witnesses adersarially. If that opportunity is sufficient, then there is no confrontation violation. Indeed, Crawford, in footnote 9, took pains to "reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)."
Given the citation in Crawford, I will call this rule the Green rule, though I am not sure that this is historically accurate. (Green itself did not hold as broadly as Crawford suggested it did; it reserved the question of whether the confrontation right precluded introduction of the prior statement if the witness professed inability to remember, and this question was decided in the negative in United States v. Owens, 484 U.S. 554 (1988).) I believe that the Green rule is wrong-headed, and that the Court has failed to take into account the extent to which cross-examination is impaired if before it begins the witness is no longer adhering to the substance of the prior statement. See Prior Statements of a Witness: A Nettlesome Corner of the Hearsay Thicket, 1995 S.Ct. Rev. 277. But that rule seems likely to be with us for the foreseeable future: So far as the Confrontation Clause is concerned, then, it is now acceptable for the prosecution to put a witness on the stand and then introduce for its truth a prior statement made by the witness even though the witness does not now testify that the substance of the statement is true. I may address the merits of this rule in another post. But for now, the question is this: Given the Green rule, is the Bratton-Cox procedure acceptable -- that is, may the prosecution present an out-of-court testimonial statement without putting the witness on the stand or ensuring any earlier opoprtunity for cross-examination, but with the assurance that the witness is available to be called as a witness by the defense? I think that, even given the Green rule, the Bratton-Cox procedure is unacceptable.
In a case like Green or Owens, the prosecution presents the witness live, the witness gives testimony that is unsatisfactory to the prosecution, and the prosecution introduces the prior statement. Alternately, the prosecutor might introduce the prior statement through another witness after the primary witness has left the stand and then recall the primary witness, or perhaps it would suffice to announce to the court and the defense before cross begins that the prior statement will be introduced. Thus, without the accused having to lift a finger, and even absent cross-examination of the witness, the witness's testimony presents a discrepancy: The prior statement made an assertion that the current testimony does not confirm. This was critical to the conclusion in Green.:
The most successful cross-examination at the time the prior statement was made could hardly hope to accomplish more than has already been accomplished by the fact that the witness is now telling a different, inconsistent story, and--in this case--one that is favorable to the defendant.399 U.S. at 159.
I do not believe this argument is persuasive (the jury may well conclude that the witness has failed to adhere to the prior statement for reasons carrying no suggestion that the prior statement is false) , and it does not even meet the facts of Green very well. (The witness, Porter, had previously identified Green as his drug supplier; at trial he did not identify someone else but rather said he couldn't remember.) But put those concerns aside.
The fact is that in a case like Green or Owens, the accused has the disparity to work with even before beginning cross-examination. The accused may, as I contend in the article cited above, be severely impaired in his ability to cross-examine, but at least the cross-examination can be conducted without bearing undue risk or cost. Now consider the Bratton-Cox procedure. The prior statement has been introduced, and the prosecution intends to do nothing more about the witness. If the accused wants, he may present the witness as part of his own case. This, I contend, is an opportunity inferior to the one envisioned by Green or Owens-- and a fortiori inferior to the usual opportunity in which the witness testifies to the material propositions from the stand and is then cross-examined.
One critical problem should not arise. The accused should not be precluded from asking leading questions by the fact that he called the witness; simply from the fact that the prior statement was introduced by the prosecution, the witness should be deemed hostile to the accused, or identified with the prosecution, for purposes of Fed. R. Evid. 611(c) and its state counterparts. If a court failed to recognize this, I think that would be sufficient to make out a confrontation violation. But let us assume that the court would allow leading questions, and instead focus on these other problems posed by the Bratton-Cox procedure.
1. Adverse questioning would be delayed. As an often-quoted passage puts it. "The chief merit of cross examination is not that at some future time it gives the party opponent the right to dissect adverse testimony. Its principal virtue is in its immediate application of the testing process. Its strokes fall while the iron is hot." State v. Saporen, 205 Minn. 358, 362, 285 N.W. 898, 901 (1939) (emphasis added).
2. The accused may have to disrupt the presentation of his case to put on a witness who may be hostile or at least unhelpful.
3. The accused may appear to the jury to be over-reaching by putting the witness on the stand. This is especially true if the witness is a child or otherwise appears vulnerable. When the prosecution puts a witness on the stand, it is usually to tell her story; if the accused puts a hostile witness on the stand, it may appear that the purpose is to bludgeon her.
4. If the accused does not get something good out of the examination, the jury will likely notice and draw an inference against him: "Well, he certainly didn't get anything out of her worth bringing her in." By contrast, if the prosecution calls the witness, it is a simple matter for counsel to rise to ask a few questions without arousing expectations.
5. The accused incurs a substantial risk that calling the witness to the stand will make not only appearances but the weight of the evidence worse from his point of view. When a witness testifies live for the prosecution, the worst from the accused's standpoint has presumably occurred before the cross-examination begins; the prosecution has gotten from the witness however much it can that will help its case. Taking proper care, defense counsel can be reasonably sure that no further harm will be done, and cross is an opportunity to improve the situation, to undermine the damage that the witness has done by her testimony on direct, supplemented by any prior statement that has been admitted. But if only the prior statement has been presented to the jury before defense counsel rises, the situation is altogether different. Now defense counsel faces substantial uncertainty. If she puts the witness on the stand, it is possible that the witness will begin by disavowing the former statement, or otherwise failing to reconfirm it. It is also possible that the witness will begin by reaffirming the prior statement but that effective adverse questioning will undercut her credibility substantially. Either of these possiblities is good from the point of view of the defense. But there is a third possibility as well -- that the witness will begin by reaffirming the prior statement and not be impeached substantially. In that case, the defense will have done itself a great deal of harm by calling the witness to the stand. A lawyer wary of doing harm will often not take the chance.
Taken together, all these considerations make the opportunity for confrontation offered under the proposed procedure quite inferior to that provided under the Green rule, and a fortiori inferior to the opportunity provided when the prosecution puts the witness on the stand and the witness testifies on direct to the material propositions at issue. To say that the opportunity is inferior does not necessarily mean that it is inadequate constitutionally -- there is a question of what the baseline is against which constitutional violations are measured -- but it appears clear to me that the opportunity under the Bratton-Cox procedure is so far inferior that it should be considered inadequate.
To see why, think about this comparison: First, suppose a witness testifies for the prosecution, and either the testimony given from memory or a prior statement that is introduced as part of the direct is harmful to the defense. How often does defense counsel rise to ask questions on cross-examination? Most often. Now suppose the witness does not testify, though she is available to, but her prior statement is introduced. How often does the defense put her on the stand to examine her? Not often at all. I believe the difference is explained by the fact that under the Bratton-Cox procedure the opportunity for confrontation is so impaired, and so risky, that defense counsel dare not exercise it. Such an opportunity is not constitutionally adequate.
Now consider one other procedure that I have heard proposed: The prosecution is allowed to introduce the prior statement on the condition that if the defense wants the prosecution will put the witness on the stand as part of its case. This procedure does not appear to face problems 1 through 4 above. But it does face problem 5, in somewhat modified form: The prosecution is presumptively given a free ride -- it gets the statement in without first having to present the witness and having to take the chance that the witness will testify inconsistently with the prior statement -- and the defense is then put to the decision of whether it wants to risk making matters worse by having the witness testify live and possibly reaffirming the statement and sticking to it. I think the prosecution, the party that wants to present this evidence, rather than the accused, the party who has a right to "be confronted with the witnesses against him," should bear the risk of how the witness will testify.
Procedures to shift the burden to the defense may be based largely on a desire for efficiency, to avoid the necessity of putting a witness on the stand whom the defense doesn't have any real interest in cross-examining. But for the reasons I have stated, I don't think the procedures discussed here are acceptable. There is nothing wrong with the prosecution asking the defense to waive the confrontation right and allow admission of a prior statement. (There is an interesting complication, though: Rejecting the waiver request, and so insisting on confrontation, might entail some risk even though cross-examination itself will not do harm to the defense. That is, it might be that the defense is better off if the prior statement is introduced without the witness testifying live than if the witness gives vivid live testimony and is not substantially impeached. But I do not believe this risk -- choosing live tesitmony instead of a report of prior testimony -- is as substantial as that created by the procedures discussed above, in which the accused can get cross only by calling for live testimony in addition to a report of prior testimony.) And in some cases, as I will discuss soon in another post, I believe it is even appropriate to require the accused to certify that he has some good reason for not being willing to waive the confrontaiton right.
Wednesday, March 09, 2005
Statements by Victims to Acquaintances
Sometimes the vicitm of a crime makes a statement to an acquaintance describing the crime. The post-Crawford courts have generally treated these statements as non-testimonial. An example is State v. Staten, (S. Car. Ct. Apps. March 7, 2005)., which may be notable mainly for the long series of digests of post-Crawford cases offered by the court. I think these cases pose a more difficult question than most of the courts have.
I'll put aside for now two interesting and important issues. First, in Staten and some other cases, the crime described in the statement at issue was not the cirme being charged. The statement described a gun being pulled on the declarant; the prosecution was for murder of the declarant the next day. Thus, we have the question of whether a statement made before the crime being tried was committed can be testimonial. I think it can be, and I hope to address that in a later post, but I won't here and instead will assume that the answer is affirmative.
Second, I will assume here that there is not a per se rule that statements made without government involvement cannot be testimonial. I analyze this issue at some length in my paper for the Brooklyn conference. Here, I will assume that if a crime victim makes a statement to a friend and says, "Please pass this on to the police," that is testimonial.
Statements of the type involved in Staten are not accurately described, in the terms used by Crawford, as "casual remarks to an acquaintance." In Staten, the victim was hysterical, and the incident he was reporting, that a gun had been pulled on him, was hardly routine. The statement says, in essence, "I have been the victim of a crime," and describes the crime.
One might argue plausibly that this kind of statement is accusatory in nature and that statements that are accusatory in nature and were not made solely to the perpetrator of the crime or to a confederate of his should be considered per se testimonial. My trouble with this is that I am not sure how it ties in to a more comprehensive theory of what kind of statement is testimonial. Not all testimonial statements are accusatory. But perhaps all accusatory statements not made to the perpetrator or someone who would be expected to be sympathetic to the perpetrator should be considered testimonial. The question is why.
One possible answer is that a person in the position of the declarant would reasonably expect that the statement might be passed on to the authorities -- and if passed on then it would presumably be used in prosecution. This approach ties in to what I consider the best definition of what is testimonial, or at least to one of two optimal variants. (The variant here is an objective one, in terms of a reasonable declarant; I have no strong feelings whether this or a subjective view, in terms of the anticipation of the actual declarant, is the better one. I have explored the matter somewhat in my Brooklyn paper.) But is it factually accurate to say that a reasonable person in the position of the declarant would anticipate that the statement would be passed on? I don't know. (That does not seem to have been the predominant motive of the victim in making the statement, but as I explain in the Brooklyn paper I think the material question is the anticipation of the speaker rather than the motive. ) One thing we can say is that often these statements are passed on. Perhaps a person in the victim's position should realize that if he speaks to a person for protection that person may well find that the best way to give protection is to report the matter to the authorities. But of course often, as in Staten, the recipient does not report the statement, at least until, as in Staten, a more serious crime, which may not have been easily anticipated at the time of the statement, has been committed.
I think this is a tough problem. But hte result in Staten might have been reached by aplying forfeiture doctrine.
I'll put aside for now two interesting and important issues. First, in Staten and some other cases, the crime described in the statement at issue was not the cirme being charged. The statement described a gun being pulled on the declarant; the prosecution was for murder of the declarant the next day. Thus, we have the question of whether a statement made before the crime being tried was committed can be testimonial. I think it can be, and I hope to address that in a later post, but I won't here and instead will assume that the answer is affirmative.
Second, I will assume here that there is not a per se rule that statements made without government involvement cannot be testimonial. I analyze this issue at some length in my paper for the Brooklyn conference. Here, I will assume that if a crime victim makes a statement to a friend and says, "Please pass this on to the police," that is testimonial.
Statements of the type involved in Staten are not accurately described, in the terms used by Crawford, as "casual remarks to an acquaintance." In Staten, the victim was hysterical, and the incident he was reporting, that a gun had been pulled on him, was hardly routine. The statement says, in essence, "I have been the victim of a crime," and describes the crime.
One might argue plausibly that this kind of statement is accusatory in nature and that statements that are accusatory in nature and were not made solely to the perpetrator of the crime or to a confederate of his should be considered per se testimonial. My trouble with this is that I am not sure how it ties in to a more comprehensive theory of what kind of statement is testimonial. Not all testimonial statements are accusatory. But perhaps all accusatory statements not made to the perpetrator or someone who would be expected to be sympathetic to the perpetrator should be considered testimonial. The question is why.
One possible answer is that a person in the position of the declarant would reasonably expect that the statement might be passed on to the authorities -- and if passed on then it would presumably be used in prosecution. This approach ties in to what I consider the best definition of what is testimonial, or at least to one of two optimal variants. (The variant here is an objective one, in terms of a reasonable declarant; I have no strong feelings whether this or a subjective view, in terms of the anticipation of the actual declarant, is the better one. I have explored the matter somewhat in my Brooklyn paper.) But is it factually accurate to say that a reasonable person in the position of the declarant would anticipate that the statement would be passed on? I don't know. (That does not seem to have been the predominant motive of the victim in making the statement, but as I explain in the Brooklyn paper I think the material question is the anticipation of the speaker rather than the motive. ) One thing we can say is that often these statements are passed on. Perhaps a person in the victim's position should realize that if he speaks to a person for protection that person may well find that the best way to give protection is to report the matter to the authorities. But of course often, as in Staten, the recipient does not report the statement, at least until, as in Staten, a more serious crime, which may not have been easily anticipated at the time of the statement, has been committed.
I think this is a tough problem. But hte result in Staten might have been reached by aplying forfeiture doctrine.
Tuesday, March 08, 2005
Crawford on NPR
Today is the first anniversary of Crawford, and as it happens Paul Rosenzweig, Senior Legal Research Fellow of the Center for Legal and Judicial Studies at The Heritage Foundation, did a commentary on the case -- focusing on Martha Stewart and on battered women -- for NPR's All Things Considered. If you want to listen to the commentary, click here. If you want to read the text, I'll put it in as the first comment to this posting.
Friday, March 04, 2005
Forfeiture, the Prosecutorial Duty to Mitigate, and Rae Carruth
I have advocated a broad theory of forfeiture: If a witness makes an out of court testimonial statement without then being subjected to confrontation, and she is unable to testify later subject to confrontation because of the accused’s wrongdoing, the accused forfeits the right, under the Confrontation Clause and the rule against hearsay, to exclude the earlier statement. Implicit in this phrasing of the theory should be an important limitation: The prosecution should not be able to benefit from the forfeiture doctrine if, notwithstanding the accused’s wrongdoing, the prosecution had, but did not exercise, a reasonable opportunity to preserve the right of confrontation in whole or in part. The question of reasonableness is one of degree, and will often raise difficult questions not only of fact but of values.
The case of State v. Wiggins, 159 N.C.App. 252, 584 S.E.2d 303, review denied, 357 N.C. 511, 588 S.E.2d 472 (2003), cert. denied, 124 S.Ct. 1617 (March 8, 2004 -- the same day as the Crawford decision), now being attacked collaterally, may provide a useful illustration. The defendant, better known as Rae Carruth, is a former NFL player who was convicted of conspiring to murder his pregnant girlfriend. The shooting occurred early in the morning of November 16, 1999. The victim, in her car, managed to pull into a driveway and made a cell call to 911, staying on the phone for 12 minutes until an ambulance arrived. During this call she said that Carruth had blocked her car with his SUV, and that she was shot from another car that had pulled up alongside. According to the Court of Appeals:
It may seem grotesque to ask a severely wounded – and ultimately dying – victim to confront the accused from her hospital bed. But note some critical facts. First, she clearly had no hesitation about giving her testimony, and the police had no hesitation about asking for it, coming to her bedside even in the first minutes at the hospital. Second, she lived for nearly a month after giving that testimony. During this period was there a time when she could have testified subject to full confrontation (by which I mean in the presence of the accused and under cross-examination)? The answer may well be yes.
I am inclined to say that simply because the victim is able to make testimonial statements, and the authorities are able to take one from her, it does not necessarily follow that full confrontation should be required as a precondition to admitting the victim’s statement. In some circumstances, although it is possible for the victim to make an accusatory testimonial statement, it is not possible to arrange for confrontation; the victim may die first. Beyond that, even if confrontation is possible, it raises significant difficulties that the accusatory statement does not. No preparation is necessary for the victim to make an accusatory testimonial statement – she can make it to whoever happens to be nearby, under her own initiative (I am assuming that such statements would be testimonial; if they are not, the forfeiture question is never really reached for Confrontation Clause purposes), and she can make it to a police officer as soon as the officer can get to her. Making the statement presumably accords with her desires – she wants to being the assailant to justice. (That factor suggests how clear it is that these statements are testimonial.) She can expect a sympathetic audience. By contrast, testifying in the presence of the accused – or even having the accused brought to her presence – may well be highly traumatic. The victim presumably does not have any desire to answer skeptical questions from a defense lawyer (though if the rule is that she must for her testimony to have effect, she might therefore have a derivative desire). Indeed, the fact that a lawyer would be involved at all makes for a rather disturbing scene. And cross-examination could not be held instantly. First a lawyer would have to be retained or appointed, and then ideally do some preparation and consultation with the client.
It appears, therefore, that there are some circumstances in which, even though the victim was able to make testimonial statements, and indeed even though the authorities were able to take one, providing full confrontation would be far more difficult. Ordinarily, we discount the difficulties that testifying subject to confrontation poses for the witness and for the adjudicative system; she, and we, must cope with them as best as possible. But witnesses are entitled to fight for their lives without undue interference, and to do so with dignity. The accused, having by hypothesis endangered the victim’s life, cannot demand an opportunity for confrontation at all costs. Clearly the adjudicative system is entitled to rule, "If because of the accused’s wrongdoing it is impossible for him to have full confrontation, then he forfeits the right to have such confrontation." And I am arguing that the word "impossible" could be replaced by "not reasonably possible" without making the rule invalid. But note that there are two important qualifications implicit in this rule.
First, in some circumstances the authorities can reasonably provide an opportunity for full confrontation, and if so they ought to. That is, in such circumstances they ought to announce their intention of using the witness’s statement at trial if she is unable to testify live, and offer the accused the opportunity for a deposition at a given time and place. Does a deposition in dire circumstances seem bizarre? It should not; certainly it did not nearly two centuries ago. Note R. v. Forbes, Holt 599, 171 E.R. 354 (1814), in which the court held that portions of a dying victim’s statement could not be introduced against the accused because they were not given in his presence, and R v. Smith, Holt 614, 171 E.R. 357 (1817), which explained that a purpose of giving the accused the right to be present was so that he could cross-examine. (Smith declined to cross-examine, and that resolved the matter.) Carruth’s case may well be one in which a deposition was feasible; it may be that there was a time while the victim lingered during which it would not have been unduly cruel to ask her to testify in his presence and subject to cross-examination, on the understanding that this was important to bring him to justice. There are no hard-and-fast rules here, I don’t think; this judgment requires a balancing of values.
Second, in some circumstances even if full confrontation is not reasonably possible, partial satisfaction of the confrontation right may be reasonably possible. If, for example, the victim is sinking rapidly enough that defense counsel cannot prepare to an ideal extant, that does not excuse absolute denial of the right to cross-examine; the right ought to be provided to the extent reasonably feasible. Or if the client has absconded, so that it is not possible for a lawyer to consult with him, that does not excuse failure to appoint a lawyer to conduct cross as best she can. All the authorities can do in setting up a deposition is the best they can – but they should be required to do something close to that. Finally, even if it seems not to be reasonably possible to allow cross-examination at all, it may be reasonably possible to allow the accused a chance to have the victim testify in his presence.
All this suggests the possibility of some very difficult, and excruciating, decisions. I have never contended that adoption of the testimonial approach to confrontation, or of a robust doctrine of forfeiture, would eliminate the need to make hard decisions. What we have to try to do is to ask the right questions, and I am contending that one of the questions we should be asking, in the face of wrongful conduct by the accused that has prevented a witness from testifying at trial, is whether the authorities have done what they reasonably could be expected to do to allow for confrontation, in whole or in part.
Ideally, the prosecution would not have to guess in advance what answer a court would give to this question. Suppose, then a prosecutor in a case like Carruth’s believes that it would be unduly cruel to require the victim to testify subject to confrontation, but she is also risk averse and does not want to lose the prosecution by being more decorous than necessary. It seems to me that she ought to be able to litigate the confrontation issue in advance, seeking a declaratory ruling that if the victim is unable to testify at trial her statements will be admitted even without confrontation, or with confrontation limited in certain aspects.
The case of State v. Wiggins, 159 N.C.App. 252, 584 S.E.2d 303, review denied, 357 N.C. 511, 588 S.E.2d 472 (2003), cert. denied, 124 S.Ct. 1617 (March 8, 2004 -- the same day as the Crawford decision), now being attacked collaterally, may provide a useful illustration. The defendant, better known as Rae Carruth, is a former NFL player who was convicted of conspiring to murder his pregnant girlfriend. The shooting occurred early in the morning of November 16, 1999. The victim, in her car, managed to pull into a driveway and made a cell call to 911, staying on the phone for 12 minutes until an ambulance arrived. During this call she said that Carruth had blocked her car with his SUV, and that she was shot from another car that had pulled up alongside. According to the Court of Appeals:
Mecklenburg Police Officer Peter Grant ("Grant") arrived on the scene aroundNow, let’s assume that at least some of these statements are testimonial. (I think they all are, but that’s another matter.) So presumptively there is a violation of the confrontation right. But the victim was certainly unavailable at trial and perhaps the accused forfeited the right. Clearly conspiracy to commit murder is conduct that can cause forfeiture, and I believe there is ample evidence to support a finding, to whatever the appropriate degree of confidence may be, of the accused’s involvement. (This finding might rely on the victim’s statements, the very statements that the prosecution is trying to get admitted, but for reasons I’ve explained in my article Confrontation and the Definition of Chutzpa, which is also cited in the post on Forfeiture and dying declarations, I don’t think that’s a significant difficulty.) In short, it is not hard to conclude that the victim is dead, and unable to testify at trial, because of the accused’s wrongdoing. This is not the end of the matter, however. Rather, it brings us to what strikes me as the most interesting question: Should there be no forfeiture because the prosecution could have set up an opportunity for confrontation?
12:43 a.m. The victim identified defendant to Grant as the driver of the vehicle
that she had also described in the 911 call. The victim was transported by ambulance to Carolinas Medical Center and arrived at 1:10 a.m. The victim gave Grant a complete chronology of the events that transpired during the night and early morning. Emergency surgery was performed to remove the bullets and deliver the baby from the victim at 1:30 a.m. At 4:00 a.m., the victim was taken to a trauma intensive care unit. Around 7:00 a.m., an endotracheal tube was inserted into victim's throat. Traci Willard ("Willard"), the morning nurse, asked the victim if she remembered what had happened to her. The victim nodded and motioned for Willard to bring a pen and paper to her. The victim handwrote notes describing the shooting and events of the morning and previous evening. Later, the victim's father asked her if there were any stop signs on the road that would provide defendant a legitimate reason to stop in the road. The victim shook her head negatively. The victim died 14 December 1999 as a result of the inflicted wounds. Victim's infant son
survived.
It may seem grotesque to ask a severely wounded – and ultimately dying – victim to confront the accused from her hospital bed. But note some critical facts. First, she clearly had no hesitation about giving her testimony, and the police had no hesitation about asking for it, coming to her bedside even in the first minutes at the hospital. Second, she lived for nearly a month after giving that testimony. During this period was there a time when she could have testified subject to full confrontation (by which I mean in the presence of the accused and under cross-examination)? The answer may well be yes.
I am inclined to say that simply because the victim is able to make testimonial statements, and the authorities are able to take one from her, it does not necessarily follow that full confrontation should be required as a precondition to admitting the victim’s statement. In some circumstances, although it is possible for the victim to make an accusatory testimonial statement, it is not possible to arrange for confrontation; the victim may die first. Beyond that, even if confrontation is possible, it raises significant difficulties that the accusatory statement does not. No preparation is necessary for the victim to make an accusatory testimonial statement – she can make it to whoever happens to be nearby, under her own initiative (I am assuming that such statements would be testimonial; if they are not, the forfeiture question is never really reached for Confrontation Clause purposes), and she can make it to a police officer as soon as the officer can get to her. Making the statement presumably accords with her desires – she wants to being the assailant to justice. (That factor suggests how clear it is that these statements are testimonial.) She can expect a sympathetic audience. By contrast, testifying in the presence of the accused – or even having the accused brought to her presence – may well be highly traumatic. The victim presumably does not have any desire to answer skeptical questions from a defense lawyer (though if the rule is that she must for her testimony to have effect, she might therefore have a derivative desire). Indeed, the fact that a lawyer would be involved at all makes for a rather disturbing scene. And cross-examination could not be held instantly. First a lawyer would have to be retained or appointed, and then ideally do some preparation and consultation with the client.
It appears, therefore, that there are some circumstances in which, even though the victim was able to make testimonial statements, and indeed even though the authorities were able to take one, providing full confrontation would be far more difficult. Ordinarily, we discount the difficulties that testifying subject to confrontation poses for the witness and for the adjudicative system; she, and we, must cope with them as best as possible. But witnesses are entitled to fight for their lives without undue interference, and to do so with dignity. The accused, having by hypothesis endangered the victim’s life, cannot demand an opportunity for confrontation at all costs. Clearly the adjudicative system is entitled to rule, "If because of the accused’s wrongdoing it is impossible for him to have full confrontation, then he forfeits the right to have such confrontation." And I am arguing that the word "impossible" could be replaced by "not reasonably possible" without making the rule invalid. But note that there are two important qualifications implicit in this rule.
First, in some circumstances the authorities can reasonably provide an opportunity for full confrontation, and if so they ought to. That is, in such circumstances they ought to announce their intention of using the witness’s statement at trial if she is unable to testify live, and offer the accused the opportunity for a deposition at a given time and place. Does a deposition in dire circumstances seem bizarre? It should not; certainly it did not nearly two centuries ago. Note R. v. Forbes, Holt 599, 171 E.R. 354 (1814), in which the court held that portions of a dying victim’s statement could not be introduced against the accused because they were not given in his presence, and R v. Smith, Holt 614, 171 E.R. 357 (1817), which explained that a purpose of giving the accused the right to be present was so that he could cross-examine. (Smith declined to cross-examine, and that resolved the matter.) Carruth’s case may well be one in which a deposition was feasible; it may be that there was a time while the victim lingered during which it would not have been unduly cruel to ask her to testify in his presence and subject to cross-examination, on the understanding that this was important to bring him to justice. There are no hard-and-fast rules here, I don’t think; this judgment requires a balancing of values.
Second, in some circumstances even if full confrontation is not reasonably possible, partial satisfaction of the confrontation right may be reasonably possible. If, for example, the victim is sinking rapidly enough that defense counsel cannot prepare to an ideal extant, that does not excuse absolute denial of the right to cross-examine; the right ought to be provided to the extent reasonably feasible. Or if the client has absconded, so that it is not possible for a lawyer to consult with him, that does not excuse failure to appoint a lawyer to conduct cross as best she can. All the authorities can do in setting up a deposition is the best they can – but they should be required to do something close to that. Finally, even if it seems not to be reasonably possible to allow cross-examination at all, it may be reasonably possible to allow the accused a chance to have the victim testify in his presence.
All this suggests the possibility of some very difficult, and excruciating, decisions. I have never contended that adoption of the testimonial approach to confrontation, or of a robust doctrine of forfeiture, would eliminate the need to make hard decisions. What we have to try to do is to ask the right questions, and I am contending that one of the questions we should be asking, in the face of wrongful conduct by the accused that has prevented a witness from testifying at trial, is whether the authorities have done what they reasonably could be expected to do to allow for confrontation, in whole or in part.
Ideally, the prosecution would not have to guess in advance what answer a court would give to this question. Suppose, then a prosecutor in a case like Carruth’s believes that it would be unduly cruel to require the victim to testify subject to confrontation, but she is also risk averse and does not want to lose the prosecution by being more decorous than necessary. It seems to me that she ought to be able to litigate the confrontation issue in advance, seeking a declaratory ruling that if the victim is unable to testify at trial her statements will be admitted even without confrontation, or with confrontation limited in certain aspects.
Opening the Door
Feb. 4, 2005:
A new decision from New York, People v. Ko, 2005 WL 248988 (N.Y.A.D. 1 Dept. Feb 3, 2005), holds that the defendant opened the door to a Crawford violation. After the defendant's old girlfriend was murdered, his new girlfriend told the police that a bloody shirt found at the scene was hers. The defense referred to this statement, which supported a theory that the new girlfriend had murdered the old. The trouble was that the new girlfriend had said at the same time that the defendant often wore the shirt, and that bloody pants found at the scene were his. The court therefore held that defendant opened the door to admission of the new girlfriend's full statement, which the court held properly to be testimonial (without, by the way, discussing whether it was in response to structured questioning by the police).
This strikes me as eminently sensible. As the court noted, "A contrary holding would allow a defendant to mislead the jury by selectively revealing only those details of a testimonial statement that are potentially helpful to the defense, while concealing from the jury other details that would tend to explain the portions introduced and place them in context. "
Ko stands in stark contrast to United States v. Cromer, 389 F.3d 662 (6th Cir. 2004), which essentially rejects the "opening the door" theory as a basis for admitting a statement that would otherwise violate the confrontation right. On the merits of the confrontation issue, Cromer is a wonderful opinion, and it is discussed in one of the first posts on this blog. But as noted in that post, I think the court went overboard on this issue (and in citing me in support of its conclusion on this point).
I have no settled views on this issue, and so I will pose two questions. First, what is the theoretical basis for determining that the defendant opened the door to admissibility of a statement that otherwise would violate the confrontation right? Is it forfeiture -- even though, as Cromer points out, the defendant has presumably done nothing wrong by making the purportedly door-opening argument? Is it waiver -- but if so should it be limited to circumstances in which the defense clearly was aware, perhaps by virtue of a warning, that his conduct was likely to lead to loss of the confrontation right? Is it something else?
Second, what should the standard be for determining whether the right is lost? In some circumstances, it seems to me, the defendant should not be forced to elect between making a given contention and insisting on the confrontation right. But in a case like Ko, it does seem that to allow him to do both would create an intolerably misleading situation.
Addendum, March 4, 2005:
Two new decisions on door-opening came down yesterday, March 3, holding in opposite directions on different facts, and both seem sensible to me. In Le v. State, 2005 WL 487443 (Miss. March 3, 2005), the defendant had offered statements made by another person to inmates, and the state was allowed to offer in rebuttal a statement, apparently conflicting, made by the same person to law enforcement agents, subject to a limiting instruction that this statement was introduced only as it bore on the credibility of the statements to inmates. Seems right to me -- all the more so given that the defense was warned about the consequences of introducing the statements made to inmates.
By contrast, in People v. Ryan, 2005 WL 486846 (N.Y.A.D. 3d Dept. March 3, 2005), the court rejected the prosecution argument that the accused had opened the door. This was a robbery case. An officer testifying on direct had said that a search was predicated on finding a gun, and that the defendant had denied the presence of a gun at the time of his arrest. On cross, the defendant sought to highlight the failure of the police to find a gun and asked whether any of the people arrested in connection with the crime had admitted to the use of a gun. The officer testified that the accused’s two confederates had expressed uncertainty as to whether there had been a gun. On redirect, in response to an open-ended question, the officer testified at length as to his conversations with the confederates. The court held that this was improper. The accused on cross had made only a limited inquiry into statements by others, and had not left a misleading impression. Moreover, the prosecution’s closing argument and the judge’s instructions had failed to limit the use of the prior statements. Again, this seems exactly right.
A new decision from New York, People v. Ko, 2005 WL 248988 (N.Y.A.D. 1 Dept. Feb 3, 2005), holds that the defendant opened the door to a Crawford violation. After the defendant's old girlfriend was murdered, his new girlfriend told the police that a bloody shirt found at the scene was hers. The defense referred to this statement, which supported a theory that the new girlfriend had murdered the old. The trouble was that the new girlfriend had said at the same time that the defendant often wore the shirt, and that bloody pants found at the scene were his. The court therefore held that defendant opened the door to admission of the new girlfriend's full statement, which the court held properly to be testimonial (without, by the way, discussing whether it was in response to structured questioning by the police).
This strikes me as eminently sensible. As the court noted, "A contrary holding would allow a defendant to mislead the jury by selectively revealing only those details of a testimonial statement that are potentially helpful to the defense, while concealing from the jury other details that would tend to explain the portions introduced and place them in context. "
Ko stands in stark contrast to United States v. Cromer, 389 F.3d 662 (6th Cir. 2004), which essentially rejects the "opening the door" theory as a basis for admitting a statement that would otherwise violate the confrontation right. On the merits of the confrontation issue, Cromer is a wonderful opinion, and it is discussed in one of the first posts on this blog. But as noted in that post, I think the court went overboard on this issue (and in citing me in support of its conclusion on this point).
I have no settled views on this issue, and so I will pose two questions. First, what is the theoretical basis for determining that the defendant opened the door to admissibility of a statement that otherwise would violate the confrontation right? Is it forfeiture -- even though, as Cromer points out, the defendant has presumably done nothing wrong by making the purportedly door-opening argument? Is it waiver -- but if so should it be limited to circumstances in which the defense clearly was aware, perhaps by virtue of a warning, that his conduct was likely to lead to loss of the confrontation right? Is it something else?
Second, what should the standard be for determining whether the right is lost? In some circumstances, it seems to me, the defendant should not be forced to elect between making a given contention and insisting on the confrontation right. But in a case like Ko, it does seem that to allow him to do both would create an intolerably misleading situation.
Addendum, March 4, 2005:
Two new decisions on door-opening came down yesterday, March 3, holding in opposite directions on different facts, and both seem sensible to me. In Le v. State, 2005 WL 487443 (Miss. March 3, 2005), the defendant had offered statements made by another person to inmates, and the state was allowed to offer in rebuttal a statement, apparently conflicting, made by the same person to law enforcement agents, subject to a limiting instruction that this statement was introduced only as it bore on the credibility of the statements to inmates. Seems right to me -- all the more so given that the defense was warned about the consequences of introducing the statements made to inmates.
By contrast, in People v. Ryan, 2005 WL 486846 (N.Y.A.D. 3d Dept. March 3, 2005), the court rejected the prosecution argument that the accused had opened the door. This was a robbery case. An officer testifying on direct had said that a search was predicated on finding a gun, and that the defendant had denied the presence of a gun at the time of his arrest. On cross, the defendant sought to highlight the failure of the police to find a gun and asked whether any of the people arrested in connection with the crime had admitted to the use of a gun. The officer testified that the accused’s two confederates had expressed uncertainty as to whether there had been a gun. On redirect, in response to an open-ended question, the officer testified at length as to his conversations with the confederates. The court held that this was improper. The accused on cross had made only a limited inquiry into statements by others, and had not left a misleading impression. Moreover, the prosecution’s closing argument and the judge’s instructions had failed to limit the use of the prior statements. Again, this seems exactly right.
Wednesday, March 02, 2005
Retroactivity: Issue Joined?
I don't know much about retroactivity but at least for now there seems to be a split in the federal circuits as to whether Crawford is retroactive for purposes of collateral review. Last week, the Ninth Circuit decided Bockting v. Bayer, 2005 WL 406284 (9th Cir. Feb. 22, 2005), in which a split panel held in favor of retroactivity. I've been on vacation for most of the time since the decision came down, and have not had a chance to read the decision carefully, much less comment on it -- but Brooks Holland has, and you can read his comments, attached to my posting on the Brooklyn conference, by clicking here. (As Brooks points out, there are other interesting aspects of the Bockting decision, and I hope to comment soon on one of them -- unavailability -- in another post.)
The day after Bockting was issued, the Sixth Circuit issued Dorchy v. Jones, 2005 WL 415147 (6th Cir. Feb. 23, 2005), which held rather conclusorily that Crawford does not paply retroactively. This is the position that the Second and Tenth Circuits have already taken. Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir.2004); Brown v. Uphoff, 381 F.3d 1219 (10th Cir.2004).
Assuming the Ninth Circuit panel is not reversed en banc, therefore, it appears there is a conflict among the circuits, which presumably the Supreme Court will soon feel it necessary to resolve.
The day after Bockting was issued, the Sixth Circuit issued Dorchy v. Jones, 2005 WL 415147 (6th Cir. Feb. 23, 2005), which held rather conclusorily that Crawford does not paply retroactively. This is the position that the Second and Tenth Circuits have already taken. Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir.2004); Brown v. Uphoff, 381 F.3d 1219 (10th Cir.2004).
Assuming the Ninth Circuit panel is not reversed en banc, therefore, it appears there is a conflict among the circuits, which presumably the Supreme Court will soon feel it necessary to resolve.
Monday, February 21, 2005
Reflections on the Brooklyn Conference
On Friday, Brooklyn Law School held what I believe is the first full-scale academic conference on Crawford and related issues. Many thanks to the Law School and to Bob Pitler, who was the force behind the conference.
One impression I received was that some commentators believe that in the end Crawford will be as manipulable and open-ended as was Roberts. I don’t buy it for a minute. The concern reminds me of the joke about the woman who gave her son two shirts. The next morning, he wore the blue one when he came down to breakfast. “The red one you don’t like?” she asked.
In other words, the concern is way premature. Crawford transformed the law, and it declined, quite properly in my view, to state with much specificity what it meant by “testimonial.” But little by little, if not in great big bites, the term will be clarified to a substantial extent. Perhaps the Supreme Court will soon adopt a global definition. But I’m not sure it will need to do so for a while. It might answer a series of questions over several cases: Is there an absolute rule that a statement is not testimonial unless it is formal, or in response to interrogation, or made to a government agent? To each of these, I hope the answer will be negative. But whatever the answer is, an answer will be given, and at least gradually the law will be clarified. Whatever the rules are, if they are sensible ones they will leave some close and highly debatable cases, but that is true of virtually any area of the law. Even if the Court gives unsatisfactory answers on all the significant questions necessary to refine the meaning of "testimonial," the law will be more satisfactory than it was under Roberts – and I believe it will be more predictable as well, because it will reflect, however imperfectly, an important principle worthy of respect. Core cases, like that of Michael Crawford himself, will be easy and predictable, as they were not under Roberts.
I was also struck by the resistance that many of the commentators had to treating excited utterances as testimonial. I have never said that all statements that fit within the modern conception of the excited utterance exception are testimonial, but I do believe that many are, even though they are made for purposes other than or in addition to assisting prosecution of crime. It may be that in the context of domestic violence the Supreme Court will be loath to categorize as testimonial the initial parts of 911 calls made shortly after the (alleged) commission of a crime. But footnote 8 of Crawford counsels caution. It properly indicates uncertainty as to whether an exception for spontaneous declarations existed at the time of the Sixth Amendment, and says that if there was such an exception it was closely confined in time. Even apart from rigid originalism, the history (reviewed by Bridget McCormack and me in Dial-In Testimony, 150 U. Pa. L. Rev. 1171 (2002)) is interesting, because it indicates that for many decades after the time of the Amendment courts were still very restrictive in applying this exception, excluding statements that were narrative in nature. This rule, I bleieve, reflected an implicit recognition of the testimonial quality of many of these statements. The rule did not change because social changes demanded admissibility or altered the tesitmonial quality of some excited statements, but because the confrontaiotn principle became badly obscured over time.
At the close of the conference, Margaret Berger raised the question of whether the confrontation right should be carved out of the Evidence course, and left for Criminal Procedure, so that it doesn't crowd out discussion of hearsay law. I agree that the confrontation right is properly considered an aspect of criminal procedure rather than merely a rule of evidence. That is, it sets out a procedure by which witnesses shall give their testimony, and therefore operates before trial as well as at trial. It is not simply a rule of what evidence gets admitted at trial and what must be excluded, though of course it is protected in large part by an exclusionary rule. Nevertheless, I believe that detaching the confrontation right from the teaching of hearsay law would be a great mistake. Much of hearsay law makes sense only as a reflection of confrontation principles. And now that the confrontation right has been separately articulated, a critical question will be the extent to hearsay law should remain as it stands. My own feeling is that hearsay law – as opposed to confrontation law – should generally become far less exclsuionary and less rigid. But this, of course, is a vast and complex topic.
One impression I received was that some commentators believe that in the end Crawford will be as manipulable and open-ended as was Roberts. I don’t buy it for a minute. The concern reminds me of the joke about the woman who gave her son two shirts. The next morning, he wore the blue one when he came down to breakfast. “The red one you don’t like?” she asked.
In other words, the concern is way premature. Crawford transformed the law, and it declined, quite properly in my view, to state with much specificity what it meant by “testimonial.” But little by little, if not in great big bites, the term will be clarified to a substantial extent. Perhaps the Supreme Court will soon adopt a global definition. But I’m not sure it will need to do so for a while. It might answer a series of questions over several cases: Is there an absolute rule that a statement is not testimonial unless it is formal, or in response to interrogation, or made to a government agent? To each of these, I hope the answer will be negative. But whatever the answer is, an answer will be given, and at least gradually the law will be clarified. Whatever the rules are, if they are sensible ones they will leave some close and highly debatable cases, but that is true of virtually any area of the law. Even if the Court gives unsatisfactory answers on all the significant questions necessary to refine the meaning of "testimonial," the law will be more satisfactory than it was under Roberts – and I believe it will be more predictable as well, because it will reflect, however imperfectly, an important principle worthy of respect. Core cases, like that of Michael Crawford himself, will be easy and predictable, as they were not under Roberts.
I was also struck by the resistance that many of the commentators had to treating excited utterances as testimonial. I have never said that all statements that fit within the modern conception of the excited utterance exception are testimonial, but I do believe that many are, even though they are made for purposes other than or in addition to assisting prosecution of crime. It may be that in the context of domestic violence the Supreme Court will be loath to categorize as testimonial the initial parts of 911 calls made shortly after the (alleged) commission of a crime. But footnote 8 of Crawford counsels caution. It properly indicates uncertainty as to whether an exception for spontaneous declarations existed at the time of the Sixth Amendment, and says that if there was such an exception it was closely confined in time. Even apart from rigid originalism, the history (reviewed by Bridget McCormack and me in Dial-In Testimony, 150 U. Pa. L. Rev. 1171 (2002)) is interesting, because it indicates that for many decades after the time of the Amendment courts were still very restrictive in applying this exception, excluding statements that were narrative in nature. This rule, I bleieve, reflected an implicit recognition of the testimonial quality of many of these statements. The rule did not change because social changes demanded admissibility or altered the tesitmonial quality of some excited statements, but because the confrontaiotn principle became badly obscured over time.
At the close of the conference, Margaret Berger raised the question of whether the confrontation right should be carved out of the Evidence course, and left for Criminal Procedure, so that it doesn't crowd out discussion of hearsay law. I agree that the confrontation right is properly considered an aspect of criminal procedure rather than merely a rule of evidence. That is, it sets out a procedure by which witnesses shall give their testimony, and therefore operates before trial as well as at trial. It is not simply a rule of what evidence gets admitted at trial and what must be excluded, though of course it is protected in large part by an exclusionary rule. Nevertheless, I believe that detaching the confrontation right from the teaching of hearsay law would be a great mistake. Much of hearsay law makes sense only as a reflection of confrontation principles. And now that the confrontation right has been separately articulated, a critical question will be the extent to hearsay law should remain as it stands. My own feeling is that hearsay law – as opposed to confrontation law – should generally become far less exclsuionary and less rigid. But this, of course, is a vast and complex topic.
Wednesday, February 16, 2005
Grappling With the Meaning of "Testimonial"
I have been asked to speak at Friday's Brooklyn conference about the meaning of the word "testimonial" for Confrontation Clause purposes. You can see my draft paper by clicking here. This is quite a preliminary draft (very light on footnotes, for example). I will be grateful for any comments, and I hope that any references to it will acknowledge that it is only a preliminary draft. Two of the sections, on formality and on interrogation, are lifted from entries I have previously posted on the blog. The paper includes an extended section on statements not made to government agents, on which I have not yet posted a blog entry.
If any other conference participants would like me to post their papers, please let me know.
If any other conference participants would like me to post their papers, please let me know.
Tuesday, February 15, 2005
A Case of Censorship?
I pride myself on being a mild mannered type, and friends (and my wife) say I have an overly thick skin, being the reverse of paranoid because I fail to perceve insults when they really are intended. I have had many articles rejected by many, many law journals, and have never complained. But now I have a complaint, and I am reporting on it here because I think it reflects a troubling aspect of the reaction to Crawford in some quarters.
Over the summer, the National Council of Juvenile and Family Court Judges published an article in its journal, Juvenile and Family Justice Today, by two Florida judges taking the view, essentially, that Crawford could be ignored in domestic violence cases by treating excited utterances as non-testimonial. Jeff Fisher (who argued and won Crawford), Bridget McCormack (who co-authored with me Dial-In Testimony, 150 U. Pa. L. Rev. 1171 (2002), an article examining excited utterances from the viewpoint of a testimonial approach to confrontation), and I wrote a response. We argued that many statements that have been characterized as excited utterances for purposes of hearsay law should be regarded as testimonial for Confrontation Clause purposes. I had thought the Council would welcome our essay, coming from sources that I assumed it would regard as responsible and that had been on the prevailing side in Crawford. But the Council rejected our response. I asked for an explanation, and was told that the tone of the response was unacceptable and would be insulting to the judges, who were valued members of the organization. I found this mystifying, because I did not think there was anything in the tone of the response that was insulting. And so I offered to make such changes as the Council thought necessary to avoid this issue, and I asked for formal reconsideration of the decision by the board of the Council. The board has considered the matter and has declined to publish the response. (I have been told that they will appoint a committee to consider various publication issues, including this one; six months after original submission, I regard this as a final rejection.)
Accordingly, I am posting our paper here. The Council's decision is not censorship in the technical sense, of course -- the Council is a private organization, it can do what it wants, and we are free to find other outlets for our views (such as this blog). But in a real sense I do regard this as an instance of censorship. It is hard for me to perceive this incident as anything but a decision by the Council to limit the extent to which its members will consider the views represented by our response. This is especially unfortunate given that many courts, in states around the nation and including at least one in Florida, Lopez v. State, 888 So.2d 693 (1st Dist. Ct. of Appeal 2004), have adopted our point of view or something close to it. Many courts have also taken positions closer to the one that the Council was willing to publish (though rarely so extreme), but it seems self-evident to me that our view is one to which judges should be exposed -- especially given that the U.S. Supreme Court may eventually adopt it, which would result in the reversal of many convictions achieved under a lax view of Crawford.
More broadly, I believe this incident reflects a "draw the wagons" approach to Crawford taken by some of those involved in the prosecution and adjudication of domestic violence cases. They have gotten used to trying cases in which the complainant's accusation is introduced even though she does not testify subject to cross-examination, and Crawford threatens the practice. Rather than considering whether Crawford states an important issue to which they should pay attention, or whether Crawford gives prosecutors incentive to present better evidence than previously, they have treated Crawford as if it changed nothing, allowing them to continue to operate as they did before. This may prove in the end to be a highly counter-productive attitude.
Over the summer, the National Council of Juvenile and Family Court Judges published an article in its journal, Juvenile and Family Justice Today, by two Florida judges taking the view, essentially, that Crawford could be ignored in domestic violence cases by treating excited utterances as non-testimonial. Jeff Fisher (who argued and won Crawford), Bridget McCormack (who co-authored with me Dial-In Testimony, 150 U. Pa. L. Rev. 1171 (2002), an article examining excited utterances from the viewpoint of a testimonial approach to confrontation), and I wrote a response. We argued that many statements that have been characterized as excited utterances for purposes of hearsay law should be regarded as testimonial for Confrontation Clause purposes. I had thought the Council would welcome our essay, coming from sources that I assumed it would regard as responsible and that had been on the prevailing side in Crawford. But the Council rejected our response. I asked for an explanation, and was told that the tone of the response was unacceptable and would be insulting to the judges, who were valued members of the organization. I found this mystifying, because I did not think there was anything in the tone of the response that was insulting. And so I offered to make such changes as the Council thought necessary to avoid this issue, and I asked for formal reconsideration of the decision by the board of the Council. The board has considered the matter and has declined to publish the response. (I have been told that they will appoint a committee to consider various publication issues, including this one; six months after original submission, I regard this as a final rejection.)
Accordingly, I am posting our paper here. The Council's decision is not censorship in the technical sense, of course -- the Council is a private organization, it can do what it wants, and we are free to find other outlets for our views (such as this blog). But in a real sense I do regard this as an instance of censorship. It is hard for me to perceive this incident as anything but a decision by the Council to limit the extent to which its members will consider the views represented by our response. This is especially unfortunate given that many courts, in states around the nation and including at least one in Florida, Lopez v. State, 888 So.2d 693 (1st Dist. Ct. of Appeal 2004), have adopted our point of view or something close to it. Many courts have also taken positions closer to the one that the Council was willing to publish (though rarely so extreme), but it seems self-evident to me that our view is one to which judges should be exposed -- especially given that the U.S. Supreme Court may eventually adopt it, which would result in the reversal of many convictions achieved under a lax view of Crawford.
More broadly, I believe this incident reflects a "draw the wagons" approach to Crawford taken by some of those involved in the prosecution and adjudication of domestic violence cases. They have gotten used to trying cases in which the complainant's accusation is introduced even though she does not testify subject to cross-examination, and Crawford threatens the practice. Rather than considering whether Crawford states an important issue to which they should pay attention, or whether Crawford gives prosecutors incentive to present better evidence than previously, they have treated Crawford as if it changed nothing, allowing them to continue to operate as they did before. This may prove in the end to be a highly counter-productive attitude.
Friday, February 11, 2005
Prior Opportunity for Cross-Examination
If a witness is unavailable to testify at trial, her prior testimonial statement may nevertheless be admitted, consistent with Crawford, so long as the accused had an adequate opportunity for cross-examination. It is therefore an important question what constitutes an adequate opportunity.
One issue is what the accused must do to secure confrontation. My answer is: If the defendant has to do much, beyond confirming that he wants confirmation, the opoprtunity is not adequate. In other words, it is not acceptable for the prosecutor to say, "We intend to use the statement of this witness at trial, because she may be unavailable. If you want to cross-examine her, take her deposition now." The accused has a right to be passive and "be confronted with" an adverse witness; it is not his responsibility to find the witness and compel her to testify. So the prosecution has to say, "If you want to cross-examine, just say so, and we'll arrange for her deposition." The accused does not have the right to demand that the witness be brought to his living room (or jail cell) for confrontation. I don't know of law on the subject, and would be curious to learn, but I suppose the accused, if at liberty, may be required to travel at his own expense within the jurisdiction for the deposition, and at the expense of the prosecution if the witness cannot be brought there but a deposition can be arranged elsewhere. (And counsel?)
A second issue that sometimes may arise is what kind of notice of a deposition is sufficient. Suppose the accused has been identified but not yet apprehended. Is it sufficient for the prosecution to give notice at the accused's last known address and to people who would expect to know his whereabouts? I would guess so; again, I am curious to know if there is law on the subject. (Whatever notice codified rules of criminal procedure require for a deposition is not necessarily the constitutional minimum requirement.) What if the accused has been identified only as the person who has a given DNA profile -- can adequate notice be given then? I doubt it.
Third is the question of whether the opportunity came so soon that it should be deemed inadequate. Defense counsel may argue, "Yes, the prosecution arranged a deposition, but I had just been appointed and even had I been as prepared as I could be at that point I would not have known nearly as much about the case as I do now." In some cases, I believe this argument will have force, and in others not. The judge should not simply accept an assertion of prejudice, but should ask, "Well, what is it that you would ask if you had the opportunity now?" (I am not sure that the proper baseline is what counsel would have been able to do at trial -- perhaps a somewhat less satisfactory opportunity for cross should still be considered sufficient -- but at least it is a plausible starting point.) In a complex case, in which the witness's testimony is closely tied to other evidence and ongoing investigation generates fuller understanding of the facts over time, defense counsel may well be able to persuade the court that the defendant is prejudiced by how early the opportunity for cross was offered. But, say, in the case of an expert witness who is prepared to testify that two samples, one found at the crime scene and one taken from the accused, had matching DNA, the argument would be hard to make successfully: Counsel does not need to know much about the case to understand her interest -- to undermine the prosecution expert's conclusion that the DNA profiles match -- or to do as effective a job as she is ever likely to do.
Fourth, there is the question of motivation. In California v. Green, 399 U.S. 149 (1970), the Supreme Court held that the accused's opportunity to examine a witness at a preliminary hearing suffices for purposes of the Confrontation Clause. I am dubious about that holding. I doubt if counsel really has the motivation at a preliminary hearing to cross-examine fully. On the other hand, if defense counsel takes seriously the injunction, "Well, you'd better have that motivation, because this may be your only opportunity for confrontaiton," then we may have much more time-consuming preliminary hearings and many extraneous examinations. I am very curious to know how defense lawyers in California and other states that have preliminary hearings tend to react to this situation. Interestingly, one Florida appellate court has taken a view substantially at variance from that of Green. In Lopez v. State, 888 So.2d 693 (1st Dist. 2004), the court held that a deposition taken for discovery -- as opposed to one taken for perpetuation of testimony -- does not qualify as an adequate opportunity for cross under Crawford. The statute allowing discovery depositions, said the court.
Fifth, what limitations were imposed ont he ability to cross-examine at the prior proceeding? Fry, supra, has pointed out that at a preliminary hearing, where the question is whether there is probable cause, the judge is foreclosed in all but "exceptionally rare" cases from making credibility determinations. Accordingly, defense counsel is likely to be "curtailed" in cross-examination, because she has no legitimate grounds to establish the lack of credibility of the witnesses.
Finally -- at least the final issue I will address here -- there is a question of policy. Unlike Florida, the federal jurisdiction makes it very difficult to take a deposition of a witness in a criminal case, even for preservation of testimony; the standard under Fed. R. Crim. P. 15(a)(1) is that a motion for a deposition may be granted "because of exceptional circumstances and in the interest of justice." It seems to me that this is far too stringent; putting aside the question of discovery, a party ought to be allowed to take a deposition of a witness for purposes of preserving the witness's testimony merely by showing that the witness is friendly. (Producing an affidavit of the witness summarizing the testimony would generally do the job.) Prosecutors might decide not to take depositions in most cases, but that would be a decision they would make at their own risk.
A potentially sueful source of caselaw in this area is Francis M. Dougherty, Annotation, Admissibility Or Use In Criminal Trial Of Testimony Given At Preliminary Proceeding By Witness Not Available At Trial, 38 A.L.R.4th 378, §§ 6-7. (2004).
One issue is what the accused must do to secure confrontation. My answer is: If the defendant has to do much, beyond confirming that he wants confirmation, the opoprtunity is not adequate. In other words, it is not acceptable for the prosecutor to say, "We intend to use the statement of this witness at trial, because she may be unavailable. If you want to cross-examine her, take her deposition now." The accused has a right to be passive and "be confronted with" an adverse witness; it is not his responsibility to find the witness and compel her to testify. So the prosecution has to say, "If you want to cross-examine, just say so, and we'll arrange for her deposition." The accused does not have the right to demand that the witness be brought to his living room (or jail cell) for confrontation. I don't know of law on the subject, and would be curious to learn, but I suppose the accused, if at liberty, may be required to travel at his own expense within the jurisdiction for the deposition, and at the expense of the prosecution if the witness cannot be brought there but a deposition can be arranged elsewhere. (And counsel?)
A second issue that sometimes may arise is what kind of notice of a deposition is sufficient. Suppose the accused has been identified but not yet apprehended. Is it sufficient for the prosecution to give notice at the accused's last known address and to people who would expect to know his whereabouts? I would guess so; again, I am curious to know if there is law on the subject. (Whatever notice codified rules of criminal procedure require for a deposition is not necessarily the constitutional minimum requirement.) What if the accused has been identified only as the person who has a given DNA profile -- can adequate notice be given then? I doubt it.
Third is the question of whether the opportunity came so soon that it should be deemed inadequate. Defense counsel may argue, "Yes, the prosecution arranged a deposition, but I had just been appointed and even had I been as prepared as I could be at that point I would not have known nearly as much about the case as I do now." In some cases, I believe this argument will have force, and in others not. The judge should not simply accept an assertion of prejudice, but should ask, "Well, what is it that you would ask if you had the opportunity now?" (I am not sure that the proper baseline is what counsel would have been able to do at trial -- perhaps a somewhat less satisfactory opportunity for cross should still be considered sufficient -- but at least it is a plausible starting point.) In a complex case, in which the witness's testimony is closely tied to other evidence and ongoing investigation generates fuller understanding of the facts over time, defense counsel may well be able to persuade the court that the defendant is prejudiced by how early the opportunity for cross was offered. But, say, in the case of an expert witness who is prepared to testify that two samples, one found at the crime scene and one taken from the accused, had matching DNA, the argument would be hard to make successfully: Counsel does not need to know much about the case to understand her interest -- to undermine the prosecution expert's conclusion that the DNA profiles match -- or to do as effective a job as she is ever likely to do.
Fourth, there is the question of motivation. In California v. Green, 399 U.S. 149 (1970), the Supreme Court held that the accused's opportunity to examine a witness at a preliminary hearing suffices for purposes of the Confrontation Clause. I am dubious about that holding. I doubt if counsel really has the motivation at a preliminary hearing to cross-examine fully. On the other hand, if defense counsel takes seriously the injunction, "Well, you'd better have that motivation, because this may be your only opportunity for confrontaiton," then we may have much more time-consuming preliminary hearings and many extraneous examinations. I am very curious to know how defense lawyers in California and other states that have preliminary hearings tend to react to this situation. Interestingly, one Florida appellate court has taken a view substantially at variance from that of Green. In Lopez v. State, 888 So.2d 693 (1st Dist. 2004), the court held that a deposition taken for discovery -- as opposed to one taken for perpetuation of testimony -- does not qualify as an adequate opportunity for cross under Crawford. The statute allowing discovery depositions, said the court.
was designed to provide an opportunity for discovery, not an opportunity to engage in an adversarial testing of the evidence against the defendant. Nor is the rule customarily used for the purpose of cross-examination. Most good criminal defense lawyers attempt merely to learn what the testimony will be and, at the most, to limit the testimony.The court also quoted from a prior state supreme court decision that said:
Being unaware that this deposition would be the only opportunity he would have to examine and challenge the accuracy of the deponent's statements, defendant could not have been expected to conduct an adequate cross-examination . . . .To similar effect, the Colorado Supreme Court, acting directly in the teeth of Green, has held that a preliminary hearing does not give a sufficient motive for cross-examination. People v. Fry, 92 P.3d 970 (Col. 2004) ("the preliminary hearing is not intended to be a mini-trial . . . "; noting that usually, if probable cause is established, the defense has little motive to cross-examine).
Fifth, what limitations were imposed ont he ability to cross-examine at the prior proceeding? Fry, supra, has pointed out that at a preliminary hearing, where the question is whether there is probable cause, the judge is foreclosed in all but "exceptionally rare" cases from making credibility determinations. Accordingly, defense counsel is likely to be "curtailed" in cross-examination, because she has no legitimate grounds to establish the lack of credibility of the witnesses.
Finally -- at least the final issue I will address here -- there is a question of policy. Unlike Florida, the federal jurisdiction makes it very difficult to take a deposition of a witness in a criminal case, even for preservation of testimony; the standard under Fed. R. Crim. P. 15(a)(1) is that a motion for a deposition may be granted "because of exceptional circumstances and in the interest of justice." It seems to me that this is far too stringent; putting aside the question of discovery, a party ought to be allowed to take a deposition of a witness for purposes of preserving the witness's testimony merely by showing that the witness is friendly. (Producing an affidavit of the witness summarizing the testimony would generally do the job.) Prosecutors might decide not to take depositions in most cases, but that would be a decision they would make at their own risk.
A potentially sueful source of caselaw in this area is Francis M. Dougherty, Annotation, Admissibility Or Use In Criminal Trial Of Testimony Given At Preliminary Proceeding By Witness Not Available At Trial, 38 A.L.R.4th 378, §§ 6-7. (2004).
Wednesday, February 09, 2005
Updated Fisher Outline of Crawford Cases
In December, I posted Jeff Fisher's outline of confrontation cases decided since Crawford. Jeff has updated the outline and once again graciously allowed me to post it here. This is a resource that I am sure readers will continue to find valuable.
Tuesday, February 08, 2005
Upcoming Crawford Events
Crawford will be the focus at two events in the near future. If you know of other events please let me know and I will be glad to post a notice on the blog.
First, on this Friday, February 11, at the ABA Midyear Meeting, a tthe Hilton Salt Lake City Center, Meeting Salon I, Lobby Level, from 2 to 4 p.m., as part of its CLE session the Criminal Justice Section of the ABA will have a program titled Crawford v. Washington -- The Written Word. To see the program, click here. I suspectthere will be vigorous disagreement. The panelists include Cindy Dyer, a prosecutor whose suggested quesitons to responding officers I criticized in a post on this blog last week; Jeff Fisher, who argued Crawford; Erik Luna, of the University of Utah School of Law; and Dee Benson, a federal district judge in Utah.
Second, there will be a conference at Brooklyn School of Law on Friday, February 18, titled “Crawford and Beyond: Exploring the Future of the Confrontation Clause in Light of its Past.” The program is a full and well-designed one, with a wide array of paper topics, presenters, and commentators. To see the brochure for the conference, click here. To see the day's schedule, which has been updated since the brochure by the addition of speakers, or to register on-line, click here. For further information, contact Alison Abend, Alison.Abend@brooklaw.edu, 718 780 0321.
First, on this Friday, February 11, at the ABA Midyear Meeting, a tthe Hilton Salt Lake City Center, Meeting Salon I, Lobby Level, from 2 to 4 p.m., as part of its CLE session the Criminal Justice Section of the ABA will have a program titled Crawford v. Washington -- The Written Word. To see the program, click here. I suspectthere will be vigorous disagreement. The panelists include Cindy Dyer, a prosecutor whose suggested quesitons to responding officers I criticized in a post on this blog last week; Jeff Fisher, who argued Crawford; Erik Luna, of the University of Utah School of Law; and Dee Benson, a federal district judge in Utah.
Second, there will be a conference at Brooklyn School of Law on Friday, February 18, titled “Crawford and Beyond: Exploring the Future of the Confrontation Clause in Light of its Past.” The program is a full and well-designed one, with a wide array of paper topics, presenters, and commentators. To see the brochure for the conference, click here. To see the day's schedule, which has been updated since the brochure by the addition of speakers, or to register on-line, click here. For further information, contact Alison Abend, Alison.Abend@brooklaw.edu, 718 780 0321.
Monday, February 07, 2005
Maryland's Highest Court on "Tender Years" Statements
The Maryland Court of Appeals today issued its decision in State v. Snowden, affirming the decision of the Court of Special Appeals, which had held shortly after Crawford that the trial court erred by admitting statements made by alleged child abuse victims to an investigating social worker. The Court of Appeals posed the question of the case to be "whether statements made by child abuse victims to a social worker, though hearsay, may continue to be admitted at a criminal trial through the social worker under Maryland's 'tender years' statute, Md. Code (2001), § 11-304 of the Criminal Procedure Article, in light of the U.S. Supreme Court's ruling in Crawford." And the Court of Appeals held squarely "that they may not." But in fact the opinion appears to rest on narrower grounds. The court emphasized that charges had already been filed by the time of the interview; that the social work agency was cooperatiing with the police; that, though the interview had a therapeutic component, it was held for the expressed purpose of developing evidence for trial (the trial court so found, apparently believing pre-Crawford that this was a factor favoring admissibility); and that the girls (who were eight and ten at the time of the incident) understood this. The court also properly rejected the contention of the American Prosecutors Research Institute that these children were too young to be deemed witnesses for Confrontation Clause purposes. This was an easy case -- the court was unanimous -- and the unfortunate aspect of the opinion is that other courts might read it to mean that, absent any of the factors emphasized by the court here, a statement should not be considered testimonial. Indeed, the opinion contains what may be a casual and backhand suggestion that the statement would not have been testimonial has the social worker had been privately employed.
There was also a question of whether the defendant had waived the confrontation right, because the girls were actually in the courthouse and the defendant never explicilty demanded that the state put them on the witness stand. But as the court said, the defendant objected to the evidence that the state did present; it was not his role to present alternatives. He made the confrontation objection very clear, and if the state had been willing and able it could have offered to put the girls on the stand.
There was also a question of whether the defendant had waived the confrontation right, because the girls were actually in the courthouse and the defendant never explicilty demanded that the state put them on the witness stand. But as the court said, the defendant objected to the evidence that the state did present; it was not his role to present alternatives. He made the confrontation objection very clear, and if the state had been willing and able it could have offered to put the girls on the stand.
Friday, February 04, 2005
Failure to Object
People v. Courson, 2005 WL 249988 (Tex. Ct. Apps. Feb. 3, 2005), holds that the defendant failed to preserve a confrontation issue by making an objection at trial. I wonder whether the court was too stringent in this case. It appears that the trial was held before Crawford was decided. As the court says, the confrontation right "is neither new nor novel." True, but the statement at issue was one made by the defendant's wife to the police after a domestic dispute. (The case did not involve that dispute; this was a shaken-baby case.) Assuming that the statement clearly fell within the excited utterance exception as Texas courts have applied that exception, a defendant not anticipating Crawford would have had little reason to make an objection; this is one context in which the chance of exclusion was minuscule before Crawford but is substantial now.
Wednesday, February 02, 2005
Important New Jersey Decisions on Excited Utterances
This week, the New Jersey Supreme Court issued a significant decision, State v. Branch, 2005 WL 221198, and a companion decision, State v. Cotto, 2005 WL235918 (corrected version), on the excited utterance exception. I haven't had time yet to post a report of these decisions, but Brooks Holland has done it (for which I thank him), by posting a comment on the blog that you can find by clicking here. As Brooks explains, the court restricts the exception, drawing it back closer to its original dimensions. Although Branch formally decides only the bounds of the evidentiary rule, the analysis is explicitly "informed by the principles undergirding the Confrontation Clause jurisprudence of our federal and state constitutions." These decisions are, in my view, a positive development of considerable significance. It might have been better had the court relied on constitutional grounds. It might then have been harder for courts in other jurisdictions to shrug the New Jersey decisions aside. And when confrontation rights are not at stake, I think a receptive attitude towards hearsay is generally preferable, so it is something of a shame to confine an exception that may be useful in civil cases, no matter how far it has departed from its historical roots. But this is a quibble. The basic analysis of the New Jersey Supreme Court seems right to me, and I hope other courts pay attention.
Thursday, January 27, 2005
American Prosecutors Research Institute on Crawford
The American Prosecutors Research Institute has devoted an issue of its journal The Voice to Crawford v. Washington. As one might expect, it is an attempt to limit the impact of Crawford as tightly as possible, and in particular to preserve what it euphemistically refers to as "evidence based prosecutions" -- that is, prosecutions without evidence being given by the complainant subject to confrontation -- as they were allowed before Crawford.
Adam M. Krischer makes the rather extreme assertion that "domestic violence almost always involves forfeiture." I agree that forfeiture does occur frequently in domestic violence cases, and even that "the domestic violence itself may have procured the victim's unavailability." But the burden of proving forfeiture must remain squarely on the prosecution's shoulders. There should not be an attempt to create anything like a presumption that if the case involves domestic violence the accused has forfeited his confrontation right, or even more modestly that if the complainant is no longer willing to testify in accordance with her initial statement then intimidation is the cause. Mr. Krischer goes into considerable, and useful, detail as to how prosecutors may prove forfeiture. But he offers little guidance on what prosecutors can and should do, notwithstanding intimdation, to increase the chance that the complainant will testify live subject to cross-examination -- though he does say, "A properly supported victim, connected to services and counseling, is more likely to be cooperative than not, and a cooeprative victim, willing and able to testify, makes Crawford a moot point." When prosecutors have believed they needed to secure live testimony by the complainant or face dismissal of the charge, some have not hesitated to exert considerable pressure, including jailing the complainant. Whatever the merits of that approach, courts should not be so ready to reach a conclusion of forfeiture that prosecutors will have little or no incentive to preserve the accused's right to confront.
The issue also includes a list of predicate questions, prepared by Cindy Dyer, Chief of the Family Violence Unit of the Dallas County District Attorney's Office, to ask when examining at a preliminary hearing or at trial a police officer who has taken a statement from a complainant. If the complainant made statements in response to questions by an officer, then the prosecutor is advised to include the following in the examination:
Adam M. Krischer makes the rather extreme assertion that "domestic violence almost always involves forfeiture." I agree that forfeiture does occur frequently in domestic violence cases, and even that "the domestic violence itself may have procured the victim's unavailability." But the burden of proving forfeiture must remain squarely on the prosecution's shoulders. There should not be an attempt to create anything like a presumption that if the case involves domestic violence the accused has forfeited his confrontation right, or even more modestly that if the complainant is no longer willing to testify in accordance with her initial statement then intimidation is the cause. Mr. Krischer goes into considerable, and useful, detail as to how prosecutors may prove forfeiture. But he offers little guidance on what prosecutors can and should do, notwithstanding intimdation, to increase the chance that the complainant will testify live subject to cross-examination -- though he does say, "A properly supported victim, connected to services and counseling, is more likely to be cooperative than not, and a cooeprative victim, willing and able to testify, makes Crawford a moot point." When prosecutors have believed they needed to secure live testimony by the complainant or face dismissal of the charge, some have not hesitated to exert considerable pressure, including jailing the complainant. Whatever the merits of that approach, courts should not be so ready to reach a conclusion of forfeiture that prosecutors will have little or no incentive to preserve the accused's right to confront.
The issue also includes a list of predicate questions, prepared by Cindy Dyer, Chief of the Family Violence Unit of the Dallas County District Attorney's Office, to ask when examining at a preliminary hearing or at trial a police officer who has taken a statement from a complainant. If the complainant made statements in response to questions by an officer, then the prosecutor is advised to include the following in the examination:
1. Were the statements taken "during the course of an interrogation"?Apparently the thought is that if the desired answers are received -- and even apart from the leading nature of three of these questions we can be sure that the police will understand what the desired answers are -- then the complainant's statements should not be deemed to be testimonial. For the reasons already discussed in my post on The Interrogation Bugaboo, this reflects a deficient understanding of the confrontation right.
2. What was the purpose of your questions?
3. Were your questions to her an interrogation or merely part of your initial investigation?
4. Were these questions asked to determine if a crime had even occurred?
Tuesday, January 25, 2005
Cross-examination by Another Party
The Wisconsin Supreme Court issued an opinion today, in State v. Hale, holding that the trial court had violated Crawford v. Washington in introducing against Hale testimony from the trial of another defendant, Jones, given by a witness, Sullivan, who was unavailable by the time of Hale's trial. Though this conclusion should be obvious, the court took a long time to reach it; when the court did get to the issue, though, it did not mince words, holding broadly that "prior testimony may be admitted against a criminal defendant only when that defendant has had a prior opportunity to cross-examine the witness giving that testimony."
Interestingly, Wis. Stat. § 908.45(1), the Wisconsin hearsay exception for former testimony, unlike Fed. R. Evid. 804(b)(1), does not prescribe this rule – i.e., that cross-examination by another person cannot act as a proxy for cross-examination by the defendant himself. Instead, it removes the hearsay bar from prior testimony so long as there was an opportunity for cross-examination by a party "with motive and interest similar to those of the party against whom [the statement is] now offered." One might have thought it obvious in this case that this rule was not satisfied – Sullivan's testimony put the murder weapon in Hall's hands rather than in Jones' – and one justice wrote a concurring opinion that emphasized this point. But the court's opinion instead addressed the constitutional question, and the rule comes through clearly: The right of confrontation is a personal one, and no matter how similar another party's motive may have been, the opportunity of that party to cross-examine does not satisfy the right of the accused.
Ultimately, the court determined that the error was harmless, and much of the justices' discussion concerned this question. One justice also wrote a long elaboration on forfeiture, in which two other justices joined, but no issue of forfeiture was presented and this opinion seems mainly to have been for the edification of the bar.
Interestingly, Wis. Stat. § 908.45(1), the Wisconsin hearsay exception for former testimony, unlike Fed. R. Evid. 804(b)(1), does not prescribe this rule – i.e., that cross-examination by another person cannot act as a proxy for cross-examination by the defendant himself. Instead, it removes the hearsay bar from prior testimony so long as there was an opportunity for cross-examination by a party "with motive and interest similar to those of the party against whom [the statement is] now offered." One might have thought it obvious in this case that this rule was not satisfied – Sullivan's testimony put the murder weapon in Hall's hands rather than in Jones' – and one justice wrote a concurring opinion that emphasized this point. But the court's opinion instead addressed the constitutional question, and the rule comes through clearly: The right of confrontation is a personal one, and no matter how similar another party's motive may have been, the opportunity of that party to cross-examine does not satisfy the right of the accused.
Ultimately, the court determined that the error was harmless, and much of the justices' discussion concerned this question. One justice also wrote a long elaboration on forfeiture, in which two other justices joined, but no issue of forfeiture was presented and this opinion seems mainly to have been for the edification of the bar.
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