Andy Fine on Davis and Hammon

Andy Fine has written a fine practitioner's guide to issues presented in light of Davis and Hammon. Its primary audience is New York appellate defense lawyers, but it should be useful to a far wider range of readers than that. Accordingly, with Andy's permission, I am attaching it here.

New Crawford Symposium at Brooklyn

Brooklyn Law School, under the leadership of Bob Pitler, ran an excellent symposium on Crawford in February 2005. They are now holding another conference, on September 29. For more information, click here.

Regent Law School, in Virginia Beach, Va., will also be holding a symposium on Crawford issues in October. More information later.

Post-Davis decisions by the Supreme Court: A Preliminary Look

The Davis opinion left many questions unanswered, even within the realm of statements made shortly after a crime to law enforcement officials. Some indication beyond the opinion of what the Supreme Court is thinking about these issues may be gleaned from its post-Davis decisions, denying certiorari in some cases and granting, vacating, and remanding in others. Andy Fine has drawn these cases to my attention and written a very brief summary, which I am posting here with his permission, and with a very short comment afterwards; I am hoping to post a more detailed analysis before too long.

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Very Early Fallout From Davis/Hammon

Some may have thought that the Supreme Court’s term ended on June 29 with its decisions in Hamdan v. Rumsfeld and Clark v. Arizona, but the Court also issued an interesting batch of “GVRs” on June 30, granting cert, vacating and remanding for reconsideration in light of Davis/Hammon in seven cases. Criminal defendants were the petitioners in each instance. Six of these seven cases involved crime-scene statements to responding police, and two of those, Wright v. Minnesota and Lewis v. North Carolina, were appeals from state supreme court decisions holding such statements to be nontestimonial under Crawford. See State v. Wright, 701 N.W.2d 802 (Minn. 2005); State v. Lewis, 619 S.E.2d 830 (N.C. 2005). The Lewis decision is particularly intriguing, since the North Carolina Supreme Court’s analysis in some respects resembled that adopted in Davis/Hammon; the state high court said that when police responding to emergency calls for help ask preliminary questions at the crime scene to ascertain whether the victim, other civilians, or the police themselves are in danger, they are not obtaining information for the purpose of making a case against a suspect, and the ensuing statements therefore are not testimonial. And in Forrest v. North Carolina, the Court “GVR’ed” where the declarant, described as nervous, shaking, and crying, blurted out most of her statements before any questions were asked. See State v. Forrest, 596 S.E.2d 22 (N.C. App. 2004).

On the other hand, the Court denied cert to the state in Gonsalves v. Massachusetts, in which the Massachusetts Supreme Judicial Court had held that statements that are the product of any questioning by law enforcement agents other than to secure a volatile scene or ascertain the need for medical care are testimonial per se, and that other statements are testimonial if a reasonable person in declarant’s position would anticipate the statement’s use against the accused in a prosecution. Commonwealth v. Gonsalves, 833 N.E.2d 549 (Mass. 2005). The Court also denied cert to one criminal defendant appealing from an adverse state supreme court decision involving crime-scene statements to responding police, Hembertt v. Nebraska. See State v. Hembertt, 696 N.W.2d 473 (Neb. 2005).

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Friedman psotscript: Hembertt, involved a woman running outside of a house as police arrived, crying and saying , "[H]e's inside. He's upstairs." This appears to be the type of case that the Court had in mind when it noted that some statements made to police at the scene are non-testimonial because within the emergency doctrine. To this case, we might also add
Foley v. Massachusetts, denying cert in Commonwealth v. Foley, 833 N.E.2d 130 (Mass. 2005), a companion case to Gonsalves involving responses to the question "[W]here is he?" and to an inquiry about the need for medical care. In addition, the issue had not been properly preserved in Foley, as in Greene v. Connecticut, denying cert in State v. Greene, 874 A.2d 750 (Ct. 2005).

An interesting sidelight on Crawford and Craig

In its decision today in United States v. Gonzalez-Lopez, the Supreme Court, per Justice Scalia, has an interesting discussion in passing of Crawford with an intriguing citation to his dissent in Maryland v. Craig, 497 U.S. 836 (1990), which allowed children to give testimony outside the presence of the accused in some circumstances. The Court holds that the right to have counsel of one's choice is violated without the need to show prejudice. In doing so, it refuses to follow the following logic: The right is meant to ensure a fair trial, and therefore unless a fair trial was impaired there is no violation. The Court says:

It is true enough that the purpose of the rights set forth in that Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair. What the Government urges upon us here is what was urged upon us (successfully, at one time, see Ohio v. Roberts, 448 U. S. 56 (1980)) with regard to the Sixth Amendment's right of confrontation--a line of reasoning that 'abstracts from the right to its purposes, and then eliminates the right.' Maryland v. Craig, 497 U. S. 836, 862 (1990) (SCALIA, J., dissenting). Since, it was argued, the purpose of the Confrontation Clause was to ensure the reliability of evidence, so long as the testimonial hearsay bore 'indicia of reliability,' the Confrontation Clause was not violated. See Roberts, supra, at 65-66. We rejected that argument (and our prior cases that had accepted it) in Crawford v. Washington, 541 U. S. 36 (2004), saying that the Confrontation Clause 'commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.' Id., at 61.

So also with the Sixth Amendment right to counsel of choice. It commands, not that a trial be fair, but that a particular guarantee of fairness be provided-- to wit, that the accused be defended by the counsel he believes to be best. . . .

The discussion is significant for Confrontation Clause analysis for at least two reasons.

First, it offers a key to the intellectual foundations behind Crawford. Scalia indicates that an unrestrained functional approach -- determine the purpose of the rule, and then simply decide on a case- by-case basis whatresult would support that purpose -- is unacceptable in this context. He is operating more categorically, but assessment of the purpose of the doctirne is essential in determining what the critical categories are.

Second, Scalia was able to take a pot shot at Craig on behalf of a majority of the Court -- the four more liberal members of the Court and himself. Scalia dissented bitterly in Craig, and while Crawford untouched, its categorical nature certainly had more affinity with Scalia's dissent in Craig than with Justice O'Connor's opinion for the majority. Gonzalez-Lopez (a return to the win column for Jeff Fisher, by the way) provides Scalia with a little more ammunition for oerruling Craig in light of later developments.

Hammon and Davis decided

The Supreme Court decided Hammon v. Indiana and Davis v. Washington today, in a consolidated opinion written for the Court by Justice Scalia; Justice Thomas wrote a separate opinion. Hammon won 8-1 and Davis lost 9-0. You may see the syllabus and the opinions by clicking here. I'm obviosuly delighted by the victory in Hammon (the case I argued) and very disappointed by the result in Davis. Commentary on the decisions by several people, including me, may be found at www.scotusblog.com/ . For today, I will probably not comment further here or there (we've just started a vacation, I got very little sleep last night, and I am going to take a nap!), but your comments are more than welcome, and I'll join in later.

Supreme Court to decide retroactivity of Crawford

The Supreme Court granted cert today in Whorton v. Bockting, No. 05-595, thus agreeing to review the decision of the Ninth Circuit that Crawford applies retroactively to habeas cases. In one sense, this is utterly unsurprising, because the conflict between the Ninth Circuit, on the one hand, and other circuits is very clear. But the Court conferred on the case in January, issued no decision, and then held it without another conference until last Thursday. I had thought maybe the Court was holding the case because it thought the decisions in Davis and Hammon might bear on it, but if that were so one would not expect a decision now. So what's up? An explanation, which seems plausible, offered to me by one knowledgeable Corut-watcher is that there were four but not five votes for summary reversal, and the Court was waiting to see whether the new justice would make five. When the answer was no, the Court had to grant cert.

As I understand it, it is possible the Court may decide the case under a threshold issue, not specific to the Confrontation Clause, that AEDPA severely restricts the retroactive application of Supreme Court decisions in habeas cases.

Comments on any aspect of this case?

Later-arising evidence and adequacy of the opportunity for cross

Crawford, quite properly, gives prosecutors incentive to take the testimony of witnesses before trial, under oath and subject to confrontation, in case the witness is unavailable at the time of trial. It appears to me that prosecutors should do so far more often than they do now and that procedural rules making it difficult to hold such a pretrial examination should be amended. But pretrial examinations inevitably raise the question of whether the opportunity for cross-examination was adequate. One problem is whether counsel had adequate time to prepare. Another, to some extent the other side of the same coin, is whether the earlier opportunity should be deemed inadequate because some information that might have been used in cross and that is available at trial was not available at the time of the earlier proceeding.

In People v. Jurado, 2006 WL 870936, a capital case decided yesterday, the California Supreme Court weighed in. There, the prosecution had taken the "conditional examination" – basically, as I understand it, a deposition held for purposes of preserving testimony – of a key witness, who became unavailable by the time of trial. The prosecution offered the prior examination over the objection that the opportunity for cross was inadequate because the witness had subsequently made an important statement that would have been valuable in cross-examination. The state supreme court rejected this argument, pronouncing flatly, "Absent wrongful failure to timely disclose by the prosecution, a defendant's subsequent discovery of material that might have proved useful in cross-examination is not grounds for excluding otherwise admissible prior testimony at trial."

This issue is a difficult one, posing the question of what is the baseline against which to measure adequacy of the opportunity for cross. On the one hand, it appears that if the trial been held at the time of the prior examination there would have been no basis to contend that the opportunity for cross was inadequate; furthermore, later-arising evidence, such as a new statement by the witness, would not likely require a new trial. On the other hand, if the witness had testified at trial – which is when we expect most witnesses to testify – then the defense would have had the benefit of cross-examining on the basis of the later statement. It may be that the accused could still impeach the witness effectively, even without the witness being present for cross, but it is doubtful that this would eliminate altogether the differential between earlier and later cross.

I am inclined to think that the later time – the time of the trial – is the more appropriate baseline, and that the court should consider how serious is the lost opportunity to cross-examine on the basis of the later-received evidence. This would leave matters rather indeterminate in this area, but that might be better than the broad decision by the California Supreme Court.

Transcripts of Arguments in Davis and Hammon

The transcripts of the arguments in Davis and Hammon are now available. You can get the Davis transcript by clicking here, and the Hammon transcript by clicking here. I'm sure every stammer of mine reported in the transcript is accurate, but there are two words reported inaccurately in the Hammon transcript that I will note here, for whatever it might be worth. On p. 3, line 12, in my very first sentence, it has me using hte word "similar" when I said "simple". And on p. 61, line 18, right in the middle of my peroration it has "abated" when I said "evaded".

Report on the Hammon and Davis arguments

Davis and Hammon were argued on Monday, and now we wait for the decisions.

Robert H. Jackson once wrote, “[A]s Solicitor General, I made three arguments in every case. First came the one I had planned – as I thought, logical, coherent, complete. Second was the one actually presented – interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night…” Advocacy Before the Supreme Court: Suggestions for Effective Case Presentations, 37 A.B.A. J. 801, 803 (1951). I think the main difference between Justice Jackson and me is that my too-late thoughts wake me up early in the morning rather than keeping me up late at night.

When the transcripts of the arguments become available, I will post them on the blog. Meanwhile, readers can find accounts in the press, and I offer below the observations recorded that night, at my request, by my 13-year-old daughter, who sat through the full arguments in both cases, two hours in all.

Hammon v. Indiana case
Supreme Court of USA
March 20, 2006

Rebecca’s Supreme Court Decoration Notes

Ceiling Notes

• 25 red boxes on ceiling.
• 4 flowers in each box (flowers weren’t always in the same pattern)
• 100 total flowers in red boxes
• 84 little white boxes on ceiling
• 40 long white flowers in 20 blue boxes on ceiling
• Blue squares w/ flowers in each of 4 corners
• 6 lights in blue boxes on ceiling
• 30 little blue boxes with white flowers (not counting corners or lights) in total

Other Notes

• In mural above justices, there were 30 people total
• Facing towards front of court room on left, the mural has only 15 people in total
• 24 pillars total

Reply Briefs in Davis and Hammon

Yesterday was the second anniversary of Crawford, and to celebrate I filed my reply brief in Hammon, which you can get by clicking here. Jeff Fisher filed his reply brief in Davis last week, and you can get it by clicking here.

The cases are now set for argument on Monday, March 20.

A Personal Confrontation Bibliography

Areader has asked for a listing of my writings on confrontaiton. Here are citations. I will try to add in links in the near future.

Is Barking Up the Wrong Tree Assertive Conduct? and other contributions to an electronic symposium published in 16 Mississippi Coll. L. Rev. 1 (1995).

Prior Statements of a Witness: A Nettlesome Corner of the Hearsay Thicket, 1995 Sup. Ct. Rev. 277.

Confrontation Rights of Criminal Defendants, J. F. Nijboer & J. M. Reijntjes, Proceedings of the First World Conference on New Trends in Criminal Investigation and Evidence, 533-41 (1997).

Confrontation and the Definition of Chutzpa, 31 Israel L. Rev. 506 (1997).

Anchors and Flotsam, Book Review of Mirjan Damaška, Evidence Law Adrift, 107 Yale L. J. 1921 (1998).

Confrontation: The Search for Basic Principles, 86 Georgetown L.J. 1011 (1998).

Truth and Its Rivals in the Law of Hearsay and Confrontation, 49 Hastings L.J. 545 (1998).

Thoughts from Across the Water on Hearsay and Confrontation, Oct. 1998 Crim. L. Rev. 687.

Lilly v. Virginia: A Chance to Reconceptualize the Confrontation Right, AALS Section on Evidence Newsletter (Spring 1999), at 5.

Confrontation Confronted (with Margaret A. Berger and Steven R. Shapiro), an adaptation of the amicus curiae brief submitted to the U.S. Supreme Court on behalf of the American Civil Liberties Union in Lilly v. Virginia (No. 98-5881), 42.3 Law Quadrangle Notes 90 (Fall/Winter 1999).

The Suggestibility of Children: Scientific Research and Legal Implications (with Stephen J. Ceci), 86 Cornell L. Rev. 1 ( 2000)

Lilly v. Virginia: Glimmers of Hope for the Confrontation Clause?, International Commentary on Evidence http://www.law.qub.ac.uk/ice (July 10, 2000)

"E" is for Eclectic: Multiple Perspectives on Evidence, 87 University of Virginia L. Rev. 2029 (2001).

The Conundrum of Children, Confrontation, and Hearsay, 65 Law and Contemporary Problems 243 (2002).

Dial-In Testimony (with Bridget McCormack), 150 University of Pennsylvania L. Rev. 1171 (2002).

No Link: the Jury and the Origins of Confrontation Right and the Hearsay Rule, in John W. Cairns and Grant McLeod (eds.), The Dearest Birth Right of the People of England: The Jury in the History of the Common Law, 93, Hart Publishing Ltd. (2002).

Remote Testimony, 35 Michigan J. of Law Reform 695 (2002).

Crawford v. Washington, AALS Section on Evidence Newsletter (Fall 2003), at 2.

Confrontation as a Hot Topic: The Virtues of Going Back to Square One, 21 Quinnipiac L. Rev. 753 (2003).

‘Face to face’: Rediscovering the right to confront prosecution witnesses, 8 Int’l J. Ev. & Proof 1 (2003).

Minimizing the Jury Over-Valuation Concern, 2003 Mich. St. DCL L. Rev. 967.

Adjusting to Crawford: High Court Decision Restores Confrontation Clause Protection, 19 Crim. J. No. 2, p. 4 (2004).

The Crawford Transformation, Section on Evidence Newsletter (Spring/Summer 2004), at 2.

The Confrontation Clause Re-Rooted and Transformed, 2003-2004 Cato Supreme Court Review 439 (2004).

Crawford Surprises: Mostly Unpleasant, 20 Crim. J. No. 2, p. 36 (2005 (symposium issue).

Grappling with the Meaning of “Testimonial”, 71 Brooklyn L. Rev. 241 (2005).

State-side briefs in Davis and Hammon

The state-side briefs in Davis and Hammon were filed on Thursday, February 2. To look at PDF copies of each brief, click below.

1. Brief of the respondent State of Washington, in Davis v. Washington.

2. Brief of the respondent State of Indiana, in Hammon v. Indiana.

3. Amicus brief of the United States, in Davis.

4. Amicus brief of the United States, in Hammon.

5. Amicus brief of 27 states, in both cases.

6. Amicus brief of Cook County, Illinois, in both cases.

7. Amicus brief of Wayne County, Michigan, in Hammon.

8. Amicus brief of the National District Attorneys Association, in both cases.

9. Amicus brief of the National Network to End Domestic Violence and 56 other organizaitons (and one individual) devoted to remedying and addressing domestic violence, in both cases.

10. Amicus brief of the National Association of Counsel for Children, in both cases.

Reply briefs are due March 9.

Crawford and Bruton -- any relation?

I've gotten a couple of inquiries tonight -- and some others before -- about the relation of Crawford to Bruton. It seems to me that the two cases address issues along different dimensions. The question addressed by Crawford is when introduction of an out-of-court statement would violate the accused's confrontation rights. The Bruton problem, at least in its classic form, arises when there are co-defendants and introduction of a confession by one defendant would violate the confrontation rights of the other defendant but not those of the declarant. Bruton, in other words, assumes the answers to the substantive confrontation questions -- OK against one defendant, a violation against the other -- and then addresses the question of how to resolve that situation. Thus, it seems to me that Crawford and Bruton have very little to do with one another, except that Bruton problems are more likely to arise under Crawford than under the prior regime, because confrontation problems are recognized more often.

I am not particularly confident on this because I don't know a lot about Bruton. I'd welcome comments from anybody who has any insights or information to offer on this question. Please identify yourself!

The Not-for-the-Truth End Run

The recent decisions of the Second Circuit in Martha Stewart’s case, United States v. Stewart, 2006 WL 27583, and of the First Circuit in United States v. Walter, 2006 WL 51398, may portend a disturbing new trend – to evade the confrontation right simply by holding that the statement in question was admitted for some proposition other than the truth of what it asserted. There is no doubt that, even though a statement is testimonial in nature, it may, in an appropriate case, be admitted for some proposition other than the truth of what it asserts without raising a Confrontation Clause issue; Crawford holds this explicitly, 541 U.S. 36 at 59 n. 9, reaffirming Tennessee v. Street, 479 US 409. But these recent cases highlight the dangers created by this doctrine.

In Stewart and Walter, from what I gather from an exchange of messages with defense counsel (and I would be glad to lear any information bearing on the point), the not-for-the-truth theories were, at least for the most part, not the ones on which the statements were actually admitted; rather, they appear to have been creations of the appellate courts. This is not an acceptable result. If, in responding to a post-conviction motion or appeal raising a confrontation issue, the prosecution wants to claim the not-for-the-truth end run, then it seems to me the court must first make sure that in fact the statement was not offered for the truth. It seems that something like this set of conditions should be rpescribed: (1) Assuming the defense made a confrontation objection, the prosecution must have asserted the alternative theory of admission. (2) The trial judge must have offered to give a limiting instruction. (3) The prosecution must have argued to the jury, if at all, on the basis of the alternative theory and not on the basis that the facts are as asserted in the statement because that is what the statement asserts. (4) Unless some other, non-testimonial statement by the declarant is also admitted, the prosecution must not have tried to support the declarant’s credibility. Only if these conditions are satisfied should the court conclude that the statement was genuinely admitted for a purpose other than the truth of what it asserted. I doubt that these conditions were satisfied in either Stewart or Walter.

Even if these conditions are satisfied, that does not end the problem. In some settings at least, it is relatively easy for the prosecution, or for a court eager to aid the prosecution, to come up with some material proposition other than the truth of the matter asserted that the statement helps prove. The court can then do an end run around the Confrontation Clause, ruling that the statement is admissible on this alternative basis rather than for the truth of the matter asserted. But if the statement is powerful enough, the jury will in all likelihood consider it for the truth of what it asserts, notwithstanding an instruction. Indeed, the prosecution may have devised that alternative theory in hopes that the jury would do precisely that. Say witness W makes a statement to a police officer accusing defendant D of a crime – and if you think any other conditions are necessary for the statement to be characterized as testimonial (I don’t) assume those conditions as well. So then the prosecution says, "Oh no, we’re not offering this on the ground that because W made the statement it makes those facts more probably true. Perish the thought. We’re just offering it to dispel any concerns the jury might have that D was arrested as a result of police animus." And then assume the prosecution adheres rigidly to that constraint in argument. This strikes me as a transparent evasion of the confrontation right. The value of the evidence to prove the proposition for which it is supposedly offered is minimal, but it will be very tempting for the jury to consider the statement for its truth, the instruction notwithstanding.

The problem has particular bite because, in general, there are not constitutional restraints preventing the use of evidence to prove a given proposition on the grounds that the need for proving the proposition is minimal. Given the Street rule, therefore, the path seems open to courts and prosecutors to devise alternative propositions for which a statement may be offered. But because in this setting such an alternative path to admissibility may be an end run around a constitutional right, it seems to me the Constitution must come into play. At a minimum, when a prosecutor offers a testimonial statement on grounds other than the truth of the matter asserted, the Confrontation Clause should be deemed to require that the court ask the following questions: (1) Is it likely that, even with an instruction, the jury would use the statement for the truth of what it asserts? (2) Is admission of the statement necessary on some alternative basis to correct a misimpression that otherwise would be left by the accused? (See my prior post on "Opening the Door".) (3) Does the prosecution genuinely have some other substantial need for the statement on the alternative ground of admission, taking into account other alternatives (and a stipulation, if the defense offers one)? What to do with the answers to those questions may be a rather complex problem. As an initial crack, I would say that the statement may be admitted only if (A) the answer to (2) is yes, or (B) the answer to (1) is no and the answer to (3) is yes.

I don’t claim any confidence that this is an optimal result, and I would be curious what other solutions readers have to offer. I am pessimistic for a couple of reasons. The use of prior bad acts by prosecutors supposedly to prove propositions other than the propensity of the accused to commit the crime – knowledge, motive, etc., etc. – indicates that many courts will tend to be receptive to prosecutors’ arguments that they really need to introduce evidence on some alternative ground (even though the forbidden ground is what will do them the most good). And the post-Crawford history suggests that many courts will tend to bend doctrine in whatever way seems available to secure the admissibility of evidence, notwithstanding an assertion of the confrontation right. I do believe that where crisp rules and clear-cut procedures can be enunciated they may confine the courts. That should make the aspect of the problem represented by Stewart and Walter reasonably tractable. But this other aspect of the problem – what to do if the prosecution adheres to the form of offering the statement on a ground other than the truth of the matter asserted – is harder to solve.

I have, by the way, previously commented on the not-for-the-truth end run in a particular context, when the statement is offered supposedly in support of an expert opinion. Most recently, I did so in a post commenting on the decision of the New York Court of Appeals in People v. Goldstein, a much more satisfactory opinion in this realm than either Stewart or Walter.

Arguments set for March 20 in Davis and Hammon

The Supreme Court has scheduled arguments in Davis v. Washington and Hammon v. Indiana for March 20 -- Davis first and Hammon immediately after.

By the way, my brief in Hammon is now posted on the blog in PDF form. Sorry for any inconvenience to those who couldn't open theother version.

R. v. Brasier -- a classic case from 1779

I have been commenting on very recent cases, but here is R v. Brasier, 1 Leach 199, 168 E.R. 202, a case from 1779 that has been much cited over the years. It bears on the treatment not only of fresh accusations but also of statements made by children and of accusations made to private care-givers. The report is as it stands in the English Reports, later annotations and all.

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(An infant witness under seven years of age, if apprized of the nature of an oath, must be sworn; for no testimony is legal except it be giyen upon oath.)
[S.C. 1 East, P.C. 443; Bull. N. P. 293, Edit. 1790. Referred to, R. v. Guttridge, 1840, 9 C. & P. 471; R. v. Paul, 1890, 25 Q.B.D 202; R. v. Lillyman, [1896] 2 Q.B. 167.]
This was a case reserved for the opinion of the Twelve Judges, by Mr. Justice Buller, at the Spring Assizes for Reading, in the year 1779, on the trial of an indictment [1-Leach-200] for an assault with intent to commit a rape on the body of Mary Harris, an infant under seven years of age.
The case against the prisoner was proved by the mother of the child, and by another woman who lodged with her, to whom the child, immediately on her coming home, told all the circumstances of the injury which had been done to her: and there was no fact or circumstance to confirm the information which the child had given, except that the prisoner lodged at the very place which she had described, and that she had received some hurt, and that she, on seeing him the next day, had declared that he was the man; but she was not sworn or produced as a witness on the trial.
The prisoner was convicted; but the judgment was respited, on a doubt, created by a marginal note to a case in Dyer's Reports (Dyer, 303, b, in marg; 1 Hale, 302, 634; 2 Hale, 279; 11 Mod. 228; 1 Atkins, 29; Foster, 70; 2 Hawk. 612; Gilb. L. E. 144); for these notes having been made by Lord Chief-Justice Treby, are considered of great weight and authority; and it was submitted to the Twelve Judges, Whether this evidence was sufficient in point of law?
The Judges assembled at Serjeants'-Inn Hall 29 April 1779, were unanimously of opinion, That no testimony whatever can be legally received except upon oath; and that an infant, though under the age of seven years, may be sworn in a criminal prosecution, provided such infant appears, on strict examination by the Court, to possess a sufficient knowledge of the nature and consequences of an oath (see White's case, post, 430, Old Bailey October Session, 1786), for there is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court; but if they are found incompetent to take an oath their testimony cannot be received. The Judges determined, therefore, that the evidence of the information which the infant had, given to her mother and the other witness, ought not to have been received. The prisoner received a pardon (see the case of Rex v Travers, 2 Strange, 700).

United States v. Hadley: Not My Views on Fresh Accusations!

I must resist the temptation to comment here on every interesting Crawford case that comes down, and while Hammon and Davis are pending I will particularly refrain in general from commenting on cases presenting the type of issue raised there, the applicability of the Confrontation Clause to fresh accusations. But because the opinion of Hon. Gerald E. Rosen, a district judge sitting by designation on the Sixth Circuit, in United States v. Hadley specifically cites my work and contends that the result he reaches (the issue is not addressed by the other members of the panel) is "fully consistent" with my post-Crawford writings, I will say this: Judge Rosen's opinion does not at all reflect my views, and I do not think it reflects my writings, either. He cites my article, The Confrontation Clause Re-Rooted and Transformed, 2004 Supreme Court Review 439, 459-60 (available from Westlaw here or for purchase from the Cato Institute by clicking here). It is, frankly, hard for me to understand how one could read the pages he cites, or the carryover to the next page, and reach the conclusion about my views that he does. To whatever extent the confusion may be attributable to lack of clarity on my part, I hope it will be relieved by my brief in Hammon.

The Expertise End Run and People v. Goldstein

The New York Court of Appeals, the highest court in the state, issued a brave opinion on Deember 20 in People v. Goldstein, a notorious case in which the defendant pushed a woman he did not know to her death in front of an approaching subway train. Goldstein raised a defense of insanity, and in response the state presented the testimony of a forensic psychiatrist, Angela Hegarty, who testified that in her opinion Goldstein was sane at the time. Hegarty relied in substantial part on statements made to her by others, and the trial court admitted these statements.

The Court of Appeals, per Judge Robert Smith, held that New York evidence law did not prevent admission of Hegarty's opinion, notwithstanding the fact that it was based in part on out-of-court statements. Pointing to the 2000 amendment to Fed. R. Evid. 703, the court reserved an issue not presented by the parties, whether New York evidence law required exclusuion of the statements themselves. All this was preliminary, because the court held that the Confrontation Clause required exclusion of those statements.

The court first rejected the argument that the statements should be deemed to have been offered not for the truth of what they asserted but only in support of Hegarty's opinion. The court pointed out that the statements provided no support for that opinion unless they were true. In this context (not entirely clear how broad a context the court meant), the court said, the distinction between offering a statement for its truth and offering it to support an expert's opinion is "not meaningful." The court thus rejected the path of least resistance, down which others have gone in accepting the distinction; see my prior posting on the subject. The court is clearly correct that in this case the distinction is an empty one. And perhaps there should indeed be a per se rule that when the statement supoprts the esxpert's opinion only if true then the statement should be deemed to be offered for the truth for Confrontation Clause purposes. Add one more to the list of Crawford-related issues the Supreme Court will have to resolve.

The court also held, without apparent difficulty, that the statement was testimonial. Hegarty was hired by the state to testify for the People, and the court infers that the interviewees should reasonably have understood that she was involved in trial preparation and that their statements were likely to be used prosecutorially. The court properly and quickly rejected arguments that the statement could not be testimonial becausei t was informal and because Hegarty was not a government official.

The only issue the court seemed to find problematic was the question of harmless error. the cour tc oncluded that the error was not harmless, and reversed the conviction. This issue, and only this one, led to the only dissent, by a single judge, Susan Phillips Read.

Leaving aside the harmless error portion, which I have not examined carefully and on which I have no view, the majority opinion is solid, persuasive, and terse; the last point is worth emphasis, even apart from style, because it treats isues that should not be difficult in a clear and straightforward way. And yet it is sensitive to the human cost of sending the matter back for another trial. I would like to ascribe the quality of the opinion to the fact that I worked for Judge Smith in practice a quarter century ago, but I don't see anything in the opinion to support this hypothesis.

Petitioner-side briefs filed in Hammon and Davis

The briefs for the petitioners and supporting amici in Hammon v. Indiana and Davis v. Washington were filed on December 22. You can see the brief I filed for the petitioner in Hammon by clicking here . For the petitioner's brief in Davis, filed by Jeff Fisher, click here. For the amicus brief filed in both cases by the American Civil Liberties Union and its Indiana and Washington affiliates, click here. For the amicus brief in Hammon of the National Association of Criminal Defense Lawyers and the Public Defender Service for the District of Columbia, click here, and for the amicus brief filed in Davis by the same two organizations and also the Washington Association of Criminal Defense Lawyers, click here.

Cert granted in Davis and Hammon

The Supreme Court today granted certiorari in both Davis v. Washington, No. 05-5224, and Hammon v. Indiana, No. 05-5705. Davis primarily involves accusatory statements made in a 911 call, while Hammon involves accusatory statements made to a responding officer. In each case the state supreme court held that the statements at issue were not testimonial, and in each case I believe this was erroneous. Jeff Fisher, who won Crawford, represents Davis, and I represent Hammon. The arguments will be in tandem, probably in March. The cases give the Supreme Court a chance to ensure that Crawford will be properly applied throughout the nation. Given my involvement in one of the cases, I will be abstemious in comments on the blog. But in case anybody is in doubt, I'm pretty excited.