Forfeiture: The Standard of Proof and the Reflexive Case

Here's a post I meant to put up several weeks ago:

The Washington Supreme Court has joined the minority of courts that have adopted an elevated standard of proof that a defendant engaged in the wrongful conduct that rendered a potential witness unavailable. In State v. Mason, 2007 WL 2051541 (Wash. Jul. 19, 2007), the court held that “in deciding whether to apply the doctrine of forfeiture by wrongdoing, the trial court must decide whether the witness has been made unavailable by the wrongdoing of the accused based upon evidence that is clear, cogent, and convincing.” The court held, with apparent justification, that the standard was met in the case before it. This was a murder case, and the statements at issue, which the court held were testimonial, were accusations by the victim of a prior assault on the victim. The court appears not to have been troubled by the fact that the accusations in question were made before the crime in question – the murder – was committed.

I think the Washington court is right that an elevated standard should apply in determining forfeiture, but the betting has to be that if the Supreme Court ever resolves the question as a matter of federal constitutional law it will adopt a preponderance standard; it certainly gave a big hint in that direction in Davis v. Washington, 126 S.Ct. 2266 (2006). If it does so, though, state courts will remain free to apply elevated standards as a matter of their own constitutional law.

In any event, I believe this issue is less important than might first appear. A court inclined to let evidence in on the basis of forfeiture will most likely be willing to recite the "clear, cogent and convincing" standard if it has to. I doubt this language will help very many defendants.

More important, it seems to me, is the question of what duty to mitigate the prosecution has when it seeks to invoke the forfeiture doctrine. Sometimes, when the wrongdoing that rendered the witness unavailable is murder, the prosecution has an opportunity between the time of the fatal blow and the death of the victim to take the victim's deposition; most often, as in Mason's case, that is not so. And, when the contention is that the accused forfeited the right by intimidating the witness, a slew of issues arises concerning what steps, if any, the prosecutor or court should take to ascertain how much of the confrontation right can be preserved. I have commented on some of these issues in prior posts -- for example, Forfeiture, the Prosecutorial Duty to Mitigate, and Rae Carruth.

In Mason, by the way, four justices refused to sign the majority opinion. The principal reason was that they believed the court should not adopt what I have called a doctrine of reflexive forfeiture – that is, applying forfeiture doctrine when the act that purportedly rendered the witness unavailable is the same as the act with which the defendant is tried. (Two judges dissented on this basis; the other two concurred because they believed the error was harmless.) That is, the accused was charged with murder, and the act that allegedly rendered the witness (the alleged murder victim) unavailable was the act of murdering him. These four justices regarded application of the doctrine in this circumstance as a violation of the presumption of innocence and the principle requiring proof of guilt beyond a reasonable doubt. In my view, this is simply a logical error. Because I've expressed this view often before, see, e.g., Forfeiture and dying declarations, I'll address it very briefly here.

In a case of this sort, two basic factual determinations must be made, and usually by two separate decision-makers. The jury must decide whether the defendant is guilty beyond a reasonable doubt of the crime charged. In the course of the trial the court must decide whether the criteria for the admission of evidence are met. If, say, the accused claims that admission of an out-of-court testimonial statement by a witness to a robbery would violate his confrontation right, but in fact the reason the accused has not had an opportunity to cross-examine the witness is that he murdered her, it seems obvious to me that the accused has forfeited the confrontation right. It seems equally obvious that it is the court that must determine whether the facts supporting a conclusion of forfeiture are true to the requisite degree of probability. The situation does not change when the act that purportedly rendered the witness unavailable is the crime being tried. If in fact the accused’s wrongful conduct is what kept the witness from testifying in court, then it would be abhorrent to keep that testimony out on the basis that the accused never had an opportunity to cross-examine. There are still two fact-finding functions that are separate. The jury must determine guilt; to do so it must begin with the presumption of innocence, it can only use the evidence allowed by the court, and it can fund guilt only if it is persuaded beyond a reasonable doubt. The court has to determine whether the conditions for forfeiture are made out, and if it does it admits the evidence – but of course it does not say, “Jurors, the reason you’re hearing this evidence is that I’ve determined that the accused murdered this potential witness” – just as in a conspiracy case it does not say, “Jurors, the reason you’re hearing this statement is that I’ve concluded that it was made during the course of and in furtherance of a conspiracy of which both the declarant and the accused were members. Now it’s up to you to determine whether they were conspirators for the purpose of determining guilt.” In short, I believe this resistance to reflexive forfeiture is a red herring.

Cert petition by Missouri on the lab report issue

One of the most significant outstanding Crawford-related issues is whether lab reports and other reports routinely prepared as part of the prosecutorial process should be deemed testimonial. If such a report is considered testimonial -- as it should be -- then it may not be admitted against the accused unless the author of the report is subjected to cross-examination. The lower courts have sharply divided on the issue, but so far the Supreme Court has not taken an opportunity to resolve it. But that may soon change, because now a state, rather than a defendant, has asked the Court to take the matter up. You can read the petition for certiorari (passed on to me by Jeff Fisher) in Missouri v. March by clicking here.

Can testimony be preserved before arrest?

It often happens that for some time after commission of a crime, especially a homicide, a suspect is not apprehended, yet the state anticipates that eventually there may be an arrest and a trial. Now suppose that a prosecutor realizes that a key witness may not be available by the time of a trial. May the prosecution preserve the witness's testimony?

Let's divide the problem into three. In the first variation, the ultimate defendant has been identified as the principal suspect, but he has not yet been apprehended. I've speculated about the possibility that counsel could be appointed for the suspect, some form of notice be given to the suspect, and a deposition held. That, it seems to me, gives an adequate opportunity for confrontation, at least if the notice given was reasonable under the circumstances; perhaps the accused would have had to emerge from hiding to confront the witness and to consult with counsel, but he did not have a right to remain in hiding. If there isn't notice of the deposition, but the eventual accused knows that he is being sought, is that enough to constitute a forfeiture of whatever aspects of the confrontation right were not protected by the deposition procedure? I don't know.

In variation two, the ultimate defendant is one of several identified suspects shortly after the crime, and the authorities don't yet have enough evidence to arrest any of them. In this variation, it seems the solution is to give notice to all of them, to offer counsel to each of them, and to appoint counsel for any that do not appear.

The toughest variation arises when the authorities have not yet identified a suspect. May they still preserve the testimony by giving some kind of publication notice, appointing counsel for the ultimate defendant, and taking a deposition? That is considerably more difficult, but the matter is still worth considering. In some cases, and on some issues, counsel may be able to conduct suitable cross-examination even without knowing who his client is. But is this enough?

I've just stumbled across People v. Wilkey, 2004 WL 576659 (Mich. Apps. 2004), which highlights some of the issues with respect to pre-arrest preservation of testimony. This was a homicide committed in the course of a break-in. The victim's widow, who was present at the scene, was 82 years old. Wilkey was one of several suspects from the start, but no arrest was made for some time. So the state held a deposition of the widow. A lawyer, who later became a judge, was appointed to represent the interests of any future defendant. The widow's testimony was quite detailed about the event. She also gave some physical description of the perpetrator, who was wearing a mask. According to the appellate court, the defense lawyer, "in a very respectful manner, asked questions of [the widow] to show that she was of sound mind, e.g., what is the date, and she answered appropriately." At the close of her tesitmony, counsel offered the opinion that she was "not easily confused."

The widow died before Wilkey's trial, and the prosecution introduced the deposition transcript. Wilkey was convicted and the appellate court affirmed. Its decision came fifteen days after Crawford, but the court showed no recognition of Crawford, and held that the deposition was admissible under Michigan's residual exception to the hearsay rule. The court did take into account Wilkey's argument that the appointed lawyer had no motive to develop evidence to support Wilkey's theory that the perpetrator was one of two other men identified by Wilkey. The court acknowledged that "more precise questions could have been asked . . . if counsel was aware of the physical characteristics of defendant," but concluded that the lawyer had the tools to develop evidence about the perpetrator's physical characteristics., and did so.

I think the appointment of counsel in this case before the arrest or even definite identification of the accused is noteworthy. Courts ought to encourage prosecutors to preserve testimony where possible. But in this case, the court could have done better. This was a case fitting within the second variation described above -- Wilkey was one of several suspects identified at the time of the deposition. He, along with the others, should have been given notice before the deposition, and he should have had an opportunity fo separate representation, so his lawyer could have asked the widow questions that might have deflected suspicion away from himself. In a system that guarantees the rights of effective assistance of counsel and confrontation of adverse witnesses, it is not enough to be assured that a lawyer was appointed who had a disinterested opportunity to explore the facts.

Illinois Supreme Court deems statements to clinician and social worker to be testimonial

The Illinois Supreme Court issued a significant decision today in People v. Stechly (and thanks to my former student Brian Koch for pointing it out to me). It holds that a child's statement of abuse made to her mother was not testimonial, but that statements made to a clinical specialist in charge of a hospital child-abuse team and to a social worker at the child's school were testimonial -- and that the error in mischaracterizing these statements was reversible. The Court adopts the view of testimonial articulated in United States v. Cromer, 389 F.3d 662 (6th Cir. 2004). That's good.

The court also adopts a narrow view of forfeiture outside the context of murder, holding that intent (in the sense of purpose, not of anticipation of the natural consequences of one's actions) to procure the witness's absence is necessary for forfeiture. The court distinguishes murder cases -- without holding definitively that intent is not required in those cases -- on the ground that in a murder case the perpetrator has "absolute certainty" that the murdered witness will be unavailable to testify. Well, I don't see how that distinguishes murder -- it's at most just a very strong anticipation of unavailability. And in fact, the perpetrator doesn't have that certainty in most of the cases where the issue arises. The typical case is one in which the defendant (by hypothesis) cast the fatal blow, and the victim makes a statement afterwards; the accused can't necessarily know that the victim won't survive long enough for confrontation at least at a deposition.

Another state decides (at least partially) correctly on lab reports

The Oregon Supreme Court today decided State v. Birchfield (and thanks to Ryan Scott for calling it to my attention even before it was decided!), holding that the trial court violated the accused's right under Article I, sec. 11 of the state Constitution "to meet the witnesses face to face" when it introduced a lab report without presenting the testimony of the criminalist who prepared it or demonstrating his unavailability. The court also holds that a process giving he accused the right to subpoena the witness is no substitute for the constitutional right. The court does not reach contentions under the federal Constitution. Very nice result, crisply reached, immune from federal review, doesn't help set up a conflict for certiorari purposes. My enthusiasm is qualified because the decision leaves open the possibility that the court would say that if the criminalist is available the report can come in even absent an opportunity for confrontation. But clearly that issue is not reached in this decision.

California Supreme Court decision in People v. Cage -- commentary by Jeff fisher

The California Supreme Court issued its decision yesterday in the long-awaited case of People v. Cage. (Thanks to Paul Vinegrad for calling my attention to it.) It treats a statement by a young victim to a police officer, in the station-house and the hospital, as testimonial, and his statement to a doctor, which the court regarded as having been asked and given solely for medical purposes, as non-testimonial. The court acknowledges a conflict in reasoning with State v. Mechling, 633 S.E. 311 (W. Va. 2006), but does not purport to overrule People v. Sisavath, 118 Cal.App.4th 1396 (Cal. App. 2004). I'm sorry that I'm too rushed now with other matters to make a longer comment on the case at this time. But I've asked Jeff Fisher to expand on his initial comments, and here is what he has to say:

The California Supreme Court's opinion in Cage provides a platform to consider a very important category of post-Crawford evidence: statements to doctors and other medical personnel. It also highlights some of the confusion developing in the wake of the Davis v. Washington.

John Cage was involved in an argument and physical altercation with family members. A neighbor called the police to report the disturbance, and over one hour later a police officer found John alone in the hospital waiting room awaiting treatment for a serious cut on his face. The officer asked John to describe the incident to him. John told the officer that his mother, Lisa Cage, had cut him with a piece of glass from a table that had broken during the altercation. A doctor was present for "at least part" of that conversation and then took John back for an examination. The doctor's first question was, "what happened?" John repeated to the doctor the same thing that he had told the officer.

The California Supreme Court held that John's statement to the officer was testimonial because it was not materially distinguishable from the statement Amy Hammon gave the police in Hammon v. Indiana (decided in the same opinion as Davis v. Washington). In the more noteworthy portion of the opinion, the Court also held that the statement John made to the doctor was nontestimonial. In dealing with statements to doctors that describe criminal conduct, there are three general approaches a court might take:

(1) Statements describing criminal conduct as causing a physical condition and identifying an alleged perpetrator are testimonial. Courts, including the California Court of Appeal in an opinion that the California Supreme Court here did not call into question, have taken this approach when the doctors have examined victims as a coordinated part of a criminal investigation. See, e.g., People v. Harless, 125 Cal. App. 4th 70 (2004), rev. granted, 109 P.3d 69 (Cal.), rev. dismissed, 119 P.3d 962 (Cal. 2005) (statement to doctor "in the course of the district attorney's investigation of child abuse" testimonial); Medina v. State, 143 P.3d 471 (Nev. Oct. 5, 2006); Hernandez v. State, 946 So.2d 1270 (Fla. App. Jan. 26, 2007).

(2) Statements describing criminal conduct as causing a physical condition are not testimonial but statements identifying an alleged perpetrator are testimonial. Some courts have adopted this position in cases in which doctors were not coordinating their efforts with the police. See, e.g., State v. Slater, 908 A.2d 1097 (Conn. 2006); In re T.T., 815 N.E.2d 789 (Ill. App. 2004); State v. Bartholomew, 127 Wash. App. 1006 (2005). Some states, in fact, provide that statements identifying an alleged perpetrator to doctors do not even satisfy the medical diagnosis hearsay exception. See, e.g., Commonwealth v. DeOliveira, 849 N.E.2d 218, 224 (Mass. 2006).

(3) No statements made to doctors (at least when police are not also part of the interview) are testimonial. Some courts have adopted this position in cases, as in (2), in which doctors were not coordinating their efforts with police. See, e.g., People v. Vigil, 127 P.3d 916 (Colo. 2006); State v. Vaught, 682 N.W. 2d 284 (Neb. 2004); United States v. Peneaux, 432 F.3d 882 (8th Cir. 2005).

The California Supreme Court avoided approach (1) by stating that "[t]here is no evidence that Dr. Russell was acting in conjunction with law enforcement." This seems questionable. When the doctor asked John "what happened," he was already aware that the police were investigating whether John's injury was a result of criminal conduct. And, as the court acknowledged, California law required the doctor to report any evidence of abuse that came to light during his examination of John. But the court was unmoved, contending "[t]he mere fact that doctors must report abuse they see, suspect, or know of does not transform them into investigative agents of law enforcement," and that an investigative purpose is necessary to trigger the Confrontation Clause. It will be interesting to see how future courts deal with the "mandatory reporter" issue. If states can use such laws to gather accusatory statements and can steer witnesses to mandatory reporters without triggering the Confrontation Clause, they can go a long way toward creating systems that evade the confrontation right altogether.

Perhaps even more troubling, the California Supreme Court chose approach (3) over approach (2) for two reasons that appear illegitimate and one that Davis simply leaves unresolved. First, the court focused on the fact that the doctor's question to John was "neutral in form" and not "structured" to generate evidence. But Davis instructs that answers to "open-ended questions" are just as likely to be testimonial as answers to structured interrogation, for "it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate." 126 S. Ct. 2274 n.1. And whatever relevance may pertain to a question that is asked, it is hard to imagine a question more designed to elicit a testimonial response than "what happened?" That is the most common question asked of witnesses giving direct testimony in court.

So what about John's statement itself? The California Supreme Court's second reason for saying that the statement is nontestimonial is because it was made for the purpose of medical treatment. The court never explains, however, how the part identifying the person who allegedly cut him was necessary for medical treatment. Nor can one perceive any reason why it might have been relevant to such treatment.

Third, the California Supreme Court asserted that John's statement was nontestimonial because it was given in an "informal" setting. Davis did not dispute that formality is essential to a testimonial utterance. But all we really know on that score is that a statement to a responding police officer or 911 operator is sufficiently formal to be testimonial, while a "casual remark to an acquaintance" is not. It seems to me that answering a doctor's question "what happened" is much closer to the former than the latter. Put another way, it does not seem at all strange to say that John was bearing witness when he told the doctor what happened. But we'll have to await further word from the Supreme Court on this.

Finally, it is worth noting that the California Supreme Court explicitly rejected the view that a statement is testimonial if a reasonable declarant would have expected it to be used prosecutorially. This holding diverges from several post-Davis cases that continue to use this formulation outside of the context of "interrogations." Again, the Supreme Court will have to answer this question sooner or later.

Jessica Smith's "Emerging Issues": Links Available

Jessica Smith, a member of the faculty at the School of Government of the University of North Carolina at Chapel Hill, has given me permission to post on the blog links to her monograph, Crawford v. Wsahington: Confrontation One Year Later (2005), and to a supplement about to be published, Crawford v. Washington: Emerging Issues in Confrontation Litigation. These are intended primarily to be practical guides for North Carolina judges, but I think they will be very valuable resources for anybody dealing with Crawford issues. Posting this link does not mean that I vouch for any statement made in these documents, of course.

"A Sixth Sense About Criminal Trials"

The ABA Journal E-Report has a nice write-up on Jeff Fisher, especially emphasizing Crawford and related issues, and discussing how the textually-based arguments that Jeff has made in Crawford and other cases have appealed both to Scalia and to the Court's liberals. You can get to the article by clicking here. There is one, uh, slight factual error in reporting, which I will leave to readers to find. It won't actually be all that hard.

Deepening Conflict on Lab Reports

Yesterday, in State v. March, 2007 WL 828156, the Missouri Supreme Court joined other jurisdictions in holding that a lab report prepared for use in prosecution is testimonial. I believe this result is clearly correct, and appropriately the court did not appear to endure much angst in reaching it. The decision sharpens the conflict among the states. The Supreme Court will have to resolve this matter, and in my view the sooner the better.

A Challenge to Maryland v. Craig

Lawyers from Baker Botts in Washington, D.C., have filed a well-crafted petition for certiorari asking the Supreme Court to take another look at Maryland v. Craig, 497 U.S. 836 (1990), which allows child witnesses in certain circumstances to testify against an accused outside his presence by electronic means. The petition presents a conflict among states in interpreting Craig – some states treat potential trauma to the child as sufficient in itself to justify such a procedure; others require that the trauma threaten to impair the child’s ability to testify. More broadly, the petition asks the Court to overrule Craig.

In arguing for adoption of the testimonial approach in Crawford, Jeff Fisher as counsel for Crawford and I as a supporting amicus emphasized that to do so would not require the Court to rethink Craig; the issues were orthogonal. Similarly, in an amicus brief written a few years earlier on behalf of the ACLU in Lilly v. Virginia, 527 U.S. 116 (1999), Margaret Berger and I wrote, referring in part to Craig, “Our focus here is on when confrontation is necessary, not on what is required for confrontation.” That having been said, I think that the majority opinion in Crawford bears much more affinity to the dissent written on behalf of four justices in Craig than it does to the majority opinion in Craig. This cannot be altogether surprising: Justice Scalia wrote the majority opinion in Crawford and the dissent in Craig, and Justice O’Connor, the author of the majority opinion in Craig, was one of the two justices who did not join the majority opinion in Crawford. Not only does Craig rely heavily on Ohio v. Roberts, 448U.S. 56 (1980), which is now discarded, but the Craig majority opinion reflects a balancing approach to the confrontation right, reflective both of the Roberts era and of Justice O’Connor, while Crawford reflects a more categorical approach favored by its author.

There can be little doubt that Justice Scalia, whose Craig dissent was bitter and pungent, would like to see that decision overruled. Would he now have the votes to do so? Will the Court decide that this is the time to consider the issue? We’ll know before long.

Confrontation Milestone?

I'm still working on my posting on Whorton v. Bockting. But meanwhile, Roger Kirst of the University of Nebraska College of Law, who follows confrontation developments very closely, has sent this message, under the title Confrontation Milestone?, to the evidence professors' e-mail list, and has given me permission to post it here.

For those who follow the details of confrontation doctrine in the Supreme Court there was an interesting denial of certiorari yesterday.

The high-water mark for the Supreme Court's reliability test as a substitute for actual confrontation was New Mexico v. Earnest, 477 U.S. 648 (1986). That was a GVR in which then-Justice Rehnquist added a concurring opinion joined by three others that asserted that Lee v. Illinois had adopted the reliability theory. This was also the last confrontation case the Court decided before Justice Scalia joined the Court. On remand the New Mexico Supreme Court retreated from its earlier conclusion that it was a violation of the right of confrontation to convict on the basis of the confession of an alleged accomplice the defendant could not cross-examine; they declared the confession "reliable" and affirmed the conviction.

After an unsuccessful further petition for certiorari and an unsuccessful postconviction challenge in federal court, Earnest did nothing until Crawford was decided. At that point Earnest filed a postconviction challenge in state court (represented by Tom Sullivan, now at Arkansas-Little Rock). Eventually the state trial court ordered a new trial and the New Mexico Supreme Court affirmed in an opinion that said basically "we were right the first time and Crawford now shows the Supreme Court was in error from 1986-2004 with its reliability test." [119 P. 3d 144 (N.M. 2005)] This time the State filed the petition for certiorari, arguing that Crawford was not retroactive. [New Mexico v. Forbes, No. 05-644]

The Supreme Court was holding No. 05-644 while it heard Whorton v. Bockting. During the wait the State tried to get an untainted conviction, but the alleged accomplice would not testify.

The Court's holding last week that Crawford is not retroactive might seem to suggest at least a GVR in No. 05-644, but that did not happen. Nothing more than a denial of certiorari, meaning the case is now over.

The reliability test was only part of Roberts, so we do not need to revive the debate about when Roberts died, but the decision yesterday is a reminder of how much confrontation doctrine keeps changing.

And Phil Pucillo, of Ave Maria School of Law, now but regrettably not for long of Ann Arbor, had this to say in response (and has also given me permission to post it here):

I just glanced at the New Mexico Supreme Court's opinion. What's fascinating is that the court did not claim to be applying Crawford retroactively. Instead, it emphasized that Crawford did not even announce a new rule, a proposition that the U.S. Supreme Court squarely rejected in Bockting.

It's almost as if the U.S. Supreme Court let this one go because explaining to Mr. Earnest why he won't get a new trial after all would be too embarrassing: "Well, sir, what happened was that the New Mexico Supreme Court was absolutely correct back in 1985 when it reversed your conviction and ordered a new trial for you. But you never got that new trial because, at that time, we thought that the New Mexico Supreme Court was wrong. Well, it turns out that we were wrong, but it took us another 20 years or so to figure it out. But see, the problem now is that you can't receive the benefit of our recent change of heart, because your direct appeal concluded a long time ago. So even though the New Mexico Supreme Court's 1985 decision to grant you a new trial was right on, you're pretty much stuck with our incorrect decision saying that you can't have a new trial. Sorry aboutthat!"

A Flurry of Forfeiture Decisions

There have been three significant decisions on forfeiture within the last few weeks: U.S. v. Martinez, 2007 WL 489217 (D.C.Cir. Feb 16, 2007); State v. Jensen, 2007 WL 543053, 2007 WI 26, Wis., February 23, 2007 (No. 2004AP2481-CR.), and, just today, People v. Giles (Ca. Mar. 5, 2007). I hope to post comments on all three (and also on Whorton) within a few days.

Crawford not retroactive

I'm on vacation but Ive just found out that the Supreme Court held today in the Whorton case that Crawford isn't retroactive. No surprise -- the consequences would have been enormous, more than the Court probably wanted to deal with. I hope to post something mroe substantive about the deciswion within the next few days.

Certiorari denied in Craig

Today the Supreme Court denied the petition for certiorari I filed in Craig v. Ohio. Obviously, I am disappointed. I think the issues that the petition raised are important ones that the Court must ultimately resolve, and I hope the time will come sooner rather than later. Most narrowly, the case posed the question whether an autopsy report in a murder case is testimonial; more broadly, the question is whether a state can immunize from Confrontation Clause review a statement routinely made by government officials in anticipation of litigation by characterizing it as a business or public record. Last week, the Court turned away another autopsy case, seeking review of the Second Circuit's decision -- one I thought was atrocious -- in United States v. Feliz. And several weeks ago, the Court rejected the petition in Campbell and Pinks v. North Dakota, which could have let it resolve the broader question and which more directly posed the question of whether the Confrontation Clause can be satisfied by giving the accused the oportunity to subpoena the witness. It may be that the Court saw problems in each of these cases making it a poor vehicle for review. It may be that the Court wants the lower courts to decide more "business records" cases before addressing the area. It may be that the Court wants to let more time go by before returning to the whole Crawford area altogether. And perhaps there are other explanations as well; as a rule, the Court gives no explanation for cert denials. These denials should not be read as an endorsement of the decisions of the lower courts, which I continue to believe are plainly wrong. There are lots of Crawford-related issues that only the Supreme Court can resolve, and eventually it will do so.

Harmless Error and Confrontation

It is clear that Confrontation Clause errors are subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673 (1986). But it seems to me that there is a significant limitation on how the harmless-error inquiry may be conducted: If a testimonial statement is admitted against an accused without his having had an opportunity for confrontation, the court should not speculate that cross-examination would have been ineffective. On the contrary, the court should address the harmless-error issue by assuming that cross, if it had not been denied, would have been maximally effective.

Where prosecution testimony has been admitted in violation of the confrontation right because the accused never had an opportunity to be confronted with the witness, the reviewing court should consider the case as if that testimony had never been admitted, and declare the error harmless if it is confident beyond a reasonable doubt that even without that evidence the accused would have been found guilty. Van Arsdall, supra, 475 U.S. at 682 n.5 (describing Harrington v. California, 395 U.S. 250 (1969): “Noting that the wrongfully admitted evidence was cumulative and that the untainted proof of the defendant's guilt was overwhelming, the Court concluded that the error was harmless beyond a reasonable doubt.”). One might complain about the exercise that it involves some guesswork about what the jury would have done, but basically it is a practical and necessary judgment: “The tainted evidence is of trivial importance, and a jury that found the accused guilty with that evidence would not fail to do so without that evidence.”

But suppose that after considering the untainted evidence in this way the court cannot say with the requisite confidence that the outcome would have been the same without the tainted testimony. Then it is not appropriate for the court to say, in effect, “The error is still harmless, because if there had been an opportunity for cross-examination of that witness it would have done little or any good.” To do that would be not merely to assess what the jury likely would have done with a slightly altered body of evidence but to speculate what an absent witness would have said if he had faced the adverse questioning that the Constitution guarantees the accused. The Confrontation Clause is meant to prevent the need for speculation, by inducing the prosecution to produce the witness for confrontation.

Van Arsdall supports this interpretation. There, the accused had not been denied the confrontation right altogether; he had cross-examined the witness in question, but the trial court had erroneously prevented him from pursuing a line of questioning that might have revealed his bias; thus, the immediate error was not admitting prosecution evidence but excluding defense evidence. Extending Harrington to this situation, the Court held that the error was subject to harmless-error analysis, and so remanded to the state supreme court, perhaps with a hint that because the testimony of the witness in question was cumulative and peripheral it would be entirely proper to deem the error harmless. The Court said: “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” (emphasis added)

Thus, the reviewing court must act under the assumption that the accused gets the full “damaging potential of the cross-examination.” It is appropriate for the reviewing court to say, “Even under that assumption, the error doesn’t matter, because the most that cross could have done would have been to nullify the testimony of this witness, and the case was still overwhelming.” Possibly, but much more dubiously, it is appropriate for the court to say, “Even if the cross-examination that the accused says he would have conducted had gone entirely his way, achieving its full damaging potential by showing the witness was willing to lie in favor of the prosecution, the testimony would have had some value because even a dishonest witness could not likely have told this story if it were not true, and given that the error is harmless beyond a reasonable doubt.” But what the court should not do is say, “The error is harmless because if the accused had had an opportunity for cross-examination the answers of the witness would in all probability have been unhelpful to the accused.”

Brief in Opposition and Reply Brief in Craig v. Ohio

You can read the state's brief in opposition to the petition for certiorari in Craig v. Ohio by clicking here, and my reply brief in support of the petition by clicking here. To see my prior post describing the case, and the petition, click here. I expect we'll know by the end of the month whether the Court will take the case.

Cert denied in Campbell/Pinks

The Supreme Court denied certiorari yesterday in Campbell v. North Dakota. The primary issue presented by the petition -- whether a state may validly provide that a prior testimonial statement is admissible without the author testifying so long as the accused has the right to subpoena the author -- is a critical one that the Court will have to resolve, better sooner than later. But, for one reason or another, the Court has decided that this is not the case in which to do so.

The Accused Who Doesn't Really Want Confrontation

This posting is actually a response to a comment by Pam Metzger, which you can read under an earlier posting, Lab reports and a notice-and-demand statute -- a significant decision from Minnesota, but I’ve put enough effort into it I decided to make it a posting in itself.

I don’t think there’s anything inherently dishonest about the labels waiver and forfeiture themselves – the phenomena of waiver and of forfeiture of the confrontation both exist, and both should exist. But the labels can be applied dishonestly. I think that’s Pam’s complaint in the context of statutes that provide the confrontation right with respect to various types of government statements is lost unless the defense takes certain steps, and I think it has a good deal of force.

But I do believe a state can constitutionally provide, through a properly drafted statute, that that if the prosecution gives timely notice of its intent to introduce a statement of a particular type then the defendant must make a timely demand that the author be produced by the prosecution, or else the confrontation right is lost (call it forfeiture, waiver, abandonment, estoppel, or what you will). A requirement of writing does not strike me as unduly burdensome in the circumstances; I don’t believe there are great transaction costs, because all defense counsel needs to do is complete a one-sentence form. Indeed, it could be worked out that the prosecution has to give notice on a form, and the defendant makes the demand by returning the same form with the demand box checked off. This is not a big deal.

Pam points to another issue, with her economic analysis, that is quite interesting. I think I can summarize her point by saying that either the confrontation right is valueless to the accused in the particular contexts covered by these statutes, in which case the accused would be willing to give it up, or it has value, in which case the accused should be able to exercise the right, or extract value from it in the form of a trade. But the matter strikes me as somewhat more complicated.

Consider three possible outcomes: (1) The written statement is excluded, without substitute. (2) The written statement is admitted, without the author coming to testify. (3) The author testifies, subject to confrontation, and presumably the written statement is admitted.

Obviously, the accused prefers outcome (1) to outcome (2). But does the accused prefer outcome (3) to outcome (2)? Not necessarily. Maybe confrontation isn’t all that valuable to the accused in this particular context, and the vividness of the live testimony would be harmful from the accused’s standpoint.

Now look at the same outcomes from the perspective of the prosecution. Obviously, the prosecution prefers outcome (2) to outcome (1). And by hypothesis we know that the prosecution prefers outcome (2) to outcome (3) – because if the prosecution preferred outcome (3) it would have just produced the author, and the confrontation issue would never arise. It may be that the reason the prosecution doesn’t like outcome (3) has nothing to do with the fear of confrontation, but is simply a matter of cost. Cost prevents this from being a zero-sum game. Indeed, the cost may be so great that the prosecution prefers outcome (1) to outcome (3) – that is, if not allowed to introduce the statement unless the author testifies, the prosecution does without. Even if this is not so, it may be that outcome (3) is far less preferable to the prosecution than is outcome (2).

So even if the accused doesn’t really “want” to confront the witness, the accused may have ample incentive to insist on the confrontation right. If the accused prevails in his assertion of the right – so that the prosecution cannot achieve outcome (2) without the accused’s consent – then the prosecution might choose outcome (1), the accused’s preferred state of affairs. And even if the prosecution, absent a deal, would choose outcome (3), producing the witness, that does not end the matter. Recall, the prosecution may well prefer outcome (2) (its preferred state) over outcome (3) by a great deal; the defense may not prefer outcome (3) over outcome (2) at all, or the differential may be very small. Therefore, the defendant may be able to demand a good deal as the price of allowing admission of the statement. The deal does not necessarily reflect the value to the accused of confrontation; it may reflect only the cost to the prosecution of providing for the confrontation.

Whether the state can constrain the exercise of the confrontation right to ensure that it is not being used merely to impose costs on the prosecution is an interesting and, to my mind, very difficult question. But for reasons I have stated in one post from March 2005 and another from August 2006, I do not believe that an appropriate response is to shift to the accused the burden of presenting the witness.

Crawford, Davis, and Way Beyond

Here is a link to the draft of my paper from the conference held at Brooklyn Law School in September. The final version will be published, along with other papers from the conference, in the Brooklyn Law Review. In this paper, among other points, I

--argue that Davis is not inconsistent with the adoption of an objective, declarant-oriented definition of "testimonial."

--argue that Davis does not establish an independent formality requirement for a statement to be deemed testimonial; that is, any requirement of formality that the decision might have created adds nothing to the requirement that the statement have been made in anticipation of prosecutorial use.

--lay out, in more detail than I have on this blog, some of the significant pending issues related to the confrontation right.

--suggest how the teaching of hearsay and confrontation should be totally revamped.

--suggest in broad terms how the law of hearsay ought to be reformed, in light of the fact that the confrontation right is now independently protected, and express the hope that evidence scholarship will advance such reform efforts.

I am happy to post draft scholarship of other authors that is related to the confrontation right.

Pending Cert Petitions

Happy new year to all readers!

Here are two pending certiorari petitions. One, filed by Jeff Fisher, seeks review of State v. Campbell, 719 N.W.2d 374 (N.D. 2006), in which the North Dakota Supreme Court upheld a statutory provision allowing introduction of a lab report if the accused does not subpoena the author of the report. I have already criticized the decision, in a posting titled Shifting the Burden, Take 2; see also the prior posting to which that one refers, Shifting the Burden. This is a matter in which the lower courts are in clear conflict – see most recently the decision of the District of Columbia Court of Appeals (the highest D.C. court) in Thomas v. United States, ___ A.2d ___, 2006 WL 3794331 (D.C. Dec. 28, 2006). The North Dakota court assumed, without deciding, that the lab report was testimonial (on this question, I think the court got it right; see my posting on Statements by Government Agents); this also is a matter of clear dispute among the lower courts, and the cert petition advances this question as well. The Supreme Court has asked North Dakota for a response, which you can read by clicking here. You can also read petitioner’s reply by clicking here, and the brief filed in support of the petition by various amici, including the Public Defender Service of the District of Columbia, the National Association of Criminal Defense Lawyers, and the Innocence Project, by clicking here.

Second, on December 19, I filed a petition seeking review of State v. Craig, 853 N.E.2d 621 (Ohio 2006), in which the Ohio Supreme Court held that an autopsy report introduced in a capital murder case was not testimonial. I have till now withheld comment on this blog concerning this opinion or United States v. Feliz, 467 F.3d 227 (2d Cir. 2006), which reached the same conclusion (and which I expect will also soon produce a cert petition), but obviously I think the results of these cases are terrible. Indeed, autopsy reports are perhaps the quintessential type of statement by a government agent that ought to be considered testimonial; these decisions are therefore in clear conflict with the decisions of those state high courts that treat as testimonial lab reports and other statements by government agents routinely generated in anticipation of prosecutorial use. Ohio has until January 25 to respond to the petition.