State's brief in Michigan v. Bryant

The State, which is the petitioner, has filed its brief -- a day early -- in Michigan v. Bryant, the pending case on fresh accusations. You can read it by clicking here. I expect to be filing an amicus brief on behalf of the respondent. So for now I will confine myself to a few short comments.

1. The brief justifies its name. It is refreshingly short -- the body is only 17 pages.

2. At the very outset, it poses the Question Presented: "[A]re preliminary inquiries . . . nontestimonial . . . ?" But the question isn't whether the inquiries, preliminary or not, are testimonial. The question is whether the statements, in this case by the victim, are testimonial or not. One of the critical points that I hope will be clarified as a result of this case is that the question of whether a statement is testimonial or not must ultimately be made from the perspective of the speaker (or of a reasonable person in the position of the speaker), not from that of the questioner, if there is one.

3. The brief appears to take the position that any statement made in response to police interrogation before the police have ascertained the identity and location of the perpetrator is non-testimonial. This view would vitiate much of the confrontation right. It would also distort the incentives of police, and detract from their protective function.

More on Bryant

Some more on Bryant: Here, once again, are links to the Michigan Supreme Court opinion, from the court's website and from Westlaw. And here, via Scotusblog, are links to the petition for certiorari and to the brief in opposition.

Bryant will give the Court a chance to resolve several important issues in confrontation law. Here are several points I hope it will establish:

1. The proper perspective for determining whether a statement is testimonial is that of the speaker – that is, of the potential witness – not of a police interrogator, if there is one. The state will try to argue that in this case when the police came to the scene they did not know how dangerous it might be. Even if that assertion were true – and it seems dubious at best – it is clear that the victim knew that the assailant posed no immediater danger. The victim's statement was made for evidentiary purposes, to describe the crime and identify the person who committed it. On this ground, it should be considered testimonial.

2. To the extent formality is a requisite for a statement to be deemed testimonial, it is satisfied by demonstrating that a reasonable person in the position of the declarant would expect the statement to be used in investigation or prosecution of a crime. It would make no sense to adopt a separate formality requirement. The purpose of the Confrontation Clause is to ensure that testimony is given under the proper conditions. To hold that a statement clearly made in anticipation of evidentiary use is not testimonial because it was given informally would stand logic on its head and invite witnesses and government authorities to evade the confrontation right by giving and taking such statmeents informally.

3. That the witness is in a medical emergency does not render non-testimonial his statements describing the crime and identifying the assailant. The situation of the victim was dire – but he did not help it by identifying the shooter and describing the circumstances of the shooting. Plainly, these statements were made for testimonial purposes.

4. That the suspect is at large when the witness speaks does not render the statements non-testimonial. The victim did not have any reason to believe that either he or anybody else was in further imminent danger from the assailant. A rule making a statement non-testimonial whenever the suspect identified by the statement is at large would yield absurd results, invite abuse, and create an incentive for bad policing.

One further thought: As mentioned in my first post on this case, I think it is an interesting question whether, under what I believe to be the optimal rule for forfeiture of the confrontation right, Bryant should be held to have forfeited the right. That depends on whether it was feasible, consistent with standards of humaneness, to take the victim's deposition. I believe that to the extent that one has an intuitive feeling that the statement in this case should be admitted this is responsive to an impulse that Bryant should not be allowed to have killed the victim and then caused his statement to be excluded on grounds of forfeiture. But Giles v. California appears to foreclose this resolution of the matter. I very much hope that what I regard as a mistake in one direction in Giles does not lead the Court to make a compensatory but broader mistake in construing the breadth of the confrontation right in Bryant.

Cert grant in Bryant

I was out of touch, skiing, yesterday, and am slow in reporting the news that the Supreme Crut granted cert in Michigan v. Bryant; I had previously reported on the state supreme court case. More on this later.

Cert petition on "Who must testify?"

Sooner or later, the Supreme Court will have to resolve the question of who must testify to the substance of a lab test. Indeed, with Briscoe now safely off the Supreme Court's docket, this would be a logical next issue for the Court to tackle; the justices were interested in it both in Melendez-Diazand in Briscoe. Jeff Fisher has just filed a cert petition raising this issue in Pendergrass v. Indiana, seeking review of Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009). You can read it by clicking here.

G . . . VR in Briscoe

One June 25, the day the Supreme Court decided Melendez-Diaz, most observers -- including me -- confidently predicted that it would GVR Briscoe -- that is grant the petition, vacate the case, and remand it to the Virginia Supreme Court for further consideration in light of Melendez-Diaz. Well, now that has happened, in a rather odd way. The Court granted the petition on June 29. And, as many readers already know, today -- after full briefing and argument -- it vacated and remanded. You can find the per curiam opinion -- and the Court is listing it as an opinion, rather than as an order -- by clicking here, and you need not budget more than a few seconds to read it.

Thus, we have the result that most observers fully expected right after the Melendez-Diaz decision in June. We will probably not know, at least for a long time, why the Court decided to take the case. But there has been considerable speculation that it did so to give it an opportunity to reconsider Melendez-Diaz, or cut back on it, given the replacement of Justice Souter by Justice Sotomayor. A comment by Justice Scalia at argument lent some force to this theory.

Twenty-five states and the District of Columbia, as amici, explicitly asaked the Court to overrule the case. That didn't happen.

The essence of the argument presented by Virginia and the United States was implicitly that the Court should overrule Melendez-Diaz to the extent that it held that a state violates the Confrontatin Clause if it presents testimony in written form, leaving it to the defendant, if he wishes, to put the witness on the stand. (Virginia contended that the now defunct statute involved in the case required the prosecution to guarantee the presence of the witness, a reading of the statute that I believe is unjustified, and both Virginia and the United States conceded that this would be required to make the statute valid.) That didn't happen.

Instead, we have a per curiam decision, for a unanimous Court that now includes Justice Sotomayor rather than Justice Souter, treating Melnedez-Diaz without question as good law, as one would expect the Court should do.

I hope that states and prosecutors that have been waiting in hopes that somehow the Court would go back on what it just decided seven months ago today will now get on with what they should do. They should recognize that numerous states have long acted in a way that fully complies with the Confrontation Clause as it is so well applied in Melendez-Diaz, and that they can do the same.

No doubt, the issue of who must testify with respect to lab results will have to be resolved by the Court. In fact, Jeff Fisher has just filed a cert petition on this issue, and I will post that soon. Eventually, perhaps, the Court will also adress the lower-significant issues of whether a state may require a defendant who demands live testimony to assert a good faith reason or an intent to cross-examine.

But for right now, on an issue that is -- pardon the expression -- orthogonal to those, the issue of how must a prosecution witness testify, the critical point confirmed by Melendez-Diaz remains the law: A prosecution witness must testify live, face to face with the accused, and not in writing.

Top 50 Criminal Justice and Criminology Blogs

I just received word that Justice City, USA, another blog, listed the Confrontation Blog as one of the top 50 Criminal Justice and Criminology Blogs. I didn't even know there were 50 blogs in the field! But it's an interesting list, which you can find at.

http://careersincriminaljustice.net/?p=60

In any event, my thanks to readers. I look forward to being able to comment with (relative) lack of restraint once Briscoe is decided.

Transcript in Briscoe

The Supreme Court heard argument yesterday in Briscoe v. Virginia. You can read the transcript by clicking here. I will hold substantive comments -- including about the exchange on the word "orthogonal" -- until after the decision.

Here are a couple of corrections, though, as to case names. On page 8, line 21, the case I referred to was Learn, not Warren.

On page 50, lines10-11 the cases to which Ms. Kruger referred were Inadi and White v. Illinois.

Reply brief in Briscoe

I have just served and filed the reply in Briscoe. You can read it by clicking here.

The argument will be on January 11, at approximately 11 am. I will argue on behalf of the petitioners. Steve McCullough, who became the Solicitor General of Virginia while the petition in this case was pending, will argue on behalf of Virginia. I want to take this opportunity to say that he has been extremely gracious, as well as professional, throughout the entire matter. The United States has asked for and received 10 minutes of time, from Virginia's allotment; I don't know who will argue.

Briscoe: Bottom side amicus briefs, and argument date

The Solicitor General has filed an amicus brief in support of Virginia in the Briscoe case. You can read it by clicking here. Twenty-six states and the District of Columbia have also filed a brief in support of Virginia, and you can read that one by clicking here.

The argument has been set for January 11.

Respondent's Brief in Briscoe

The Commonwealth of Virginia has just filed its brief in Briscoe v. Virginia. You can read it by clicking here. The reply brief is due November 25, and I believe the argument will likely be held on January 11.

Joint Appendix in Briscoe

For anybody who might be interested, here is a link to the Joint Appendix in Briscoe

Petitioners' Brief in Briscoe filed

I have filed the Petitioners' Brief in Briscoe v. Virginia (U.S., Supreme Court, No. 07-11191) today. You may see it by clicking here.

Cert granted in Briscoe

As some readers already know, the Supreme Court granted cert today in Briscoe v. Virginia, on a petition I filed last year. The petition sought review of the decision of the Supreme Court of Virginia in Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d 113 (2008). You can read the petition by clicking here, the Commonwealth's brief in opposition by clicking here, and my reply brief in support of the petition by clicking here.

I had said that I would comment on the dissent in Melendez-Diaz. In light of the grant in Briscoe, I will not do that.

An initial reaction to the Melendez-Diaz decision

Here are some early thoughts about the majority opinion in Melendez-Diaz v. Massachusetts, 2009 WL 1789468, and Justice Thomas’s concurrence. I’ll try to write in a few days about the dissent.

First, this is a terrific decision. It is the right result, for the right reasons. It clears up a lot of issues that should have been clear. It should have been unanimous; the principal concern it raises is not anything it says, or doesn’t say, but that only five justices joined it, and one of those five is about to leave the Court.

An anonymous commenter to my earlier post said that the Court never made an affirmative argument as to why the lab reports were testimonial. I don’t think that is correct. Part II of the opinion makes the case. It does so briefly because Justice Scalia believes – accurately, I think – that this is an easy case, a “rather straightforward application of Crawford.” First, the Court says that affidavits are in the core class of testimonial statements identified by Crawford, and these certificates are clearly affidavits. Correct. Sufficient for the result. But then the Court gives an underlying basis. Although it had just quoted the three definitions of “testimonial” recited by Crawford, now it just applied one, the right one (or at least the one closest to right) – the statements were made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” And under that standard, the case is an easy one; indeed, the sole purpose of the certificates was evidentiary. Easy case.

But the Court goes on to respond to a “potpourri” of counter-arguments. As an introduction, it notes that its result does not upset a long-standing, well-established body of law; most of the decisions allowing lab reports in without a live witness are from the Roberts era.

The first counter-argument it knocks down is that the certificates are not testimonial because they are not accusatory. Lots of witnesses give testimony that is not accusatory. It would wipe out a good deal of the confrontation right if it were limited to statements that are accusatory. Descriptions of a crime scene, narrations of the victim’s whereabouts or of the defendant’s – none of these are accusatory.

Next, the Court knocks down the idea that somehow the Confrontation Clause doesn’t apply because lab technicians are not “conventional” witnesses. It breaks this down into three parts. One is that the witness’s observations were “near-contemporaneous” – to which the Court’s response is essentially, “Not really true, and irrelevant in any event.” Second, the lab analyst doesn’t observe the crime or any human action related to it. That’s pretty similar to the “accusatory” argument – lots of testimony falls outside that narrow category. Third, the statement wasn’t made in response to interrogation. Once again, so what? The Court emphasizes a point it made in Davis – a volunteered statement can be testimonial. (And anyway, it says, this was in response to a police request.) All plainly right.

Third is the argument that somehow the certificates are different because they report on a scientific test. That, says the Court, is just an invitation to return to the pre-Crawford regime of Roberts. Right. And anyway, these statements aren’t always so reliable. But lest anyone believe that the Court’s discussion of reliability signaled that it was hedging on its rejection of reliability as the governing criterion for the Confrontation Clause:

The analysts who swore the affidavits provided testimony against Melendez-Diaz, and they are therefore subject to confrontation; we would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.

I didn’t know that Mother Theresa’s reputation for veracity was so strong – but otherwise, clearly correct.

Fourth, the Court blasts the idea that the certificates should be exempt as business or official records. Once again, the Court's basic take is "Not true, and so what anyway?" The certificates don't qualify under the traditional exception because they were produced for use at trial. And if the exception did extend so far, it wouldn't do the prosecution any good. The Court gives a clarification, which was necessary but should not have been, of the relationship between the Confrontation Clause and hearsay exceptions:

Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because – having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial – they are not testimonial. Whether or not they qualify as business or official records, the analysts' statements here – prepared specifically for use at petitioner's trial – were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.

Fifth is the argument that the power to subpoena the analyst, either under the Compulsory Process Clause or a state statute, adequately fulfills the confrontation right. Justice Scalia gives this argument the back of the hand that it deserves, dismissing it in a single paragraph – though several states had adopted it. And it was dangerous, too, because the principle was limitless and would have posed a significant threat to the continuing vitality of the Confrontation Clause. I confess I was a little sorry to see this part of the opinion; my petition in Briscoe v. Virginia, which has been held pending this decision, had raised this issue, and I would have loved to argue it. Instead, we get handed a victory without argument. Darn.

Finally, and perhaps what most motivated the dissenters, is concern about the burden to the judicial system. Once again, the response is basically two-fronted. Sure the Confrontation Clause, like other constitutional guarantees, makes prosecution more burdensome, but that does not give us leeway to ignore it. At greater length, the Court expresses doubt about "dire predictions": "Perhaps the best indication that the sky will not fall after today's decision is that it has not done so already." Plenty of states do not rely on certificates (or on surrogate witnesses), and they have managed. I will write more about this issue later, but for now just a couple of quick points: First, most defendants, as the Court says, have no desire for the lab technician to appear. Second, the Court properly notes that a simple notice-and-demand statute is valid. Under such a statute, if the prosecution gives timely notice of of intent to use a certificate, the defendant must make a timely demand for the witness to appear or give up the right. Correct.

Finally, one brief point about Justice Thomas's concurrence. He has, incorrectly in my view, placed emphasis on formality. But these certificates were as formal as could be. I don't think this was a particularly difficult case for him.

More at a later time. Now, I'm going to celebrate my 20th anniversary with my wife. A better gift from the Court than Giles, which was decided a year ago today.

Melendez-Diaz reversed

Scotusblog reports that Melendez-Doiaz has been reversed, by a 5-4 vote, with Justice Sclaia writing the majority opinion and Justice Kennedy writing a dissent. I will post more when I know more!

Michigan allows judges to bar witnesses wearing the niqab

Nothing today on Melendez-Diaz. But yesterday the Michigan Supreme Court again took an action of interest, though this one I regard as very unfortunate. By a 5-2 vote (with Chief Justice Kelly and Justice Hathaway dissenting) it promulgated an amendment to Michigan Rule of Evidence 611(b) so that the rule now reads:

(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.

Though the Rule does not so indicate on its face, it is motivated by a recent decision of a Michigan judge not to allow a plaintiff to testify while wearing a niqab, a garment worn by some Moslem women that covers the face except for the eyes. I have already summarized in a prior post the reasons why I bleieve this decision was a bad one. The new rule is not necessary to protect the confrontation right or to allow the trier of fact a fair opportunity to assess the credibility of the witness. It is particularly unforutnate for this state -- with a large Moslem population -- to be taking this step now.

Colin Miller has posted a very useful summary of caselaw on the question of court's control over the attire of witnesses. You can see it by clicking here.

Commentary against the amendment in the form in which it was proposed and eventually adopted was submitted by:

(1) the Michigan Civil Rights Commission, available here. I spoke before the Commission in opposition to the proposal.

(2) the ACLU of Michigan, on behalf of itself and numerous other organizations and a couple of indiivduals, including my colleague Doug Laycock. That commentary is available here.

Commentary in favor was submitted by:

(1) the Michigan District Judges Association, available here. The MDJA statement offers no explanation.

(2) an individual, James L. Rudolph, available here. (He says, "We cannot allow cultures of other countries to dictate how we run our court system." I agree with that; I don't think allowing a witness to testify in the dress style she favors on religious grounds threatens that result.).

(3) another individual, Timothy A. Baughman, an attorney, avialable here. He discusses cases in which witnesses have not been allowed to disguise their identity. I don't think those are particularly apposite.

A nice decision from Michigan on fresh accusations

The wait for Melendez-Diaz must be nearly over – Monday is another potential decision day. Meanwhile, I haven’t made any new postings for a while because there haven’t been developments that I thought were worth discussion. But now there is a nice decision, by a 4-3 majority of the Michigan Supreme Court, in the area of fresh accusations. The case is People v. Bryant (Mich. June 10, 2009), and you can see it by clicking here.

Bryant was accused of murder. He had supplied the victim with drugs for years, and the shooting allegedly occurred at his home. The victim drove himself to a gas station about six blocks away, and there police, responding to a radio dispatch, found him lying on the ground, bleeding and in considerable pain. According to the court, "[t]he police asked him what had happened, who had shot him, and where the shooting had occurred." In response to questions, the victim told the officers that the defendant had shot him about 30 minutes before at the defendant’s house. The victim died several hours later.

The only serious constitutional question was whether the victim’s statement was testimonial. (If Giles had come out the other way, there might have been an interesting issue whether the defendant had forfeited the confrontation right, and I think that would depend primarily on whether one thought it was humanely possible to take a deposition of the victim.) The crucial issue here is one of perspective. Given that the victim was lying on the ground, bleeding and badly wounded, when the police approached him, if one takes the perspective of the officers, knowing only what they knew at the very outset, then it might be plausible to conclude that their primary purpose was to respond to an ongoing emergency. That is essentially the position taken by the three dissenters. But the majority realized that this is the wrong perspective. It said:

Davis stated that “in the final analysis [it is] the declarant’s statements, not the interrogation’s questions, that the Confrontation Clause requires us to evaluate.” The declarant here (i.e., the victim) made these statements while he was surrounded by five police officers and knowing that emergency medical service (EMS) was on the way. Obviously, his primary purpose in making these statements to the police was not to enable the police to meet an ongoing emergency of the type identified by the United States Supreme Court, but was instead to tell the police who had committed the crime against him, where the crime had been committed, and where the police could find the criminal. That is, the primary purpose of the victim’s statements to the police was to “establish or prove past events potentially relevant to later criminal prosecution.”

Only after this passage did the court add comments from the perspective of the police. The court said: "The primary purpose of the police questioning of the victim at the gas station was to determine who shot the victim and where the shooter could be found so that they could arrest him." Now, one can quibble with that description if one takes the perspective of the officers at the very beginning of the conversation -- again, they apparently knew nothing, and they may well have worried that the shooter was on the loose nearby. But the court's statement is accurate if it is taken as a description of what the victim (or a reasonable person in the victim's position) would understand the officer's purpose to be. And the anticipation of a reasonable person in the victim's position is the critical one.

The court also rejected the state's argument that there was an ongoing emergency because the police had to stop the assailant from hurting someone else; as the court pointed out, that would almost always be true when a suspect is at large. The court quotes Jeff Fisher approvingly to the effect that emergency must be narrowly construed lest "statements reporting criminal activity or accusing others of crimes . . . always be testimonial until a suspect was in custody and unable to cause further harm."

And the court refused to treat the fact of the victim's condition as creating an emergency for Confrontation Clause purposes; that, it said, would confuse "a medical emergency with the emergency circumstances of an ongoing criminal episode."

On the whole, this is an excellent decision, and I hope other courts follow it.

Maybe they forgot about it?

The Supreme Court completed its latest sitting today without deciding Melendez-Diaz v. Massachusetts. The long wait -- the case was argued November 10 -- suggests that something is brewing. Perhaps the Court is still debating the merits of the particular question presented, whether a forensic lab certificate reporting the presence of cocaine is testimonial. But I still think that should be an easy yes. Perhaps they are debating broader questions concerning the meaning of "testimonial." And perhaps they are debating yet more general questions of constitutional interpretation. April 21 is now the first date on which, barring something unusual, perhaps we will find out.

Still no decision in Melendez-Diaz

The Supreme Court has completed this sitting without issuing its decision in the Melendez-Diaz case, in which it will decide whether a forensic lab report asserting that a substance contains cocaine is testimonial for purposes of the Confrontation Clause. The next date on which the Court is scheduled to issue opinions is March 23.

Giles sent down for retrial

Here is a belated report: The Giles case is wending its way back down through the California courts. After the remand from the United States Supreme Court, the California Supreme Court transferred the case back to the Court of Appeals. In February, that court sent the case back for trial. You can read the opinion by clicking here. It is noteworthy that the court decides, without prejudice given the skimpy nature of the record, that the statement in issue was testimonial. That is the right decision, and encouraging. The court also leaves it open to the state to present evidence that the standard enunciated by the U.S. Supreme Court for forfeiture (whatever that may be) is satisfied. So the further proceedings should be very interesting to follow.