A Ninth Circuit decision -- room for improvement

 The United States Court of Appeals for the Ninth Circuit just issued a decision, not designated for publication, in United States v. Riggs, that is worth commenting on, both for its good aspects and a couple of curious ones.

Riggs was accused of killing his boyfriend, Martinez; the death apparently occurred in Indian country, which is why the case was in federal court.  The prosecution was allowed to introduce statements Martinez made to the police after two prior alleged assaults.  The Ninth Circuit properly held that Martinez’s statements on these occasions were testimonial.  In each case, “Martinez was alone with the officers and safe from harm during the questioning.”  Good!

The court then adds that “even if there was an ongoing emergency when the officers initially arrived on the scene, by the time Martinez identified Riggs as the assailant, it was clear that ‘what appeared to be a public threat [was] actually a private dispute’ with no ongoing emergency. Michigan v. Bryant, 562 U.S. 344, 365 (2011).”  That this was a private dispute and not an ongoing emergency appears clear.  But I think it’s an unfortunate relic of Bryant that courts continue to look at these matters largely from the point of view of the inquiring police officer rather from that of the speaker – who knew all along that there was not a continuing emergency.

And then the court says that the district court should have redacted the statements to exclude the portions that had become testimonial.  But what happened to the first part of the court’s discussion, in which it indicated that there never was an emergency?  Moreover, the court goes on to hold that Martinez’s statements were not admissible under the excited-utterance, medical-diagnosis, or residual exceptions.  But why was the court discussing these at all?  If, as the first part of its discussion seems to indicate, Martinez’s statements were testimonial, then their hearsay status shouldn’t matter.  I hope the court doesn’t think that those exceptions are also exceptions to the confrontation right.  Maybe all it meant was that if parts of the statements were not testimonial (notwithstanding the beginning of its discussion), then the hearsay status would have to be determined – but the court doesn’t make this at all clear.

One other aspect:  The setup of the case resembles Giles v. California – that is, a killing, and prior statements to the police by the victim alleging domestic violence by the accused.  I think it should be open to the trial court to determine that the accused wrongfully rendered the victim unavailable and therefore forfeited the confrontation right.  Giles makes that impossible unless the trial court determines that the accused rendered the victim unavailable for the purpose of preventing testimony – but it makes that determination somewhat easier in the context of domestic violence.  But the Riggs court doesn’t even mention the possibility of forfeiture.

An unpublished opinion, I know, but by a panel of one of our federal courts of appeals, and I think it's suggestive of how courts' Confrontation Clause analysis could improve.

Failure to preserve: Why does this keep happening?

Occasionally, but too often, a perfectly good Confrontation Clause objection is held unreviewable and lost because defense counsel fails to preserve it, usually by objecting but only on hearsay grounds.  A frustratingly good example is presented by a decision issued yesterday by a Texas appellate court, Edwards v. State (Tx. Apps. 13th Dist.).

Edwards was convicted on gun-smuggling charges and sentenced to forty years in prison.  Important evidence against him was a statement to a detective by an apparent confederate, Simmons, that Edwards was his supplier.  So there was no doubt that the statement was testimonial, and there's no suggestion that Edwards either had an opportunity for confrontation or forfeited the right.  (And, for good measure, it appears that Simmons was available, because Edwards contended that the State could have subpoenaed him.) The confrontation violation was clear.  

Unfortunately, the objection by Edwards's counsel did not explicitly mention the Confrontation Clause as a ground.  The trial court, in overruling it, explicitly referred to it as a hearsay objection, and the debate appears to have been over whether the statement fell within Texas's exception for statements against penal interest, Tex. R. Evid. 803(24)Cwhich, unlike its federal counterpart, Fed. R. Evid. 804(b)(3), does not require unavailability.

The appellate court held that the Confrontation Clause issue was not preserved for review, because the objection did not cite the Clause specifically.  Two thoughts about that decision.  First, it seems somewhat stingy on its own terms.  Counsel did repeatedly complain that the State could have subpoenaed Simmons, and also that cross-examination was not possible; the appellate court might have interpreted these as sufficient to implicate the Clause.  Brooks v. State, 132 S.W.3d 702, 705 (Tex. Apps. 5th Dist. 2004), cited by Edwards in his appellate brief, is quite directly on point and offered ample authority for doing so.  But even apart from that, this would seem to be a very good case for applying the doctrine of "fundamental error," the rubric Texas uses for what other jurisdictions call "plain error."  (Edwards, perhaps confident that the issue was preserved given Brooks, did not invoke the possibility of fundamental-error review.)

So this strikes me as quite a bad decision.  But I feel like a coach after a close loss saying, "Don't complain about bad calls.  You've got to put yourself in a position where bad calls won't hurt."  Twenty years after Crawford, it certainly seems that defense counsel should be aware that there is this thing called the Confrontation Clause that they should at least think about when they're objecting to an out-of-court statement. Had trial counsel just mumbled the words "Confrontation Clause" this situation would not have arisen.  Why does this keep happening?      

I don't have a comprehensive answer, but I'll offer one speculation.  The traditional way of teaching hearsay is to go into some depth on the definition of hearsay, then into greater depth on the exceptions to the hearsay rule, and somewhere along the way, perhaps near the end, acknowledge that the Clause exists.  I think many Evidence teachers still do that, and so I suspect that a good many lawyers are insufficiently sensitized to the Clause.  Before Crawford, maybe this was justified. Since then, I believe, it really isn't.  ("Are there any textbooks that avoid this pitfall?" you may ask.  Oh, so glad you asked.)   

 

People v. Washington – an excellent decision on statements not explicitly reported at trial, on when a statement is testimonial, and on the “explaining what the officer did” end run

On Friday, the Supreme Court of Michigan issued its decision in People v. Washington, a case about which I have posted a couple of times before, here and here.  The decision is an excellent one on several issues related to the Confrontation Clause.  (There was another issue, which I’ll just mention briefly.)  It was unanimous, written by Justice David Viviano, who as it happens is a former student of mine – but not, as I recall, in Evidence!

The basic facts are simple:  Washington blew past a toll at a border crossing between the US and Canada.  Some time later, Canadian officers brought him back.  None of them testified at trial.  But the American officer in charge, Paul Stockwell, testified that he had communications with the lead Canadian officer, Matthew Lavers, and that as a result he took custody of Washington and body armor (a bullet-proof vest) that Lavers brought along with him.  Washington was charged with possession of body armor by a person who has been convicted of a violent felony.  (He also made statements to his mother acknowledging that he had had the vest; the admissibility of those was in question on other grounds, mentioned briefly below.) 

The intermediate appellate court held that the evidence concerning the Lavers-Stockwell exchange violated the Confrontation Clause, and the State appealed.  There are several issues related to the Clause.  I'll take them up in an order different from the court's.

First, nothing that Lavers said was explicitly admitted into evidence.  So was there a Confrontation Clause issue (or for that matter a potential hearsay issue) at all? Drawing on ample precedent, the Washington court held that a statement is effectively introduced "if the [in-court] witness’s testimony leads to a clear and logical inference that the out-of-court declarant made."  Some courts put the point differently, asking whether the substance of the statement was conveyed.  It all comes out to the same point.  However the test is phrased, it was satisfied here — the clear inference to be drawn from Stockwell's testimony was that Lavers had told him that the Canadian officers had recovered the vest from Washington's possession.  Note that we don't need to know the exact words that Lavers used; we rarely do when a witness recounts an oral statement.  We don't even need to know whether Lavers said that Washington was wearing the vest, because that was not necessary for the prosecution; it is clear that Lavers said something to the effect that Washington had possessed the vest, and that's what the prosecution used it for.

Some courts in addressing this issue ask whether the statement is "implied" in the in-court testimony or alternatively whether it is "introduced implicitly" through that testimony.  There's noting inherently wrong with such phrasing, but in this case it led to some confusion, which the supreme court nicely cleared up.  Hearsay, in most modern codifications, does not include action that appears to reflect the actor's belief in the proposition at issue but does not actually assert that proposition, and presumably the Confrontation Clause would be held inapplicable to such conduct as well.  The term "implied assertion" is sometimes used to refer to such conduct — not a helpful term in my view (because one can make an assertion without doing so explicitly), but so it goes.  The dissenting judge below, and the prosecution in the state supreme court, invoked this doctrine.  But that is just a category error, as the supreme court made clear in footnote 11 of its opinion:  So-called implied assertions are conduct of the out-of-court actor that do not assert the proposition.  Here, Lavers, the out-of-court actor, did clearly make an assertion of the proposition at issue.  The "implicit" or "implied" aspect is in inferring what he said from the testimony of the in-court witness.  That is an altogether different matter.  And note why it makes a difference for the Confrontation Clause:  If Lavers made the statement, and it was testimonial and introduced for the truth of what it asserted (all true here, as will be further discussed below), then there is a Confrontation Clause violation in introducing evidence of the statement, and the prosecution should not be able to avoid that conclusion by presenting evidence that, wink, wink, doesn't quite report explicitly that Lavers made the statement but makes clear that he did and what the substance of it was.  But if Lavers merely acted in a way that suggests he believed in the proposition at issue, but did not try to communicate that proposition to another person, then in no proper sense can he be deemed to have testified.

Second, was the statement testimonial?  Drawing on its decision in People v. Fackelman, 802 NW2d 552 (2011), the court held that the "primary purpose" test only applies in the emergency context.  I would love to see the U.S. Supreme Court narrow the scope of the "primary purpose" test in this fashion.  That Court's recent decision in Smith v. Arizona continued to invoke the "primary purpose" test, but Justice Gorsuch treated the matter as an open question.  So we'll see what happens.

Instead of trying to discern the purpose of the statement, the Washington court said, "the standard requires courts to consider the foreseeability—based on the context at the time the statement was made—of whether the statement would later be used at trial."  That, I think, is basically the proper approach, making the test one of reasonable expectation rather than of purpose and clearly operating from the perspective of the speaker; the court quoted Fisher v. Commonwealth, 620 SW3d 1 (Ky. 2021), which repeatedly termed the proper approach "declarant-centric."  Just right.

In applying the test, the court stressed that it was highly context-dependent.  It emphasized that Lavers's statement was made to another law enforcement officer —but without suggesting that this was a prerequisite —and also that Lavers made the statement while turning custody of Washington over to Stockwell after having arrested Washington for engaging criminal activity.  There is more that the court could have said with reference to the vest particularly.  But this was enough.

Third, was the statement offered for the truth of what it asserted?  The prosecution tried to argue that it was not, because it was offered to show the chain of custody.  But that got them nowhere.   As the court made clear, chain-of-custody evidence must be admissible, and that includes satisfying the Confrontation Clause.  And to show a chain of custody that would be relevant to the case, the prosecution would have the prove that Washington possessed the vest, which is what the statement asserted.  

The prosecution also argued that  the evidence of Lavers's statement was admissible to explain Stockwell's conduct in taking Washington and the vest into custody.  This is what I have often referred to as an end-run around the Confrontation Clause:  "We're not offering it to prove what it says, but only to explain the officer's conduct."  The court also properly rejected this contention.  It said that the evidence was substantive proof that Washington was guilty of the crime charged.  Yes, but it seems to me that this only sets the problem up:  The evidence, if taken to be true, tends to prove the crime charged, but the prosecution is contending that it has value irrespective of its truth, to prove the officer's conduct, and that it could be admitted for that purpose alone.  I think the real answer is expressed well in United States v. Kizzee,  877 F.3d 650 (5th Cir. 2017), which the Washington court quotes at length in a footnote:  Unless the accused is challenging the adequacy of an investigation (and Washington did not challenge the adequacy of this one), there is little or no need to present additional context, and the evidence is highly prejudicial.

It is highly prejudicial in the sense that the jury is likely to use it for the purpose forbidden by the Confrontation Clause, to prove the truth of what the statement asserts.  I have long thought this is a particularly vulnerable setting for the confrontation right:  The prosecution articulates some purpose for which the statement is supposedly relevant irrespective of the truth, and asks for it to be admitted for that purpose, with a limiting instruction supposedly doing the work of ensuring that the jury does not use it for the truth.  Given the U.S. Supreme Court's professed faith in the power of limiting instructions, see, e.g., Samia v. United States (U.S. 2023), except, apparently, when a former President of the United States is the accused, Trump v. United States (U.S. 2024), slip op. at 31-32, there is no sure-fire protection against abusive use of this technique other than case-by-case vigilance of the courts.  It is good to see such vigilance in cases such as Washington.

In the end, the Washington court remanded the case, because Washington himself had made statements acknowledging that he possessed the vest.  The court of appeals had held these inadmissible under the doctrine of corpus delicti. But the state supreme court reversed on that issue, on the ground that this doctrine only applies to confessions and Washington's statements were not confessions, because they admitted only possession and not the full crime, which also required a prior conviction.  So the case has to go back down to determine whether the Confrontation Clause violation was harmless error.  Bottom line:  The decision is not a clear victory for Washington, but it is for the confrontation right. 

Smith v. Arizona: Were the statements testimonial?

              In a prior post, I have analyzed the justices’ treatment of the questions presented in the petition in Smith v. Arizona.  Lurking in the case was the issue of whether the statements at issue were testimonial.  Although the state seemed to have conceded the issue, it drew some attention in the briefs, a great deal of attention at argument, and some discussion in the majority opinion and in two concurrences.  So here are a few thoughts.

1. The Court properly declined to resolve the issue; it was not part of the questions presented, and, as the Court noted, it may have been forfeited.  Indeed, the Court need not have said anything at all on the issue, and I think that would have been the better course.  And so does Justice Gorsuch.  In declining to join Part III of the Court’s opinion, the portion that addressed this issue, he emphasized that this issue was a separate one from the main issue of the case and “in no way necessary to the resolution” of the case.  Nevertheless, Justice Kagan, speaking for a bare majority of the Court, offered “a few thoughts . . . about the questions the state court might usefully address if the testimonial issue remains live.”  Oh well.

              2. The Court, not surprisingly but rather casually, once again endorsed the “primary purpose” test.  And so Justice Thomas, also not surprisingly, declined to join in Part III, and instead repeated his frequently stated views on the matter.  This time around, he used both “formality” and “solemnity,” as he has at times in the past; he also repeated the qualification that the Confrontation Clause “reaches the use of technically informal statements when used to evade the formalized process.”  As I have also stated, I wish he would drop the use of “formality”, which I think is unduly limiting and confuses matters; ”solemnity,” properly interpreted, has more promise.  Interestingly, though Justice Kavanaugh asked repeatedly about Justice Thomas’s approach at argument, he said nothing about it here.

3. What was surprising was Justice Gorsuch’s concurrence, because it not only questioned the merits of the “primary purpose” test but seemed to treat it as a new trial balloon – at one point referring to it as “the Court’s proposed ‘primary purpose’ test” – as opposed to doctrine that the Court articulated in 2006 and has applied at least fairly regularly ever since.  (And the potential sources of confusion that he suggests, the question of whose purpose should be decisive and how we determine what purpose is primary, have been much discussed since then.) Well, if in a future case Justice Gorsuch can get the Court to rethink the test, that might be all to the good, especially given that in his view the test “may be a limitation of our own creation on the confrontation right.”  One of the possible tests that he suggests for what is testimonial, a statement that relates a factual assertion or discloses information, strikes me as way too broad.  The other potential approach he offers, treating a witness as any person who gives or furnishes evidence, seems to me to be much closer to the mark, if we modify it by adding the modifier “knowingly.”

              4. The Court noted that (assuming they reach the question of whether testimonial statements are in issue) the Arizona courts will have to resolve which statements are actually in issue.  The state contends that Longoni was relying only on Rast’s notes; Smith contended that he relied on Rast’s report as well as on her notes, and treated them essentially as a unit.  In my view, it should not make a difference, and the Court did not say that it would.  But for reasons I’ll discuss now, it might, and the Court pointed to that possibility.

              5. The Court said that in determining primary purpose, the courts should “consider the range of recordkeeping activities that lab analysts engage in.” Some records, it said, “will not have an evidentiary purpose.” Two such possibilities that it mentioned – “that lab records may come into being primarily to comply with la­boratory accreditation requirements or to facilitate internal review and quality control” – do not seem particularly troublesome (but see below!), at least for now.  But the third does: The Court says that “some analysts’ notes may be written simply as reminders to self.”  And in all these cases, the Court asserts, “the record would not count as testimonial”; for that, it added, “the document’s primary purpose must have ‘a focus on court.’” So a couple of things.

                           a. The “focus on court” language is taken from the oral argument. Eric Feigin, arguing for the U.S. as amicus (which, unusually in criminal cases, did not side with the state) said, “I think something that is created for an investigatory purpose, as opposed to with a focus on court, may well be – not be testimonial.” Such a hesitant, qualified statement at argument is an awfully thin basis on which to rest an assertion of principle.  I also think it’s wrong.  If a statement is made to assist in investigation, with the anticipation that it will help prosecution, that should be enough – especially in an era in which the vast majority of cases never get to trial.

                           b. The idea that the prosecution can avoid the Confrontation Clause by characterizing notes written by a lab analyst, who is knowingly working on a case for prosecution, as “reminders to self” raises considerable difficulties.  So maybe we are about to enter a period in which lab analysts will generate notes that  they will characterize as – and perhaps even title – “reminders to self.” (And perhaps they will not even write formalized reports, because they don’t need them.) If the case goes to trial and the analyst testifies there, she can rely on these notes, and presumably they would be admissible.  And if the author of the notes doesn’t appear at trial, the prosecution would present another analyst, who would offer to testify to similar conclusions on the basis of the notes.  Gee, it would say, these were written for personal use, so they’re not testimonial, but we happen to have them, and nothing in the Confrontation Clause stops the in-court witness from relying on them.  So then what’s left of Melendez-Diaz in effect?

         And maybe it’s even worse than that.  In response to my prior post, Jacob Berlove says the decision in Smith will not make any difference because a majority of the Court will happily jump on the “quality control” and “laboratory accreditation requirements” evasions.  I am reluctant to disagree with Melech – the King, who has been labeled the best Supreme Court predictor in the world – so I have to acknowledge that this is at least a possibility.  But I suspect the courts will find the “reminders to self” evasion a little easier to use.  As Jacob suggests, the answer is to make the test depend on anticipation of likely use (and I’d say in prosecution, not at trial), and to do away with the primary-purpose test.  Perhaps if we see a flood of cases involving notes that courts admit as evidence while maintaining that they were written for some other purpose, the Court will see that its approach is not working and is just an invitation to a sham.  But we may have to wait a while.

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Smith argument and the meaning of "testimonial"

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

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

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

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

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

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

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

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

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

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

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

The argument in Smith v. Arizona: The Question Presented

 

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

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

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

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

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

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

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

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

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

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