Tuesday, June 23, 2020

A significant decision on remote testimony

Yesterday, the Michigan Supreme Court issued its decision in People v. Jemison, a case that I have mentioned in a prior post and in which I appeared as amicus.  The opinion, by Chief Justice McCormack (a former colleague and co-author of mine) is excellent – and it was unanimous, with one justice not participating.

Briefly, Jemison was convicted of rape.  One of the witnesses against him was a DNA analyst, who was in Utah and testified, over objection, via Skype.  The court held that this violated both federal and state protections of the confrontation right.  Two aspects of the decision are particularly notable.  

First, the decision is clear, crisp, and categorical, appropriately so:  There was no doubt that there was testimony involved here – the only difference from in-court testimony was that this was by Skype – and so the confrontation right was invoked.  And an opportunity for face-to-face confrontation is an essential aspect of the confrontation right.  That wasn’t provided, so there was a violation.  Period.  It didn’t matter that the expert was a witness, nor that it would have been expensive to bring him to Michigan to testify.  (Indeed, the court notes the perverse incentive that would be created by allowing the state to choose an out-of-state expert and then plead cost to prevent face-to-face confrontation.)  The court doesn’t discuss the situation in which it might be unfeasible to create confrontation – which I think would only be where both the witness and the accused effectively can’t travel – but by implication that wouldn’t matter either; the prosecution and not the defense bears the risk of this rare occurrence.  And though the court considered the case during the pandemic crisis (it was argued March 5), there is no suggestion in the opinion that the greater appeal of remote testimony in such circumstances would alter the result.  (I previously posted on this issue; the confrontation right can be fully satisfied so long as the accused, counsel, and the witness are in the same room, so social distance can be maintained.)


Second, and also appropriately, the decision limits Maryland v. Craig to its particular setting – a witness who is both a child and an alleged, with a case-specific showing of the necessity of remote testimony – and casts doubt on its continuing validity in light of Crawford.  The court says that “Crawford did not specifically overrule Craig, but it took out its legs.”  That’s certainly accurate: The categorical, procedural approach of Crawford is entirely antithetical to the balancing, reliability-oriented approach that underlay Craig.  Indeed, the court goes further.  After quoting passages from Justice Scalia’s Craig dissent that certainly sound like precursors to his majority opinion in Crawford he said that “the Confrontation Clause does not guarantee reliable evidence” but rather “specific trial procedures that were thought to assure reliable evidence” and that the text “simply does not permit” interest-balancing – the Jemison court says that in Crawford “his dissent from Craig became the Court’s view.”  (In passing, the Court notes that even if Craig were applicable, the result would be the same; there was no case-specific necessity for remote testimony.)

The court remanded for a determination of harmless error.  But on the questions of principle transcending the facts of this case, the opinion was about as clear and as strong as one could hope.

To be clear, I don’t think it’s implausible that at some point the technology and our knowledge of the impact of remote confrontation will get to a point where we can say that remote confrontation is a satisfactory substitute for actual, face-to-face confrontation.  But we’re not there yet.

Thursday, June 04, 2020

The dying, blinking witness


Chris Miller, an excellent former student of mine, has pointed out Woods v. Cook, a recent Sixth Circuit opinion of interest by Judge Sutton, who is sensitive to Confrontation Clause issues.  This was an “eye blink” case:  A shooting victim, Chandler, was grievously wounded, and was able to communicate only by blinking his eyes.  Five days after the shooting, in a police interview, Chandler identified Woods as the assailant; two days later, he suffered the first of a series of strokes, and he died ten days after the interview.  His eye-blink statement was admitted against him at a murder trial in Ohio court, he was convicted, and the Ohio courts affirmed the judgment.  He brought a federal habeas petition, which the district court denied, and now a Sixth Circuit panel has unanimously affirmed that judgment.

In the circumstances, it is not surprising that the Ohio courts deemed the identification to be within the dying-declaration exception to the hearsay rule.  Chandler did not die all that soon after the statement, but he was in bad shape, and as the exception is usually articulated (including in Fed. R. Evid. 804(b)(2), all it requires with respect to imminence is that the declarant believed death to be imminent.  So maybe Chandler believed his death to be imminent.

And what about the Confrontation Clause?  The federal courts were treating this case under the constrained standards of habeas, but that doesn’t seem to have made much difference to the federal judges.  Crawford and Giles v. California both indicated that there is a dying declaration exception to the confrontation right, which I think is unfortunate – I’ve written enough about this before, that these cases ought instead to be considered applications of forfeiture doctrine, but the cramped view of forfeiture adopted by Giles made that impossible.

But let’s put that issue aside.  My difficulty with the outcome in this case – and it was not one that could be appropriately considered in a federal habeas case -- is that there was ample opportunity to take Chandler’s deposition.  Does that sound grotesque?  Clearly, the police had no compunction against taking a statement from Chandler that was intended for prosecutorial purposes; the session was videotaped (so indicates the decision of the Ohio Court of Appeals) and the police showed him a photo of Woods.  So how about bringing in the defendant and counsel?  It could have been done.  And in the old days, the courts would have insisted on it.  Consider R. v. Forbes, 171 Eng. Rep. 354 (1814):  A dying victim was giving a statement, and the accused was brought before him partway through.  The court held that only the portion from that point on could be admitted.  To similar effect, consider R. v. Smith, 171 Eng. Rep. 357 (1817).  There, the dying victim (though he was not yet under apprehension of death) made a statement to two justices of the peace.  When it was almost over, the defendant was brought in, and the statement was read over to the victim, who assented to it.  The defendant ought to be present, said the court, but given that he was present when the victim assented to what he had previously said, and had an opportunity for cross-examination, that was good enough. 

In some cases, there is no time to arrange for a deposition.  But where there is, and the authorities are willing to take a testimonial statement from the victim, the right of confrontation, including cross-examination ought to be preserved.

Monday, May 04, 2020

Remote testimony and the coronavirus crisis


The coronavirus crisis has created increased interest in the subject of remote testimony – testimony in which the witness is not in the courtroom but rather testifies from a remote location, with the testimony electronically transmitted to the courtroom.  I hope courts will not use the crisis as an occasion for undermining the confrontation right, even temporarily – especially because, as I will explain, there is a rather simple solution in this setting.

I wrote at length some years ago about remote testimony in a law review article.  And, as it happens, in early March (while courts were still holding ordinary sessions) I participated, as amicus, in an argument on the subject in the Michigan Supreme Court in People v. Jemison.  You can see the main briefs of the parties, and my amicus brief, here.  (The video of the argument is available here.)  My amicus brief lays out my general views on the subject.

In sum, though Maryland v. Craig allowed remote testimony by children in cases of demonstrated trauma, Craig is in tension with Crawford, which was decided afterwards, and should not be extended, especially by lower courts.  The Supreme Court declined to transmit to Congress a proposed amendment to the Federal Rules of Criminal Procedure that would have allowed for remote testimony in some cases; Justice Scalia, writing in support of that decision, explained that “virtual confrontation” did not appear to satisfy the confrontation right.  I don’t believe there is any need to take an absolute stand that virtual confrontation will never be deemed acceptable for adult witnesses.  But at this point I don’t believe that we are close to having enough scientific knowledge to be confident that virtual confrontation is an adequate substitute for taking testimony the traditional way.  And if it is to be allowed, it should only be in cases of compelling need (Jemison does not come close), and only under a careful protocol that ensures satisfactory technical specifications and also proper procedures with respect to such matters as how much may be seen and who may be in the room with the witness.

Now, how about the current crisis?  Here, the impetus for remote testimony is not to protect the witness from trauma (as under Craig), or to save time and money, or that for some reason, such as a witness who is desperately ill or beyond the subpoena power, it appears difficult or unfeasible to bring the witness to the courtroom.  Rather, here the consideration is the necessity of keeping people a sufficient distance apart.  But to satisfy the confrontation right, it is not necessary that the witness be in a full courtroom.  All that is required is that the witness, the defendant, and defense counsel be in the same room when the witness testifies; presumably the prosecutor would want to be as well.  Perhaps a videographer would be as well, though that might not be necessary.  And it would not be necessary that the judge be in the room; a remote hookup should suffice, and in fact even that would not be absolutely essential.  It has long been established that when the witness cannot be brought to the courtroom, a deposition, at which the accused has had an opportunity for confrontation, is sufficient, and Crawford maintains this rule.  Getting the witness to the defendant, or the defendant and counsel to the witness, does involve some transportation, but most witnesses in criminal cases do not live far from defendants, and this should not be a major consideration, even under current conditions, though one could imagine that in an occasional case it might make sense to postpone the trial for a few months.

In most jurisdictions, depositions in a criminal case are relatively rare.  But this is an occasion on which they ought to be held routinely.

Wednesday, September 04, 2019

Laird Kirkpatrick on forensic reports

I previously posted an entry about Stuart v. Alabama and Justice Gorsuch's dissent from the denial of certiorari in that case.  Laird Kirkpatrick, who for decades has been one of the nation's outstanding Evidence scholars, has written a very fine analysis of that dissent and what it, and other auguries, suggest about the law governing the Confrontation Clause implications of forensic reports.  I'm attaching it here.  It has been published, without footnotes (and a slightly inaccurate bio; Laird has been teaching for a long time, but not at GW until the first decade of this century) in the University of Chicago Law Review Online.  He makes many excellent points.  I think his treatments of the "targeted individual" and formality tests are particularly telling.  And he gives reason to think that the Court may not be ready to turn its back on Crawford and Melendez-Diaz.

Wednesday, August 28, 2019

BIO and reply in support of petition in White v. Louisiana

I previously blogged about White v. Louisiana, in which a cert petition is pending.  You can find the documents here.  They now include the State's Brief in Opposition and the Reply Brief in support of the petition.  The case has gotten a good bit of attention.  We'll learn soon if the Court will take the case.  I think it should; the egregious result in this case is itself a demonstration that this area of confrontation law badly needs cleaning up.

Wednesday, August 21, 2019

Important DC Circuit opinion on unavailability

Yesterday, the U.S. Court of Appeals for the D.C. Circuit issued an opinion, in U.S. v. Burden, that may be important in determining unavailability of a witness.  I consulted informally with Burden’s counsel during the appeal, so I will be constrained in making comments until I am confident this issue is resolved in the case.  But briefly:

Burden was convicted of illegal export of defense articles.  A critical witness against him was Yindeear-Rom (Y-R).  Trial was twice postponed, in part to allow for translation of documents.  But the second postponement pushed the trial date until after Y-R was scheduled to be released from prison; he was to be deported after that.  So the Government moved to take his deposition to preserve his testimony.  The defense objected, at least largely on the basis that given the state of the documents it was unable to prepare for the deposition.  But the trial court allowed the deposition, and it took place over four days.  It was videotaped in court before the trial judge; Burden was present and counsel cross-examined on his behalf.  Y-R was then deported to Thailand.  According to the DC Circuit, there is no record that the Government made any efforts before deporting him to secure his presence at trial.  It did make efforts afterwards, but to no avail; Y-R had no interest in returning.  I gather the Government had no means (say, through a treaty provision) of compelling him to do so.  The Government sought to use the deposition at trial.  Burden objected, but the trial court allowed the use.

The D.C. Circuit treated the case as if the only issue was unavailability, citing Crawford, 541 U.S. at 57.  (Burden still had the argument that the opportunity for cross was inadequate, but the appellate court paid no attention to that.)  The court emphasized that in a situation like this, where the Government seeks to use prior testimony of a witness it contends is unavailable, it must demonstrate that it made as vigorous an attempt to secure the witness’s appearance at trial as it would have made had it not had the prior testimony to rely on.  The court declined to hold that there is a per se rule that if the Government deports the witness it cannot claim unavailability, but it said that in such a case the Government would have to make “greater exertions” to satisfy the standard of good faith and reasonable efforts. Here, before deportation, the Government “did not give Yindeear-Rom a subpoena, offer to permit and pay for him either to remain in the U.S. or to return here from Thailand, obtain his commitment to appear, confirm his contact information, or take any other measures.”  The court declined to say just what the Government should have done in this case.  But it held explicitly that “the duty to use reasonable means to procure a witness’s presence at trial includes the duty to use reasonable efforts to prevent a witness from becoming absent in the first place.” And here, though of course the Government had taken Y-R’s deposition, in light of the fact that the Government had made no efforts before deportation to secure his presence at trial, Y-R could not be considered unavailable.

Notably, the court did not inquire as to whether Burden was prejudiced, given the opportunity to cross-examine Y-R at deposition, by Y-R’s absence from the trial itself.  That may be because the Government conceded that if use of the deposition was error it was not harmless.  But, because assessment of prejudice in determining whether there was an error is not the same as assessment of harmlessness of an error, I am inclined to read the court’s opinion as effectively holding that, even given a videotaped deposition in the presence of the judge and with cross-examination, in the absence of any substantial efforts before deporting a witness to secure the witness’s attendance at trial, the witness should not be deemed unavailable, and the defense need not show prejudice.

Wednesday, July 03, 2019

Julien v. State, 2019 WL 2750591, a decision issued yesterday by the Texas Court of Appeals, First District, shows how vulnerable the law of confrontation is with respect to fresh accusations.  As in Hammon v. Indiana, this was a domestic violence case, involving a statement made in the house by the complainant a considerable time after the alleged incident to responding police officers; here it was three hours later because, unaccountably, that is how long it took to respond to repeated 911 calls.  The principal difference was that here the suspect had left the house by the time the officers arrived; in Hammon, he was kept at bay by one officer while another spoke with the complainant.

 

In supporting the conclusion that the purpose of the questioning was to relieve an ongoing emergency, the Julien court first noted that on arrival the officers asked what happened -- which is ironic given that in Davis-Hammon that question (as contrasted to "What is happening?") was considered an indicator that the response would be testimonial.  Of course, in this case, as in Hammon, the speaker was protected as she made the statement, and given that the allegation was of domestic violence there was no plausible fear that the suspect was off on a rampage against others.  But, the court said, the whereabouts of the suspect were not known.  Therefore:  "The primary purpose of the questioning was not to document a past crime, but instead to assess the situation, determine the location of the suspect, and ascertain whether the threat remained."

 

 I think everybody has to have understood that the complainant was giving the officers evidence that could be used in prosecuting Julien.  It should have been an easy case to call this testimonial.  The holding to the contrary just provides a glaring demonstrating of how completely malleable the "primary purpose" test is; if a court wants to wave the evidence in it can almost always mouth sufficient words to reach a conclusion that the primary purpose of the conversation (and usually the court will focus on the officers rather than on the speaker) was something other than the transmission of evidence.

 

Let's also not ignore the horrible incentives this decision creates.  Sure, officers, you can respond at leisure to a 911 call; we'll still be able to say that the conversation was meant to respond to an ongoing emergency.  Better to wait, in fact, because then the suspect will likely have left, and you can say you didn't know his whereabouts.

 

These cases should be decided from the point of view of a reasonable person in the position of the speaker, not from that of the investigator or some kind of mishmashed joint perspective.  And the question should be whether there was a reasonable expectation that the statement would be used in prosecution.  That was clearly so here.  The statement was testimonial -- and the confrontation right should have prevailed, unless Julien forfeited it, as by intimidating the speaker.