Tuesday, December 14, 2004

Forfeiture and dying declarations

Crawford noted accurately, n.6 and accompanying text, that there is "scant evidence" that at the time of the Sixth Amendment hearsay exceptions were invoked to admit testimonial hearsay against a criminal defendant, and that the "one deviation" involved the exception for "dying declarations," the existence of which at that time "cannot be disputed." The Court then said:
We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.
On Monday, December 13, the California Supreme Court took up this invitation and held, in People v. Monterroso, that the statement of a homicide victim describing his killer was a dying dclaration under California law and that as such it did not violate the confrontation right:
[I]f, as Crawford teaches, the confrontation clause “is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding” (Crawford, supra, 124 S.Ct. at p. 1365, citing Houser [a 19th century case], supra, 26 Mo. at pp. 433-435), it follows that the common law pedigree of the exception for dying declarations poses no conflict with the Sixth Amendment. We therefore conclude the admission of Patel’s dying declaration was not error.
The result, I believe, is appropriate. The stated rationale is unfortunate. Monterroso is, so far as I am aware, the first post-Crawford decision to hold that the dying dclaration exception takes a statement out of the confrontaiton right. Cf. State v. Nix, 2004 WL 2315035 (Ohio App. 1 Dist.) Oct. 15, 2004) (holding that admission of dying declarations made to police and others was not plain error, because it is "extremely doubtful" that the statements were testimonial [! a terrible conclusion] and because Crawford "allowed for the possibility" that testimonial dying dclarations are acceptable under the Confrontation Clause). Other courts have taken a preferable route, reaching the same result by applying the doctrine of forfeiture. See State v. Meeks, 88 P.3d 789 (Kan. 2004); People v. Moore, 2004 WL 1690247 (Col. App. July 29, 2004); People v. Giles, 19 Cal. Rptr.3d 843 (2d Dist. 2004); People v. Jiles, 18 Cal. Rptr.3d 790 (4th Dist. Sept. 16, 2004). Moreover, as I hope will become apparent below, I believe Monterroso is in fact largely guided by the forfeiture idea.

First, consider the dying declaration exception. It is so weird it is an embarrassment to evidentiary law -- and so a signal of the need for a new conceptual approach. The exception removes the hearsay bar from a statement made by a declarant explaining the cause or circumstances of what the declarant believes to be his or her impending death. Traditionally, it was applicable only in homicide cases; in the Federal Rules of Evidence version, FRE 804(b)(2), it is also applicable in a civil case. (The declarant must actually be unavailable at trial; in a homicide case this is true by definition; in a civil case, one could imagine a miraculously recovering declarant who becomes unavailable for some other reason.) So why is there an exception for such statements? The traditional rationale was endorsed not all that long ago (but in the bad old pre-Crawford days) in the majority opinion by Justice O'Connor (one of the two Justices who did not sign on to the Crawford transformation) in Idaho v. Wright, 497 U.S. 805 (1990). She said that in some cases "the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility," and this is one of them: persons making dying declarations "are highly unlikely to lie." And why is that? Quoting a 19th century British trial court opinion, she pronounced that "no person, who is immediately going into the presence of his Maker, will do so with a lie upon his lips."

Wow. Imagine the position of a defense attorney who was given a chance to travel to heaven to depose the victim who had identified the attorney's client as the murderer. Which of the following would more likely be the attorney's reaction?
(1) "Great! Now I can treat the victim as I would the victim of any assault case. I can explore whether she had a grudge against my client amd whether she was really in a position to observe who it was who struck her. And I can try to determnie whether, at the time she spoke, in extremis, her mind was clear and she was able to communicate accurately."
(2) "No need to bother. Couldn't do a thing with her. She was about to meet her Maker, so she would be highly unlikely to lie, and cross-examination would be only of marginal utility."
I think the answer is self-evident. If any readers really feel that the inability in the real world of defense attorneys to cross-examine the maker of a dying declaration is of little consequence because cross would be of marginal utility, please let me know.

Even on its own terms, the dying declaration exception makes no sense: If the fact that a declarant believes she is about to die makes her statement so good, why does the exception not apply to all such statements? Why is it limited to the cause or circumstances of the apparently impending death, and why is the type of case in which it can be used so limited? And what does this have to do with the confrontation right, anyway? Crawford makes clear that the right cannot be defeated by a judicial determination that a particular statement or type of statement is reliable. So even if belief of impending death makes a statement reliable (I wonder whether I'll treat it instead as an opportunity to speak loosely without fear of negative earthly repercussions), why does this take the statement out of the confrontation right?

Now consider forfeiture doctrine.
I explored the nature of this doctrine at some length in Confrontation and the Definition of Chutzpa, 31 Israel L. Rev. 506 (1997), cited by Meeks. (Some readers may be interested in a letter addressing various issues related to forfeiture that I wrote on November 30 to the chair of the Maryland Standing Committee on Rules of Practice and Procedure.) The basic idea is a very old one, and it has been established, for purposes of the Federal Rules of Evidence, in Rule 804(b)(6): The accused has no valid complaint based on the confrontation right or hearsay law about the use against him of a witness's statement if it was the accused's wrongful conduct that prevented the witness from testifying face to face with the accused. The wrongful conduct can take many forms -- such as kidnapping and intimidaiton -- but here we are concerned about homicide. Thus, if a witness is on her way to testify against the accused in a robbery case and the accused kills her, then the accused forfeits the confrontation right and the hearsay objection, and a prior statement made by the witness may be used against him, even though it was testimonial in nature and the accused never had an opportunity to cross-examine her.

There is no reason why forfeiture doctrine is rendered inapplicable just because the witness whom the accused renders unavailable is the victim of the crime with which the accused is charged. I believe it is further true that forfeiture applies even if the wrongful act by which the accused rendered the witness unavailable is the act for which the accused is being tried. Thus, if the accused is charged with murder, and the prosecution wants to introduce a statement made by the victim before she died, I believe it is open to the prosecution to secure admission of the statement by proving that the reason the victim is unable to testify in court is that the accused rendered her unavailable by killing her.

Two objections are often made to this application of forfeiture theory, and on close analysis I don't believe either is strong. The first and most obvious one is the bootstrapping objection: The accused is held to have foreited the confrontation right by a conclusion that he committed the very crime that is the subject of the actin and that, by hypothesis, he denies having committed. But the situation is no different from one dealt with routinely in other contexts, most notably when the prosecution in a conspiracy case offers a statement under the theory that the accused and the declarant were conspirators. The same issue comes into the case twice for two separate reasons -- once on the merits, once in determination of an evidentiary question -- but so what? It is presumably different fact-finders who determine
the issue for the two different purposes -- the jury on the merits, the judge on the threshold issue -- and there is no need for the judge to tell the jury of her determination. The standard of persuasion is different for the two decisions; the jury must determine guilt beyond a reasonable doubt, but forfeiture may be determined by a lesser standard. (Some courts apply a preponderance standard, though I think that it probably should be higher.) And the evidentiary bases for the two decisions are different; the jury hears only admissible evidence, but the judge, under FRE 104(a) and similar rules, can consider anything that is not privileged. (Indeed, for this reason I believe that, in a counterpart to Bourjaily v. United States, 483 U.S. 171 (1987), the judge ought to be able to consider the challenged statement itself in determining the forfeiture issue.)

The second objection is that the homicide presumably wasn't motivated principally, or perhaps at all, by a desire to render the victim unavailable as a witness. But again, I ask so what? The witness is unavailable for cross-examination, and the reason is that the accused has killed her wrongfully; it is fundamentally unacceptable to allow him to complain about a situation created by his wrongful conduct, and that her unavailability as a witness is not what motivated him should not matter. (Thus, I believe that FRE 804(b)(6), depends on the wrongful conduct having been intended to procure the witness's unavailability, does not go as far as it might. But forfeiture doctrine for constitutional purposes is not, of course, limited by the expression of that doctrine in the Federal Rules.) Giles, supra, an excellent and thoughtful opinion, has a good discussion leading to the same conclusion. My one quibble is that the principle is not "that no person should benefit from his own wrongful acts" -- sometimes forfeiture is not necessary to prevent such benefit, and sometimes it is not sufficient -- but rather that no person should be able to complain about the consequences of his own wrongful acts.

The dying declaration exception has not usually been explained in terms of forfeiture -- though it was so explained at least as long ago as 1847, see McDaniel v. State, 16 Miss. 401(Miss. Err. & App. 1847) ("It would be a perversion of [the Confrontation Clause's] meaning to exclude the proof, when the prisoner himself has been the guilty instrument of preventing the production of the witness, by causing his death."). State v. Houser, 26 Mo. 431, cited by Crawford and relied on by Monterroso, also seems to advert to the forfeiture idea in explaining the admissibility of dying declarations; as quoted by Monterroso, the opinion says that to exclude dying declarations because of the assertion of the confrontation right would be "abhorrent" to a "sense of justice." It is notable, in any event, that some features of the dying declaration exception that otherwise seem peculiar become much more understandable when examined through the lens of forfeiture doctrine. As suggested above, the exception is not really one for dying dclarations, though the traditional rationale, if accepted, would support such an exception. Rather, it is an exception for statements by a homicide victim on the apparent verge of death giving information about the fatal attack. Why the limitation as to declarant and subject? Because (if the defendant is in fact guilty) those limitations ensure that the accused's wrongful conduct has rendered the witness unavailable to testify at trial. Why the imminence requirement? If death really was imminent, then it probably would have been impossible to preserve the confrontation right outside of trial by taking a deposition.

Interestingly, in Monterroso itself, forfeiture doctrine would have offered a more straightforward way of admitting the evidence than did the dying dclaration exception. An officer on the scene testified "that at the time the statements were made, Patel knew he had been shot, was in great pain and on the ground in a fetal position, was fearful of dying, and never spoke again." But missing from this is any indication that Patel knew death was imminent -- and in fact it was not, for he lingered for another 11 days. It is therefore something of a stretch to apply the dying declaration exception. But if the court concludes as a preliminary matter that Monterroso shot Patel, then forfeiture presumptively follows as a matter of course. I say presumptively because there should be the issue of whether the prosecution could reasonably have arranged a deposition. Cf. R. v. Forbes, Holt 599, 171 E.R. 354 (1814) (deposition given by a dying victim; only the portion after the accused appeared held admissible). That is a judgment call, of course. Sometimes a deposition would be impractical, and given Patel's condition it may have been here (though one wonders how the officer could have testified from personal knowledge that Patel never spoke again). The dying declaration exception gives the police incentive to take statements from dying victims, but not to give suspects an opportunity to cross-examine, even when that would be feasible and morally acceptable. Properly applied, forfeiture doctrine would give police the incentive to do both.


Brooks said...

Two questions re: the 12/14 forfeiture post: (1) What is your view on a requirement that a defendant act intentionally as part of the wrongful conduct leading to forfeiture? Although the Giles court in California agreed that proof of a specific purpose to make the witness unavailable need not be shown, it still limited forfeiture to intentional wrongful acts. I think of the Moore case from Colorado, where that homicide defendant was held to forfeit his confrontation objection to arguably testimonial hearsay because he killed the declarant, but where his actions supported only a criminally negligent homicide conviction. Should someone who engages in reckless or negligent, albeit wrongful, conduct be held to forfeit a constitutional right the same as someone who, by clear and convincing evidence, has engaged in intentionally wrongful acts? (2) The Moore case also makes me think about the scope of forfeiture that should be applied. You wrote about how the dying declaration hearsay exception, which may be rooted in notions forfeiture, generally is limited to statements about the cause of death. In Moore, however, the court upheld admission of hearsay statements about past domestic violence under a forfeiture theory resting on the charged act of homicide. While I can appreciate that a defendant’s wrongful act of making a witness unavailable puts him or her in a weak position to complain about the witness’ unavailability on any topic, should the forfeiture theory be extended to allow testimonial hearsay that predates the wrongful act and when the wrongful act was not committed with any intent to make the witness unavailable?

Richard D. Friedman said...

Two interesting quesitons posed by Brooks, and a belated answer by me.

(1) I thnk the requisite standard of intent is a difficult question. The key is that the accused has acted in a way that in fact caused the unavialability of the witness and was sufficiently wrongful that it is inapproriate for him to claim the confrontaiton right. I think there is a plausible argument that even if the conduct wasn't wrongful at all it should amount to forfeiture if it caused th e unavailability of the witness -- the fact is that the accused has acted in a given way and the witness is unavialable as a result, so it is awkward to allow the accused to claim that his rights are violated by admitting a statement made by the witness without cross-examiantiojn. But on balance it is probably better to require that the accused's conduct be wrongful. (At least, in a case like Crawford, I think it is better not to put the accused to an election between a privilege (there the spoousal privilege) and teh confrontaiton right; this was the Washington supreme court's decision, and the U.S. Supreme Court left it untouched.) Recklessness should be sufficient, I think; negligence is more dubiosu.

(2) The second quesiton is whether forfeiture theory should be applied "to allow testimonial hearsay that predates the wrongful act and when the wrongful act was not committed with any intent to make the witness unavailable." And why not, I say. If it would be unreasonable to expect the prosecution to offer an opportunity for confrontaiton between the time of the statement and the time the witness is rendered unavailable to be cross-examined, I don't believe that the fact that the statement was made before the wrongful act matters. And I don't believe intent to render the witness unavailable is the key to forfeiture. The fact still remains that the reason the accused can't cross-examine the witness is because the accused by wrongful conduct rendered teh witness unavialable. And that seems to me to warrant forfeiture.

Andrew C. Fine said...

I certainly agree with Prof. Friedman that if testimonial dying declarations of murder victims are to be allowed under the Confrontation Clause, forfeiture-by-misconduct doctrine provides a much more defensible justification for this than does the status of the exception regarding such declarations at the time the Clause was drafted. I also agree that forfeiture doctrine is analytically sound, at least in circumstances where the defendant intentionally causes a witness's unavailability. However, in practice, the application of this doctrine has given rise to significant inequities, some of which are mentioned in Brooks' post. Applying it "reflexively," as Prof. Friedman advocated in Confrontation and the Definition of Chutzpa, 31 Israel L. Rev. 506, 508 (1997), could lead to the unavailability of confrontation in entire categories of cases, in which prosecutors could introduce testimonial statements without having to fear exposure of falsehood by cross-examination.

First, considering the profound importance of the protection afforded by the Clause, forfeiture-by-misconduct should not operate unless the defendant is directly responsible for the witness's unavailability, either by causing it himself (by physical action or threats) or directing or conspiring with others to do so. Since someone who is aware of the right he is waiving may only do so intentionally, a rule that would permit a finding of forfeiture in the absence of the defendant's affirmative misconduct is unjustifiable. See James F. Flanagan, Forfeiture By Wrongdoing and Those Who Acquiesce In Witness Intimidation: A Reach Exceeding Its Grasp and Other Problems With Federal Rule of Evidence 804(B)(6), 51 Drake L. Rev. 459, 499-500 (2003). Nevertheless, the Second Circuit has found forfeiture based merely on the defendant's knowledge of another's plan to kill a witness, coupled with his failure to warn authorities, United States v. Mastrangelo, 693 F.2d 269, 272-273, and the Federal Rules of Evidence allow the substantive introduction of a hearsay statement based on a finding that the defendant engaged "or acquiesced in" wrongdoing that intentionally procured the declarant's unavailability. FRE Rule 804(b)(6). Mastrangelo, at least, was at liberty at the time the plot was hatched, but the Rule and case law would apply forfeiture even in the case of an incarcerated defendant who has not directed his confederates to take such action, and is largely powerless to prevent it.

Similarly, if a defendant's physical actions cause a witness's unavailability, he should not be held to have forfeited his Confrontation Clause rights unless his actions were intentional, as Brooks' post suggests and as the Federal Rules and People v. Giles, 19 Cal.Rptr.3d 843, 850 (Cal. App., 2 Dist. 2004), require. Otherwise, the hearsay rule and the right of confrontation "would [be] swallowed ... whenever the defendant was the cause of the witness's unavailability at the trial, such as in a manslaughter or negligent homicide case." Flanagan, ante, 51 Drake L. Rev. at 483. Prof. Friedman's suggestion here that it would be enough if defendant's conduct is "sufficiently wrongful that it is inappropriate for him to claim the confrontation right" is an amorphous test that would be difficult to apply consistently.

A related question concerns how coercive a defendant's conduct must be in order to justify a finding of forfeiture. In a child sexual abuse case, for example, there is an obvious cause-and-effect relationship between the perpetrator's threats during the commission of the crime ("Don't tell anyone!"; Friedman, ante, at 533) and the child's ultimate unwillingness to testify. [This assumes for the moment that it is permissible for a trial judge, in deciding the forfeiture question, to resolve the ultimate issue of the defendant's guilt of the charged crime; but see following paragraph.] However, what if the prosecutor claims that the child is unwilling or emotionally unable to testify solely because of the traumatic nature of defendant's criminal conduct? Prof. Friedman writes that a forfeiture finding may be justified "by the abusive conduct iself." Id. at 533-534. But if this is so, a finding of forfeiture -- and thus a denial of confrontation -- could be justified in virtually all child sexual abuse cases in which the victim has made a prior testimonial statement, and a prosecutor could arbitrarily decide to refrain from calling the child to testify, secure in the knowledge that the court will permit her to introduce the hearsay statement. See David J. Tess, "Losing the Right to Confront: Defining Waiver to Better Address a Defendant's Actions and Their Effect on a Witness," 27 U.Mich.J.L.Reform 877, 915-916 (1995). It could be extended to other types of crimes as well, if the defendant's alleged criminal conduct were sufficiently egregious. What about a defendant who expresses his hope that a friend or loved one not testify against him? Is that sufficiently improper or coercive to warrant the sanction of forfeiture of confrontation?

Prof. Friedman argues here and elsewhere that the trial court should be able to decide defendant's guilt of the charged crime in order to determine the forfeiture question, see, e.g., 31 Israel L. Rev. at 508, though he has cautioned that "there must be sufficient procedural safeguards to insure a high probability that the principle is invoked only when appropriate, [a]nd even then, the principle must be applied with caution, to ensure that it does not gratuitously abrogate the defendant's rights." Id. The latter danger is certainly present if the court applies a preponderance standard to decide the forfeiture question, as most courts have done and as the Federal Rules of Evidence mandate. [Prof. Friedman has recommended a more stringent standard, id. at 529, and some courts have applied a clear-and-convincing-evidence test.] When the ultimate issue is involved, a judge will almost always have found, before trial, that the prosecution's evidence establishes defendant's guilt by a preponderance of the evidence, either by finding probable cause to hold the defendant after a preliminary hearing, or by finding the evidence presented to a grand jury to be legally sufficient. That fact alone would certainly deter trial judges from conducting a serious independent analysis of the same issue in the context of forfeiture. Indeed, the prior ruling would be a strong psychological deterrent to a second, independent determination even if the burden of persuasion at the forfeiture proceeding were heavier. [A heavier burden, however, is clearly preferable, considering the magnitude of the right at stake.] Moreover, after making such a ruling, it would be difficult for many judges to avoid communicating, on a psychological level, their belief in defendant's guilt to the jury. In light of this, it is not surprising that at least two state high courts have held that the forfeiture-by-misconduct doctrine is inapplicable if the question to be determined is defendant's guilt of the charged crime. People v. Maher, 89 N.Y.2d 456, 654 N.Y.S.2d 1004, 1007 (1997); State v. Jarzbek, 529 A.2d 1245, 1253 (Conn. 1987).

More generally, one commentator has argued persuasively that the adversarial struggle over the applicability of forfeiture by misconduct is fought on an uneven playing field: the "rationale and incentives" underlying the doctrine virtually guarantee that courts will have a "strong inclination toward admissibility," given that the focus will be on "the defendant's often egregious conduct and the government's loss of evidence." Flanagan, ante, 51 Drake L. Rev. at 473, 542. It would be disheartening if the primary reaction of courts to Crawford will be to expand their reliance on forfeiture in order to justify admitting highly prejudicial testimonial hearsay without confrontation. If, in addition, the Supreme Court eventually holds, as it surely will, that the Confrontation Clause is never implicated by the introduction of non-testimonial hearsay, Crawford's eventual legacy could be to limit significantly the confrontation right.

There is another difficulty with forfeiture by misconduct that extends beyond its interference with a defendant's confrontation right: most courts, as well as the Federal Rules, have dictated that a defendant who is found to have forfeited confrontation by procuring a witness's unavailability has also necessarily forfeited the protection of the rule against hearsay. Crawford, however, has now made it clear that the Confrontation Clause is principally designed to ensure cross-examination of testimonial statements, rather than to exclude unreliable hearsay. The rule against hearsay, on the other hand, is designed to prevent substantive use of unreliable out-of-court statements. Let's say that a codefendant, who initially agreed to testify for the state, shifts the blame to the defendant during stationhouse questioning. Defendant then deters him from testifying by threatening him. Should the state be permitted to introduce his stationhouse accusation of defendant, even though it would otherwise be excluded under the hearsay rule because of its manifest unreliability? While an accused may forfeit the right to cross-examine because its primary purpose is for his own protection, the hearsay rule more broadly benefits society because of its exclusion of unreliable evidence. Should hearsay have to meet some reliability threshold before being admitted on a forfeiture-by-misconduct theory, or should its admission be automatic upon a finding that defendant has procured the witness's unavailability, as it is in the Federal system? The New York Court of Appeals requires at least a minimal scrutiny of reliability, see People v. Cotto, 92 N.Y.2d 68, 677 N.Y.S.2d 35, 40 (1998) (statement "cannot be so devoid of reliability as to offend due process"); the California intermediate appellate court in People v. Giles, 19 Cal.Rptr.3d at 850, would go farther, and would exclude any hearsay that does not fall within an exception or is otherwise unreliable, even if the defendant is found to have intentionally prevented the witness from testifying. See also Flanagan, ante, 51 Drake L. Rev. at 519-526; Tess, ante, 27 U.Mich.J.L.Reform at 917-918.

Unless the forfeiture-by-misconduct doctrine is applied with much more concern for defendants' rights than has heretofore been shown, its widespread use to circumvent confrontation could be an unfortunate legacy of Crawford.

Tim Campen said...

There seems to be a bit of a contradiction in the statement, "Crawford, however, has now made it clear that the Confrontation Clause is principally designed to ensure cross-examination of testimonial statements, rather than to exclude unreliable hearsay. The rule against hearsay, on the other hand, is designed to prevent substantive use of unreliable out-of-court statements."

The need to cross-examine, according to Crawford, is (at least in part) to test the reliability of an out of court statement. While I recognize the right to confrontation and the hearsay rules are distinct in their analysis, the concept behind both is the same - to help provide the most reliable evidence at trial. While the Crawford court accepts dying declarations "sui generis," there is actually substantial historical proof that the reason it was an exception to hearsay is because such a statement was deemed to be so reliable - not because of some unknown whim of common law courts. And that the Crawford court refers to dying declarations as the "one exception" to confrontation they could find, then off-handedly recognizes excited utterances as another in fn. 8, then recognizes forfeiture later in the opinion further illustrates the Court's inability to establish a coherent rule to follow here. Clearly the court is caught between what it wants the law to be based on an original intent argument, and what history actually shows. Hopefully a more sound majority will clean up this mess before too much injustice is done for all involved in the criminal system.

Richard D. Friedman said...

I won't respond point-by-point to Andrew's comment, but will offer a few thoughts. He raises some valid concerns. I agree that forfeiture doctrine must be applied sensitively. I do not believe that it threatens to undo the advance achieved by Crawford. In most cases there is no plausible ground for invoking forfeiture. There must be a showing that the witness has been rendered unavailable by the accused's wrongdoing, and usually there is just no basis for such a finding. In certain context – say, with child witnesses – courts may be more likely to find forfeiture on a rather routine basis, but: (1) There would still have to be a showing that the defendant's wrongdoing rendered the witness unavailable, not merely that the witness preferred not to testify. (2) It may well be that in this context the defendant's wrongdoing does in fact cause the witness to be unavailable as a witness, and if so the chips should fall where they may.

With respect to Tim Campen's comment, first a preliminary matter: I think it is best to avoid use of the term reliable evidence (I know the Supreme Court has used it in many contexts, including in Crawford). Much evidence that is admissible, including much live testimony subject to cross-examination, is unreliable. There are various reasons for the confrontation right, one of which is to promote better-quality evidence. What purposes the rule against hearsay serves is a complex question; pre-Crawford, I believe it protected the confrontation right, rather inarticulately, because there was no separately articulated protection of that right. Given the protection of the confrontation right, there is lesser need for a hearsay rule, and I believe that over time the rule we know will be radically transformed and much less significant - -a topic for another day.

Tim says that Crawford seems contradictory in its reference to exceptions. I don't think it really is, or at least the problem is not severe. Crawford states (accurately, allowing for the forfeiture qualification) that the only exception established at the time of the Sixth Amendment to the rule that testimonial statements could not be admitted against a criminal defendant was the one for dying declarations. It says that if there is an exception to the confrontation right for dying declarations, it is sui generis. As for spontaneous declarations, it says accurately that if an exception for such statements to the rule against hearsay existed at the time of the Sixth Amendment it was a very narrow one, limited to truly contemporaneous statements; the idea, as indicated by the court, is that statements meeting this strict standard are not testimonial. Crawford also speaks separately about forfeiture. It refers to forfeiture as an exception to the confrontation right; I wish it had spoken instead of forfeiture as a qualification on the right, because forfeiture doctrine does not say that the accused does not have the right to cross-examine with respect to certain types of statements; rather, it says he cannot complain about a violation of the right if his own misconduct has prevented implementation of the right. Crawford does get in the vicinity of this thought by saying that forfeiture is based on equitable rather than reliability grounds. As I have explained in my main post on forfeiture, I believe the dying declaration exception is best understood as an instance of forfeiture doctrine, and several post-Crawford courts have applied the doctrine in this way. Given this understanding, there were no exceptions to the confrontation right as of 1791 based on quality of the evidence -- not for forfeiture (because it is not based on quality of the evidence), not for dying declarations (because it is really an instance of forfeiture), and not for spontaneous declarations (because they were allowed only if they were not testimonial).

Andrew C. Fine said...

Prof. Friedman points out that in order to ensure a more equitable application of the forfeiture doctrine, courts should strictly enforce a requirement of genuine witness unavailability. Indeed, under the Federal Rules, which have served as a model for many states, to invoke forfeiture by wrongdoing, the prosecution must establish true unavailability; for example, a witness's mere refusal to testify is insufficient unless the witness persists in that refusal following a court order. FRE Rule 804 (b)(6); see Rule 804 (a). This is sound policy: cross-examination of an available witness is a more effective way to arrive at the truth than is the introduction of the witness's prior hearsay statement, even if the witness is no longer willing to incriminate the defendant due to the defendant's misconduct. For these reasons, two circuit opinions prior to the adoption of current Rule 804 took the position that the substantive introduction of a hearsay statement on forfeiture grounds should be disallowed when the declarant was available but not called to testify. See United States v. Balano, 618 F.2d 624, 628 n. 6 (10th Cir. 1980); United States v. Mathis, 559 F.2d 294 (5th Cir. 1977). At least in New York, however, prosecutors have often succeeded in invoking forfeiture by wrongdoing to introduce a declarant's prior statements even when the declarant is physically present and willing to testify or even actually testifies, and in one instance, the federal courts approved this practice.

In People v. Geraci, 85 NY2d 359, 625 NYS2d 469 (1995), a witness who had previously testified before the grand jury that he had seen defendant stab the victim told prosecutors on the eve of trial that if called, he would now testify that he did not see the perpetrator. The New York Court of Appeals upheld the introduction of the declarant's grand jury testimony on the ground that the defendant intimidated him into changing his mind, never mentioning his availability. The District Court, in denying habeas relief, ruled that the prosecution was not required to establish true unavailability because of the declarant's "wholesale rejection" of his prior testimony, and also noted that Geraci could have called the declarant to testify. [The latter pronouncement contradicts the general rule that when the prosecution offers a hearsay statement, it bears the burden of producing the declarant or establishing her unavailability.] Geraci v. Senkowski, 23 F.Supp.2d 246 (E.D.N.Y. 1998). And the Second Circuit, in dicta, concluded without explanation that a witness who is "so fearful that he will not testify or will testify falsely is just as unavailable as a witness who is dead or cannot be found." 211 F.3d 6, 9 (2000). A trial court had previously upheld the introduction of a witness's grand jury testimony under similar circumstances, People v. Colon, 122 Misc.2d 1084, 473 N.Y.S.2d 301 (Sup. Ct., Kings Co. 1984), ruling that the witness's availability was irrelevant due to his change of heart.

In People v. Cotto, 92 NY2d 68, 677 NYS2d 35 (1998), the New York Court of Appeals upheld the introduction of a witness's pre-trial statements to police and prosecuors on forfeiture grounds where the witness testified at trial (albeit without implicating defendant), once again without any discussion of availability. See Flanagan, 51 Drake L. Rev. at 512 (in Cotto, "[t]he right of confrontation to an available witness seemed to be evaded ... during the trial"). Granting Cotto's habeas petition on other grounds, the Second Circuit noted that Cotto did not "challenge the idea that a witness ... who actually testifies at trial, can be considered 'unavailable' for Confrontation Clause purposes," and pointed out that the Circuit had previously reserved on the question of whether a witness's refusal to confirm earlier statements due to intimidation constitutes unavailability. 331 F.3d 217, 224 n. 7. And in People v. White, 4 AD3d 225, 772 N.Y.S.2d 309 (1st Dept. 2004), the Appellate Division rejected defendant's challenge to the introduction, based on forfeiture, of the victim's grand jury testimony when the victim appeared and testified on defendant's behalf at trial, relying on Geraci v. Senkowski and People v. Cotto.

Even though the prosecution's substantive use of the prior statements may not violate the Confrontation Clause under these circumstances due to the declarant's availability, see Crawford, 124 S.Ct. at 1369 n. 9, it allows the jury to rely on evidence that is often unreliable and cannot effectively be challenged, because the declarant has recanted the prior statement. Indeed, Prof. Friedman has questioned the rule that the introduction of prior statements when the declarant appears for cross-examination never violates the Confrontation Clause, because "[i]t fails to take into account the serious impairment of the ability to cross-examine that arises when a prior statement of a witness is admitted and the witness does not reassert its substance, effectively walking away from it." Richard D. Friedman, Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, 19-SUM Crim. Just. 4, 7-8 (2004); see Friedman, Prior Statements of a Witness: A Nettlesome Corner of the Hearsay Thicket, 1995 Sup. Ct. Rev. 277.

The New York cases demonstrate in yet another context why the forfeiture-by-misconduct doctrine, though sound in principle, is often applied inequitably in a manner that subverts the strong policy favoring effective cross-examination that lies at the heart of Crawford.

Anonymous said...

Let me preface my question by saying that I am a third year law student doing a paper on Crawford's effect on dying declarations, so I only know the limited bit I have found in my research. But I was just wondering how you would respond to the recent decision in U.S. v. Jordan, 2005 WL 513501, out of Colorado, where the court rejected the use of the forfeiture doctrine to let a dying declaration in. the court said that the purpose of the doctrine is to cover instances when a defendant procures the unavailability of a witness for the purpose of not testifying in trial, such as arranging for a star witness in one's burglary casse to be killed. The court said it does not apply to homicide case because the defendant's intent was not to kill the witness so that he or she couldn't testify in a future murder trial for killing that same victim. I was just curious as to how one would combat that argument.

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