R. v. Brasier -- a classic case from 1779

I have been commenting on very recent cases, but here is R v. Brasier, 1 Leach 199, 168 E.R. 202, a case from 1779 that has been much cited over the years. It bears on the treatment not only of fresh accusations but also of statements made by children and of accusations made to private care-givers. The report is as it stands in the English Reports, later annotations and all.

______________________


(An infant witness under seven years of age, if apprized of the nature of an oath, must be sworn; for no testimony is legal except it be giyen upon oath.)
[S.C. 1 East, P.C. 443; Bull. N. P. 293, Edit. 1790. Referred to, R. v. Guttridge, 1840, 9 C. & P. 471; R. v. Paul, 1890, 25 Q.B.D 202; R. v. Lillyman, [1896] 2 Q.B. 167.]
This was a case reserved for the opinion of the Twelve Judges, by Mr. Justice Buller, at the Spring Assizes for Reading, in the year 1779, on the trial of an indictment [1-Leach-200] for an assault with intent to commit a rape on the body of Mary Harris, an infant under seven years of age.
The case against the prisoner was proved by the mother of the child, and by another woman who lodged with her, to whom the child, immediately on her coming home, told all the circumstances of the injury which had been done to her: and there was no fact or circumstance to confirm the information which the child had given, except that the prisoner lodged at the very place which she had described, and that she had received some hurt, and that she, on seeing him the next day, had declared that he was the man; but she was not sworn or produced as a witness on the trial.
The prisoner was convicted; but the judgment was respited, on a doubt, created by a marginal note to a case in Dyer's Reports (Dyer, 303, b, in marg; 1 Hale, 302, 634; 2 Hale, 279; 11 Mod. 228; 1 Atkins, 29; Foster, 70; 2 Hawk. 612; Gilb. L. E. 144); for these notes having been made by Lord Chief-Justice Treby, are considered of great weight and authority; and it was submitted to the Twelve Judges, Whether this evidence was sufficient in point of law?
The Judges assembled at Serjeants'-Inn Hall 29 April 1779, were unanimously of opinion, That no testimony whatever can be legally received except upon oath; and that an infant, though under the age of seven years, may be sworn in a criminal prosecution, provided such infant appears, on strict examination by the Court, to possess a sufficient knowledge of the nature and consequences of an oath (see White's case, post, 430, Old Bailey October Session, 1786), for there is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court; but if they are found incompetent to take an oath their testimony cannot be received. The Judges determined, therefore, that the evidence of the information which the infant had, given to her mother and the other witness, ought not to have been received. The prisoner received a pardon (see the case of Rex v Travers, 2 Strange, 700).

United States v. Hadley: Not My Views on Fresh Accusations!

I must resist the temptation to comment here on every interesting Crawford case that comes down, and while Hammon and Davis are pending I will particularly refrain in general from commenting on cases presenting the type of issue raised there, the applicability of the Confrontation Clause to fresh accusations. But because the opinion of Hon. Gerald E. Rosen, a district judge sitting by designation on the Sixth Circuit, in United States v. Hadley specifically cites my work and contends that the result he reaches (the issue is not addressed by the other members of the panel) is "fully consistent" with my post-Crawford writings, I will say this: Judge Rosen's opinion does not at all reflect my views, and I do not think it reflects my writings, either. He cites my article, The Confrontation Clause Re-Rooted and Transformed, 2004 Supreme Court Review 439, 459-60 (available from Westlaw here or for purchase from the Cato Institute by clicking here). It is, frankly, hard for me to understand how one could read the pages he cites, or the carryover to the next page, and reach the conclusion about my views that he does. To whatever extent the confusion may be attributable to lack of clarity on my part, I hope it will be relieved by my brief in Hammon.

The Expertise End Run and People v. Goldstein

The New York Court of Appeals, the highest court in the state, issued a brave opinion on Deember 20 in People v. Goldstein, a notorious case in which the defendant pushed a woman he did not know to her death in front of an approaching subway train. Goldstein raised a defense of insanity, and in response the state presented the testimony of a forensic psychiatrist, Angela Hegarty, who testified that in her opinion Goldstein was sane at the time. Hegarty relied in substantial part on statements made to her by others, and the trial court admitted these statements.

The Court of Appeals, per Judge Robert Smith, held that New York evidence law did not prevent admission of Hegarty's opinion, notwithstanding the fact that it was based in part on out-of-court statements. Pointing to the 2000 amendment to Fed. R. Evid. 703, the court reserved an issue not presented by the parties, whether New York evidence law required exclusuion of the statements themselves. All this was preliminary, because the court held that the Confrontation Clause required exclusion of those statements.

The court first rejected the argument that the statements should be deemed to have been offered not for the truth of what they asserted but only in support of Hegarty's opinion. The court pointed out that the statements provided no support for that opinion unless they were true. In this context (not entirely clear how broad a context the court meant), the court said, the distinction between offering a statement for its truth and offering it to support an expert's opinion is "not meaningful." The court thus rejected the path of least resistance, down which others have gone in accepting the distinction; see my prior posting on the subject. The court is clearly correct that in this case the distinction is an empty one. And perhaps there should indeed be a per se rule that when the statement supoprts the esxpert's opinion only if true then the statement should be deemed to be offered for the truth for Confrontation Clause purposes. Add one more to the list of Crawford-related issues the Supreme Court will have to resolve.

The court also held, without apparent difficulty, that the statement was testimonial. Hegarty was hired by the state to testify for the People, and the court infers that the interviewees should reasonably have understood that she was involved in trial preparation and that their statements were likely to be used prosecutorially. The court properly and quickly rejected arguments that the statement could not be testimonial becausei t was informal and because Hegarty was not a government official.

The only issue the court seemed to find problematic was the question of harmless error. the cour tc oncluded that the error was not harmless, and reversed the conviction. This issue, and only this one, led to the only dissent, by a single judge, Susan Phillips Read.

Leaving aside the harmless error portion, which I have not examined carefully and on which I have no view, the majority opinion is solid, persuasive, and terse; the last point is worth emphasis, even apart from style, because it treats isues that should not be difficult in a clear and straightforward way. And yet it is sensitive to the human cost of sending the matter back for another trial. I would like to ascribe the quality of the opinion to the fact that I worked for Judge Smith in practice a quarter century ago, but I don't see anything in the opinion to support this hypothesis.

Petitioner-side briefs filed in Hammon and Davis

The briefs for the petitioners and supporting amici in Hammon v. Indiana and Davis v. Washington were filed on December 22. You can see the brief I filed for the petitioner in Hammon by clicking here . For the petitioner's brief in Davis, filed by Jeff Fisher, click here. For the amicus brief filed in both cases by the American Civil Liberties Union and its Indiana and Washington affiliates, click here. For the amicus brief in Hammon of the National Association of Criminal Defense Lawyers and the Public Defender Service for the District of Columbia, click here, and for the amicus brief filed in Davis by the same two organizations and also the Washington Association of Criminal Defense Lawyers, click here.

Cert granted in Davis and Hammon

The Supreme Court today granted certiorari in both Davis v. Washington, No. 05-5224, and Hammon v. Indiana, No. 05-5705. Davis primarily involves accusatory statements made in a 911 call, while Hammon involves accusatory statements made to a responding officer. In each case the state supreme court held that the statements at issue were not testimonial, and in each case I believe this was erroneous. Jeff Fisher, who won Crawford, represents Davis, and I represent Hammon. The arguments will be in tandem, probably in March. The cases give the Supreme Court a chance to ensure that Crawford will be properly applied throughout the nation. Given my involvement in one of the cases, I will be abstemious in comments on the blog. But in case anybody is in doubt, I'm pretty excited.

Waiting for the Supreme Court; National Law Journal article on pending cert petitions

The Supreme Court will have the cert petitions in Hammon v. Indiana and Davis v. Washington before it at its conference on Friday; my understanding is that it will probably announce its decisions whether to take the cases on Monday. Meanwhile, here is a link to a helpful article in the National Law Journal discussing these two cases and the split among jurisdictions in treating fresh accusations made to governmental agents.

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1129898335844

If you are not a subscriber to the Journal, you can take a free 30-day subscription!

Hammon: papered and ready for Conference

I have previously posted my petition for certiorari in Hammon v. Indiana (lower court decision: State v. Hammon, 829 N.E.2d 444 (Ind. 2005)); you can find the petition by clicking here. The Public Defender Service for the District of Columbia and the National Association of Criminal Defense Lawyers have filed an amicus brief in support of the petition; you can find it by clicking here. The State has also filed a brief in opposition to the petition, which you can find by clicking here. And yesterday I filed a reply brief in support of the petition, which you can find by clicking here. So now we wait!

Supreme Court developments

I have previously reported on pending cert petitions in two cases, Davis v. Washington and Hammon v. Indiana, but htere is another one ahead of them on the docket, Ferguson v. West Virginia. This is a murder case, involving statements by the decedent months before his death in which he expressed his fear of the accused. The state did not initially respond to Ferguson's petition for certiorari, but the Court called for a response, so it has fileda brief in opposition, to which Ferguson has filed a reply.

Meanwhile, the Court has called for a reesponse in Davis. And in Hammon, the state filed a brief in opposition without waiting for a call from the Court. I hope to have it, and the reply that I am now preparing, on the blog soon.

Fixed website for Fisher outline

Jeff Fisher has prepared, and updates from time to time, an outline of post-Crawford developments that many readers have found very useful. He now has it at a fixed website, which you can get to at any time by clicking here.

Fresh accusations -- interesting developments, useful in part

The conflict in the lower courts with respect to fresh accusations has been deepened by two recent decisions.

I have been holding off reporting on Commonwealth v. Gonsalves, 445 Mass. 1, 2005 WL 2046000 (Aug. 29, 2005) because I have wanted to write a long post on it but have not yet had time, so I will report on it briefly. This was a domestic violence case involving statements made at the scene. With only one justice not joining the majority opinion, the court held that “questioning by law enforcement agents, whether police, prosecutors, or others acting directly on their behalf, other than to secure a volatile scene or to establish the need for or provide medical care, is interrogation in the colloquial sense,” and was therefore per se testimonial within the meaning of Crawford. Moreover, the court said explicitly, “This includes ‘investigatory interrogation,’ such as preliminary fact gathering and assessment whether a crime has taken place.” If the statement is not made in response to interrogation – in particular, if it is made in response to “questioning by law enforcement agents to secure a volatile scene or establish the need for or provide medical care,” that does not mean that it is not testimonial; that just means that there must be a case-by-case inquiry as to “whether a reasonable person in the declarant's position would anticipate the statement's being used against the accused in investigating and prosecuting the crime.” Thus, the court deals rather neatly with Crawford’s references to interrogation, but without treating interrogation as a prerequisite for a statement being deemed testimonial; the ultimate test, the one adopted previously by the Sixth Circuit among others, is the correct one. The court remanded for further findings, but indicated strongly that a statement made by the complainant to responding officers was probably per se testimonial and that a statement made by her to her mother was probably not testimonial. The first of these conclusions is clearly correct. I think the second one is much more questionable, and I wish the court had paid more attention to the question. The matter of private accusations made by the victim of a crime to a confidante is, in my view, a very troubling one; such confidantes do sometimes pass the complaint on to the authorities (as happened in this case, though apparently someone else reported the disturbance). In general, though, I think Gonsalves is a very helpful development.

Just today, the United States Court of Appeals for the Third Circuit issued United States v. Hinton. This involved two statements, one a 911 call and the other a statement by the complainant made in a squad car identifying the accused. The court adopted the Sixth Circuit approach, which is good news, and held that the statement made in the squad car was testimonial, which is also good news; the court was not distracted by the fact that this statement was made informally and not in response to interrogation. (But no good news for Mr. Hinton; the court held that admission of this statement was harmless error.) The court also held that the 911 call – in which the complainant said that an unknown assailant, whom he described, had brandished a gun and had warned him not to return to the area – was not testimonial. In this aspect of the case, the court’s analysis was quite cursory. Having (properly) applied a test based on the reasonable anticipation of someone in the complainant’s position to the statement made in the squad car, the court said that this formulation was “less helpful” in the context of the 911 call, and then pointed out that the purpose of the call was to seek police assistance. Certainly that was at least one purpose, and perhaps the dominant purpose, but if the question is one of anticipation rather than of purpose, then at least arguably the statement was testimonial; perhaps the case is less strong, though, than others in which the assailant is identified.

NACDL-PDSDC Amicus in Davis

Here is a link to the amicus brief of the National Association of Criminal Defense Lawyers and the Public Defender Service for the District of Columbia in support of the petition for certiorari in Davis v. Washington. The brief also urges the Court to grant the petition in Hammon v. Indiana, but I expect these organizations will file a separate brief in that case.

A Useful Case on Forfeiture -- and Some Procedural Thoughts

While sitting with the Sixth Circuit, Judge Algenon Marbley wrote the very useful opinion in People v. Cromer, 389 F.3d 662 (6th Cir.2004). It was Cromer that prompted me to begin this blog; see my posting, United States v. Cromer – an important case from the 6th Circuit. Judge Marbley has now written a very useful opinion on forfeiture, United States v. Mayhew, 2005 WL 1847239 (S.D. Ohio Aug. 5, 2005). The facts of Mayhew are quite gruesome. Mayhew was accused of murdering his ex-girlfriend and her fiancé, and then kidnapping and killing his daughter. Before she died, the daughter gave a full rendition of the events to police. It was not disputed that this statement was testimonial. The court properly ruled that the statement could not escape the Confrontation Clause by being characterized as an excited utterance or dying declaration. (Unless I missed something, the court slipped by the question of how the statement would avoid the rule against hearsay, but presumably either of these exceptions would have sufficed.) But forfeiture doctrine did apply. The court here was following the decision in United States v. Garcia-Meza, 403 F.3d 364 (6th Cir. 2005), which had held that the confrontation right can be forfeited even though the wrongful conduct on which forfeiture is based was not taken with the specific intent to render the witness unavailable. But Mayhew added a good deal of elaboration – including a straightforward discussion (with generous citations to my work) of why forfeiture can apply even though the forfeiting act is also the act on the basis of which the crime is charged. Two quibbles: First, I don’t think the operative principle is that the accused should not benefit from his wrongdoing; rather, I believe it is that the accused cannot complain about a situation that he has created by his own wrongdoing. Second, I wish the courts would apply a more stringent standard than preponderance to the forfeiture determination – but for now that is where we are.

Mayhew is also useful more generally in demonstrating that Cromer is not the product of some crazed let-‘em-loose mentality. Cromer and succeeding cases in the Sixth Circuit have taken a broad view of what is testimonial under Crawford – and this is perfectly consistent with a broad view of when an accused should be considered to have forfeited the confrontation right.

Indeed, I believe that many of the cases in which courts have an impulse to let in a statement that really ought to be considered testimonial can best be dealt with by invoking forfeiture doctrine – so long as this is done by proper standards and procedures. Consider in this light State v. Wright, 2005 WL 1903860 (Minn. 2005). In a post of yesterday I have commented critically on Wright's refusal to treat as testimonial key statements made by the accused's girlfriend, referred to as R.R., and her sister. Given that holding, the Minnesota Supreme Court acted properly in declining to consider whether Wright had forfeited his confrontation right. But if the court had held, as it should have, that the statements were testimonial, then the forfeiture issue would have been critical. Here are important facts on that issue as stated by the Minnesota court:

While preparing the case against Wright, the Hennepin County Attorney’s office repeatedly telephoned R.R.’s sister, but was unable to reach her. A police investigator attempted several times to reach R.R., and when R.R. finally answered a telephone call, she told the investigator that she did not want to participate in the case. The investigator went to R.R.’s residence to deliver a subpoena, and when no one answered, he slid the subpoena under the apartment door. A domestic violence victims’ advocate told the court that she had spoken with R.R., who said that she was concerned for her safety and her sister’s safety if they were to testify. R.R. also was concerned that Wright still might have keys to her apartment, and told the victims’ advocate that Wright had been telephoning her from jail. According to the advocate, Wright told R.R. that “if she doesn’t do what he wants someone will come over to her house and do something to her.”

Given these facts, should Wright be held to have forfeited the confrontation right? I believe the answer is no. That is not because the contention of forfeiture is based on intimidation rather than, say, kidnaping or murder, or because the intimidation allegedly arose, at least in part, from the same conduct that formed the basis of the criminal charge against Wright. It is perfectly appropriate to apply forfeiture doctrine in such circumstances; see my long prior post on the subject. But a doctrine with such an extensive reach must not be applied in such a way that any complaining witness can avoid confronting the accused simply by having a government official contend that she was intimidated.

To support a determination of forfeiture, the state bears the burden of showing that the witness is genuinely unavailable, that this unavailability is attributable to the wrongdoing of the accused, and that the state has done what it could to obviate the problem. In referring to the state, I am eliding for now the question of what responsibilities belong to the prosecution and what belong to the court.

In some cases, the state must show that it has done what it could to identify and locate the declarant. In Wright, that was not a problem with respect to R.R., but the efforts of the state to locate the sister appear to have been desultory at best. Beyond that, the state must compel the attendance of the witness at trial or at some other testimonial proceeding where she may confront the accused – genuinely compel her attendance, not merely shove a subpoena under her door. If the state has reason to believe that the witness may be willing to testify in the near future but not in the more distant future, then it should arrange for the proceeding to be held as soon as practical. At the proceeding, the state should attempt to administer the oath, to examine the witness, and to allow for cross-examination. To the extent the witness is recalcitrant, the state should attempt to examine her as to why she is. At least arguably, she ought to be subjected to sanctions for contempt if she improperly refuses to testify, and afforded some form of protection if there is reason to believe that she is in genuine danger for testifying.

This is an immensely complex matter to work out, and it is sure to be highly controversial. But it is also very important. If the question of what is testimonial is resolved as it should be, then my guess is that a great deal of the action in the area of confrontation over the next decade or so will concern this question of what process is necessary before an accused may be deemed to have forfeited the confrontation right. In my view, a robust doctrine of forfeiture is essential to developing a satisfactory law of confrontation; otherwise, the courts will find themselves irresistibly tempted to put beyond the scope of the Confrontation Clause statements that clearly should be characterized as testimonial. But we must avoid creating a doctrine under which a crucial prosecution witness may avoid confronting the accused by the mere expedient of having a government official testify, “She was too scared to come to court.”

Retroactivity: Split Confirmed

The Ninth Circuit has denied rehearing en banc, 2005 WL 1906932 (Aug. 11, 2005), of the 2-1 panel holding in Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005), that Crawford applies retroactively in a habeas case; see my prior post, Retroactivity:Issue Joined? There were nine dissenters to the denial of rehearing. This does not count Senior Judge Wallace, the panel dissenter, who recommended granting the rehearing but was not eligible to vote in the full court. There seems little doubt now that the Supreme Court will resolve the issue, because the Ninth Circuit stands in conflict with four others.

Towards a Resolution on Fresh Accusations?

We may be moving towards a Supreme Court resolution of the question of how the Confrontation Clause applies to fresh accusations – that is, to accusatory statements made shortly after an incident, typically either in a 911 call or to a responding police officer. Jeff Fisher has submitted a petition for certiorari, which you can see by clicking here, in State v. Davis, 154 Wash.2d 291, 111 P.3d 844 (Wash. 2005). And I have filed a petition, which you can see by clicking here, in State v. Hammon, 829 N.E.2d 444 (Ind. 2005). The National Association of Criminal Defense Lawyers has filed an amicus brief in Davis suggesting that the Court grant cert in both cases; I anticipate the NACDL will follow up with a brief in Hammon as well. With these petitions pending, I won’t comment further on these cases here. But I will take note of State v. Wright, 2005 WL 1903860 (Minn. 2005), decided since both petitions were filed, in which the Minnesota Supreme Court reviewed the conflict among the lower courts and said:

The Supreme Court stated in Crawford that it would “leave for another day” any effort to put forth a comprehensive definition of testimonial statements. 541 U.S. at 68. We believe that the task of defining the exact parameters of what constitutes testimonial statements for purposes of the Confrontation Clause of the U.S. Constitution is best suited for the Supreme Court.

Wright involves both 911 statements and statements to responding officers, and, like the majority of the cases in this realm, it finds a way to let them all in. Some of the statements were made during an interview at the complainant’s apartment. The court’s opinion includes this remarkable passage:

It is inconsequential that during the interviews the officers took notes that they later used to refresh their memories at trial. We acknowledge that the officers took possession of some evidence at the apartment while interviewing R.R. and her sister, and Wright was in custody at that time. However, we conclude that the officers’ actions represent a response to a call for assistance and preliminary determination of “what happened” and whether there was immediate danger, rather than an effort to gather evidence for a future trial.

The analogy that comes most readily to mind is provided by this memorable passage from Ring Lardner’s The Young Immigrants:

Are you lost daddy I arsked [sic] tenderly.

Shut up he explained.

The Minnesota Supreme Court said:

A consequence of using the Court’s broadest formulation may be the categorization of virtually every out-of-court statement made by a declarant to a police officer as testimonial. But such a consequence would make an analysis of the interrogative qualities of interactions between declarants and the police wholly unnecessary.

Well, yes. I have discussed the question of interrogation at length on this blog, in the posting titled The Interrogation Bugaboo. I believe a statement made to government officials and accusing another person of a crime should be considered testimonial irrespective of whether it was in response to interrogation. In some more doubtful circumstances, the fact that a statement was made in response to interrogation may support the conclusion that the speaker anticipated prosecutorial use of the statement – but when the statement is accusatory and made to police officers, that conclusion is clear even if the statement was made entirely at the initiative of the speaker. The Minnesota court believed that Crawford did not intend such a result. I believe that the Minnesota court is wrong, and that Crawford's references to interrogation were not intended to limit the category of statements deemed to be testimonial. But plainly the matter will not be resolved without intervention by the United States Supreme Court.

The Federal Circuits Go in Different Directions

Among the most interesting recent decisions on Crawford are two by United States Courts of Appeals that illustrate how widely divergent are the paths followed by the courts in determining confrontation issues.

First, the bad news. In United States v. Luciano, 2005 WL 1594576 (1st Cir. Jul. 8, 2005), the First Circuit -- which sits in Boston, for goodness sake -- appears to have adopted an argument that I initially had hoped merely reflected inability to read in Columbus, Ohio, see State v. Banks, 2005 WL 2809070 (Ohio App. 10th Dist. 2004) ("The holding in Crawford only applies to statements . . . that are not subject to common-law exceptions to the hearsay rule, such as excited utterance or present sense impression.").

[T]he initial statement that Camacho made to Officer Thornton when Camacho flagged down the Officer's cruiser immediately following the assault does not constitute ‘testimonial hearsay’ as used in Crawford. Instead, Camacho's statement appears to be an excited utterance that would qualify for admission at trial under as [sic] a hearsay exception.

The implication certainly seems to be that if a statement fits within a hearsay exception then it is not testimonial. That is about as blatant a misreading, and a misunderstanding, of Crawford as can be. Or maybe it is simply a denial of Crawford, a longing for the good-old days of Roberts. No need for further comment.

Now for much better news. I recently reported on the Sixth Circuit decision in United States v. Arnold, 410 F.3d 895 (6th Cir. June 21, 2005), which I think adopted generally sound Confrontation Clause analysis. The 10th Circuit has now joined the basic approach adopted by the Sixth. The case, United States v. Summers, 2005 WL 1694031 (10th Cir. Jul. 21, 2005), may be one for the textbooks, because it presents a classic hearsay issue as well as a confrontation issue. Thomas and three others were arrested after a bank robbery. At Thomas's trial, one of the officers was allowed to testify, over Thomas's objection, that one loquacious arrestee, Mohammed, said, "How did you guys find us so fast?" The opinion of the unanimous 10th Circuit panel contains an interesting discussion of whether this question amounts to an assertion. The court concluded that the question “clearly contained an inculpatory assertion.” Certainly the court is right that the utterance at least contained the implicit premise “We’ve done something for which you would be interested in finding us.” I have taken the view that, with respect to the rule against hearsay, the fact that a proposition is an implicit premise of an utterance is not enough to make the utterance an assertion of that proposition. Thus, if “Look at my daughter move!” in context is “Look at my daughter [who you and I both know is the girl with the ball, so I don’t have to refer to her that way, but can simply use the shorthand, ‘my daughter’] move!” then it seems not to be an assertion of the proposition that the girl is the speaker’s daughter for hearsay purposes. On the other hand, if it is “The girl with the ball is my daughter. Look at her move!” then it is such an assertion. The Elements of Evidence 216-17 (3d ed. 2004). It seems to me that the “intended . . . as an assertion” standard of Fed. R. Evid. 801(a) demands a distinction of this sort. But arguably that should not be the rule under the Confrontation Clause. Arguably, even if Mohammed was saying, “Given that premise, which we both understand so I don’t have to communicate it to you, I do wonder how you found us so quickly,” his utterance is of concern under the Confrontation Clause. Interesting problem, I think, but I won’t comment on it any further now; I’ll be interested in readers’ comments.

Of broader significance, the 10th Circuit adopts the same approach that the Sixth Circuit did, first in United States v. Cromer, 389 F.3d 662 (6th Cir. 2004) [on which Andy Fine and I commented when I started this blog], and more recently in Arnold. After rejecting a narrower approach propsoed by Prof. Amar as emphasizing form over substance, the court said:

[W]e believe an objective test focusing on the reasonable expectations of the declarant under the circumstances of the case more adequately safeguards the accused's confrontation right and more closely reflects the concerns underpinning the Sixth Amendment.

And it included a citation, for which I am grateful, to my article, Confrontation: The Search for Basic Principles, 86 Geo. L.J. 1011, 1040-43 (1998).

Turning to the facts of the case, the court held that Mohammed’s statement was “loosely akin to a confession,” and that under the circumstances, “a reasonable person in Mohammed's position would objectively foresee that an inculpatory statement implicating himself and others might be used in a subsequent investigation or prosecution.” And for good measure, the court explicitly and properly swatted aside the idea that the Confrontation Clause analysis would be affected by the fact that the statement qualified under an exception to the hearsay rule; the ability to read seems to be secure in the mountain states. All of which did Mr. Thomas no good, because the court concluded that the error was harmless. Nonethelss, the decision clearly puts the 10th Circuit among those courts that understand the transformation wrought by Crawford. Until the Supreme Court intervenes, those courts seem likely to remain in the minority.

The Expert Opinion Problem

Prof. Roger Park has called to my attention a case that presents an important issue in a form that he predicted. The general issue is this: So far as evidentiary rules are concerned, in some circumstances an expert may base an opinion at least in part on information other than admissible evidence, including statements made to the expert, and may even testify to those sources of information. E.g., FRE 703. So, to what extent does the Confrontation Clause trump this rule? In some settings, though a statement made to the expert might appear to be testimonial in nature, because made in anticipation of prosecutorial use, the prosecution will argue that the statement is not being offered for the truth of what it asserts but only as a basis for the expert's opinion; recall that Crawford preserves the rule that the Confrontation Clause is only concerned when a statement is offered to prove the truth of what it asserts.

Several courts have held that Crawford does not destroy this end run. But now the issue has arisen in a particularly stark form, the one that Roger predicted, in People v. Thomas, 2005 WL 1377744 (Cal. App. 4th Dist. June 10, 2005; certified for publication June 30, 2005) . Melvin Thomas was charged with active participation in a criminal street gang. Robert Kwan, a sheriff's officer, testified as an expert on gangs. Among other testimony, Kwan offered the opinion that Thomas was a member of a gang called E.Y.C. Kwan had various sources for drawing this conclusion. According to the court:

Kwan testified that he had talked with other E.Y.C. members about defendant, and
they had told him that defendant was a member of E.Y.C. and that defendant's
moniker was "Little Casper" or "Villain." Kwan had also talked with members
of rival gangs about defendant's membership in E.Y.C.

The court held that this testimony was acceptable.

The basis-for-expert-opinion veneer seems to me to be too thin in this context. I am not certain whether any general rule is appropriate, but I don't think that the general rule should be: "If evidentiary law allows the prosecution to present an expert who opines as to a conclusion and in support of that conclusion testifies to matters communicated to the expert, there is no confrontation problem." Perhaps the opposite general rule would work: "There is no difference for confrontation purposes between offering a statement to prove the truth of what it asserts and offering it in support of an opinion that an assertion made by the statement is true." Note that this rule would have teeth only if the statement is testimonial. Arguably it was in Thomas: From what I gather, Kwan was not working undercover. Apparently, though, he was able to gain the confidence of the gang members to a great degree, and perhaps there is an argument that from their perspective their conversations seemed like idle chatter.

Addendum, Feb. 9, 2007: Please note that I have commented on the general subject matter of this entry in two later ones, The Expertise End Run and People v. Goldstein and The Not-for-the-Truth End Run.

Crawford Beyond the Criminal Trial?

My last post before I went on hiatus from the blog concerned the applicability of Crawford at sentencing proceedings. More broadly, I have been asked about the applicability at other proceedings -- probation revocation hearings, deportation hearings, and so forth. My thoughts are in line with the comments I offered at the end of the prior posting.

The confrontation right as such applies only to criminal prosecutions: A testimonial statement may not be offered at trial against an accused if he is not afforded an opportunity to cross-examnie the maker of the statement. But even though the confrontation right as such does not apply beyond the criminal trial, there is a broader principle in our jurisprudence that when a person testifies an adverse party may cross-examine. Suppose that during a deportation hearing the government presented a witness who testified in favor of deportation, and after that witness concluded the ALJ said, "Thank you very much. Excellent testimony, so clearly reliable we don't have to hear from the respondent." The respondent would of course be very upset, and with reason. The Confrontation Clause is not applicable, but denial of the right to cross-examine in these circumstances seems to be a blatant violation of general due process. Now, the big change effected by Crawford is to recognize that some statements not actually made before the tribunal are really testimonial in nature. So the due process argument might make the same move -- saying that some statements not made in front of the tribunal are really testimonial in nature and that allowing them to play a role in the decision would allow a witness to testify without going under oath and being subjected to cross-examination. Even if the particular type of proceeeding does not follow ordinary evidentiary rules, this impairment may be of constitutional concern.

But then what are the limits? Certainly it is a fundamental part of our civil adjudicative system, as well as of the criminal system, that parties have a right to cross-examine witneesses. Does this mean that Crawford should effectively be transplanted in the civil system as a matter of due process? That doesn't seem particularly plausible to me. And yet there may be situations in which we would say that failure to allow cross amounts to a constitutional violation. I have long had a good title for an article waiting to be written: Civil Confrontation. The reason why the article remains to be written, apart from press of time, is that I am not sure just what the contents would be. Any takers?

An important decision – the right way! – on 911 calls and statements to responding officers

A decision of the Sixth Circuit, in United States v. Cromer, 389 F.3d 662 (6th Cir. 2004), prompted me to begin this blog. And now after a too-long hiatus – prompted at first by what was then a dearth of interesting news and a surge of time-pressured work, and prolonged by inertia – I am resuming attention to the blog by reporting on another exciting decision by the Sixth Circuit, issued just yesterday in United States v. Arnold, 2005 WL 1431484. Arnold is one more in a long line of post-Crawford cases involving a 911 call and a statement to a responding officer. Unlike most of the others, Arnold holds that the statement made in the 911 call, as well as the one to the responding officer, should have been excluded.

Arnold was a prosecution for possession of a firearm by a convicted felon. Police involvement was initiated by a woman’s 911 call reporting that Arnold had threatened her with a gun. Police arrived at the scene, and a young woman, Tamica Gordon, who apparently was the caller and who was extremely upset, described the incident in fuller difficulty. Soon after, Arnold drove up, and Gordon identified him as the assailant. The police searched the car, apparently legally, and found a gun. Gordon declined to respond to subpoenas, and evidence of her statements was introduced at Arnold’s trial, where he was found guilty.

The majority of the appellate panel held that the first two statements – in the 911 call and to the officers when they arrived – did not qualify as excited utterances, because there was no proof of when the incident occurred, and that even if admission of all the statements was proper there was insufficient evidence to tie the gun to Arnold. In view of this, the dissenting judge thought with considerable reason that there was no need to reach the confrontation issue. Nevertheless, the majority did reach the issue, and it concluded that all three statements were testimonial. In large part, the court relied on and applied Cromer. As the Arnold court said, Cromer

stated that the decisive inquiry should be "whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime." Id. [389 F.3d] at 675. The court further stated that a "statement made knowingly to the authorities that describes criminal activity is almost always testimonial." Id. (quotation and citation omitted [aw, shucks]).

Given this, the Arnold court found the case rather simple:

Gordon could reasonably expect that her statements would be used to prosecute Arnold. Further, her statements, which were made knowingly to authorities, described criminal activity.

I think the result and the analysis are correct, except that the “Further” is confusing – really, this should be a “because” linking the two sentences.

One other notable aspect of the opinion is that the court acknowledges that “one purpose of the 911 call may have been to secure assistance,” but nevertheless recognizes that this is not decisive because “it remains that Gordon could also reasonably expect the statements to be used in a future trial” [It would have been better if the court had said “future prosecution” instead, but that doesn’t matter here.] In other words, the court declines to use a purpose test and instead looks to the anticipation of the declarant in determining whether the statement is testimonial. This, as I have argued, is the best approach. And in a case of this sort, the application does indeed seem clear: Beginning with the 911 call, Gordon was reporting to the police a crime that had recently been committed. Whatever her motivation may have been, a reasonable person in her position would almost certainly expect the criminal justice system to use the information she provided in an attempt to investigate and if appropriate punish the assailant. If her statements were admissible, then we would have created a system in which witnesses may knowingly create evidence for trial by calling 911 or by speaking to responding officers.

There are some other aspects of the majority opinion that do not strike me as helpful. The majority indicates that Gordon was “the only witness to the alleged incident”; the relevance of this is unclear, though the majority seems to believe that it supports the conclusion that she would reasonably expect her statements to be used to prosecute Arnold. The court also relied on the facts that Gordon’s statements were “made for the purpose of ‘establishing or proving some fact’” [citations omitted] and that they were “were evidence and proof of a matter, firsthand authentication of a fact, and open acknowledgments.” I do not see how these factors distinguish these statements from most hearsay. The opinion would have been more powerful had it simply adhered to the Cromer logic: A statement made in reasonable anticipation of prosecutorial use is testimonial, and therefore a statement knowingly made to the authorities that describes criminal activity is almost always testimonial, no matter how excited the declarant may be.

The dissenting opinion, though thoughtful, articulate, and moderate-sounding – it does indicate that “most statements made directly and consciously to investigating officers will be testimonial” – is nevertheless misguided, in my view. It puts a great deal of emphasis on the fact that the statements were not “solemn declarations,” thus committing an error on which I have commented before in this blog – declining to treat a statement as testimonial for Confrontation Clause purposes because it lacks the incidents that we associate with testimony given under proper conditions. Also, though the dissenting judge quotes the Cromer standard, it appears that he actually applies a purpose test. (“As in this case, a 911 call generally will be a plea for help, not an effort to establish a record for future prosecution.”) He also seems to regard it as incongruous that a person who is in an agitated state could give testimony. And, like many other post-Crawford opinions considering statements that are supposedly excited utterances, this one deals with the crucial passage from footnote 8 of Crawford (“It is questionable whether testimonial statements would ever have been admissible on that ground [as spontaneous declarations] in 1791; to the extent the hearsay exception for spontaneous declarations existed at all, it required that the statements be made 'immediat[ely] upon the hurt received, and before [the declarant] had time to devise or contrive any thing for her own advantage.' Thompson v. Trevanion, Skin. 402, 90 Eng. Rep. 179 (K.B.1694)”) by ignoring it.

I believe the dissent provides further confirmation of a sense I have had for some time, that it will not be enough for the Supreme Court to adopt the proper standard in determining what statements are testimonial – in my view, a standard based on the expectations of a reasonable person in the position of the declarant. The Supreme Court will have to say, in effect, “And we really mean it” to prevent some judges, even some sophisticated ones, from applying that standard in a very narrow manner. The best way to do that, I believe, is to adopt rules of thumb, as Cromer did, indicating circumstances in which a statement should usually be deemed testimonial. Perhaps the most important such rule adopted by Cromer, the one now critical to Arnold, is that a statement made knowingly to the authorities that describes criminal activity is almost always testimonial.

Crawford and Sentencing

I've been asked about the role, if any, that Crawford plays in sentencing proceedings, in light of Blakely and Booker. I don't know much about sentencing, so I asked Jeff Fisher, who argued and won both Crawford and Blakely and follows both areas closely, to comment. He has graciously complied, and I am posting his comments below, with a follow-up by me.
___________

I've been asked several times recently whether Crawford applies to
evidence the prosecution offers to prove sentencing facts in the
post-Blakely, post-Booker world. I think the answer depends on what
kind of sentencing fact (or sentencing system) we're talking about:

1. If the fact is covered by Blakely -- that is, the fact is necessary
in a given state system to permit a judge to impose a sentence above an
otherwise binding threshold -- then Crawford should apply. I have not
seen any decisions on this yet, but the thrust of Blakely is that such
facts are effectively elements of an aggravated offense. That being so,
the right to confrontation, as well as other constitutional and
evidentiary rights, apply.

2. If the fact is covered by Booker -- that is, the fact is necessary
to a sentencing guideline calculation, but that guideline calculation
does not bind the judge in imposing the sentence -- then the question is
harder. But, in my view, if the sentencing judge thinks that the fact
at issue, if found, will cause him to impose a higher sentence under a
combination of the guidelines and the factors in 18 USC § 3553(a), then
there is a strong argument that Crawford ought to apply at least as a
discretionary matter. This is essentially the conclusion a district
court recently reached in United States v. Gray, 2005 WL 613645
(S.D.W.Va. March 17, 2005). Indeed, if the judge thinks that a fact at
issue will require him, as a matter of statutory reasonableness on
appellate review, to impose a higher sentence, then Crawford may well
apply as a matter of right.

3. Finally, if the fact covered by neither Blakely nor Booker -- that
is, if the fact is simply something the judge is finding under an
indeterminate sentencing system -- then Crawford does not apply because
the Confrontation Clause does not apply. But the due process
reliability requirements still apply. And I think Crawford's
description of the importance of cross-examination in ensuring the
reliability of testimonial evidence ought to figure into that
reliability analysis. But, again, I have not yet seen any cases one way
or another on this.
____________

An additional comment: Suppose a witness testifies for the prosecution at a sentencing hearing in a jurisdiction fitting into Jeff's categories 2 0r 3. After direct testimony, the judge excuses the witness, saying, "Thank you. That strikes me as very reliable. You are excused. There is no need for cross-examination." It seems to me that this would be a constitutional violation -- if not of the Confrontation Clause, because the Clause is deemed categorically inapplicable in this setting, then of a generalized due process right. Then why shouldn't the result be the same if instead of testimony given from the stand the statement is a testimonial one made beforehand? One difference might be that if the testimonial statement was made earlier the witness might be unavailable by the time of the sentencing hearing. But I am not sure that should make a difference. Suppose that the witness testifies on direct at the sentencing hearing, as above, and just after direct is concluded she suddenly dies, through nobody's fault. If this occurred at trial, the direct testimony could not be used in the prosecution's favor. I am inclined to think that the result should be the same, even if the Confrontation Clause is deemed inapplicable, when the witness dies before cross at the sentencing hearing, and if that is so the result should be the same if the testimonial statement was made before rather than at the hearing.

RF

Crawford Pleads Guilty

John Hansen ("Skelly") of Olympia, Washington, has informed me that, on remand, Michael Crawford has pled guilty to one count of first-degree assault and has been sentenced to ten years in prison. This is four years less than his original sentence. You can read a report on this in Skelly's blog, or here.

A Strange Federal Opinion on Dying Declarations and Forfeiture

In United States v. Jordan, 2005 WL 513501 (D. Co. March 3, 2005), a judge of the United States for the District of Colorado has issued one of the stranger opinions I have seen concerning dying declarations and the forfeiture doctrine.

The accused is charged with stabbing a fellow inmate, Stone, to death. Afraid that he was dying, and in fact on the verge of death, Stone made several statements accusing Jordan of the crime. There does not seem to have been much dispute, and the court dquarely concluded, that the statements fell within the dying declaration exception to the hearsay rule, Fed. Rule of Evidence 804(b)(2). That did not ensure admissibility, though, for the court held that Stone’s statements to an investigating Bureau of Prisons agent were “patently testimonial.” This seems clearly correct; indeed, I believe that his statement to the same effect to a paramedic ought also to have been considered testimonial, but that issue does not have any impact on the outcome of the case.

The court then considered the status of dying declarations under Crawford. It quite accurately said, “Whether driven by reliability or necessity or both, admission of a testimonial dying declaration after Crawford goes against the sweeping prohibitions set forth in that case.” But it also noted that Crawford nevertheless preserved the possibility of maintaining as an historically based anomaly an exception to the confrontation right for such declarations. And yet the court rejected this argument, asserting that “the dying declaration exception was not in existence at the time the Framers designed the Bill of Rights.” Not only is this statement strikingly inaccurate – see, e.g., R. v. Woodcock, 1 Leach 500, 168 E.R. 352 (K.B. 1789) – but it also seems quite squarely in conflict with the court’s statement made just a few paragraphs before: “The dying declaration became an exception to the rule against hearsay in the early 18th Century.” And the court followed its inaccurate assertion with a series of non sequiturs:

At the time of enactment of the Sixth Amendment, "sworn statements of witnesses before coroners" were admissible despite not being subject to cross-examination. [124 S.Ct.] at 1376. Crawford requires both necessity (unavailability) and an opportunity for cross-examination (Sixth Amendment confrontation to test reliability). Based on my reading of Crawford, in the case of a dying declaration, the presence of only one will not suffice. Inability to test Stone's statements through the constitutionally rooted crucible of cross-examination is fatal to application of the dying declaration exception to the hearsay rule in this case.

I agree with the Jordan court that the dying declaration exception makes little sense and that it does not square well at all with the theory of Crawford. (See the post on Forfeiture and dying declarations.) But it is plain that the doctrine did exist at the time of the Sixth Amendment, that Crawford acknowledges this, and that Crawford at least holds open the possibility that, notwithstanding the absence of an opportunity for cross-examination, statements fitting within the exception ought to be admissible on historical grounds. I do not believe that this invitation should be taken up, largely because forfeiture dotrine achieves much the same results in a far more persuasive manner.

But the Jordan court also declined to apply forfeiture doctrine. It relied on Fed. R. Evid. 804(b)(6), which applies only if the wrongdoing on which the forfeiture contention is based "was intended to, and did, procure the unavailability of the declarant as a witness." But in the context of the case, it was wrong for the court to give anything more than persuasive weight to the Federal Rule. The statements were, as noted above, dying declarations within the meaning of Fed. R. Evid. 804(b)(2). Even assuming that – as the court held, and as I think proper – this does not relieve the confrontation problem, it certainly does resolve the hearsay problem. There is therefore no need to find a further way around the Federal Rules' presumptive ban on hearsay. The court, in short, should not have looked to the Federal Rules' expression of forfeiture doctrine. Whether the confrontation right is forfeited is a matter of federal constitutional law, and there is no reason why the constitutional standard of forfeiture must conform to the Federal Rules' expression of the doctrine. Therefore, even if it is true that, as the court said, there are no cases holding "that a murder whose by-product is the unavailability of a witness to that killing is covered by the rule [i.e., Rule 804(b)(6)]," this does not answer the constitutional question. As I have indicated in the post on Forfeiture and dying declarations, there are already several post-Crawford cases holding that a murder defendant may forfeit the confrontation right by committing he very killing with which he is now charged. And for reasons expressed in that same post, I believe these decisions are correct: The constitutional right should be forfeited if the accused's wrongdoing rendered the witness unable to testify subjeect to confrontation, whether or not that wrongdoing was motivated by the desire to achieve that result.

Ultimately, the strangest aspect of the Jordan case is the outcome. For hundreds of years, dying declarations have been admitted against homicide defendants. The courts have not usually articulated sound reasons for this result, but it is one that has strong intuitive appeal, as implicitly recognized by Crawford. Had the Jordan court held that in the circumstances of this case the statement could not be admitted because the prosecution had failed to mitigate the problem created by Jordan's wrongdoing, the decision would have had relatively narrow implications and would have been on firm theoretical grounds, see the post on Forfeiture, the Prosecutorial Duty to Mitigate, and Rae Carruth, however dubious might be the factual conclusion that mitigation was a reasonable possibility. But instead, the court's decision appears to preclude any use of a dying declaration identifying a killer and made to an investigator (and in my view the logic should carry beyond that, whether the audience was a public official or not), unless the prosecution can show that the assailant was motivated by the desire to prevent the victim from testifying. That is not a result most courts will find at all attractive. If the Government decides to appeal, my guess is that this decision will be dead on arrival at the 10th Circuit.

Shifting the Burden

Some prosecutors, eager to introduce an out-of-court testimonial statement at trial but not eager to put the witness on the stand, have attempted to shift to the accused the burden of producing the witness. "We'll introduce the statement," they effectively say, "and we'll ensure that the witness is close at hand. Then, if the accused wants to confront the witness he can call her to the witness stand. He may choose not to do so, but that his his choice, and he has no complaint that he has been denied his confrontation right." In Bratton v. State, 2005 WL 459019 (Tex. App. Dallas Feb. 28,2005), the court rejected this tactic, as had State v. Cox, 876 So.2d 932 (La. App. 3d Cir. 2004) ("Simply stated, if the State needed to have Mrs. Sykes' testimony to enable the State to introduce the statement into evidence, the State could have called Mrs. Sykes as a witness.") For short, though the courts rejected it, I'll refer to this as the Bratton-Cox procedure.

In neither of these cases did the court give a very full explanation. The Bratton court said that "as the party seeking to admit" the out-of-court statements, the prosecution bore the burden of showing that they were admissible, and to do that Crawford required that they show that the declarants were unavailable and that the accused had a prior opportunity for cross-examination. But here, by the prosecution's own acknowledgment, the witnesses were available, and the accused had not had an oportunity to cross-examine. Well, yes, but this really doesn't meet the argument -- the prosecution is contending that the acucsed has an oportunity at trial to examine the witnesses adersarially. If that opportunity is sufficient, then there is no confrontation violation. Indeed, Crawford, in footnote 9, took pains to "reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)."

Given the citation in Crawford, I will call this rule the Green rule, though I am not sure that this is historically accurate. (Green itself did not hold as broadly as Crawford suggested it did; it reserved the question of whether the confrontation right precluded introduction of the prior statement if the witness professed inability to remember, and this question was decided in the negative in United States v. Owens, 484 U.S. 554 (1988).) I believe that the Green rule is wrong-headed, and that the Court has failed to take into account the extent to which cross-examination is impaired if before it begins the witness is no longer adhering to the substance of the prior statement. See Prior Statements of a Witness: A Nettlesome Corner of the Hearsay Thicket, 1995 S.Ct. Rev. 277. But that rule seems likely to be with us for the foreseeable future: So far as the Confrontation Clause is concerned, then, it is now acceptable for the prosecution to put a witness on the stand and then introduce for its truth a prior statement made by the witness even though the witness does not now testify that the substance of the statement is true. I may address the merits of this rule in another post. But for now, the question is this: Given the Green rule, is the Bratton-Cox procedure acceptable -- that is, may the prosecution present an out-of-court testimonial statement without putting the witness on the stand or ensuring any earlier opoprtunity for cross-examination, but with the assurance that the witness is available to be called as a witness by the defense? I think that, even given the Green rule, the Bratton-Cox procedure is unacceptable.

In a case like Green or Owens, the prosecution presents the witness live, the witness gives testimony that is unsatisfactory to the prosecution, and the prosecution introduces the prior statement. Alternately, the prosecutor might introduce the prior statement through another witness after the primary witness has left the stand and then recall the primary witness, or perhaps it would suffice to announce to the court and the defense before cross begins that the prior statement will be introduced. Thus, without the accused having to lift a finger, and even absent cross-examination of the witness, the witness's testimony presents a discrepancy: The prior statement made an assertion that the current testimony does not confirm. This was critical to the conclusion in Green.:

The most successful cross-examination at the time the prior statement was made could hardly hope to accomplish more than has already been accomplished by the fact that the witness is now telling a different, inconsistent story, and--in this case--one that is favorable to the defendant.

399 U.S. at 159.

I do not believe this argument is persuasive (the jury may well conclude that the witness has failed to adhere to the prior statement for reasons carrying no suggestion that the prior statement is false) , and it does not even meet the facts of Green very well. (The witness, Porter, had previously identified Green as his drug supplier; at trial he did not identify someone else but rather said he couldn't remember.) But put those concerns aside.

The fact is that in a case like Green or Owens, the accused has the disparity to work with even before beginning cross-examination. The accused may, as I contend in the article cited above, be severely impaired in his ability to cross-examine, but at least the cross-examination can be conducted without bearing undue risk or cost. Now consider the Bratton-Cox procedure. The prior statement has been introduced, and the prosecution intends to do nothing more about the witness. If the accused wants, he may present the witness as part of his own case. This, I contend, is an opportunity inferior to the one envisioned by Green or Owens-- and a fortiori inferior to the usual opportunity in which the witness testifies to the material propositions from the stand and is then cross-examined.

One critical problem should not arise. The accused should not be precluded from asking leading questions by the fact that he called the witness; simply from the fact that the prior statement was introduced by the prosecution, the witness should be deemed hostile to the accused, or identified with the prosecution, for purposes of Fed. R. Evid. 611(c) and its state counterparts. If a court failed to recognize this, I think that would be sufficient to make out a confrontation violation. But let us assume that the court would allow leading questions, and instead focus on these other problems posed by the Bratton-Cox procedure.

1. Adverse questioning would be delayed. As an often-quoted passage puts it. "The chief merit of cross examination is not that at some future time it gives the party opponent the right to dissect adverse testimony. Its principal virtue is in its immediate application of the testing process. Its strokes fall while the iron is hot." State v. Saporen, 205 Minn. 358, 362, 285 N.W. 898, 901 (1939) (emphasis added).

2. The accused may have to disrupt the presentation of his case to put on a witness who may be hostile or at least unhelpful.

3. The accused may appear to the jury to be over-reaching by putting the witness on the stand. This is especially true if the witness is a child or otherwise appears vulnerable. When the prosecution puts a witness on the stand, it is usually to tell her story; if the accused puts a hostile witness on the stand, it may appear that the purpose is to bludgeon her.

4. If the accused does not get something good out of the examination, the jury will likely notice and draw an inference against him: "Well, he certainly didn't get anything out of her worth bringing her in." By contrast, if the prosecution calls the witness, it is a simple matter for counsel to rise to ask a few questions without arousing expectations.

5. The accused incurs a substantial risk that calling the witness to the stand will make not only appearances but the weight of the evidence worse from his point of view. When a witness testifies live for the prosecution, the worst from the accused's standpoint has presumably occurred before the cross-examination begins; the prosecution has gotten from the witness however much it can that will help its case. Taking proper care, defense counsel can be reasonably sure that no further harm will be done, and cross is an opportunity to improve the situation, to undermine the damage that the witness has done by her testimony on direct, supplemented by any prior statement that has been admitted. But if only the prior statement has been presented to the jury before defense counsel rises, the situation is altogether different. Now defense counsel faces substantial uncertainty. If she puts the witness on the stand, it is possible that the witness will begin by disavowing the former statement, or otherwise failing to reconfirm it. It is also possible that the witness will begin by reaffirming the prior statement but that effective adverse questioning will undercut her credibility substantially. Either of these possiblities is good from the point of view of the defense. But there is a third possibility as well -- that the witness will begin by reaffirming the prior statement and not be impeached substantially. In that case, the defense will have done itself a great deal of harm by calling the witness to the stand. A lawyer wary of doing harm will often not take the chance.

Taken together, all these considerations make the opportunity for confrontation offered under the proposed procedure quite inferior to that provided under the Green rule, and a fortiori inferior to the opportunity provided when the prosecution puts the witness on the stand and the witness testifies on direct to the material propositions at issue. To say that the opportunity is inferior does not necessarily mean that it is inadequate constitutionally -- there is a question of what the baseline is against which constitutional violations are measured -- but it appears clear to me that the opportunity under the Bratton-Cox procedure is so far inferior that it should be considered inadequate.

To see why, think about this comparison: First, suppose a witness testifies for the prosecution, and either the testimony given from memory or a prior statement that is introduced as part of the direct is harmful to the defense. How often does defense counsel rise to ask questions on cross-examination? Most often. Now suppose the witness does not testify, though she is available to, but her prior statement is introduced. How often does the defense put her on the stand to examine her? Not often at all. I believe the difference is explained by the fact that under the Bratton-Cox procedure the opportunity for confrontation is so impaired, and so risky, that defense counsel dare not exercise it. Such an opportunity is not constitutionally adequate.

Now consider one other procedure that I have heard proposed: The prosecution is allowed to introduce the prior statement on the condition that if the defense wants the prosecution will put the witness on the stand as part of its case. This procedure does not appear to face problems 1 through 4 above. But it does face problem 5, in somewhat modified form: The prosecution is presumptively given a free ride -- it gets the statement in without first having to present the witness and having to take the chance that the witness will testify inconsistently with the prior statement -- and the defense is then put to the decision of whether it wants to risk making matters worse by having the witness testify live and possibly reaffirming the statement and sticking to it. I think the prosecution, the party that wants to present this evidence, rather than the accused, the party who has a right to "be confronted with the witnesses against him," should bear the risk of how the witness will testify.

Procedures to shift the burden to the defense may be based largely on a desire for efficiency, to avoid the necessity of putting a witness on the stand whom the defense doesn't have any real interest in cross-examining. But for the reasons I have stated, I don't think the procedures discussed here are acceptable. There is nothing wrong with the prosecution asking the defense to waive the confrontation right and allow admission of a prior statement. (There is an interesting complication, though: Rejecting the waiver request, and so insisting on confrontation, might entail some risk even though cross-examination itself will not do harm to the defense. That is, it might be that the defense is better off if the prior statement is introduced without the witness testifying live than if the witness gives vivid live testimony and is not substantially impeached. But I do not believe this risk -- choosing live tesitmony instead of a report of prior testimony -- is as substantial as that created by the procedures discussed above, in which the accused can get cross only by calling for live testimony in addition to a report of prior testimony.) And in some cases, as I will discuss soon in another post, I believe it is even appropriate to require the accused to certify that he has some good reason for not being willing to waive the confrontaiton right.