Reflections on the Brooklyn Conference

On Friday, Brooklyn Law School held what I believe is the first full-scale academic conference on Crawford and related issues. Many thanks to the Law School and to Bob Pitler, who was the force behind the conference.

One impression I received was that some commentators believe that in the end Crawford will be as manipulable and open-ended as was Roberts. I don’t buy it for a minute. The concern reminds me of the joke about the woman who gave her son two shirts. The next morning, he wore the blue one when he came down to breakfast. “The red one you don’t like?” she asked.

In other words, the concern is way premature. Crawford transformed the law, and it declined, quite properly in my view, to state with much specificity what it meant by “testimonial.” But little by little, if not in great big bites, the term will be clarified to a substantial extent. Perhaps the Supreme Court will soon adopt a global definition. But I’m not sure it will need to do so for a while. It might answer a series of questions over several cases: Is there an absolute rule that a statement is not testimonial unless it is formal, or in response to interrogation, or made to a government agent? To each of these, I hope the answer will be negative. But whatever the answer is, an answer will be given, and at least gradually the law will be clarified. Whatever the rules are, if they are sensible ones they will leave some close and highly debatable cases, but that is true of virtually any area of the law. Even if the Court gives unsatisfactory answers on all the significant questions necessary to refine the meaning of "testimonial," the law will be more satisfactory than it was under Roberts – and I believe it will be more predictable as well, because it will reflect, however imperfectly, an important principle worthy of respect. Core cases, like that of Michael Crawford himself, will be easy and predictable, as they were not under Roberts.

I was also struck by the resistance that many of the commentators had to treating excited utterances as testimonial. I have never said that all statements that fit within the modern conception of the excited utterance exception are testimonial, but I do believe that many are, even though they are made for purposes other than or in addition to assisting prosecution of crime. It may be that in the context of domestic violence the Supreme Court will be loath to categorize as testimonial the initial parts of 911 calls made shortly after the (alleged) commission of a crime. But footnote 8 of Crawford counsels caution. It properly indicates uncertainty as to whether an exception for spontaneous declarations existed at the time of the Sixth Amendment, and says that if there was such an exception it was closely confined in time. Even apart from rigid originalism, the history (reviewed by Bridget McCormack and me in Dial-In Testimony, 150 U. Pa. L. Rev. 1171 (2002)) is interesting, because it indicates that for many decades after the time of the Amendment courts were still very restrictive in applying this exception, excluding statements that were narrative in nature. This rule, I bleieve, reflected an implicit recognition of the testimonial quality of many of these statements. The rule did not change because social changes demanded admissibility or altered the tesitmonial quality of some excited statements, but because the confrontaiotn principle became badly obscured over time.

At the close of the conference, Margaret Berger raised the question of whether the confrontation right should be carved out of the Evidence course, and left for Criminal Procedure, so that it doesn't crowd out discussion of hearsay law. I agree that the confrontation right is properly considered an aspect of criminal procedure rather than merely a rule of evidence. That is, it sets out a procedure by which witnesses shall give their testimony, and therefore operates before trial as well as at trial. It is not simply a rule of what evidence gets admitted at trial and what must be excluded, though of course it is protected in large part by an exclusionary rule. Nevertheless, I believe that detaching the confrontation right from the teaching of hearsay law would be a great mistake. Much of hearsay law makes sense only as a reflection of confrontation principles. And now that the confrontation right has been separately articulated, a critical question will be the extent to hearsay law should remain as it stands. My own feeling is that hearsay law – as opposed to confrontation law – should generally become far less exclsuionary and less rigid. But this, of course, is a vast and complex topic.

Grappling With the Meaning of "Testimonial"

I have been asked to speak at Friday's Brooklyn conference about the meaning of the word "testimonial" for Confrontation Clause purposes. You can see my draft paper by clicking here. This is quite a preliminary draft (very light on footnotes, for example). I will be grateful for any comments, and I hope that any references to it will acknowledge that it is only a preliminary draft. Two of the sections, on formality and on interrogation, are lifted from entries I have previously posted on the blog. The paper includes an extended section on statements not made to government agents, on which I have not yet posted a blog entry.

If any other conference participants would like me to post their papers, please let me know.

A Case of Censorship?

I pride myself on being a mild mannered type, and friends (and my wife) say I have an overly thick skin, being the reverse of paranoid because I fail to perceve insults when they really are intended. I have had many articles rejected by many, many law journals, and have never complained. But now I have a complaint, and I am reporting on it here because I think it reflects a troubling aspect of the reaction to Crawford in some quarters.

Over the summer, the National Council of Juvenile and Family Court Judges published an article in its journal, Juvenile and Family Justice Today, by two Florida judges taking the view, essentially, that Crawford could be ignored in domestic violence cases by treating excited utterances as non-testimonial. Jeff Fisher (who argued and won Crawford), Bridget McCormack (who co-authored with me Dial-In Testimony, 150 U. Pa. L. Rev. 1171 (2002), an article examining excited utterances from the viewpoint of a testimonial approach to confrontation), and I wrote a response. We argued that many statements that have been characterized as excited utterances for purposes of hearsay law should be regarded as testimonial for Confrontation Clause purposes. I had thought the Council would welcome our essay, coming from sources that I assumed it would regard as responsible and that had been on the prevailing side in Crawford. But the Council rejected our response. I asked for an explanation, and was told that the tone of the response was unacceptable and would be insulting to the judges, who were valued members of the organization. I found this mystifying, because I did not think there was anything in the tone of the response that was insulting. And so I offered to make such changes as the Council thought necessary to avoid this issue, and I asked for formal reconsideration of the decision by the board of the Council. The board has considered the matter and has declined to publish the response. (I have been told that they will appoint a committee to consider various publication issues, including this one; six months after original submission, I regard this as a final rejection.)

Accordingly, I am posting our paper here. The Council's decision is not censorship in the technical sense, of course -- the Council is a private organization, it can do what it wants, and we are free to find other outlets for our views (such as this blog). But in a real sense I do regard this as an instance of censorship. It is hard for me to perceive this incident as anything but a decision by the Council to limit the extent to which its members will consider the views represented by our response. This is especially unfortunate given that many courts, in states around the nation and including at least one in Florida, Lopez v. State, 888 So.2d 693 (1st Dist. Ct. of Appeal 2004), have adopted our point of view or something close to it. Many courts have also taken positions closer to the one that the Council was willing to publish (though rarely so extreme), but it seems self-evident to me that our view is one to which judges should be exposed -- especially given that the U.S. Supreme Court may eventually adopt it, which would result in the reversal of many convictions achieved under a lax view of Crawford.

More broadly, I believe this incident reflects a "draw the wagons" approach to Crawford taken by some of those involved in the prosecution and adjudication of domestic violence cases. They have gotten used to trying cases in which the complainant's accusation is introduced even though she does not testify subject to cross-examination, and Crawford threatens the practice. Rather than considering whether Crawford states an important issue to which they should pay attention, or whether Crawford gives prosecutors incentive to present better evidence than previously, they have treated Crawford as if it changed nothing, allowing them to continue to operate as they did before. This may prove in the end to be a highly counter-productive attitude.

Prior Opportunity for Cross-Examination

If a witness is unavailable to testify at trial, her prior testimonial statement may nevertheless be admitted, consistent with Crawford, so long as the accused had an adequate opportunity for cross-examination. It is therefore an important question what constitutes an adequate opportunity.

One issue is what the accused must do to secure confrontation. My answer is: If the defendant has to do much, beyond confirming that he wants confirmation, the opoprtunity is not adequate. In other words, it is not acceptable for the prosecutor to say, "We intend to use the statement of this witness at trial, because she may be unavailable. If you want to cross-examine her, take her deposition now." The accused has a right to be passive and "be confronted with" an adverse witness; it is not his responsibility to find the witness and compel her to testify. So the prosecution has to say, "If you want to cross-examine, just say so, and we'll arrange for her deposition." The accused does not have the right to demand that the witness be brought to his living room (or jail cell) for confrontation. I don't know of law on the subject, and would be curious to learn, but I suppose the accused, if at liberty, may be required to travel at his own expense within the jurisdiction for the deposition, and at the expense of the prosecution if the witness cannot be brought there but a deposition can be arranged elsewhere. (And counsel?)

A second issue that sometimes may arise is what kind of notice of a deposition is sufficient. Suppose the accused has been identified but not yet apprehended. Is it sufficient for the prosecution to give notice at the accused's last known address and to people who would expect to know his whereabouts? I would guess so; again, I am curious to know if there is law on the subject. (Whatever notice codified rules of criminal procedure require for a deposition is not necessarily the constitutional minimum requirement.) What if the accused has been identified only as the person who has a given DNA profile -- can adequate notice be given then? I doubt it.

Third is the question of whether the opportunity came so soon that it should be deemed inadequate. Defense counsel may argue, "Yes, the prosecution arranged a deposition, but I had just been appointed and even had I been as prepared as I could be at that point I would not have known nearly as much about the case as I do now." In some cases, I believe this argument will have force, and in others not. The judge should not simply accept an assertion of prejudice, but should ask, "Well, what is it that you would ask if you had the opportunity now?" (I am not sure that the proper baseline is what counsel would have been able to do at trial -- perhaps a somewhat less satisfactory opportunity for cross should still be considered sufficient -- but at least it is a plausible starting point.) In a complex case, in which the witness's testimony is closely tied to other evidence and ongoing investigation generates fuller understanding of the facts over time, defense counsel may well be able to persuade the court that the defendant is prejudiced by how early the opportunity for cross was offered. But, say, in the case of an expert witness who is prepared to testify that two samples, one found at the crime scene and one taken from the accused, had matching DNA, the argument would be hard to make successfully: Counsel does not need to know much about the case to understand her interest -- to undermine the prosecution expert's conclusion that the DNA profiles match -- or to do as effective a job as she is ever likely to do.

Fourth, there is the question of motivation. In California v. Green, 399 U.S. 149 (1970), the Supreme Court held that the accused's opportunity to examine a witness at a preliminary hearing suffices for purposes of the Confrontation Clause. I am dubious about that holding. I doubt if counsel really has the motivation at a preliminary hearing to cross-examine fully. On the other hand, if defense counsel takes seriously the injunction, "Well, you'd better have that motivation, because this may be your only opportunity for confrontaiton," then we may have much more time-consuming preliminary hearings and many extraneous examinations. I am very curious to know how defense lawyers in California and other states that have preliminary hearings tend to react to this situation. Interestingly, one Florida appellate court has taken a view substantially at variance from that of Green. In Lopez v. State, 888 So.2d 693 (1st Dist. 2004), the court held that a deposition taken for discovery -- as opposed to one taken for perpetuation of testimony -- does not qualify as an adequate opportunity for cross under Crawford. The statute allowing discovery depositions, said the court.

was designed to provide an opportunity for discovery, not an opportunity to engage in an adversarial testing of the evidence against the defendant. Nor is the rule customarily used for the purpose of cross-examination. Most good criminal defense lawyers attempt merely to learn what the testimony will be and, at the most, to limit the testimony.

The court also quoted from a prior state supreme court decision that said:

Being unaware that this deposition would be the only opportunity he would have to examine and challenge the accuracy of the deponent's statements, defendant could not have been expected to conduct an adequate cross-examination . . . .

To similar effect, the Colorado Supreme Court, acting directly in the teeth of Green, has held that a preliminary hearing does not give a sufficient motive for cross-examination. People v. Fry, 92 P.3d 970 (Col. 2004) ("the preliminary hearing is not intended to be a mini-trial . . . "; noting that usually, if probable cause is established, the defense has little motive to cross-examine).

Fifth, what limitations were imposed ont he ability to cross-examine at the prior proceeding? Fry, supra, has pointed out that at a preliminary hearing, where the question is whether there is probable cause, the judge is foreclosed in all but "exceptionally rare" cases from making credibility determinations. Accordingly, defense counsel is likely to be "curtailed" in cross-examination, because she has no legitimate grounds to establish the lack of credibility of the witnesses.

Finally -- at least the final issue I will address here -- there is a question of policy. Unlike Florida, the federal jurisdiction makes it very difficult to take a deposition of a witness in a criminal case, even for preservation of testimony; the standard under Fed. R. Crim. P. 15(a)(1) is that a motion for a deposition may be granted "because of exceptional circumstances and in the interest of justice." It seems to me that this is far too stringent; putting aside the question of discovery, a party ought to be allowed to take a deposition of a witness for purposes of preserving the witness's testimony merely by showing that the witness is friendly. (Producing an affidavit of the witness summarizing the testimony would generally do the job.) Prosecutors might decide not to take depositions in most cases, but that would be a decision they would make at their own risk.

A potentially sueful source of caselaw in this area is Francis M. Dougherty, Annotation, Admissibility Or Use In Criminal Trial Of Testimony Given At Preliminary Proceeding By Witness Not Available At Trial, 38 A.L.R.4th 378, §§ 6-7. (2004).

Updated Fisher Outline of Crawford Cases

In December, I posted Jeff Fisher's outline of confrontation cases decided since Crawford. Jeff has updated the outline and once again graciously allowed me to post it here. This is a resource that I am sure readers will continue to find valuable.

Upcoming Crawford Events

Crawford will be the focus at two events in the near future. If you know of other events please let me know and I will be glad to post a notice on the blog.

First, on this Friday, February 11, at the ABA Midyear Meeting, a tthe Hilton Salt Lake City Center, Meeting Salon I, Lobby Level, from 2 to 4 p.m., as part of its CLE session the Criminal Justice Section of the ABA will have a program titled Crawford v. Washington -- The Written Word. To see the program, click here. I suspectthere will be vigorous disagreement. The panelists include Cindy Dyer, a prosecutor whose suggested quesitons to responding officers I criticized in a post on this blog last week; Jeff Fisher, who argued Crawford; Erik Luna, of the University of Utah School of Law; and Dee Benson, a federal district judge in Utah.

Second, there will be a conference at Brooklyn School of Law on Friday, February 18, titled “Crawford and Beyond: Exploring the Future of the Confrontation Clause in Light of its Past.” The program is a full and well-designed one, with a wide array of paper topics, presenters, and commentators. To see the brochure for the conference, click here. To see the day's schedule, which has been updated since the brochure by the addition of speakers, or to register on-line, click here. For further information, contact Alison Abend, Alison.Abend@brooklaw.edu, 718 780 0321.

Maryland's Highest Court on "Tender Years" Statements

The Maryland Court of Appeals today issued its decision in State v. Snowden, affirming the decision of the Court of Special Appeals, which had held shortly after Crawford that the trial court erred by admitting statements made by alleged child abuse victims to an investigating social worker. The Court of Appeals posed the question of the case to be "whether statements made by child abuse victims to a social worker, though hearsay, may continue to be admitted at a criminal trial through the social worker under Maryland's 'tender years' statute, Md. Code (2001), § 11-304 of the Criminal Procedure Article, in light of the U.S. Supreme Court's ruling in Crawford." And the Court of Appeals held squarely "that they may not." But in fact the opinion appears to rest on narrower grounds. The court emphasized that charges had already been filed by the time of the interview; that the social work agency was cooperatiing with the police; that, though the interview had a therapeutic component, it was held for the expressed purpose of developing evidence for trial (the trial court so found, apparently believing pre-Crawford that this was a factor favoring admissibility); and that the girls (who were eight and ten at the time of the incident) understood this. The court also properly rejected the contention of the American Prosecutors Research Institute that these children were too young to be deemed witnesses for Confrontation Clause purposes. This was an easy case -- the court was unanimous -- and the unfortunate aspect of the opinion is that other courts might read it to mean that, absent any of the factors emphasized by the court here, a statement should not be considered testimonial. Indeed, the opinion contains what may be a casual and backhand suggestion that the statement would not have been testimonial has the social worker had been privately employed.

There was also a question of whether the defendant had waived the confrontation right, because the girls were actually in the courthouse and the defendant never explicilty demanded that the state put them on the witness stand. But as the court said, the defendant objected to the evidence that the state did present; it was not his role to present alternatives. He made the confrontation objection very clear, and if the state had been willing and able it could have offered to put the girls on the stand.

Failure to Object

People v. Courson, 2005 WL 249988 (Tex. Ct. Apps. Feb. 3, 2005), holds that the defendant failed to preserve a confrontation issue by making an objection at trial. I wonder whether the court was too stringent in this case. It appears that the trial was held before Crawford was decided. As the court says, the confrontation right "is neither new nor novel." True, but the statement at issue was one made by the defendant's wife to the police after a domestic dispute. (The case did not involve that dispute; this was a shaken-baby case.) Assuming that the statement clearly fell within the excited utterance exception as Texas courts have applied that exception, a defendant not anticipating Crawford would have had little reason to make an objection; this is one context in which the chance of exclusion was minuscule before Crawford but is substantial now.

Important New Jersey Decisions on Excited Utterances

This week, the New Jersey Supreme Court issued a significant decision, State v. Branch, 2005 WL 221198, and a companion decision, State v. Cotto, 2005 WL235918 (corrected version), on the excited utterance exception. I haven't had time yet to post a report of these decisions, but Brooks Holland has done it (for which I thank him), by posting a comment on the blog that you can find by clicking here. As Brooks explains, the court restricts the exception, drawing it back closer to its original dimensions. Although Branch formally decides only the bounds of the evidentiary rule, the analysis is explicitly "informed by the principles undergirding the Confrontation Clause jurisprudence of our federal and state constitutions." These decisions are, in my view, a positive development of considerable significance. It might have been better had the court relied on constitutional grounds. It might then have been harder for courts in other jurisdictions to shrug the New Jersey decisions aside. And when confrontation rights are not at stake, I think a receptive attitude towards hearsay is generally preferable, so it is something of a shame to confine an exception that may be useful in civil cases, no matter how far it has departed from its historical roots. But this is a quibble. The basic analysis of the New Jersey Supreme Court seems right to me, and I hope other courts pay attention.