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.

Statements by Victims to Acquaintances

Sometimes the vicitm of a crime makes a statement to an acquaintance describing the crime. The post-Crawford courts have generally treated these statements as non-testimonial. An example is State v. Staten, (S. Car. Ct. Apps. March 7, 2005)., which may be notable mainly for the long series of digests of post-Crawford cases offered by the court. I think these cases pose a more difficult question than most of the courts have.

I'll put aside for now two interesting and important issues. First, in Staten and some other cases, the crime described in the statement at issue was not the cirme being charged. The statement described a gun being pulled on the declarant; the prosecution was for murder of the declarant the next day. Thus, we have the question of whether a statement made before the crime being tried was committed can be testimonial. I think it can be, and I hope to address that in a later post, but I won't here and instead will assume that the answer is affirmative.

Second, I will assume here that there is not a per se rule that statements made without government involvement cannot be testimonial. I analyze this issue at some length in my paper for the Brooklyn conference. Here, I will assume that if a crime victim makes a statement to a friend and says, "Please pass this on to the police," that is testimonial.

Statements of the type involved in Staten are not accurately described, in the terms used by Crawford, as "casual remarks to an acquaintance." In Staten, the victim was hysterical, and the incident he was reporting, that a gun had been pulled on him, was hardly routine. The statement says, in essence, "I have been the victim of a crime," and describes the crime.

One might argue plausibly that this kind of statement is accusatory in nature and that statements that are accusatory in nature and were not made solely to the perpetrator of the crime or to a confederate of his should be considered per se testimonial. My trouble with this is that I am not sure how it ties in to a more comprehensive theory of what kind of statement is testimonial. Not all testimonial statements are accusatory. But perhaps all accusatory statements not made to the perpetrator or someone who would be expected to be sympathetic to the perpetrator should be considered testimonial. The question is why.

One possible answer is that a person in the position of the declarant would reasonably expect that the statement might be passed on to the authorities -- and if passed on then it would presumably be used in prosecution. This approach ties in to what I consider the best definition of what is testimonial, or at least to one of two optimal variants. (The variant here is an objective one, in terms of a reasonable declarant; I have no strong feelings whether this or a subjective view, in terms of the anticipation of the actual declarant, is the better one. I have explored the matter somewhat in my Brooklyn paper.) But is it factually accurate to say that a reasonable person in the position of the declarant would anticipate that the statement would be passed on? I don't know. (That does not seem to have been the predominant motive of the victim in making the statement, but as I explain in the Brooklyn paper I think the material question is the anticipation of the speaker rather than the motive. ) One thing we can say is that often these statements are passed on. Perhaps a person in the victim's position should realize that if he speaks to a person for protection that person may well find that the best way to give protection is to report the matter to the authorities. But of course often, as in Staten, the recipient does not report the statement, at least until, as in Staten, a more serious crime, which may not have been easily anticipated at the time of the statement, has been committed.

I think this is a tough problem. But hte result in Staten might have been reached by aplying forfeiture doctrine.

Crawford on NPR

Today is the first anniversary of Crawford, and as it happens Paul Rosenzweig, Senior Legal Research Fellow of the Center for Legal and Judicial Studies at The Heritage Foundation, did a commentary on the case -- focusing on Martha Stewart and on battered women -- for NPR's All Things Considered. If you want to listen to the commentary, click here. If you want to read the text, I'll put it in as the first comment to this posting.

Forfeiture, the Prosecutorial Duty to Mitigate, and Rae Carruth

I have advocated a broad theory of forfeiture: If a witness makes an out of court testimonial statement without then being subjected to confrontation, and she is unable to testify later subject to confrontation because of the accused’s wrongdoing, the accused forfeits the right, under the Confrontation Clause and the rule against hearsay, to exclude the earlier statement. Implicit in this phrasing of the theory should be an important limitation: The prosecution should not be able to benefit from the forfeiture doctrine if, notwithstanding the accused’s wrongdoing, the prosecution had, but did not exercise, a reasonable opportunity to preserve the right of confrontation in whole or in part. The question of reasonableness is one of degree, and will often raise difficult questions not only of fact but of values.

The case of State v. Wiggins, 159 N.C.App. 252, 584 S.E.2d 303, review denied, 357 N.C. 511, 588 S.E.2d 472 (2003), cert. denied, 124 S.Ct. 1617 (March 8, 2004 -- the same day as the Crawford decision), now being attacked collaterally, may provide a useful illustration. The defendant, better known as Rae Carruth, is a former NFL player who was convicted of conspiring to murder his pregnant girlfriend. The shooting occurred early in the morning of November 16, 1999. The victim, in her car, managed to pull into a driveway and made a cell call to 911, staying on the phone for 12 minutes until an ambulance arrived. During this call she said that Carruth had blocked her car with his SUV, and that she was shot from another car that had pulled up alongside. According to the Court of Appeals:

Mecklenburg Police Officer Peter Grant ("Grant") arrived on the scene around
12:43 a.m. The victim identified defendant to Grant as the driver of the vehicle
that she had also described in the 911 call. The victim was transported by ambulance to Carolinas Medical Center and arrived at 1:10 a.m. The victim gave Grant a complete chronology of the events that transpired during the night and early morning. Emergency surgery was performed to remove the bullets and deliver the baby from the victim at 1:30 a.m. At 4:00 a.m., the victim was taken to a trauma intensive care unit. Around 7:00 a.m., an endotracheal tube was inserted into victim's throat. Traci Willard ("Willard"), the morning nurse, asked the victim if she remembered what had happened to her. The victim nodded and motioned for Willard to bring a pen and paper to her. The victim handwrote notes describing the shooting and events of the morning and previous evening. Later, the victim's father asked her if there were any stop signs on the road that would provide defendant a legitimate reason to stop in the road. The victim shook her head negatively. The victim died 14 December 1999 as a result of the inflicted wounds. Victim's infant son
survived.

Now, let’s assume that at least some of these statements are testimonial. (I think they all are, but that’s another matter.) So presumptively there is a violation of the confrontation right. But the victim was certainly unavailable at trial and perhaps the accused forfeited the right. Clearly conspiracy to commit murder is conduct that can cause forfeiture, and I believe there is ample evidence to support a finding, to whatever the appropriate degree of confidence may be, of the accused’s involvement. (This finding might rely on the victim’s statements, the very statements that the prosecution is trying to get admitted, but for reasons I’ve explained in my article Confrontation and the Definition of Chutzpa, which is also cited in the post on Forfeiture and dying declarations, I don’t think that’s a significant difficulty.) In short, it is not hard to conclude that the victim is dead, and unable to testify at trial, because of the accused’s wrongdoing. This is not the end of the matter, however. Rather, it brings us to what strikes me as the most interesting question: Should there be no forfeiture because the prosecution could have set up an opportunity for confrontation?

It may seem grotesque to ask a severely wounded – and ultimately dying – victim to confront the accused from her hospital bed. But note some critical facts. First, she clearly had no hesitation about giving her testimony, and the police had no hesitation about asking for it, coming to her bedside even in the first minutes at the hospital. Second, she lived for nearly a month after giving that testimony. During this period was there a time when she could have testified subject to full confrontation (by which I mean in the presence of the accused and under cross-examination)? The answer may well be yes.

I am inclined to say that simply because the victim is able to make testimonial statements, and the authorities are able to take one from her, it does not necessarily follow that full confrontation should be required as a precondition to admitting the victim’s statement. In some circumstances, although it is possible for the victim to make an accusatory testimonial statement, it is not possible to arrange for confrontation; the victim may die first. Beyond that, even if confrontation is possible, it raises significant difficulties that the accusatory statement does not. No preparation is necessary for the victim to make an accusatory testimonial statement – she can make it to whoever happens to be nearby, under her own initiative (I am assuming that such statements would be testimonial; if they are not, the forfeiture question is never really reached for Confrontation Clause purposes), and she can make it to a police officer as soon as the officer can get to her. Making the statement presumably accords with her desires – she wants to being the assailant to justice. (That factor suggests how clear it is that these statements are testimonial.) She can expect a sympathetic audience. By contrast, testifying in the presence of the accused – or even having the accused brought to her presence – may well be highly traumatic. The victim presumably does not have any desire to answer skeptical questions from a defense lawyer (though if the rule is that she must for her testimony to have effect, she might therefore have a derivative desire). Indeed, the fact that a lawyer would be involved at all makes for a rather disturbing scene. And cross-examination could not be held instantly. First a lawyer would have to be retained or appointed, and then ideally do some preparation and consultation with the client.

It appears, therefore, that there are some circumstances in which, even though the victim was able to make testimonial statements, and indeed even though the authorities were able to take one, providing full confrontation would be far more difficult. Ordinarily, we discount the difficulties that testifying subject to confrontation poses for the witness and for the adjudicative system; she, and we, must cope with them as best as possible. But witnesses are entitled to fight for their lives without undue interference, and to do so with dignity. The accused, having by hypothesis endangered the victim’s life, cannot demand an opportunity for confrontation at all costs. Clearly the adjudicative system is entitled to rule, "If because of the accused’s wrongdoing it is impossible for him to have full confrontation, then he forfeits the right to have such confrontation." And I am arguing that the word "impossible" could be replaced by "not reasonably possible" without making the rule invalid. But note that there are two important qualifications implicit in this rule.

First, in some circumstances the authorities can reasonably provide an opportunity for full confrontation, and if so they ought to. That is, in such circumstances they ought to announce their intention of using the witness’s statement at trial if she is unable to testify live, and offer the accused the opportunity for a deposition at a given time and place. Does a deposition in dire circumstances seem bizarre? It should not; certainly it did not nearly two centuries ago. Note R. v. Forbes, Holt 599, 171 E.R. 354 (1814), in which the court held that portions of a dying victim’s statement could not be introduced against the accused because they were not given in his presence, and R v. Smith, Holt 614, 171 E.R. 357 (1817), which explained that a purpose of giving the accused the right to be present was so that he could cross-examine. (Smith declined to cross-examine, and that resolved the matter.) Carruth’s case may well be one in which a deposition was feasible; it may be that there was a time while the victim lingered during which it would not have been unduly cruel to ask her to testify in his presence and subject to cross-examination, on the understanding that this was important to bring him to justice. There are no hard-and-fast rules here, I don’t think; this judgment requires a balancing of values.

Second, in some circumstances even if full confrontation is not reasonably possible, partial satisfaction of the confrontation right may be reasonably possible. If, for example, the victim is sinking rapidly enough that defense counsel cannot prepare to an ideal extant, that does not excuse absolute denial of the right to cross-examine; the right ought to be provided to the extent reasonably feasible. Or if the client has absconded, so that it is not possible for a lawyer to consult with him, that does not excuse failure to appoint a lawyer to conduct cross as best she can. All the authorities can do in setting up a deposition is the best they can – but they should be required to do something close to that. Finally, even if it seems not to be reasonably possible to allow cross-examination at all, it may be reasonably possible to allow the accused a chance to have the victim testify in his presence.

All this suggests the possibility of some very difficult, and excruciating, decisions. I have never contended that adoption of the testimonial approach to confrontation, or of a robust doctrine of forfeiture, would eliminate the need to make hard decisions. What we have to try to do is to ask the right questions, and I am contending that one of the questions we should be asking, in the face of wrongful conduct by the accused that has prevented a witness from testifying at trial, is whether the authorities have done what they reasonably could be expected to do to allow for confrontation, in whole or in part.

Ideally, the prosecution would not have to guess in advance what answer a court would give to this question. Suppose, then a prosecutor in a case like Carruth’s believes that it would be unduly cruel to require the victim to testify subject to confrontation, but she is also risk averse and does not want to lose the prosecution by being more decorous than necessary. It seems to me that she ought to be able to litigate the confrontation issue in advance, seeking a declaratory ruling that if the victim is unable to testify at trial her statements will be admitted even without confrontation, or with confrontation limited in certain aspects.

Opening the Door

Feb. 4, 2005:
A new decision from New York, People v. Ko, 2005 WL 248988 (N.Y.A.D. 1 Dept. Feb 3, 2005), holds that the defendant opened the door to a Crawford violation. After the defendant's old girlfriend was murdered, his new girlfriend told the police that a bloody shirt found at the scene was hers. The defense referred to this statement, which supported a theory that the new girlfriend had murdered the old. The trouble was that the new girlfriend had said at the same time that the defendant often wore the shirt, and that bloody pants found at the scene were his. The court therefore held that defendant opened the door to admission of the new girlfriend's full statement, which the court held properly to be testimonial (without, by the way, discussing whether it was in response to structured questioning by the police).

This strikes me as eminently sensible. As the court noted, "A contrary holding would allow a defendant to mislead the jury by selectively revealing only those details of a testimonial statement that are potentially helpful to the defense, while concealing from the jury other details that would tend to explain the portions introduced and place them in context. "

Ko stands in stark contrast to United States v. Cromer, 389 F.3d 662 (6th Cir. 2004), which essentially rejects the "opening the door" theory as a basis for admitting a statement that would otherwise violate the confrontation right. On the merits of the confrontation issue, Cromer is a wonderful opinion, and it is discussed in one of the first posts on this blog. But as noted in that post, I think the court went overboard on this issue (and in citing me in support of its conclusion on this point).

I have no settled views on this issue, and so I will pose two questions. First, what is the theoretical basis for determining that the defendant opened the door to admissibility of a statement that otherwise would violate the confrontation right? Is it forfeiture -- even though, as Cromer points out, the defendant has presumably done nothing wrong by making the purportedly door-opening argument? Is it waiver -- but if so should it be limited to circumstances in which the defense clearly was aware, perhaps by virtue of a warning, that his conduct was likely to lead to loss of the confrontation right? Is it something else?

Second, what should the standard be for determining whether the right is lost? In some circumstances, it seems to me, the defendant should not be forced to elect between making a given contention and insisting on the confrontation right. But in a case like Ko, it does seem that to allow him to do both would create an intolerably misleading situation.

Addendum, March 4, 2005:

Two new decisions on door-opening came down yesterday, March 3, holding in opposite directions on different facts, and both seem sensible to me. In Le v. State, 2005 WL 487443 (Miss. March 3, 2005), the defendant had offered statements made by another person to inmates, and the state was allowed to offer in rebuttal a statement, apparently conflicting, made by the same person to law enforcement agents, subject to a limiting instruction that this statement was introduced only as it bore on the credibility of the statements to inmates. Seems right to me -- all the more so given that the defense was warned about the consequences of introducing the statements made to inmates.

By contrast, in People v. Ryan, 2005 WL 486846 (N.Y.A.D. 3d Dept. March 3, 2005), the court rejected the prosecution argument that the accused had opened the door. This was a robbery case. An officer testifying on direct had said that a search was predicated on finding a gun, and that the defendant had denied the presence of a gun at the time of his arrest. On cross, the defendant sought to highlight the failure of the police to find a gun and asked whether any of the people arrested in connection with the crime had admitted to the use of a gun. The officer testified that the accused’s two confederates had expressed uncertainty as to whether there had been a gun. On redirect, in response to an open-ended question, the officer testified at length as to his conversations with the confederates. The court held that this was improper. The accused on cross had made only a limited inquiry into statements by others, and had not left a misleading impression. Moreover, the prosecution’s closing argument and the judge’s instructions had failed to limit the use of the prior statements. Again, this seems exactly right.

Retroactivity: Issue Joined?

I don't know much about retroactivity but at least for now there seems to be a split in the federal circuits as to whether Crawford is retroactive for purposes of collateral review. Last week, the Ninth Circuit decided Bockting v. Bayer, 2005 WL 406284 (9th Cir. Feb. 22, 2005), in which a split panel held in favor of retroactivity. I've been on vacation for most of the time since the decision came down, and have not had a chance to read the decision carefully, much less comment on it -- but Brooks Holland has, and you can read his comments, attached to my posting on the Brooklyn conference, by clicking here. (As Brooks points out, there are other interesting aspects of the Bockting decision, and I hope to comment soon on one of them -- unavailability -- in another post.)

The day after Bockting was issued, the Sixth Circuit issued Dorchy v. Jones, 2005 WL 415147 (6th Cir. Feb. 23, 2005), which held rather conclusorily that Crawford does not paply retroactively. This is the position that the Second and Tenth Circuits have already taken. Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir.2004); Brown v. Uphoff, 381 F.3d 1219 (10th Cir.2004).

Assuming the Ninth Circuit panel is not reversed en banc, therefore, it appears there is a conflict among the circuits, which presumably the Supreme Court will soon feel it necessary to resolve.