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?