A duty to mitigate with respect to statements made before the crime being charged?

An anonymous reader – please identify yourselves if possible! – has offered the following comment in response to my posting on the pending petition in the Giles case:

Prof. Friedman, take the following scenario:OJ beats Nicole. Nicole calls the police. Nicole provides a testimonial statement to the police -- telling them that OJ said, "If I ever see you with another man I will kill both of you!" Two weeks later, OJ is charged with the beating and pleads guilty. Three months later, OJ spots Nicole with another man entering her apartment. OJ murders both. Under your concept of forfeiture Nicole's highly relevant, testimonial statement would be inadmissible, because the prosecution didn't take Nicole's deposition? The Court has said forfeiture is a doctrine based upon "equity." Where is the equity under your rule? Equity often speaks in terms of "unclean hands." Are you arguing that the prosecutor's are dirtier than OJ's, because a depo wasn't held?

This is an important matter, and justifies a main posting.

First, please note that I have not said that the statement would be inadmissible in this setting; I have only said that I think there is a complex issue and that I hope that if the Court takes the Giles case it does not resolve this issue, which is not presented in the current posture of the case.

Next, note that a premise of my comments is that in general the prosecution cannot invoke forfeiture doctrine if it did not take reasonable steps available to it to preserve the confrontation right, in whole or in part. I have called this the duty to mitigate. If, say, a defendant renders a fatal blow but the victim lingers for weeks, during which time the prosecution takes statements from her but fails to give the defense an opportunity for confrontation, I do not believe the prosecution should be allowed to invoke forfeiture doctrine. In this situation, one could ask the same question that the reader does – how could the prosecution’s hands be dirtier than the defendant’s? But I’m not sure how one could weigh equities. The fact in this situation is that the prosecution has a clear chance to preserve the confrontation right and doesn’t take advantage of it; therefore, I don’t believe it should be able to claim that the accused forfeited the confrontation right by causing the victim to be unavailable.

Now, with this background, the basic issue underlying the reader’s comment is this: Is there a per se rule that the prosecution has no duty to mitigate if the statement in question is made before the crime being tried?

In other words, suppose the sequence is (1) crime 1; (2) testimonial statement about crime 1, but relevant also to crime 2; (3) passage of considerable time; (4) crime 2, the crime being charged, which immediately renders the witness-victim unavailable. The prosecution claims forfeiture with respect to the statement on the basis that the defendant rendered the witness unavailable by wrongful conduct, and the defendant counters by saying that the prosecution could have taken a deposition before crime 2.

In some cases, I think the defense argument would be nearly trivial. Say Informer makes a testimonial statement to police about Kingpin’s drug dealing, and then returns undercover. Several weeks later, Informer and Kingpin get into a fight, and Kingpin murders Informer. The earlier statement turns out to be relevant to the murder charge. I don’t think the defense has a plausible argument that the prosecution should have offered a deposition after Informer made the statement.

But in other circumstances, the argument would be considerably stronger. Consider the common case of a serial domestic abuser. Suppose after assault 1, the victim makes a testimonial statement and indicates willingness to cooperate further, but the prosecution declines to offer a deposition. Then – unfortunately, quite predictably – defendant allegedly commits assault 2, and this time the victim refuses to cooperate. Defendant is charged with assault 2, and the prosecution offers the statement made after assault 1.

It is easy enough to understand the argument that even here there can be no forfeiture – the prosecution should not be foreclosed from introducing evidence by failure to take a step before the crime was even committed. And perhaps in the end that is enough to carry the day. But there is another side, which should not be rejected without careful consideration.

(1) Prosecutors should offer depositions as a routine matter when a domestic violence victim makes a testimonial statement. It is entirely predictable that – even absent any further violence, and in some cases through no further fault of the accused – the victim may decline to testify at trial. Offering a deposition will assure that the testimony is preserved if the crime is prosecuted.

(2) It is, of course, entirely predictable that if the defendant committed one assault on the victim he may commit another, and that the later one may be prosecuted. Even if the state decides not to prosecute the first assault, it knows that there is a substantial probability that the statement will be relevant to a later prosecution.

(3) If the argument is made that offering depositions as a routine matter would be prohibitively expensive, I think there are a few responses.

(a) The expense would not necessarily be so great. Presumably, the defense would have to have counsel, but if the state has no intention of prosecuting the defendant might often decline to take the deposition.

(b) This would be money well spent. It would preserve testimony, obviate the need for many trials (a large cost saving when it occurs), expedite trials that do occur, and result in more convictions.

(c) If prosecutors are able to tell legislators that they will lose domestic violence cases unless they take depositions, that will likely generate considerable funding.

Does the calculus change if the second crime is a murder? Maybe. The prosecution asks how significant evidence in a murder case can be rendered inadmissible because the state failed to offer a deposition after a domestic violence incident. But the same response still applies: It should not require death of the victim for the state to take accusations of domestic violence seriously. The state should routinely offer a deposition after such an accusation.

As indicated earlier, I don’t mean to state definitively what I think the result should be in a situation like the one posed by the reader’s comment, or the Giles case. I only mean to say that I think the issue is a serious one that deserves careful consideration; it should not be decided casually in a case that does not even present it.

Two pending cert petitions (updated as of Feb. 7)

Note: I wrote this post before the Court granted cert in Giles or decided on the petition in Melendez-Diaz. I am providing links to subsequently-filed documents, but otherwise leaving the post substantively unchanged. I will comment on further developments in later posts.

RF
_______________

Currently pending before the Supreme Court are two petitions for certiorari that I hope the Court will grant, because they raise significant issues on which the lower courts are divided. In fact, I have put in amicus briefs in both of them in support of the petitions. The Court has asked for a response from the state in both these cases, suggesting at least that each petition has caught the attention of at least one chambers.

One case is Giles v. California, No. 07-6053, seeking review of People v. Giles, 152 P.3d 433 (Ca. 2007). You can see the petition by clicking here, my amicus brief by clicking here, the state's brief in opposition (without cover) by clicking here, and Giles' reply brief (added since the original posting) by clicking here. Giles presents the issue of whether a purpose to render the witness unavailable is an absolute requirement for forfeiture of the confrontation right. The California Supreme Court thought not, and I agree. I think this is a good case to test the issue, though, and so I submitted my brief in support of the petition even though I basically – note the caveat below – agree with the state supreme court's decision.

Giles is a murder case. It is clear Giles killed the victim. He contends he acted in self-defense. The prosecution introduced a testimonial statement made by the victim (Giles’ former girlfriend) after a prior incident, accusing him of trying to strangle her. The prosecution invoked forfeiture doctrine to overcome the confrontation right, and Giles argued that there was no evidence indicating that he killed the victim for the purpose of rendering her unavailable as a witness. The California Supreme Court held that there is no purpose requirement for forfeiture, at least in the context of forfeiture by serious intentional criminal conduct; I agree. The petition explains why I believe that to be so, why this is an important issue for forfeiture doctrine and confrontation doctrine more generally, and why this is a good type of case in which to address the issue. I will not repeat those arguments here, except to mention two points.

(1) In Hammon v. Indiana, the state and many domestic violence organizations supported a narrow definition of “testimonial” in part on the basis that domestic violence victims are often intimidated from testifying. On behalf of Hammon, I contended that the proper response to this argument was not a narrow definition of “testimonial” but rather a robust doctrine of forfeiture. And Giles is a case in which the Court can start constructing such a definition.

(2) The caveat referred to above is this: I believe that part of forfeiture doctrine must be the principle that the state cannot invoke forfeiture if it did not take reasonable steps available to it to avoid or mitigate the unavailability of the witness for confrontation. This is a complicated issue on which I have commented before. I don’t think the possibility or shape of such a mitigation doctrine is properly presented to the Court in Giles, but I hope that if the Court takes the case it takes care not to dismiss the possibility.

Giles is scheduled for conference on January 11. [The Court granted cert; see subsequent posts.]

The second case is Melendez-Diaz v. Massachusetts, No. 07-591, seeking review of Commonwealth v. Melendez-Diaz, 870 N.E.2d 676 (Mass. App. 2007), an unpublished decision that follows Commonwealth v. Verde, 827 N.E.2d 701 (Ma. 2005). You can see the petition by clicking here, my amicus brief by clicking here, the amicus brief filed by three other law professors and several defense organizations by clicking here, the Commonwealth's brief in opposition by clicking here, and the petitioner's reply brief in support of the petition by clicking here. This one is much simpler: Massachusetts is among the states holding that forensic lab reports are not testimonial. I think this is plainly wrong, and the Supreme Court should resolve the conflict quickly. This is an important theoretical matter, because there is no sound theory of what “testimonial” means under which lab reports are not testimonial. And it is an important practical issue because of the many thousands of cases involving lab reports each year. I think courts holding these reports to be non-testimonial are motivated largely by faith in the reliability of these reports – faith that in some cases is misplaced and in any event is inapposite under Crawford – and by concern about the costs of requiring the authors to testify subject to confrontation. I believe those costs could be significantly reduced by providing for depositions of the authors.

The Commonwealth's response in this case was filed on February 6. If the Court does take the case, it would not be heard until the 2008 term.

Further developments and thoughts on child witnesses

Yesterday, the Ohio Supreme Court decided State v. Siler. In my view, this is a case of considerable interest, significance, and difficulty.

The facts are gruesome and hard to stomach. Brian Siler is charged with murdering his estranged wife Barbara, who was found hanging by a cord in the garage. Medical evidence indicated that she had been choked to death from behind and then hanged. Among the evidence against Siler was the testimony of Detective Larry Martin, a plain-clothes police officer and trained child interviewer who was called to the scene, as to statements the couple’s 3-year-old son Nathan made soon after the body was discovered. According to Martin, Nathan said that his father had scared him the night before by banging loudly on the front door, that his parents had argued loudly in the garage, that his father had hurt his mother, by grabbing her from behind above the shoulders, and that"the yellow thing" that was holding his mother up was put on his mother by his father.

In a pre-Crawford trial, these statements were admitted as – surprise – excited utterances, though apparently Nathan did not exhibit distress until well into the interview. The appellate court, pre-Crawford, affirmed, and the state supreme court, soon after Crawford, denied review; even on a motion for reconsideration, highlighting Crawford, the state supreme court declined review. But then the U.S. Supreme Court – in a decision noted in the very first posting on this blog – vacated and remanded for reconsideration in light of Crawford. Siler v. Ohio, 543 1019 (2004). On remand, the appellate court held unanimously that Nathan’s statements were testimonial and that admitting them in the absence of an opportunity for cross-examination violated the confrontation right. State v. Siler, 843 N.E.2d 863 (Ohio App. 5th Dist. 2005). And now the Ohio Supreme Court has reached the same conclusion, also unanimously on this point. So that is a measure of how far matters have progressed from the pre-Crawford era, and perhaps the immediate post-Crawford era as well.

In State v. Stahl, 855 N.E.2d 834 (Ohio 2006), a case involving an adult declarant, the Ohio Supreme Court had previously applied (or more accurately mis-applied) the objective-witness test. In Siler, that court has now held that this test applies even if the declarant is a child – but only so long as the statement is not made in response to interrogation by "police or those determined to be police agents." Relying on Davis, the court held that when a child does make a statement in response to such interrogation, the primary purpose of the interrogator is the decisive question. Accordingly, the age of the child does not matter in that context. (Two justices issued a separate opinion. They concurred in the judgment, but would have declared that the primary-purpose test applies to statements made in response to police interrogation, whether the declarant is a child or an adult, and they would not have declared that the objective-witness test applies to statements by children to persons other than the police and their agents.) Applying the primary-purpose test in this case, the court easily held that the statement was testimonial, because Detective Martin’s purpose was so clearly investigation of a crime.

Several points:

1. Even assuming this decision stands, the state is not precluded from introducing Nathan’s statements on retrial. It could make Nathan a witness. How much good that would do – he is now 9 and the murder happened six years ago – is another matter. But even if he said he remembered nothing, just putting him on the stand would presumably satisfy the United States Supreme Court, given Crawford’s explicit statement 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," 541 U.S. at 59 n.9, and the fact that Justice Scalia, author of Crawford, also wrote United States v. Owens, 484 U.S. 554 (1988), in which the fact that the witness had virtually no memory because his head was bashed in was not deemed to undercut the value of cross. But perhaps the Ohio Supreme Court – which adopted the appellate court’s formulation of the declarant being "present at trial to defend or explain" the statement – will be more demanding.

2. There is an odd inversion with respect to child statements. In the context of statements by adults, the defendant usually favors the objective-witness standard. True, it is plenty manipulable (and Stahl is a good example; there, the court characterized as non-testimonial a detailed statement alleging sexual molestation and kidnapping, made to a nurse practitioner the day after the alleged incident and after signing a form consenting to "this forensic examination and collection of evidence"). Nevertheless, it is more likely than the primary-purpose-of-the interrogator standard to yield a characterization of a statement as testimonial, in part because often the declarant knows she is reporting a crime before the receiving police agent does and in part because the latter standard is so easily manipulable by a police agent testifying as to a supposedp urpose other than law enforcement. By contrast, in the context of statements by children, the defendant often prefers a test based on the purpose of the interrogator, because often it is clear the interrogator is gathering evidence for prosecution but the child has at best a dim understanding of what is going on. That is the case in Siler. If the primary-purpose-of-the interrogator test applies, the statement is clearly testimonial; if a declarant-based test applies, the matter is more complicated, as discussed below.

3. To underline the point about manipulability made in the last paragraph: Although this statement was undoubtedly testimonial under the primary-purpose-of-the interrogator test, because it was clear that Detective Martin was gathering evidence, I wonder how clear it will be in such cases in the future, now that police agents and prosecutors are forewarned. "What was your primary purpose in asking Nathan these questions, Officer?" "My primary purpose was to protect this child and other people as well. I knew that Nathan's mother had been killed, that the killer was at large, and that Nathan himself would be at risk, especially if the killer was his father or if the killer realized that Nathan had observed some of the incident. I knew also that so long as a killer who had acted with such rage was at large other persons might also be at risk, both people known to the killer and strangers. I needed as much information as possible to help us protect Nathan and the rest of the community."

4. It is certainly understandable that in light of Davis the court – like many other courts – would adopt an approach based on the primary purpose of the interrogator when there is a police interrogator. But as I have argued at length, the proper perspective should be that of the declarant. Grappling withthe Meaning of "Testimonial", 71 Brook. L. Rev. 251, 255-59 (2005). And I have also argued that Davis is perfectly compatible with this approach. Crawford, Davis, and Way Beyond, 15 J. L. & Pol. 553, 557-63 (2007).

The fact that a statement is made in response to a police agent who is preparing prosecution of a crime is a critical factor in determining whether the statement is testimonial, but not because the agent’s purpose is itself the criterion; rather, if the agent is gathering evidence, that fact will usually (at least in the case of an adult) be apparent to a reasonable person in the declarant’s position, and so such a person would necessarily anticipate the likely use of the statement.

5. A significant problem with the Ohio Supreme Court’s approach – which may reflect a developing trend – is that it enunciates two different standards in different settings, which suggests that it is not supported by any underlying theory. The more difficult it is to state a comprehensive standard for what is testimonial, the more the Confrontation Clause will appear to be a bundle of rules without a clear rationale – the more it will look like Roberts.

I wonder, for example, how courts that apply a primary-purpose-of-the interrogator standard in a case like Siler will handle conspirators’ statements made to undercover cops. I do not believe that the Supreme Court would have adopted the testimonial approach in Crawford if it thought that a result would be to render such statements inadmissible – and yet such statements are often gathered for the primary purpose of preparing a criminal prosecution. One could try to cover for this situation by arguing that such statements are not sufficiently formal – but as I have also argued, I believe an independent formality test is misbegotten, e.g., Way Beyond, supra, at 567-71, and it would be so mushy that it would severely weaken the confrontation right.

6. If a court does take the declarant’s perspective with respect to children’s statements, then one cannot simply ask why the police agent interviewed the child. I have already written about some of the issues in a recent, long posting on child witnesses, so I will not go into much depth here.

a. One possible issue is whether the child should be considered so immature that he is deemed incapable of engaging in the act of testifying; see par. 4b of the prior post, and note that in my view, if the child is not capable of being a witness that does not eliminate all constitutional issues, because the defendant may have a due process right to examine the child, perhaps through a child psychologist.

b. Assuming the child is capable of being a witness, there is a question of whether the child’s age should be taken into account in applying the reasonable-declarant standard top the particular statement. This issue is addressed briefly in par. 5 of the prior post.

c. To determine that the child is capable of being a witness, as suggested in paragraph 6.a above, or to determine that the particular statement is testimonial, if the age of the child is taken into account, what level of understanding must the child have? I don’t believe that the child must understand the nature of criminal prosecution and the adjudicative system; it should be enough that he understands that is statement might cause adverse consequences to someone. Perhaps also, as Sherman Clark has argued, the child’s level of moral development ought to be taken into account; see par. 4b of the prior post.

7. How to take all this into account in Siler? Perhaps Nathan was old enough to understand that he was "telling" on daddy, and maybe that is enough for his statement to be considered testimonial. But I am not sure how much good is going to be accomplished by having him take the witness stand now, or even how much would have been accomplished by having him testify at the original trial, at least months after the nurder. Perhaps the way out of this is to say that the state, knowing the limitations on children’s memories and the seriousness of the situation, should have offered Siler a chance to cross-examine Nathan while the memory was fresh. An alternative result would be to hold that Nathan was too immature to be deemed a witness, but because he was a source of evidence the defense should have had a chance to examine him, on videotape, with a child psychologist asking questions in an informal setting.

* * *

for the most part I have avoided commenting on decisions of intermediate state appellate courts, but some time ago reader Justin Eisele posted (in a comment attached to my posting of Sept. 20) another child-witness case, Seely v. State, 2007 WL 2781965 (Ark. App. Divs. I & IV Sept. 26, 2007), and he and another reader posed questions about it. Seely is an interesting case, not because the facts are unusual but rather because (unlike Siler) they reflect a very common pattern and the trial court and two groups of appellate judges each responded in different ways.

A young child -- also three at the time -- made statements to her mother and to a social worker accusing her father of sexual abuse. The trial court held the child, four by then, incompetent to testify at trial, but the mother and social worker were allowed to testify to the statements made by the child. The defendant was convicted. The appellate court held that the statements made to the social worker were testimonial. Accordingly, because the defendant had never had an opportunity to cross-examine the child, admission of the statements was a violation of the Confrontation Clause (and it was not harmless, so the conviction was reversed). But the majority also held that the statements to the mother were not testimonial. Two judges would have held that the statements to the mother, as well as those to the social worker, were testimonial.

First, in response to the anonymous commentator (please do identify yourselves, if possible): I don't think there would be any inconsistency between a holding that a given statement is testimonial and a holding that the declarant is incompetent to testify at trial. (In any event, in this case, it was the trial court that held that the child could not testify at trial and the appellate court that held that some of her statements were testimonial.) The first holding focuses more on the nature of the statement and the second on the capacity of the declarant. Together, these holdings can reflect a perception that the declarant was acting as a witness when she made her statement, but that she lacks the capacity to testify in a way that is acceptable to the judicial system. There is no logical inconsistency there.

Having said that, I’m inclined to think that courts should avoid that pair of characterizations. As noted above, I have held out the possibility that a very young child can have such a dim understanding of the likely consequences of her statement that she should not be considered capable of being a witness at all within the meaning of the Confrontation Clause. (Again, she doesn’t have to understand the legal system for her statements to be testimonial, but if she doesn’t understand that she is making a statement accusing someone of wrongdoing, with the likelihood of that person suffering some kind of adverse consequences, arguably that isn’t testifying.) In other words, there are three possibilities – (a) child incapable of being a witness, or put another way, of making statements deemed testimonial; (b) child capable of making statements testimonial in nature but not of giving testimony in an acceptable way, perhaps because of lack of understanding of the obligation to tell the truth; (c) child capable of testifying acceptably. Personally, I am inclined to think that if a child is capable of making testimonial statements then her testimony ought to be heard in court, even if she doesn’t understand the obligation to tell the truth; plenty of adult witnesses flout the obligation, even assuming they understand it. In other words, I would be inclined to eliminate category #2.

On the merits of the case, I certainly agree with the minority in rejecting a formality test and a standard that statements by a child "to loved ones or acquaintances" are not testimonial.

* * *

I bleieve the confrontation issues posed by statements made by children are enormously important, complex, and troubling. Sooner or later, the Supreme Court will have to begin resolving many of these issues. I believe that, given the limitations on the Court's resources, the chance that the Court will achieve a sound resolution of these issues will be greater if the Court first focuses on basic issues in the context of adult witnesses, and once the framework is built addresses applications to child declarants.

Second Brooklyn Symposium now available on-line

Papers from the second post-Crawford symposium organized by Bob Pitler at Brooklyn Law School are available on-line, and you can reach them by clicking here. Though the symposium was held just over a year ago, I believe most of the papers are still timely. They represent a wide divergence of points of view. I have already commented on Jennifer Mnookin's paper, in a post on expert evidence. I may comment on others, as time allows.

A view of Crawford from a Massachusetts judge

A Massachusetts judge, Davd Lowy, and Katherine Bowles Dudich, who has served as a law clerk for his court, recently published an article titled After Crawford: Using the Confrontation Clause in Massachusetts Courts, 12 Suffolk J. Trial & App. Advoc. 1 (2007). The article was brought to my attention by a recent law school graduate who worked on it and who suggested that I post a link to it, on the thought that it might be helpful to lawyers and judges, especially but not exclusively in Massachusetts. I am happy to do so, because I agree that the article may be useful -- but posting of course does not indicate endorsement, and there are in fact aspects of the piece with which I disagree.

Conflict deepens on expert evidence

I have already commented on issues raised by expert evidence in several posts. See The Not-for-the-Truth End Run; The Expertise End Run and People v. Goldstein; and The Expert Opinion Problem. One of the recurrent issues is whether a statement that is testimonial in nature may be introduced against an accused, notwithstanding the absence of an opportunity for cross-examination, on the ground that it is admitted only in support of an expert’s opinion. As the Goldstein case, from the New York Court of Appeals, made clear, when the statement supports the expert opinion only if it is true, this theory is a sham, and to countenance it allows the expert opinion to be used as a conduit for the admission of testimony that has not been subjected to confrontation.

Courts nevertheless continue to adopt this theory. A recent example is Szymanski v. State, 2007 WL 2428508 (Wyo. 2007). In proving that a fire was the result of arson, the state offered the testimony of a fire inspector to a statement made to him the night of the fire by the tenant of the apartment in which the fire was set. In the statement, the tenant, who died before trial of unrelated causes, described the condition of the apartment before she left it that evening. The state supreme court forthrightly held that this statement, which was made after the fire had been extinguished and as part of an investigation into a possible crime, was testimonial. (One would not guess this from West's headnotes to the case.) Nevertheless, the court affirmed the trial court's decision to admit the evidence not for the truth of the matter asserted "but only to show what the inspector did and what information he relied upon in forming the opinion that the fire was intentionally set by human hand."

The veneer here is awfully thin. What difference does it make "what the inspector did"? And it is obvious that the statement can help support the expert's opinion only if it is deemed to be true. It seems to me undeniable that the state was asking the jury to accept the tenant's unconfronted statement as the truth, and that if the jury did not do that the statement had no substantial value for the prosecution. This is what I have called the "expertise end run", meaning that the supposed need to allow the expert to provide the basis for his opinions is being used as a means of avoiding the Confrontation Clause.

If the logic of this case holds, one can also imagine rape counselors, domestic violence counselors, and child abuse counselors testifying that in their opinion a crime had been committed, and that one of the bases on which they draw that conclusion is the statement made to them by the victim, who has chosen not to come to court.


It is clear that, to prevent serious undermining of the confrontation right, the Supreme Court should rule that when a statement supports an expert opinion only if it is true, then admitting the statement for purposes of supporting the expert's opinion is equivalent to admitting it for the truth of what it asserts. The conflict among the states on this issue is clear and well established. I hope the Supreme Court resolves it soon.

More generally, I believe the Court needs to impose constraints, as a matter of constitutional law, on a court's ability to admit evidence of a testimonial statement for some reason other than the truth of what it asserts. The problem the Court must come to grips with is that if there are no such constraints then lower courts will be utterly free to exercise creativity in devising flimsy not-for-the-truth theories on which testimonial statements may be admitted. Cf. David Crump, On the Uses of Irrelevant Evidence, 34 Houston L. Rev. 1 (1997) (arguing that evidence is always relevant to a given proposition). Limiting instructions will provide no genuine protection for the confrontation right. I will not explore in detail here what constraints the Court should impose; that is a subject worthy of careful thought. But here is a first crack. It seems that a court considering the confrontation issue must first ask whether the testimonial statement has substantial value in proving the proposition for which it is supposedly offered without respect to whether the statement is true or not. If the answer is negative -- as it is in the Szymanski-Goldstein type of case -- then that proposition does not offer a basis for admitting the statement. If the answer is affirmative, then the court must assess whether that value warrants the risk that the jury will, notwithstanding an instruction to the contrary, use the statement to prove the truth of what it asserts.

In a new article, Expert Evidence and the Confrontation Clause after Crawford v. Washington, 15 J. L. & Policy (791), Prof. Jennifer Mnookin lucidly critiques the expertise end run and several other strategems under which expert witnesses have often been used as conduits to admit statements that were made by others and that should be regarded as testimonial. These include treating the business records exception to the hearsay rule as an exception to the rule of Crawford; treating cross-examination of the expert as an adequate substitute for cross-examination of the declarant whose statement comes in through the expert; emphasizing the supposed impracticality of holding the evidence inadmissible in the absence of the declarant; and distinguishing between factual findings and opinions, and holding only the latter to be testimonial. Her perspective suggests the need for the Supreme Court to step into this realm soon:

There are already sufficiently large numbers of cases relying upon precisely
these arguments that some courts are, unfortunately, beginning not even to argue
these points with care, instead merely relying on the allegedly persuasive
authority of other courts’ reasoning. If this trend continues, it will have a
real cost: a too-thoughtless pragmatism will have trumped principled application
of the underlying principle at stake in Crawford.

In the last part of her article, though, in focusing on two particular problems, Prof. Mnookin draws back somewhat. One of these problems is that of certificates routinely performed on certain frequently used appliances, such as speed radar guns and breathalyzer kits, to ensure that they are in good working order. If, during the period for which a given test is supposed to validate that the appliance is working properly, it generates evidence supporting prosecution of a crime, must the technician who tested the appliance and prepared the report testify at trial? Courts resist the conclusion; the costs of requiring testimony are substantial, and there may be little likely benefit. Those considerations are present with respect to many routine test reports, but they do not in themselves provide a principled argument for removing the reports from the Confrontation Clause. In the case of the certificates being considered here, though, there is a principled argument: As Prof. Mnookin points out, these certificates are not prepared with a "specific criminal act" in mind.

A holding that for this reason the Confrontation Clause does not apply to these certificates would not, in my view, do terrible violence to the Clause. On the other hand, the certificates almost certainly were prepared with an evidentiary use in mind, with the idea that they would likely be used in some prosecution, and as a matter of principle that should be enough to characterize them as testimonial. Also, if we are going to draw a boundary of the sort favored by Prof. Mnookin, we have to be careful just where to draw it. Sometimes, especially in the domestic violence context, a victim makes a testimonial statement after one alleged criminal act, and that statement is offered with respect to a subsequent act. I think the confrontation right should still apply (though it will not always matter; if the second act is homicide; it may be that the accused forfeited the right by rendering the witness unavailable). So instead of speaking only of a specific criminal act, it would probably be better to speak also of a series of acts.


But in any event, I believe that in this context we can avoid impractical results without drawing a line of the sort advocated by Prof. Mnookin, because the whole issue is constitutionally unnecessary. Nothing in the Constitution requires the state to prove that the appliance was recently tested. If a witness testifies to the time something occurred, having noted the time on a clock shortly before or after the event, there is no precondition that evidence of the clock’s accuracy be presented, much less that it be presented in a given manner. As with the clock, so with other instruments: If the state wanted, it could just let a witness testify to the evidence generated by the appliance in question, and leave it to the defense, if it wished, to raise questions about accuracy. And if the state wished, it could require the testing agency to furnish the certificate of accuracy to the defense. If the agency complied with this requirement, and the certificate appeared in order, the defense ordinarily would have no incentive to raise the issue before the jury. But if the agency failed to comply, or if on the face of the certificate the test was untimely or the appliance was defective, that would be a tip-off to the defense and to the court that a challenge to accuracy might be worthwhile; there would of course be no Confrontation Clause objection to the defense offering either a certificate or evidence of failure to furnish one.

The second problem addressed by Prof. Mnookin at the end of her article concerns autopsy reports in homicide cases in which the defendant is not apprehended for many years after the crime. She suggests that in such a case it would be tolerable for a "substitute expert" to testify to the report. I disagree. First, let’s note that the problem is a subset of a much more general problem, of witnesses who are no longer around to testify in delayed prosecutions. And in this case, the prosecution, knowing of the potential problem, can usually protect its interests quite well. If, as will usually be the case, there is a relatively small group of prime suspects, the prosecution can give notice to each of them and hold a deposition, offering to pay attorneys’ fees. (Prof. Mnookin briefly considers a "public deposition"; whether, and under what conditions, public notice could suffice in the relatively rare case in which the eventual defendant is not identified as a suspect soon after the autopsy is an interesting question. A deposition of this sort, taken of an elderly victim rather than of an expert and with counsel appointed to represent the eventual defendant, was approved in an unpublished case decided a couple of weeks after Crawford, People v. Wilkey, 2004 WL 576659 (Mich. Ct. Apps. 2004).) Also, much of the evidentiary value of an autopsy report can be gained by high-resolution video recording of the autopsy. So long as the video can be authenticated – which should be simpler than, say, authenticating DNA samples years after the fact – a pathologist would be able to testify in court on the basis of what is apparent from the video (what she sees rather than what she has been told), and there would be no confrontation problem, or even hearsay problem, at all.

There is no doubt that in the area of expert testimony, as in other areas, careful protection of the confrontation right increases the cost of prosecution. But of course that is true generally of the confrontation right, and all the rights on which our system of criminal justice is built; one could devise a much cheaper system, but it would not be a satisfactory one. Because the confrontation right was so limp in the years before Crawford, the costs of protecting it properly are often very salient, and that is probably particularly true with respect to expert evidence, which involves recurrent practices and professionally qualified (and often expensive) witnesses. With proper preparation and the creation of appropriate procedures, the judicial system can maintain rigorous adherence to the confrontation right in this area without incurring undue expense – and thus can avoid allowing expert evidence to be a force that erodes a sturdy framework of confrontation law.

Child Witnesses on the Academic and Judicial Front

Some of the most perplexing issues related to the Confrontation Clause involve statements by children. The Indiana Law Journal has recently published a symposium on the topic, under the sponsorship of Prof. Aviva Orenstein. Her introductory essay, Children as Witnesses: A Symposium on Child Competence and the Accused's Right to Confront Child Witnesses, 82 Ind. L.J. 909 (2007), summarizes the other pieces. At a glance, I can see that there is a good deal with which I agree and a good deal with which I disagree.

A recent opinion in the area is State v. Krasky, 2007 WL 2264711 (Minn. Aug. 9, 2007). This is another in a series of cases in which some courts have treated as non-testimonial an accusation of abuse made by a child to a care-giver, such as a nurse or social worker, a considerable time after the alleged incident. A few points about the case warrant mention and raise other issues.

1. The “purpose” evasion

The majority of the Minnesota Supreme Court reached this conclusion notwithstanding the fact that a police report indicated that a police officer and a child protection worker jointly concluded that “the best way to proceed with the investigation was to have [the Child Resource Center where the child made the accusation to a nurse] do an interview with [the child] along with a medical exam.” Picking up on the “primary purpose” language of Davis v. Washington, 126 S.Ct. 2266 (2006), and extending it beyond the emergency situation, the court deemed the primary purpose of the interview to be protecting the health and welfare of the purported victim. In my view, this result highlights one of the serious problems of a test depending on the primary purpose of the questioner. True, some courts have shown deftness in manipulating what I believe is the proper test, depending on the reasonable anticipation of the speaker. But a questioner-purpose test is much more easily manipulable. First, it allows the questioner herself to portray her purpose in a way supporting a conclusion that the accusation is not testimonial. Second, as in this case, such a test allows a routine in which accusations made to agents without law enforcement responsibility to be deemed non-testimonial, no matter how predictable it may be that the agent will relay the accusation to court if the accuser does not appear. Indeed, given the approach in Krasky, I am not sure what would prevent a state from referring all alleged crime victims to a victims’ counselor who would then take the accusation and transmit it to court if the victim does not testify there. So imagine this conversation between a counselor and an adult who has allegedly been the victim of a crime:

Counselor: Officer Tuesday has referred you to me so that I can help you deal with the considerable trauma that crime victims often suffer. I know you already told her about this incident, but for me to assist you, it is important that I hear from you exactly what happened to you, and who did it to you. If you don’t mind, I am going to videotape our session so that I can consult later with my colleagues about it.

Alleged Victim: No problem. And thanks so much. But tell me. If I understand correctly from TV shows I’ve seen, if I choose not to go to court, you could testify yourself and show the videotape. Right?

C: That’s true. Of course, that’s not our primary purpose in holding this session.

AV: Whatever. I just don’t want to be in the same room as that guy, or look at his face, or have to answer a lot of questions by his lawyer.

C: No, you wouldn’t have to.

That sounds to me as if we are entering death-of-the-confrontation-right territory.

2. Davis leeway as limited to emergencies.

Justice Page, with one of his colleagues, dissented in Krasky, which is interesting because he had written one of the prior decisions holding a child’s accusation in largely similar circumstances to be non-testimonial – but he regarded Davis as calling for a different result, because the statement was not made during the course of an ongoing emergency.

3. Non-testimonial statement, incompetent witness.

The child was apparently incompetent to testify at trial. This also was a basis for the Page dissent. But the matter is quite complex, in my view. Obviously, the combination of holdings that the prosecution may introduce the child’s out-of-court statement and that the defense cannot call the child to the stand places the accused in a theoretically disadvantageous position: The statement will be admitted against him and he has no way of examining the declarant.

How big a problem is this? As a practical matter, it is unlikely (under present procedures) that if the statement is admitted against the accused he would choose to call the declarant to the stand if he could; that doesn’t happen often, for reasons I have explored before. (See, e.g., these posts: Pending Cert Petitions, Shifting the Burden, Take 2, and Shifting the Burden.) Moreover, the accused is in a similarly disadvantageous position whenever a statement by an unavailable declarant is admitted against the accused, and if the statement is in fact non-testimonial (as the majority held it was here) there is no confrontation problem. So if we assume that the statement was not testimonial in nature, I don’t believe the extra consideration that the defense could not call the child to the stand is particularly worrisome.

4. Apparently testimonial statement, incompetent witness

But now suppose, along with Justice Page, that the out-of-court statement would be characterized as testimonial in nature if the child were a competent witness – but in fact she is incompetent to testify at trial. What are the consequences?

In the 18th century, before R. v. Brasier, 1 Leach 199, 168 E.R. 202 (K.B. 1779), changed the rules, young children were categorically incompetent to testify at trial, and their out-of-court accusations were sometimes admitted. (I discussed this fact briefly in my reply brief in Hammon, and Tom Lyon and Raymond LaMagna explore it at length in their contribution in the Indiana symposium, The History of Children’s Hearsay, from Old Bailey to Post-Davis, 82 Ind. L.J. 1029 (2007)). I don’t think this history is a good guidepost for decision today. Those old cases admitted the out-of-court statements as the best evidence available, but I believe they were accommodating to, and effectively avoiding and undercutting, an overly active rule of incompetence. That is, most of these children probably should have been deemed to be competent witnesses (or at least to be heard; see below). Admitting the out-of-court statement was a way around the rule of incompetence, though with the serious problem that the statement was not made under the conditions required for testimony.

In resolving the problem, I think it is useful to distinguish between two different levels of incompetence.

a. The child who is capable of testifying, but not in a satisfactory manner

On one level, the child is sufficiently capable of understanding the nature of her statement for it to be considered testimonial, but she lacks a sufficient sense of obligation to tell the truth for her testimony to be accepted in court. Thus, the out-of-court statement is clearly testimonial in nature, but the child is not capable of testifying in court in a satisfactory manner.

In this setting, it is clear that the out-of-court testimonial statement should not be admitted. Out-of-court testimony, without oath or cross-examination, is clearly inferior to in-court, testimony, and if the child’s testimony in court should not be admitted because she is incompetent to give it then a fortiori neither should her out-of-court testimony be admitted.

Now, in passing I’ll mention that I believe there is a plausible argument that the child should not be disqualified from testifying in court simply because she does not demonstrate a sense of obligation to tell the truth. We know that many witnesses, though taking an oath, are strongly motivated to lie and do lie quite deliberately, and we nevertheless admit their testimony – as we admit all sorts of non-testimonial evidence – for what it is worth; even if the evidence is not particularly reliable, it may be a net benefit to the truth-determining process. Indeed, as I understand it, the tradition in some Continental courts is that the accused does not testify under oath but nevertheless he tells his story. And this was the practice in common law courts for centuries – this is what John Langbein called the “Accused Speaks” model, The Historical Origins of the Privilege Against Self-Incrimination at Common Law, 92 Mich. L. Rev. 1047 (1994), which prevailed before defense lawyers tended to keep their clients quiet and before criminal defendants were allowed to testify under oath, beginning in the latter part of the 19th century. In the case of a child witness, administering the oath or an oath-like procedure might be considered an attempt to remind the child of the obligation to tell the truth and to reveal the child’s inclination to do so – and arguably that is all, so that any defects the child may have on this score should not prevent her from telling her story in court.

Putting this thought aside, though, the narrower point made here is clear: If a child makes an out-of-out testimonial statement and does not testify in court, the presumptive violation of the Confrontation Clause is not excused on the basis that she would not have been allowed to testify in court anyway because she lacks a sufficient obligation to tell the truth.

b. The child who is incapable of testifying

Now consider a deeper level of incompetence – the child is (or a child of ordinary understanding of her age would be) so insufficiently developed that the statement should not be deemed testimonial at all. Note that characterizing the child in this way would not be saying that she is acting as a witness but without satisfying the conditions for a proper witness; rather, the argument would be that she is just not capable of engaging in the kind of activity – witnessing – covered by the confrontation right.

I will not attempt to resolve here what kind and degree of development would be necessary for a person to be considered capable of witnessing. It may be that it is sufficient if the child understands that her statements are capable of causing adverse consequences to another person – or put another way, if the child has such limited understanding that she does not realize this, she should not be considered to be witnessing. I think it’s also worthwhile thinking about the suggestion made by my colleague Sherman Clark, An Accuser-Obligation Approach to the Confrontation Clause, 81 Neb. L. Rev. 1258, 1280-85 (2003), that in determining who is a witness within the meaning of the Confrontation Clause moral as well as cognitive development must be taken into account.

In his contribution to the Indiana symposium, Testing the Testimonial Concept and Exceptions to Confrontation: “A Little Child Shall Lead Them”, 82 Ind. L.J. 917 (2007), Bob Mosteller vigorously disagrees with the idea that some children should be considered so undeveloped that they are deemed out of the Confrontation Clause altogether. He seems to acknowledge that in one case that I have used to make this argument, State v. Webb, 779 P.2d 1108, 1109 (Utah 1989), in which an 18-month-old child said, “Ow bum daddy,” the argument “may be well taken.” But in the more usual case, he says, the child uses “purposeful communicative abilities.” I acknowledge that Webb is an unusual case, but that doesn’t eliminate the issue. I suppose that the child in Webb had and was using “purposeful communicative abilities.” More fundamentally, it strikes me as question-begging to assume that the use of such abilities renders the statement testimonial. Not all purposeful communication is testimonial, of course; the question becomes what additional conditions are required to make it so, and I believe it is at least plausible to hold that membership in the human species is not enough to qualify the maker of a statement as a witness. (If a trained bloodhound’s bark were determined to be purposeful communication to the effect, “This guy here is the source of the smell on that shirt you put under my nose a while back,” that would not render the dog a witness within the meaning of the Confrontation Clause.)

So at least arguably, I believe, in some cases a child who makes an out-of-court statement should not be considered a witness at all for purposes of the confrontation right. Now, this possibility might seem to lead to absurd results, because it would mean that the child’s incapacity is an argument favoring admissibility of her statement. I have a couple of responses.

First, I’m not sure that the result is indeed absurd on its face – let’s bear in mind that the confrontation right is not about sifting out good from bad evidence but about protecting the conditions for giving testimony.

Second, even if the confrontation right does not apply, on the ground that the child was not acting as a witness, this does not necessarily mean that the accused would not have a right to examine the child if the child’s statement were admitted. Let’s say the prosecution introduces blood that it claims came from the accused, or a pistol that is arguably the murder weapon, or a document the age of which is in question. The defendant has a right to examine this evidence, and it should be allowed to do reasonable experiments on it. I think the same principle ought to apply if the prosecution wishes to introduce an out-of-court accusation made by a child who is not deemed competent to be a witness. That is, the accused ought to have a right, recognized as a matter of due process, to examine the child – but I’m using “examine” in a non-technical sense. The child is not acting as a witness but is nevertheless a source of evidence, and so the defense has a right to examine her and try to generate information suggesting that the evidence she yields does not have the value the prosecution ascribes to it. In the case of a pistol, the principal examiner would be a ballistics expert; in the case of a child, it might be a child psychologist. Much of the examination would consist of questions, but it would not be cross-examination as we know it. Furthermore, in this context the accused would not generally have a right to be in the presence of the child. But presumably, the accused would have the right to have the encounter video-taped.

So I am suggesting that even though the Confrontation Clause does not apply in this setting, the accused may still have a constitutional right to have some sort of examination of the child. Does this undercut the clean principle (for which I’ve advocated) that if a statement is not testimonial the confrontation right does not apply? I don’t believe so. I’ve always thought that in particularly pressing cases the accused might have a due process right to demand production for cross-examination of the declarant of a non-testimonial statement, if the declarant is available. The procedure being discussed now would apply only if the child was available; the due process demand is particularly compelling in the context being examined here, in which the declarant is incompetent to be a witness; and the prescribed procedure is not even cross-examination.

Conceivably, the child could give her account, and the examination on behalf of the defense could occur, at trial. This still would not make the event testimonial if the child is deemed incapable of witnessing; this would be the counterpart of performing an experiment in the courtroom.

5. Age adjustment?

Even if a child is considered competent to be a witness within the meaning of the Confrontation Clause, there is a separate issue as to whether the child’s level of understanding should be taken into account in determining whether the particular statement is testimonial. This is a tricky question. I’m not entirely happy with a doctrine that asks about the expectations of a reasonable person when the speaker is in fact a young child. But neither does it seem satisfactory to break down the objectivity of the inquiry in this particular context – all the way by asking about the subjective anticipations of this child, or with a halfway measure such as asking about the anticipation of an eight-year-old child of ordinary understanding. Perhaps the best resolution is to consider the particular child subjectively in deciding whether she is capable of engaging in witnessing but to apply a straight objective test – referring to the standard “reasonable person” in determining whether the particular statement is testimonial. Readers’ thoughts on this question, as well as on any of the other difficult matters raised here, are of course welcome.

Opportunity for Cross-Examination at Preliminary Proceedings

I am writing this post to invite readers' comments on this set of questions: California v. Green, 399 U.S. 149 (1970), holds that an opportunity to cross-examine at a preliminary hearing satisfies the confrontation right. How, if at all, does this principle affect the conduct of lawyers and courts at preliminary hearings and other pre-trial evidentiary proceedings (such as depositions taken for discovery purposes) not held for the primary purpose of preserving testimony? For example, how often do defense lawyers conduct a full cross-examination – knowing that if they do not and the witness is unavailable to testify at trial, it may be that the court will admit the earlier testimony and reject a claim of the confrontation right by ruling that the defense already had an opportunity for cross-examination? And how willing are courts to allow a full cross-examination given this possibility?

My own slightly educated guess is that usually the prospect of trial admissibility does not cause defense lawyers to conduct extensive cross-examinations at preliminary proceedings, and that if they tried to do so the courts would constrain them. Preservation of testimony is not the purpose of these proceedings, and if the defense protected itself (though at the potential cost of losing benefits of surprise) by making extensive cross-examinations these proceedings would become much more time-consuming. But I would like to know more than I do now from those who deal with these situations regularly. Thanks!

Ninth Circuit decision in Yida -- on "reasonable means" and unavailability

Yesterday, a panel of the United States Court of Appeals for the Ninth Circuit issued its decision in United States v. Yida, 2007 WL 2325143. This case generated some anticipation because after oral argument the panel issued an order inviting amicus briefs from any interested person. The court's opinion is a good one, and has several interesting aspects to it.

Yida was tried on drug charges, but the jury hung. A key witness against Yida was Reziniano, an Israeli. The Government allowed Reziniano to be deported to Israel, accepting Reziniano's solemn promise that he would return to testify at a retrial. But soon after reaching Israel, on the eve of the retrial, surprise, surprise, Reziniano said he would not return, supposedly for medical reasons. The district court held that Reziniano's testimony from the first trial could not be admitted at the retrial. The Government appealed that ruling, but the Ninth Circuit has now affirmed. Judge Gould wrote the opinion for a unanimous panel, resting the decision squarely on a holding that Reziniano was not unavailable within the meaning of Fed. R. Evid. 804(a). He also added a brief concurrence (rather unusual, isn't it, the same judge issuing majority and concurring opinions at the same time?), emphasizing the constitutional significance of unavailability.

The main opinion has a discussion that I think is quite useful on the advantages of live testimony at a second trial as compared to the transcript of testimony from the first trial. (Some self-interest there, I suppose, because this discussion quotes approvingly from my amicus brief.) The most obvious advantage, of course, is that live testimony gives the jury the chance to observe the demeanor of the witness. Beyond that, requiring the presentation of live testimony when possible gives a defendant a second crack at the witness, and thus a chance to develop inconsistencies; it gives the defense an opportunity to cross-examine on the basis of all information available at the time of the second trial; and it deprives the prosecution of the opportunity to "stand pat" on the transcript when it has reason to believe that the witness would come off worse in live examination. An accused is not guaranteed a second chance to examine a witness, of course, but these are beneficial by-products of holding a second trial, and they should not be forsaken if the witness is available to testify live.

The principal issue at stale in Yida is whether the Government used "reasonable means," within the meaning of Fed. R. Evid. 804(a)(5), to procure Reziniano's attendance at trial. The court's discussion strikes me as very sound. (Same self-interest, same reason.) The court examined alternative choices that the Government might have made, even apart from keeping Reziniano in custody pending a second trial. It might have taken Reziniano's passport away or held him in electronic detention, or done both, to ensure his appearance. Or before deporting Reziniano it might at least have taken a video deposition, which would have offered most of the advantages of live testimony. To the Government's argument that a deposition would have been of no avail, because it could be admitted only if Reziniano was deemed unavailable, the court properly responded that taking a deposition would have altered the calculus of whether the Government's conduct in deporting Reziniano was reasonable.

More generally, the court squarely rejected the Government's contention – which did not have a lot to be said for it – that reasonableness ought to be determined within a time frame beginning shortly before trial. The measure of reasonableness should not be confined by artificial boundaries, and prosecutors should be charged with the ability to think and plan ahead. I hope this same principle will be applied in the somewhat related context of determining whether, for purposes of applying forfeiture doctrine, the accused should be deemed to have rendered a witness unavailable. It sometimes happens that a witness who otherwise would have been able to testify at trial is prevented from doing so by the accused's misconduct – most frequently intimidation or homicide – but if at an earlier time the prosecution had taken reasonable steps (such as holding a deposition) the witness could then have testified subject to confrontation. In this context, as in Yida, it should not be enough for the prosecution to focus on the time immediately before trial and proclaim that there was nothing it could then do to bring the witness to trial.

Standard of review for limitations on cross-examination

Greg May has brought to my attention a significant en banc decision, United States v. Larson, 2007 WL 2192256, issued Wednesday (Aug. 1, 2007) by the Ninth Circuit, addressing the question of the standard of review that applies when an accused contends on appeal that a trial judge’s limitation of questions on cross-examination violated his rights under the Confrontation Clause. (Greg’s comments are available on California Blog of Appeal. My views are in large part, but not completely, in accord with his.) This is an issue on which the Circuits, and indeed panels within the Ninth Circuit, have split in three basic groups.

Some courts have held that restrictions on cross should be reviewed de novo. Some have held that such restrictions should be reviewed only for abuse of discretion. And some courts, often suing rather mystifying language, have held that some combination of these standards applies. The Ninth Circuit now adopts the last of these approaches, with a prevailing opinion that offers considerable elaboration:

If the defendant raises a Confrontation Clause challenge based on the exclusion of an area of inquiry, we review de novo. In reviewing a limitation on the scope of questioning within a given area, we recognize that “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

I wonder how tenable that distinction will be; “area of inquiry” is not a self-defining term. In Larson itself, for example, the court concluded that the restrictions on cross-examination – preventing the defendants from asking about the mandatory minimum sentences that two witnesses would have received had they not cooperated with the Government – lay “within an area of inquiry,” specifically “the biases and motivations to lie” of those witnesses. “[B]iases and motivations to lie” constitute a mighty broad “area of inquiry”; I wonder how often a judge ever forecloses cross-examination of it. In this case, one might have said, it seems to me, that the relevant area of inquiry was “the sentence that the witness would have received absent cooperation.”

Moreover, immediately after articulating the distinction, the court immediately muddied the waters by adding, “A challenge to a trial court's restrictions on the manner or scope of cross-examination on nonconstitutional grounds is thus reviewed for abuse of discretion.” I don’t see any reason why it should matter whether the governing rule of law is constitutionally based or not.

And the court added further confusion by stating, “This standard . . recognizes that whether there has been a Confrontation Clause violation is ultimately a question of law that must be reviewed de novo.” I am scratching my head trying to reconcile that statement with the passage quoting Van Arsdall. Perhaps the Court means that in some circumstances de novo review incorporates a discretionary substantive standard of what constitutes a violation, but if that is so effectively there is review for abuse of discretion. In any event, I do not believe that the premise – that whether there has been a violation is a question of law subject to de novo review -- is completely accurate. Compare the case in which a trier of fact determines that there has been negligence. The reviewing court must determine by de novo review whether the standard applied for what constitutes negligence is the correct one. And the reviewing court might decide as a matter of law that the facts could not support a conclusion that there was negligence in the particular case; if there is a jury, the question of whether the case should have been left to it is subject to de novo review. But in many cases, the evidence could support a conclusion either way, and that includes some cases in which what happened is clear but how it should be characterized is not. De novo review does not apply there.

Having said all this, it seems to me that the en banc court had the right instinct, though its expression was somewhat clunky. As indicated above, I don’t think there is any sharp distinction between preclusion of an area of inquiry and restriction within an area. But there may be a significant continuum here, and perhaps the court is pointing in the general direction of it. Appellate review can be more or less deferential. It should be less deferential, all other things being equal, if a situation is likely to recur with some regularity in materially similar circumstances. Recurrence suggests value in uniformity, which can be gained only with de novo review. And recurrence in materially similar circumstances suggests the possibility of articulating workable rules of law. So the more the trial judge’s ruling sounds like precluding a well-defined area of inquiry, and the less it sounds like merely putting some limitations on the extent to which defense counsel can pursue that inquiry, the stronger the argument for giving little deference to the trial judge’s ruling.

On that basis, I think there may be good reason to conclude as a matter of law that the defense must be allowed a reasonable opportunity to explore what the cooperating witness’s expectations were with respect to the sentence he would receive absent cooperation. But, as noted above, the en banc court treated this as a matter subject to review for abuse of discretion.

In applying that standard, the court – unanimous up to that point, as I understand it – split three ways. The prevailing group concluded in the case of one witness that the defense had an adequate opportunity to demonstrate the bias of the witness. (This was in part, interestingly enough, because the witness actually answered the question as to what the minimum would have been absent cooperation, and though the trial judge intervened at that point and said this was not a proper subject of questioning, he never actually struck the answer; so what should defense counsel have done, say, “Judge, if you’re going to rule against me, please do it clean, and tell the jury to disregard that helpful answer I just got”?) The judge’s ruling with respect to the first witness gave a clear signal, and defense counsel never attempted to reveal to the jury that absent cooperation the second witness faced a mandatory life sentence without the possibility of release. The prevailing group of Ninth Circuit judges concluded that the defense was thus improperly precluded from demonstrating to the jury the magnitude of the incentive that the second witness had to cooperate with the Government. But guess what – the error was harmless. One other group of judges, contending that there was no violation with respect to the second witness, concurred in the judgment; another group contended that there was a violation with respect to the first as well as the second witness, and that the error was not harmless.

Forfeiture: The Standard of Proof and the Reflexive Case

Here's a post I meant to put up several weeks ago:

The Washington Supreme Court has joined the minority of courts that have adopted an elevated standard of proof that a defendant engaged in the wrongful conduct that rendered a potential witness unavailable. In State v. Mason, 2007 WL 2051541 (Wash. Jul. 19, 2007), the court held that “in deciding whether to apply the doctrine of forfeiture by wrongdoing, the trial court must decide whether the witness has been made unavailable by the wrongdoing of the accused based upon evidence that is clear, cogent, and convincing.” The court held, with apparent justification, that the standard was met in the case before it. This was a murder case, and the statements at issue, which the court held were testimonial, were accusations by the victim of a prior assault on the victim. The court appears not to have been troubled by the fact that the accusations in question were made before the crime in question – the murder – was committed.

I think the Washington court is right that an elevated standard should apply in determining forfeiture, but the betting has to be that if the Supreme Court ever resolves the question as a matter of federal constitutional law it will adopt a preponderance standard; it certainly gave a big hint in that direction in Davis v. Washington, 126 S.Ct. 2266 (2006). If it does so, though, state courts will remain free to apply elevated standards as a matter of their own constitutional law.

In any event, I believe this issue is less important than might first appear. A court inclined to let evidence in on the basis of forfeiture will most likely be willing to recite the "clear, cogent and convincing" standard if it has to. I doubt this language will help very many defendants.

More important, it seems to me, is the question of what duty to mitigate the prosecution has when it seeks to invoke the forfeiture doctrine. Sometimes, when the wrongdoing that rendered the witness unavailable is murder, the prosecution has an opportunity between the time of the fatal blow and the death of the victim to take the victim's deposition; most often, as in Mason's case, that is not so. And, when the contention is that the accused forfeited the right by intimidating the witness, a slew of issues arises concerning what steps, if any, the prosecutor or court should take to ascertain how much of the confrontation right can be preserved. I have commented on some of these issues in prior posts -- for example, Forfeiture, the Prosecutorial Duty to Mitigate, and Rae Carruth.

In Mason, by the way, four justices refused to sign the majority opinion. The principal reason was that they believed the court should not adopt what I have called a doctrine of reflexive forfeiture – that is, applying forfeiture doctrine when the act that purportedly rendered the witness unavailable is the same as the act with which the defendant is tried. (Two judges dissented on this basis; the other two concurred because they believed the error was harmless.) That is, the accused was charged with murder, and the act that allegedly rendered the witness (the alleged murder victim) unavailable was the act of murdering him. These four justices regarded application of the doctrine in this circumstance as a violation of the presumption of innocence and the principle requiring proof of guilt beyond a reasonable doubt. In my view, this is simply a logical error. Because I've expressed this view often before, see, e.g., Forfeiture and dying declarations, I'll address it very briefly here.

In a case of this sort, two basic factual determinations must be made, and usually by two separate decision-makers. The jury must decide whether the defendant is guilty beyond a reasonable doubt of the crime charged. In the course of the trial the court must decide whether the criteria for the admission of evidence are met. If, say, the accused claims that admission of an out-of-court testimonial statement by a witness to a robbery would violate his confrontation right, but in fact the reason the accused has not had an opportunity to cross-examine the witness is that he murdered her, it seems obvious to me that the accused has forfeited the confrontation right. It seems equally obvious that it is the court that must determine whether the facts supporting a conclusion of forfeiture are true to the requisite degree of probability. The situation does not change when the act that purportedly rendered the witness unavailable is the crime being tried. If in fact the accused’s wrongful conduct is what kept the witness from testifying in court, then it would be abhorrent to keep that testimony out on the basis that the accused never had an opportunity to cross-examine. There are still two fact-finding functions that are separate. The jury must determine guilt; to do so it must begin with the presumption of innocence, it can only use the evidence allowed by the court, and it can fund guilt only if it is persuaded beyond a reasonable doubt. The court has to determine whether the conditions for forfeiture are made out, and if it does it admits the evidence – but of course it does not say, “Jurors, the reason you’re hearing this evidence is that I’ve determined that the accused murdered this potential witness” – just as in a conspiracy case it does not say, “Jurors, the reason you’re hearing this statement is that I’ve concluded that it was made during the course of and in furtherance of a conspiracy of which both the declarant and the accused were members. Now it’s up to you to determine whether they were conspirators for the purpose of determining guilt.” In short, I believe this resistance to reflexive forfeiture is a red herring.

Cert petition by Missouri on the lab report issue

One of the most significant outstanding Crawford-related issues is whether lab reports and other reports routinely prepared as part of the prosecutorial process should be deemed testimonial. If such a report is considered testimonial -- as it should be -- then it may not be admitted against the accused unless the author of the report is subjected to cross-examination. The lower courts have sharply divided on the issue, but so far the Supreme Court has not taken an opportunity to resolve it. But that may soon change, because now a state, rather than a defendant, has asked the Court to take the matter up. You can read the petition for certiorari (passed on to me by Jeff Fisher) in Missouri v. March by clicking here.

Can testimony be preserved before arrest?

It often happens that for some time after commission of a crime, especially a homicide, a suspect is not apprehended, yet the state anticipates that eventually there may be an arrest and a trial. Now suppose that a prosecutor realizes that a key witness may not be available by the time of a trial. May the prosecution preserve the witness's testimony?

Let's divide the problem into three. In the first variation, the ultimate defendant has been identified as the principal suspect, but he has not yet been apprehended. I've speculated about the possibility that counsel could be appointed for the suspect, some form of notice be given to the suspect, and a deposition held. That, it seems to me, gives an adequate opportunity for confrontation, at least if the notice given was reasonable under the circumstances; perhaps the accused would have had to emerge from hiding to confront the witness and to consult with counsel, but he did not have a right to remain in hiding. If there isn't notice of the deposition, but the eventual accused knows that he is being sought, is that enough to constitute a forfeiture of whatever aspects of the confrontation right were not protected by the deposition procedure? I don't know.

In variation two, the ultimate defendant is one of several identified suspects shortly after the crime, and the authorities don't yet have enough evidence to arrest any of them. In this variation, it seems the solution is to give notice to all of them, to offer counsel to each of them, and to appoint counsel for any that do not appear.

The toughest variation arises when the authorities have not yet identified a suspect. May they still preserve the testimony by giving some kind of publication notice, appointing counsel for the ultimate defendant, and taking a deposition? That is considerably more difficult, but the matter is still worth considering. In some cases, and on some issues, counsel may be able to conduct suitable cross-examination even without knowing who his client is. But is this enough?

I've just stumbled across People v. Wilkey, 2004 WL 576659 (Mich. Apps. 2004), which highlights some of the issues with respect to pre-arrest preservation of testimony. This was a homicide committed in the course of a break-in. The victim's widow, who was present at the scene, was 82 years old. Wilkey was one of several suspects from the start, but no arrest was made for some time. So the state held a deposition of the widow. A lawyer, who later became a judge, was appointed to represent the interests of any future defendant. The widow's testimony was quite detailed about the event. She also gave some physical description of the perpetrator, who was wearing a mask. According to the appellate court, the defense lawyer, "in a very respectful manner, asked questions of [the widow] to show that she was of sound mind, e.g., what is the date, and she answered appropriately." At the close of her tesitmony, counsel offered the opinion that she was "not easily confused."

The widow died before Wilkey's trial, and the prosecution introduced the deposition transcript. Wilkey was convicted and the appellate court affirmed. Its decision came fifteen days after Crawford, but the court showed no recognition of Crawford, and held that the deposition was admissible under Michigan's residual exception to the hearsay rule. The court did take into account Wilkey's argument that the appointed lawyer had no motive to develop evidence to support Wilkey's theory that the perpetrator was one of two other men identified by Wilkey. The court acknowledged that "more precise questions could have been asked . . . if counsel was aware of the physical characteristics of defendant," but concluded that the lawyer had the tools to develop evidence about the perpetrator's physical characteristics., and did so.

I think the appointment of counsel in this case before the arrest or even definite identification of the accused is noteworthy. Courts ought to encourage prosecutors to preserve testimony where possible. But in this case, the court could have done better. This was a case fitting within the second variation described above -- Wilkey was one of several suspects identified at the time of the deposition. He, along with the others, should have been given notice before the deposition, and he should have had an opportunity fo separate representation, so his lawyer could have asked the widow questions that might have deflected suspicion away from himself. In a system that guarantees the rights of effective assistance of counsel and confrontation of adverse witnesses, it is not enough to be assured that a lawyer was appointed who had a disinterested opportunity to explore the facts.

Illinois Supreme Court deems statements to clinician and social worker to be testimonial

The Illinois Supreme Court issued a significant decision today in People v. Stechly (and thanks to my former student Brian Koch for pointing it out to me). It holds that a child's statement of abuse made to her mother was not testimonial, but that statements made to a clinical specialist in charge of a hospital child-abuse team and to a social worker at the child's school were testimonial -- and that the error in mischaracterizing these statements was reversible. The Court adopts the view of testimonial articulated in United States v. Cromer, 389 F.3d 662 (6th Cir. 2004). That's good.

The court also adopts a narrow view of forfeiture outside the context of murder, holding that intent (in the sense of purpose, not of anticipation of the natural consequences of one's actions) to procure the witness's absence is necessary for forfeiture. The court distinguishes murder cases -- without holding definitively that intent is not required in those cases -- on the ground that in a murder case the perpetrator has "absolute certainty" that the murdered witness will be unavailable to testify. Well, I don't see how that distinguishes murder -- it's at most just a very strong anticipation of unavailability. And in fact, the perpetrator doesn't have that certainty in most of the cases where the issue arises. The typical case is one in which the defendant (by hypothesis) cast the fatal blow, and the victim makes a statement afterwards; the accused can't necessarily know that the victim won't survive long enough for confrontation at least at a deposition.