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.

Another state decides (at least partially) correctly on lab reports

The Oregon Supreme Court today decided State v. Birchfield (and thanks to Ryan Scott for calling it to my attention even before it was decided!), holding that the trial court violated the accused's right under Article I, sec. 11 of the state Constitution "to meet the witnesses face to face" when it introduced a lab report without presenting the testimony of the criminalist who prepared it or demonstrating his unavailability. The court also holds that a process giving he accused the right to subpoena the witness is no substitute for the constitutional right. The court does not reach contentions under the federal Constitution. Very nice result, crisply reached, immune from federal review, doesn't help set up a conflict for certiorari purposes. My enthusiasm is qualified because the decision leaves open the possibility that the court would say that if the criminalist is available the report can come in even absent an opportunity for confrontation. But clearly that issue is not reached in this decision.

California Supreme Court decision in People v. Cage -- commentary by Jeff fisher

The California Supreme Court issued its decision yesterday in the long-awaited case of People v. Cage. (Thanks to Paul Vinegrad for calling my attention to it.) It treats a statement by a young victim to a police officer, in the station-house and the hospital, as testimonial, and his statement to a doctor, which the court regarded as having been asked and given solely for medical purposes, as non-testimonial. The court acknowledges a conflict in reasoning with State v. Mechling, 633 S.E. 311 (W. Va. 2006), but does not purport to overrule People v. Sisavath, 118 Cal.App.4th 1396 (Cal. App. 2004). I'm sorry that I'm too rushed now with other matters to make a longer comment on the case at this time. But I've asked Jeff Fisher to expand on his initial comments, and here is what he has to say:

The California Supreme Court's opinion in Cage provides a platform to consider a very important category of post-Crawford evidence: statements to doctors and other medical personnel. It also highlights some of the confusion developing in the wake of the Davis v. Washington.

John Cage was involved in an argument and physical altercation with family members. A neighbor called the police to report the disturbance, and over one hour later a police officer found John alone in the hospital waiting room awaiting treatment for a serious cut on his face. The officer asked John to describe the incident to him. John told the officer that his mother, Lisa Cage, had cut him with a piece of glass from a table that had broken during the altercation. A doctor was present for "at least part" of that conversation and then took John back for an examination. The doctor's first question was, "what happened?" John repeated to the doctor the same thing that he had told the officer.

The California Supreme Court held that John's statement to the officer was testimonial because it was not materially distinguishable from the statement Amy Hammon gave the police in Hammon v. Indiana (decided in the same opinion as Davis v. Washington). In the more noteworthy portion of the opinion, the Court also held that the statement John made to the doctor was nontestimonial. In dealing with statements to doctors that describe criminal conduct, there are three general approaches a court might take:

(1) Statements describing criminal conduct as causing a physical condition and identifying an alleged perpetrator are testimonial. Courts, including the California Court of Appeal in an opinion that the California Supreme Court here did not call into question, have taken this approach when the doctors have examined victims as a coordinated part of a criminal investigation. See, e.g., People v. Harless, 125 Cal. App. 4th 70 (2004), rev. granted, 109 P.3d 69 (Cal.), rev. dismissed, 119 P.3d 962 (Cal. 2005) (statement to doctor "in the course of the district attorney's investigation of child abuse" testimonial); Medina v. State, 143 P.3d 471 (Nev. Oct. 5, 2006); Hernandez v. State, 946 So.2d 1270 (Fla. App. Jan. 26, 2007).

(2) Statements describing criminal conduct as causing a physical condition are not testimonial but statements identifying an alleged perpetrator are testimonial. Some courts have adopted this position in cases in which doctors were not coordinating their efforts with the police. See, e.g., State v. Slater, 908 A.2d 1097 (Conn. 2006); In re T.T., 815 N.E.2d 789 (Ill. App. 2004); State v. Bartholomew, 127 Wash. App. 1006 (2005). Some states, in fact, provide that statements identifying an alleged perpetrator to doctors do not even satisfy the medical diagnosis hearsay exception. See, e.g., Commonwealth v. DeOliveira, 849 N.E.2d 218, 224 (Mass. 2006).

(3) No statements made to doctors (at least when police are not also part of the interview) are testimonial. Some courts have adopted this position in cases, as in (2), in which doctors were not coordinating their efforts with police. See, e.g., People v. Vigil, 127 P.3d 916 (Colo. 2006); State v. Vaught, 682 N.W. 2d 284 (Neb. 2004); United States v. Peneaux, 432 F.3d 882 (8th Cir. 2005).

The California Supreme Court avoided approach (1) by stating that "[t]here is no evidence that Dr. Russell was acting in conjunction with law enforcement." This seems questionable. When the doctor asked John "what happened," he was already aware that the police were investigating whether John's injury was a result of criminal conduct. And, as the court acknowledged, California law required the doctor to report any evidence of abuse that came to light during his examination of John. But the court was unmoved, contending "[t]he mere fact that doctors must report abuse they see, suspect, or know of does not transform them into investigative agents of law enforcement," and that an investigative purpose is necessary to trigger the Confrontation Clause. It will be interesting to see how future courts deal with the "mandatory reporter" issue. If states can use such laws to gather accusatory statements and can steer witnesses to mandatory reporters without triggering the Confrontation Clause, they can go a long way toward creating systems that evade the confrontation right altogether.

Perhaps even more troubling, the California Supreme Court chose approach (3) over approach (2) for two reasons that appear illegitimate and one that Davis simply leaves unresolved. First, the court focused on the fact that the doctor's question to John was "neutral in form" and not "structured" to generate evidence. But Davis instructs that answers to "open-ended questions" are just as likely to be testimonial as answers to structured interrogation, for "it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate." 126 S. Ct. 2274 n.1. And whatever relevance may pertain to a question that is asked, it is hard to imagine a question more designed to elicit a testimonial response than "what happened?" That is the most common question asked of witnesses giving direct testimony in court.

So what about John's statement itself? The California Supreme Court's second reason for saying that the statement is nontestimonial is because it was made for the purpose of medical treatment. The court never explains, however, how the part identifying the person who allegedly cut him was necessary for medical treatment. Nor can one perceive any reason why it might have been relevant to such treatment.

Third, the California Supreme Court asserted that John's statement was nontestimonial because it was given in an "informal" setting. Davis did not dispute that formality is essential to a testimonial utterance. But all we really know on that score is that a statement to a responding police officer or 911 operator is sufficiently formal to be testimonial, while a "casual remark to an acquaintance" is not. It seems to me that answering a doctor's question "what happened" is much closer to the former than the latter. Put another way, it does not seem at all strange to say that John was bearing witness when he told the doctor what happened. But we'll have to await further word from the Supreme Court on this.

Finally, it is worth noting that the California Supreme Court explicitly rejected the view that a statement is testimonial if a reasonable declarant would have expected it to be used prosecutorially. This holding diverges from several post-Davis cases that continue to use this formulation outside of the context of "interrogations." Again, the Supreme Court will have to answer this question sooner or later.