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
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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.