Thoughts on Melendez-Diaz: Certificates of Authenticity

At the Melendez-Diaz argument, Justice Breyer posed one of the most interesting issues that is suggested by the case though not directly presented by it. Suppose that it is critical for the prosecution to introduce Joe Jones’s birth certificate (to use Justice Breyer’s example), or information contained in it. The birth certificate itself is not a testimonial statement. But the copy was produced for the particular prosecution, and is accompanied by a certificate of authenticity. Does the Confrontation Clause require the prosecution to present the custodian of records to authenticate the certificate?

I think the answer is no, and this case is clearly distinguishable from Melendez-Diaz, on several grounds.

(1) The certificate of authenticity is probably not testimonial. True, the prosecution agent who procured the copy of the birth certificate and the accompanying certificate of authenticity knew, by hypothesis, that they were to be used in a prosecution. But it is the anticipation of the declarant – in this case, the one who made the certificate of authenticity – that should count in determining whether a statement is testimonial, not the intended use by the one who procures the statement. (This is an argument I have made many times before, on this blog and in other writing.) Records clerks make many assertions that documents are authentic, and most of those are not anticipated for litigation use. Presumably the prosecution agent in a given case does not say to the records clerk, “Please give me a copy of Joe Jones’s birth certificate, with a certificate of authenticity, so that I can use it in a prosecution.” But even if the agent does add those gratuitous words at the end, or if they seem implicit in the request given the source, the certificate of authenticity is the same type of statement that the clerk routinely makes in non-litigation contexts, and presumably the same type of statement the clerk would make about this certificate even if she did not know about the intended use.

The report in Melendez-Diaz stands in sharp contrast to a certificate of authenticity, of course; it was clearly prepared for prosecution use. Similarly, a certificate showing that there is no record of permission given to a particular alien to re-enter the country after deportation should be considered testimonial; such certificates are presumably prepared only for purposes of assisting in prosecutions for re-entry without permission after deportation. (But I think Congress could easily eliminate that problem. I assume that very few deported aliens are given permission to re-enter; the statute could be reframed so that the crime is re-entry after deportation, and permission to re-enter is an affirmative defense. Poof!)

(2) The certificate of authenticity resembles the old official seal; indeed, it is likely to come in the form of a seal directly affixed to the underlying birth certificate, rather than in a separate document. Certain documents under seal have long (since well before adoption of the Sixth Amendment) been admissible. I believe that understanding the historical use of the seal is a fertile area for academic research. One view might be that the seal is not so much an assertion as an official act that effectively makes the copy the equivalent of the original. It may also be that the seal can only be used when, in accordance with the reasoning in point (1) above, it should not be considered testimonial in nature. In any event, the impact of the seal is limited to demonstrating that a given document is an accurate copy of an original official document. That would do the prosecution no good at all in a case like Melendez-Diaz.

(3) Finally, so far as the Confrontation Clause or any other part of the Constitution is concerned, there is no need for the prosecution to present any authenticating evidence at all. If a piece of evidence appears on its face – without the aid of testimonial statements – to be what the proponent claims it to be, then without any additional evidence about it the jury could infer that this is what it is. If a piece of paper says it is Joe Jones’s birth certificate, then the jury does not, as a logical or constitutional matter, need more evidence to prove that it is indeed Joe Jones’s birth certificate. (Note how a certificate of a lab report is different in this respect – the only way we know what that is from the face of it is by virtue of the fact that it says it is a particular lab report, and that statement was made for prosecutorial purposes.)

There is nothing unusual about this idea. Fed. R. Evid. 902 contains a long list of categories of self-authenticating evidence – that is, evidentiary items that do not need “[e]xtrinsic evidence of authenticity as a condition precedent to admissibility.” Some of these, including government records, require certifications of authenticity; in other words, though the proponent does not need to present admissible evidence supporting the authenticity, the document does have th be accompanied by some sort of certification that it is authentic. But others are truly self-authenticating – if the thing appears to be what its proponent claims, then nothing more is needed to satisfy an authentication requirement. These include the following:

(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.

(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.

(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

There is no reason that a jurisdiction could not add to this list papers purporting – without reliance on testimonial statements – to be within certain categories of official records.

If a jurisdiction does adopt this approach, and the prosecution does not present supporting evidence to demonstrate that the document is the birth certificate it purports to be, it is, of course, open to the defense to challenge the authenticity of the document. And if the state does choose to present supporting evidence, that would have to be in admissible form.

In sum, holding for Melendez-Diaz would not commit the Supreme Court to holding that a certificate of authenticity can never be admitted unless the author of the certificate testifies subject to confrontation. The Court need not reach that issue at all in Melendez-Diaz.

Thoughts on Melendez-Diaz: The Product of Machines

One of the issues addressed by some of the cases dealing with lab reports, and in the Melendez-Diaz argument, is the status for Confrontation Clause purposes of the output of the machines that do the testing.

As some courts have noted, the output of a machine is not in itself an assertion that can come within the scope of the confrontation right, or of the hearsay rule. Nor are the raw data. But raw data – the numbers themselves – are meaningless without being linked to the case.

Let’s say Officer A brings to the lab a sample labeled “Melendez.” Lab technician B takes the sample, puts it into a machine, and runs a test to determine whether it contains cocaine. When the test is completed, the machine spits out a piece of paper bearing only test results that an expert can testify indicate the presence of cocaine, without any identification of the sample tested.

Now suppose that the prosecution wants to prove its case based only the testimony of Officer A, the printout, and the testimony of an expert that the numbers on the printout reflect the presence of cocaine. This is plainly inadequate: We have sufficient proof that a sample linked to the defendant was brought to a lab, and a piece of paper bearing numbers that, the expert’s testimony indicates, would, assuming they are the results of a test, demonstrate the presence of cocaine in the tested sample. But we don’t have proof that any test was actually performed on the sample linked to the defendant or that the printout reflects the results of that test.

So let’s say technician B wrote an affidavit stating, “I took the sample Officer A gave me, put it into our machine, and performed a prescribed test for determining the presence of cocaine.” I will call this the input proposition. B’s statement of the input proposition seems plainly testimonial; it is made with the understanding that it will very likely be used in prosecution of a crime. The affidavit should not be admitted unless B testifies to the input proposition subject to confrontation, at trial if she is then available and otherwise in some other setting such as a deposition.

Even with B’s live testimony that she performed the test, the prosecution’s case is incomplete absent proof that the particular piece of paper presented is in fact the printout of the machine after performing the test on the sample in question. I will call this the output proposition. Proof of the output proposition could be supplied by B’s testimony asserting it – but an affidavit stating the proposition is testimonial and should not be admitted absent confrontation.

Now suppose that instead of writing an affidavit asserting the input and output propositions, B types into the testing machine an identification, such as “Melendez,” and when the machine spits out the test results it includes that identifier at the head of the page. Doing so does not render the printout admissible. In context, typing the name amounts to an assertion of the input proposition. It also amounts to an assertion of an altered form of the output proposition – altered because the printout does not exist at the time the assertion is made, so the assertion is that the printout that the machine will produce will be a product of the test on the sample in question. So the fact that the printout generated by the machine bears the name of Melendez does not obviate the need for B to testify. I do believe that incorporating the identifying information on the printout does relieve the prosecution of one potential burden. Suppose B does not stand continuously by the machine during the entire interval between the time she puts the sample in the machine and the time the machine generates the printout. Then absent an identifying mark on the printout she could not say that the printout is the one generated by the test on the sample in question. But if she types in the name, and the name is on the printout, then even if she did not see the printout being generated, I believe she has can testify that this printout is the one for the sample in question: Given the way the machine works, she has effectively tagged the printout by typing the name in.

In the actual Melendez-Diaz case, it was not a machine printout at all that the prosecution offered, but a certificate based on the machine readings. I think it is very clear that this certificate, obviously prepared for prosecutorial use, is testimonial, and the fact that it reports machine readings does not diminish this fact. Even more clearly than the printout bearing an identifying marker, the certificate is a human assertion prepared for prosecutorial use. Obviously, it asserts the input proposition – that the sample in question was submitted to the given test. And it asserts a broader form of the output proposition – not that a machine-generated printout bears the results of the test, but that numbers as described by the writer are the results of the test. The certificate cannot be admitted consistently with the Confrontation Clause unless a witness with personal knowledge – presumably but not necessarily the author of the certificate – testifies to both propositions.

A recent opinion usefully summarizing the decisions on this matter, and coming to the proper result, is United States v. Crockett, 2008 WL 4937029 (E.D. Mi. Nov. 14, 2008). The opinion does not go into as much detail as I have here, but I think its analysis is consistent with that presented here.

Eye contact between defendant and witness

This blog focuses mainly on what might be called the hearsay aspect of the confrontation right — that is, on the question of when the confrontation right precludes the use of out-of-court statements against the accused; that is the aspect of the right that was transformed by Crawford, and so the aspect in which there has been the most dramatic recent development But of course another critical aspect of the Confrontation Clause is the question of what the right of confrontation means if the witness does actually come to court to testify. The case discussed here, and another one that I hope to discuss soon in another posting, deal with different questions related to that aspect – one on the physical nature of confrontation and the other on impeachment for bias.

My former student Craig Chosiad has called to my attention the rather bizarre case of United States v. Kaufman, 2008 WL 4868480 involving a therapist who allegedly kept mentally ill patients essentially as prisoners on a farm and compelled them to engage in extensive activities, some of them sexual, in the nude. At the trial of Kaufman and his wife, the court ordered that the defendants not maintain eye contact with the patient-witnesses. Defense counsel did not object, so the question on appeal was whether this was plain error. The Tenth Circuit properly recognized that it might be. Let’s assume that Maryland v. Craig, 497 U.S. 836 (1990), remains good law after Crawford – an interesting question that will have to be resolved by the Supreme Court. And assume also that Craig applies to unusually vulnerable adults as well as to children – a pretty good assumption. Then the court can in a proper case take steps to protect a witness from the rigors of being face to face with the accused during cross-examination. But Craig makes clear that such unusual steps are permissible only upon an individualized determination that the witness will likely be traumatized by being brought face to face with the accused. In this case, the trial court made no such individualized finding. It merely issued a blanket ruling that eye contact – no matter how unthreatening it might be, no matter whether it might awaken the conscience of a witness inclined to perjure herself or be sloppy with the facts – was not permitted for any of the patient-witnesses.

The reason the appellate court did not go the full distance of holding that the order was plain error was that ultimately it determined that any error was harmless. I think this part of the decision was probably wrong. I’ll suppose that the court was correct as a matter of fact in concluding that it was very unlikely that eye contact would have altered the outcome of the trial. But it appears to me that this was a determination that the court should not have made. As Coy v. Iowa, 487 U.S. 1012 (1988), made clear, when confrontation of a witness is denied, the court may not speculate as to what the impact on the witness would have been, and so on what the witness’s testimony would have been in the end, if confrontation had been permitted. Instead, the court must treat the case as if the witness had not testified. Now of course that involves a certain amount of speculation as well – what would a jury have done with this lesser body of evidence? – but in that case at least we don’t have to speculate what the body of evidence before the jury would be. The Tenth Circuit attempted to distinguish Coy, but the grounds struck me spurious.

Thoughts on Melendez-Diaz: chain of custody, products of a machine, who must testify, etc.

While Melendez-Diaz is pending, I am going to write about various significant issues beaing on it. Here I will write about the chain of custody, products of a machine, who must testify, and other related topics.

Chain of custody is not a technical requirement that should be belittled as a mere technicality. The chain is part of the requirement of authentication, which is that the proponent demonstrate that a piece of evidence is what its proponent claim it to be. Absent authentication, the evidence has no substantial probative value, because its connection to the case has not been demonstrated. Authentication is a fundamental part of the whole story told by the prosecution, which is how a course of events that included the crime charged wound up producing the evidence that the prosecution has presented in court. Some items are treated as self-authenticating because from the face of the item it is readily inferrable, on the basis of information of the type that jurors are allowed to bring with them to court, that the item is what it appears to be; no evidence need be produced that an item that appears to be the New York Times of November 14, 2008 is exactly that. But assuming, as is usually the case, that the item is not self-authenticating, then, like any other part of that story that the jurors cannot infer based on the information they are entitled to bring to the job, authentication has to be proved by ordinary admissible evidence.

So let’s say a breathalyzer spits out a red splotch on paper if the subject’s blood alcohol level is excessive. Plainly, the prosecution cannot prove its case simply by introducing a red splotch on paper of the type generated by the breathalyzer. Absent evidence that this splotch was generated by a test performed on the accused’s breath, the splotch is essentially irrelevant; its connection to the story we are concerned about has not been shown.

Suppose now that a lab technician who performs the test writes on the margin of the paper, "Jack Sparrow, Nov. 14, 2008." Taken in context, that is an assertion that the red splotch is the result of a test done on Jack Sparrow on the date recited. That assertion was plainly meant for evidentiary purposes, and it is testimonial. The red splotch itself is not testimonial, of course – as has been noted on the states' side in this case, and by some courts, that is just the product of a machine. But without a testimonial statement as to just what that product is, it is of no help to the adjudication. And if the paper with the writing is offered by the prosecution, then a testimonial statement has been offered without the witness having been subjected to cross-examination. That is a Confrontation Clause violation.

So what can the state do, assuming the defendant does not waive the confrontation right? Obviously, the way it can most clearly solve the problem is to present as a witness at trial, the technician, who will testify how the splotch was generated. I will discuss here five other possibilities. Two are clearly permissible. Another should be permitted, in my view, though it is controversial. The final ones I believe are clearly unconstitutional.

1. A properly drawn notice-and-demand statute is constitutional. Petitioner has acknowledged that a "bland" notice-and-demand statute is constitutional. That is, so long as all the defendant has to do to get confrontation is make a timely demand, there should be no problem. Of course, a statute could make an unreasonable demand on the defendant, and that could create a problem. And I think some leeway ought to be allowed if some reason arises belatedly giving the defendant reason to demand confrontation. But in general, a well-drafted notice-and-demand statute is constitutional, and that relieves much of the problem; most defendants have no desire to have the technician tesify live.

2. The constitutional requirement is not that the person who performed the test or wrote the report testify subject to confrontation, but that someone testify from first-hand knowledge about the process leading to the reported results. The critical factual propositions to which the technician would testify at trial, if she does appear, are:

a. The person or bsubstance tested was the one material to the case.

b. The test was performed as described by the witness.

c. (1) The results of the test were as testified by the witness, or (2) A
given tangible item is the product of the test.

Testimony subject to confrontation as to these propositions must be presented by a witness with personal knowledge of them. That witness could, of course, be the technician who performed the test, but it need not be. Suppose that at every step along the way the technician is accompanied by a trainee who touches nothing and writes nothing but observes everything the technician does. (Some jurisdictions routinely have multiple physicians present at an autopsy.) Then that trainee could testify at trial as to these propositions. For that matter, suppose the cop who brings the suspect, or the sample, to the lab stays and watches the entire test being performed. The cop could then testify from first-hand knowledge as to these propositions as well.

Now note that if the technician testifies she will often testify as to a fourth proposition:

d. The proper interpretation of the test results is as testified by the
witness.

But even assuming that interpretive evidence is necessary, there is no requirement that the witness providing the interpretation be the one who testifies as to the three factual predicates identified above; as long as a witness with first-hand knowledge is able to testify to those predicates, then any witness with sufficient expertise to interpret the test results may do so.

3. The state may provide a pre-trial opportunity for confrontation, and if it does the courts should be generous in holding that the witness is unavailable at the time of trial. Much of the inefficiency that Massachusetts and its supporting amici complain about would be avoided if the state provides a full pre-trial opportunity for confrontation. The deposition can be scheduled ahead of time, and does not have to depend on what happens at trial. A witness coming from a distant city could schedule several depositions on one trip. In most cases involving lab reports, there is no mystery early on what the lab report would be used to prove and what the defendant would like to achieve on cross. Early cross-examination offers the possibility that the witness will have a clearer memory of the test than at trial. And the deposition can be videotaped.

The sticking point is that under Crawford a pre-trial opportunity for cross suffices only if the witness is unavailable to testify at trial. I think it would be wise to be rather generous in deeming a witness who has been subjected to cross-examination to be unavailable at the time of trial. Unavailability is often a matter of degree, and given the prior cross and the rather small probability that a second cross would add much, I think the trial court should be allowed to characterize as unavailable a lab technician who would have to travel a great distance. Also, if at the time of trial the witness has virtually no memory of the particular incident -- and that should be subject to demonstration without live testimony from the witness -- then that is a basis for holding her unavailable.

Pretrial testimony is a second-best solution. But in this context, I think it should be constitutionally acceptable.

4. A surrogate should not be allowed to testify to the factual predicates necessary for proving the test results. I stated above the three predicates necessary to admit lab results. Notwithstanding the position taken by several other law professors in an amicus brief, I think it is plainly inadequate for a witness who did not observe the conduct of the test or the handling of the substance tested to report someone else's assertions as to the chain of custody of the substance, the test performed on it, and the results of that test. ("I didn't see the stuff being handled, I didn't see the test being performed, and I didn't see the results of the test. But I'll tell you what my colleague wrote on these points.") There is simply no justification for presenting a surrogate witness to report the testimonial statement made by another witness who has not been subjected to confrontation and whom the state cannot or would rather not produce.

5. The state should not be allowed to shift the burden of presenting the witness to the defendant. I have said that a simple notice-and-demand statute should be constitutionally acceptable. But the confrontation right is not satisfied by providing that the defendant may call the technician as his own witness. The passive language of the Confrontation Clause suggests that such a burden-shifting statute is unacceptable. So does the fact that, given the Compulsory Process Clause, the Confrontation Clause would be rendered a virtual nullity if such a statute were valid. But to my mind, the most significant factor is that practical considerations make clear that telling the defendant, "You may call this technician whose report has been entered against you" is simply not the equivalent of telling the defendant, "You may cross-examine the prosecution witness who has just testified against you." My pending petition in Briscoe v. Virginia explores the reasons why this is so.

The Melendez-Diaz argument

I have not been able to work much on the blog lately, because of the press of other work. But I attended the argument of Melendez-Diaz v. Massachusetts in the Supreme Court yesterday and I want to report on that. (The transcript is available on the Court's website; you can see it by clicking here.)

For those who have not been tracking the case, it concerns the question whether the Confrontation Clause covers a certificate of a lab report that a given substance cocaine. I believe the answer is clearly affirmative, and I am hopeful that the Court will reach this result; I would not be amazed if it were unanimous, though that is of course hard to predict.

There was no substantial doubt that the certificate was prepared in contemplation of use in prosecution; the statute makes it clear on its face that these certificates are to be prepared for usei n law enforcement, and the Commonwealth (represented at argument by Attorney General Martha Coakley) has not denied the point.

Much of the discussion concerned the practical impact of holding that lab reports are testimonial. Jeff Fisher, arguing for the petitioner, explained effectively that in most case the author of the report would not have to come to trial because usually defense counsel would be willing to do without confrontation. Defense counsel might make this clear by stipulating to admission of a certificate. Also, a state can validly create a simple “notice and demand” system, under which the state gives notice of intent to introduce the certificate and it is admissible unless the accused demands that the state produce the author of the report. But it is the defense’s choice whether to demand confrontation, not one that can be made by a court. (Jeff made the same point in response to questions about whether cross-examination of the analyst would be futile given the analyst's presumed lack of memory; he might have also added that the Supreme Court has said, in upholding admissibility of a witness's prior statement despite the witness's inability to respond to many questions on cross, that showing the witness's loss of memory is a benefit to the defense.) Jeff also pointed out that numerous states – including California and other large ones – currently have procedures that are constitutionally satisfactory, and they seem to be able to operate effectively. At one point, Ms. Coakley said that California had joined the amicus brief of Attorneys General – but the Chief Justice soon pointed out that she was mistaken.

Lisa Schertler, arguing for the United States as amicus, contended that the certificate should be admitted because it merely reported the output of a machine. I don't think she made much headway with the argument, and for good reason. Justice Scalia presented an interesting hypotheical -- the time of murder is significant, and a witness says the clock was striking twelve. Obviously, that would be testimonial. The output of the machine is of course not itself testimonial, but the certificate reflects much more. At the outset of the argument, I believe there may have been some confusion on this score, but by the end -- there was a good exchange between Jeff and Justice Souter at the very end -- I think the matter was clear: The state must present a witness who can testify from personal knowledge about the chain of custody from the time the material enters the lab to the time the test is performed, and about what test was performed. This, I believe, must include testimony establishing that the particular test output is the result of the test on the relevant substance and not on another. But once this is done, any qualified expert can give an interpretation of the output.

Another issue that came up a couple of times was whether the Confrontation Clause was satisfied because the accused has a right to call the author of the report himself. Jeff answered that this argument could lead to trial by affidavits of any witness the prosecution chose, and that it ignores the passive nature of the confrontation right -- that is, the accused has a right to be confronted with the witness, to demand that the witness be presented to him. Also, it would essentially render the Confrontation Clause a nullity, given the Compulsory Process Clause. He did not address the practical reasons why the defendant's chance to call the analyst is not the equivalent of the right to cross-examine the analyst; his reply brief pointed out that I raised these practical problems in my pending petition for certiorari in Briscoe v. Virginia. If the Court decides to treat this issue outside the question presented by the Melendez-Diaz petition and instead to address it in Briscoe, I would not be unhappy. But it may be that the Court will simply hold here that the right to call a witness does not satisfy the confrontation right.

Justice Breyer in particular pushed one issue: Suppose there is a non-testimonial document, not prepared in contemplation of litigation, and the prosecution offers a certificate, prepared in contemplation of being used in prosecution, that the underlying document is authentic. Must the author of that certificate testify in court, and if not what is the distinction between that certificate and the one at issue here? Jeff responded that a certificate of this sort is not evidence as such, but is akin to a seal, which can be used as foundation for the document. In contrast, the certificate here is being used to establish an element of the crime.

I think this is at least the kernel of the answer. This is a tricky matter that could not be adequately addressed in oral argument -- and that, I believe, warrants further historical research. The United States took the view that "human assertions that merely establish the foundation for admitting nontestimonial evidence do not themselves trigger Confrontation Clause rights," but that cannot be right. Suppose a non-testimonial letter allegedly by the victim is critical in a murder case; the prosecution could not authenticate it by presenting the certificate of a handwriting analyst that the letter was in fact written by the victim. But when the prosecution wishes to produce a copy of an official document, I do not believe there is a constitutional requirement that there be evidence of proof that the document is what it appears to be; there are some documents that the law treats as self-authenticating, and this could be one. Traditionally, documents under seal were regarded as self-authenticated, and certificates of copies are a modern counterpart. They amount virtually to a form of judicial notice of authenticity. It is clear that documents under seal were not thought of in the founding era as an alternative form of testimony (as dying declarations were). They were categorically different from testimony, and they do not resemble the certificates in this case, which report on a test performed in contemplation of prosecution.

States' amicus brief in Melendez-Diaz

I previously posted what I thought were all the state-side amicus briefs in Melendez-Diaz -- but I had not received, and was unaware of, one submitted by 35 states plus the District of Columbia. You can see it by clicking here.

Shoddy forensics in LA police lab

I've previously reported on the closing of the Detroit police lab because of a high error rate. Now , according to a story in the Los Angeles Times, an internal report by the Los Angeles Police Department reveals a pattern of shoddy work in the Department's lab -- including two false accusations in fingerprint cases. At least in part because of lack of funds, neither the Department nor any outside agency has yet conducted a comprehensive review of the lab.

There is little doubt that many other crime labs would, if studied, reveal a similar pattern of problems. See, e.g., Pamela R. Metzger, Cheating the Constitution, 59 Vanderbilt L. Rev. 475 (2006). Detroit probably does not have a worse problem than other cities; rather, it appears, to their credit, that city, county, and state officials have been more aggressive than in other places about addressing it.

Forensic lab reports, especially those suggestive of the commission of a crime, should be deemed testimonial for purposes of the Confrontation Clause, and under Crawford the question of whether they are reliable should not enter into that determination. But to the extent that the Supreme Court, in considering the matter in Melendez-Diaz, may hesitate to characterize such reports as testimonial for fear of imposing gratuitous costs on the criminal justice system, these recent developments highlight the dangers of allowing lab analysts to create evidence for prosecution without being subjected to cross-examination.

Reply brief in Melendez-Diaz

Here is the reply brief for the petitioner in Melendez-Diaz v. Massachusetts, the cased that will determine whether a forensic lab report identifying a substance as cocaine is testimonial for purposes of the Confrontation Clause. The briefs are now all in, and the case will be argued November 10.

Ineffective assistance and adequacy of a prior opportunity for cross

A reader's question raises an interesting issue on which I haven't given much thought: If a witness testifies subject to cross against an accused at a first trial, which ultimately is thrown out, but then is unavailable at the time of the retrial, in what circumstances (if any) can the accused keep the testimony from the first trial out on the ground that the lawyer there did an inadequate job on cross? If I am wrong in what I say below, I hope readers will correct me, but here is the answer I glean from reading United States v. Owens, 448 U.S. 554 n.1, Ohio v. Roberts, 448 U.S. 56, 73 n.1, and Mancusi v. Stubbs, 408 U.S. 204 -- yes, all pre-Crawford cases, but no reason to believe that Crawford overruled any of them on this point:

(1) If a court has not determined on the basis of other conduct that the first counsel was inadequate, the court will not ermine that the accused had an inadequate opportunity to cross on the basis that counsel did a poor job in cross.

(2) If there is an independently-based determination that counsel was inadequate,

(a) that does not automatically mean that the accused had an inadequate opportunity to cross-examine this witness, but

(b) it does mean that the court should examine counsel's actual performance with respect to the witness in question, and if that performance does not meet some minimum level of sufficiency then the prior opportunity should not be deemed adequate for Confrontation clause purposes.

Does that sound right?

Detroit Police Crime Lab closed because of high error rate

My student Brenna Speiser has called to my attention a report by the Detroit Free Press, on freep.com, with this dramatic lead:

The Detroit Police crime lab is so riddled with errors that officials
ordered an immediate shut down today, saying that the local criminal justice
system could be at risk.

The closure results from an audit by the state police indicating a 10% error rate in ballistics evidence. The firearms unit had previosuly been closed, but today the entire lab -- which also handles fingerprint, DNA, and drug evidence -- was closed.

Among the officials announcing the closure was Kym Worthy, the Wayne County prosecutor, who is quoted as saying:

If we have even one person in prison on evidence that was improperly done,
that’s a huge problem. As prosecutors we completely rely on the findings
of police crime lab experts every day in court and we present this information
to juries. And when there are failures of this magnitude, there is a complete
betrayal of trust.

Quite right. But what makes this especially intriguing -- and, I must confess, chortle-inducing -- is that Worthy is a signatory to the prosecutors' amicus brief filed earlier this month in Melendez-Diaz (and previously posted on this blog), contending that an intolerable burden will be cast on the criminal justice system if live testimony by lab analysts is routinely required in drug cases.

But I'm happy to assume that Worthy deserves substantial credit for not attempting to delay the decision to close the lab until the Supreme Court decides Melendez-Diaz.

Respondent-side amicus briefs in Melendez-Diaz

Two amicus briefs supporting hte Commonwealth have been filed in Melendez-Diaz. You can read the brief of the United States by clicking here, and the brief of the National District Attorneys Association and several prosecutors by clicking here.

A legislative response to Giles?

My student Ted Whalen has called to my attention a bill pending in Illinois, which you can read by clicking here, that seems designed to take advantage of the leeway left by Giles (though I suspect it was drafted before the Supreme Court's decision in Giles and was in fact drafted in response to the Illinois Supreme Court's decision in People v. Stechly.

Respondent's brief in Melendez-Diaz

Here is the brief on the merits of the Commonwealth, as respondent, in Melendez-Diaz v. Massachusetts. I expect I will post some comments on it within a few days.

Reply brief in support of cert in Briscoe

Here, rather belatedly, is the reply brief I filed last month in support of certiorari in Briscoe v. Virginia, challenging Virginia's burden-shifting statute. If the Court decides in Melendez-Diaz (as I bleieve it should) that forensic lab reports are testimonial, then the issue posed by this petition will be presented.

Brief in Opposition in Briscoe

The Commonwealth has filed its Brief in Opposition in Briscoe and Cypress v. Virginia, the case in which I filed a petition challenging Virginia's statute shifting to the accused the burden of producing as a live witness the author of a certificate of forensic laboratory results. You can read it by clicking here. I expect to file a reply brief shortly.

No confrontation issue if the statement isn’t even offered.

That seems obvious enough, but the point arose in an interesting context in United States v. Tucker (8th Cir. Jul. 17, 2008). Tucker assisted her boyfriend Robson in a get-away from a bank robbery, and the critical issue was whether when she did so she knew that he had robbed the bank. So, as the 8th Circuit indicated, evidence that Tucker knew that Robson had committed other bank robberies was admissible to show her state of mind on this occasion, and it was also admissible to impeach the credibility of her testimony that she didn’t know Robson had robbed the bank. In cross-examining Tucker, the prosecutor asked whether on three specified prior occasions Robson had robbed a bank and either he had told Tucker about it shortly afterwards or she had helped him get away. Tucker denied each. No evidence of the other robberies was admitted.

If the prosecutor had no good-faith basis for asking questions of this sort, they would be highly prejudicial and improper. But if she did, then they were fair game – even if she had no other admissible evidence of the other robberies, she was entitled to hope that Tucker would tell the truth (as the prosecutor believed the truth is or may be, based on the information that gave her the good faith belief), and that would give her the evidence she wanted. And in this case, she did have a good-faith basis – a statement Robson had made to the FBI. The statement was clearly testimonial, and couldn’t be admitted against Tucker, given that she had not had a chance to cross-examine him. It wasn’t offered, and the jury never even learned of its existence, though they might well have inferred that the prosecutor was basing her questions on something of the sort. But the statement could, without violating the Confrontation Clause, form the good-faith basis for the prosecutor to ask her questions, and that is what the 8th Circuit properly held.

Reflections on Giles, Part 4: The Alito and Thomas opinions

Justice Thomas wrote a brief concurrence in Giles expressing the view that the statement at issue – made by the victim to a responding officer after an alleged assault – was not testimonial in nature. He regarded it as indistinguishable from the statement made to a responding officer in Hammon v. Indiana. I believe he is right that they are materially indistinguishable; of course, I think that the statement in Hammon was clearly testimonial. But given that he dissented from the decision in Hammon, Justice Thomas’s declaration in Giles is hardly surprising.

More intriguing is the separate concurrence by Justice Alito. He says that, “like Justice Thomas,” he is “not convinced” that the statement is testimonial. (Well, if he were entirely like Justice Thomas in this respect, he would be convinced that it was not testimonial.) He expresses sympathy with the dissent’s “displeasure” with the result in this case, but “suggest[]s that the real problem concerns the scope of the confrontation right”; he says it is “not at all clear” that Ms. Avie’s statement is the equivalent of a statement by a witness. Although he is less than definite, Justice Alito sure sounds as if he does not believe this statement is testimonial. But what is notable here is that Justice Alito, like all the justices except for Justice Thomas, joined the majority in Hammon. I suspected from the start that the decision in Davis v. Washington (which included Hammon) was a compromise, from Chief Justice Roberts’s first term, when the Court seemed to be trying hard to achieve consensus (and when Justice Alito was very junior). Justice Alito’s opinion in Giles lends weight to that supposition; it seems likely that he did not like the result in Hammon but went along because other justices who might have been disposed to treat the 911 call in Davis as testimonial were willing to give up that result as part of the overall resolution.

My colleague Chris Whitman, a far more experienced and knowledgeable observer of the Court than I, has raised another issue. She asks whether, given their views, Justices Thomas and Alito should have voted to affirm. I have asked her to write up her thoughts, and she has graciously agreed. Here they are:

Why are Justices Alito and Thomas concurring rather than dissenting? They see no constitutional infirmity in the decision below:

If the statements admitted are not testimonial, as they believe, there is no reason not to affirm the decision.

Alito and Thomas say that the question of whether the statements were testimonial was not the subject of the cert grant. Yet Justices Brennan and Marshall in capital cases repeatedly voted on the basis of their general death penalty views even where cert was granted on a more narrow issue, and Souter (with others) does the same thing in Eleventh Amendment cases. Perhaps the answer is that Alito and Thomas have decided to accept the majority approach to whether a statement is testimonial as a matter of stare decisis, but their opinions in Giles address the issue and certainly sound as if they are not conceding the point.

Under the circumstances of Giles, the result is not so troubling. Here, a criminal
defendant gets a remand even though a majority of the Justices see no constitutional flaw in his conviction. But could there be a case in which the facts are reversed? What if five Justices see a flaw in the trial below, but two of them vote to affirm the conviction on the grounds that the issue critical to them was not the subject of the cert grant? Would we leave a prisoner in jail although five Justices have expressed the view in his case that there was constitutional error below?

I’m not sure she’s right, but I would be glad to know of any readers’ thoughts – in comments either posted here or sent by e-mail to rdfrdman@umich.edu.

Reflection on Giles, Part 3: What Does It Mean?

The accused has intentionally engaged in serious wrongful conduct that has in fact caused the victim to be unavailable as a witness at trial. What state of mind on the part of the accused with respect to that unavailability will support a finding of forfeiture under Giles? There is some ambiguity about that.

Jsutice Scalia’s opinion, which for the most speaks for a majority of the Court, refers repeatedly to the defendant’s “intent.” As Justice Breyer emphasizes, there is a soft meaning of the term intent – one is deemed to intend the expected consequences of his conduct. If that is what Justice Scalia meant, then there might not be much of a dispute at all, because one expected consequence of Giles’ fatal assault would be that Avie would not be able to testify. Even on this assumption, though, there may be some ambiguity. In arguing that Davis v. Washington is consistent with what I believe to be the proper approach to determining what is testimonial – one based on the reasonable expectation of the declarant – I have noted the difference between “armchair” and “heat of the moment” expectation. In each, we consider the declarant dealing with the same information, but we assume different contexts; I think Davis is consistent with the view that the expectation of a reasonable declarant should be judged as of the moment when she actually spoke, not as if she were considering the situation later from the comfort of an armchair. The same dichotomy might apply to a reasonable-expectation test of forfeiture, though I think that if it did there would be a stronger argument for applying the armchair test – the accused ought to bear the burden of difficulties that would be obvious to him if he carefully considered the likely consequences of his wrongful conduct. If one applied the armchair view of a reasonable-expectation test, that would essentially cause forfeiture doctrine to come out where the state (and I) thought it should.

But, despite his use of “intent,” Justice Scalia does not appear to be thinking of any reasonable-expectation test. He appears rather clearly to mean that forfeiture applies only to conduct that was motivated (at least in part, and how much is another question) by the desire to render the witness unavailable. Thus, for example, in Part II.A of his opinion, emphasizing a limited meaning of the term “procurement,” he writes, “The terms used to define the scope of the forfeiture rule suggest that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying.” Slip op. at 5. On pp. 7 and 14 of the opinion, similarly, in speaking historically he uses “designed” language, and on p. 6 he speaks of the historical materials indicating “a purpose-based definition.” And on p. 13, referring to Fed. R. Evid. 804(b)(6), he endorses Mueller and Kirkpatrick’s comment that courts insist that “the defendant [have] in mind the particular purpose of making the witness unavailable.”

So we seem to have a purpose-based test. But there are a couple of sources of ambiguity – one passage in Justice Scalia’s opinion and one in Justice Souter’s concurrence. Justice Scalia writes:

Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution – rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.

Slip op. at 23. Clearly Justice Scalia means to cover the situation in which H, knowing that W will likely testify against him on a charge arising out of a prior incident, murders W so that W will not be able to testify. That is close to a core case of forfeiture, falling within the narrowest plausible definition, but with one twist. The twist is that in the core case the witness's testimonial statement was made in connection with the present case, and the accused murders the witness to prevent testimony in that present case. In the case envisioned by Justice Scalia. the testimonial statement was made with reference to a crime other than the murder charged in the indictment, and the defendant committed the murder to prevent the victim from testifying in that prior case. In other words, the court is willing to allow forfeiture of the confrontation right within a given case if the accused's purpose was to prevent testimony, even if the accused anticipated that testimony being used in another case; if the accused's purpose was only to end a life that he had come to regard as an annoyance, that will not cause forfeiture.

Justice Scalia also means to include abusive conduct “designed” to prevent W from making testimonial statements to authorities – though how this design would be proved in the absence of explicit threats is unclear. Is it enough to present general evidence of the patterns and psychology of abusers, supporting the proposition that in beating W, H was not merely expressing his anger and desire to control her, but also attempting to intimidate her from seeking outside help, including help from the authorities? That seems to be quite an inferential leap.

And, what does Justice Scalia mean by saying that murder may “express[] the intent to isolate the victim” and prevent her from testifying? Murder is not generally an expressive act, so the choice of verb seems odd. Does he mean to cover more than the easy case (in terms of theory even if not of proof) in which the murder was the means by which H effectuated the desire to prevent W from testifying? Does he mean that the murder might reveal that the intent of the prior abuse was to intimidate the witness from testifying – and if so, what does that matter?

Justice Breyer says hopefully that in this passage the majority creates "a kind of presumption that will transform purpose into knowledge-based intent – at least where domestic violence is at issue." Slip op. at 25. Justice Scalia denies that the test he enunciates is one requiring nothing more than "knowledge-based intent," and he is right. But Justice Breyer seems to be making a prediction, and perhaps he is right as well. For example, in a case like Giles itself, perhaps the state will be able to persuade the courts that Giles knew that Avie had made the prior statement to police, so that it should be inferred that killing Avie was designed, at least in part, to prevent her from testifying at a trial.

The interpretive intrigue is greatly compounded by the fact that, even though they joined the key parts of the Scalia opinion, Justice Souter, with Justice Ginsburg concurring, articulates a different standard, with which the three dissenters contingently agree – the contingency being the actual meaning of the standard. Justice Souter says that "the element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process." Slip op. at 2-3. Justice Breyer believes this language "in effect presumes 'purpose' based on no more than a history of domestic violence," and on that understanding agrees with it, or is at least satisfied that it gets to the right result. So it could be that we have five justices agreeing on the proposition that if a domestic abuse complainant is intimidated from testifying, and the prosecutor can show that she and the accused were in a "classic abusive relationship," that is sufficient for forfeiture. Well, that isn't pretty – for reasons stated in the second installment of these reflections, I worry about the theoretical problems with this approach – but it will get a lot of the job done. As Justice Breyer indicates, it seems to wash purpose largely out of the picture; it certainly does not demand that purpose to render the complainant unavailable be the accused's dominant purpose in engaging in abuse.

Justice Souter, again with the qualified endorsement of the dissenters, also includes this potentially significant statement as part of the passage quoted above:

If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger.

Slip op. at 3. True enough. But in the murder case, the instant before the fatal blow (or perhaps even after it) the complainant was presumably willing to testify, notwithstanding a history of abuse; the last piece of information we generally have is that she did make a testimonial statement (the one at issue) to the authorities. (Contrast the intimidation case, in which the last thing we know is that the complainant is not willing to testify.) So it was the single act of fatal violence that prevented her from testifying at trial, not a history of isolation-causing abuse. Perhaps Justice Souter's logic is something like, "If he engaged previously in the type of abuse that tends to cause isolation, then murder should be considered also as motivated at least in part by a desire to prevent the victim from getting help from authorities." I assume many courts will take advantage of this language to admit statements in Giles-like situations. The logic seems shaky to me, but the results will often be good ones – though I remain concerned about the absence of a mitigation doctrine.

Reflections on Giles, Part 2: Is Giles bad for defendants?

On its surface, Giles appears to be a major victory for defendants. I am not sure that will prove to be right over the long run.

1. The Giles test – however it develops – may turn out to be rather easily satisfied.

We’ll have to see over time how the lower courts, and ultimately the Supreme Court, reconcile the various key passages in the majority opinion and in Justice Souter’s concurrence, which reflects the views of two justices crucial for the majority. But I believe that most courts are (as they should be) strongly inclined to admit statements made by a witness who was precluded form testifying in court by the defendant’s own wrongful conduct. (Indeed, most courts are inclined to admit testimonial statements by unavailable witnesses even when that condition, which should justify admissibility, is not present.) So my guess is that a lot of courts will go through a hearing, in which they receive extensive evidence on the nature of domestic violence (including child abuse), emphasizing control by the man over the woman and a desire to isolate her, and then conclude that the best inference is that the accused did indeed act with the purpose to render the witness unavailable. Non-lethal domestic violence that intimidates the witness is the most common context in which the accused might commit serious intentional misconduct that has the predictable consequence of rendering the witness unavailable even though the misconduct was not clearly and primarily directed towards that end. In other words, in the most common context in which the Giles issue will arise, it may be that the Giles test will usually not benefit defendants, but only make for a more extensive process.

2. Giles will encourage a narrow view of what is testimonial.

To the extent that courts do not deem themselves able to find that the Giles test for forfeiture is satisfied, they will have a large temptation to find other ways to secure admissibility of statements made by witnesses who have been rendered unavailable by serious misconduct of the accused. Probably the chief way in which this will happen is that they will give an unduly construction to the term “testimonial” – a construction that will apply beyond the situation in which the accused should arguably be held to have forfeited the confrontation right. We may already see the beginning of this effect in Giles itself. The majority, making the point that its rule has less impact than might be supposed, points out (correctly) that the rule matters only with respect to testimonial statements – and then it casually tosses off a dictum that statements to treating physicians are not testimonial. Whoa!! That’s a significant issue, one very much in dispute. I don’t think the fact that the audience of a statement is a physician who is treating the declarant should be enough in itself to cause the statement to be characterized as non-testimonial. It may be, for example, that the declarant and the physician know full well that the physician is under a legal and professional obligation to pass on to the authorities any accusation of serious crime that the declarant makes. If such statements are deemed non-testimonial, then we have created a system by which a witness can self-consciously create narrative evidence for trial by speaking to a physician who has some therapeutic purpose in meeting with her. The Court’s dictum on this point should not settle the matter, but it does suggest how an unduly narrow view of forfeiture might contribute to an unduly narrow view of “testimonial” – which may be a consequence of far greater importance.

3. Giles will encourage overly broad applications of the dying declaration exception.

Another means of evading Giles will be to stretch the dying declaration exception beyond its appropriate bounds. We have already seen this, in the Jensen case, discussed in a prior post. This case has reached some notoriety – Julie Jensen, afraid that her husband Mark might poison her, left a note indicating that if she should die unexpectedly suspicion should be cast on Mark. The trial judge, explicitly anticipating the outcome in Giles, held the note to be a dying declaration. I believe this is a rather outlandish application of the dying declaration doctrine – Julie did not believe herself on the verge of death when she wrote the note – but it may become typical under Giles.

4. Creation of a doctrine of mitigation will be much more difficult under Giles.

An important means of limiting forfeiture doctrine would be adoption of a strong doctrine of mitigation – that is, a set of rules governing steps that the state must take in given circumstances to preserve the confrontation right of the accused to the extent reasonably possible notwithstanding the accused’s wrongful conduct. For example, if the wrongful conduct is murdering the witness, who while dying made a testimonial statement, then mitigation doctrine would require the state, as a precondition to invoking forfeiture doctrine, to offer the accused an opportunity to take the witness’s deposition, so long as there was a practical, humane opportunity to do so. If the wrongful conduct is intimidation, a mitigation requirement might require the state to make certain efforts to ascertain the extent to which confrontation might be preserved; for example, the state might be required to bring the witness to chambers to explore whether she might be willing to testify there, subject to cross-examination by counsel. Procedural rules of this sort would, I believe, be less easily avoided than substantive standards that a judge could manipulate around; if the procedural requirement is applicable, courts will just have to satisfy it.

Giles makes it considerably more difficult to achieve a strong mitigation doctrine. Had the Court adopted the historical theory of forfeiture that I have presented, in which dying declaration cases are seen as a manifestation of forfeiture doctrine confined by a mitigation requirement, then necessarily the Court would have made at least the start of adopting such a requirement. But Giles provides no momentum for creation of such a requirement. That does not mean the Court will not adopt one – I still think it should – but now it will be a much harder sell.

5. Giles takes away a basis for challenging Owens.

One unfortunate aspect of modern Confrontation Clause doctrine is the rule of United States v. Owens, that the Clause is satisfied so long as the witness who made the statement testifies at trial, even if the witness does not remember the underlying facts. In this situation, the ability of the accused to cross-examine the witness is seriously undermined, a factor that the Owens Court did not recognize. Owens itself could be explained on the basis of forfeiture, if there were no purpose requirement attached to forfeiture doctrine; the reason the witness there could not remember the underlying facts was that the accused had bashed his head in. But I do not believe the Giles standard could be satisfied in the Owens situation; there is no indication that the accused bashed the witness’s head in for the purpose of rendering the witness unavailable to testify at trial; it was the bashing itself for which Owens was tried.

6. Giles undermines the general theory of the Confrontation Clause.

In my immediately prior post, I pointed out that, if Giles had come out the other way, it would be possible to enunciate a theory of the Confrontation Clause under which there are no exceptions to it. Forfeiture, like waiver, is not really an exception to the right, but a factor causing estoppel against exercise of the right. Under Giles, though, the Clause is clearly subject not only to forfeiture but also to an exception for dying declarations – statements by a murder victim explaining the cause of apparently imminent death. And what is the justification for that exception? The Court states none other than that the exception existed at the time of the Framing. The rationale traditionally given for the exception is principally a reliability one – that the prospect of imminent death guarantees trustworthiness of the statement. But one of the essential propositions of Crawford was that reliability of a testimonial statement, or a category of statements, is not a ground for admitting it absent an opportunity for cross-examination. The Court has therefore complicated and undermined the general theory of the Clause, and that will likely make it less robust – because more complicated, less easily understood, and less rational – in the long run.

Reflections on Giles, Part 1: History, Dying Declarations, and Forfeiture

As readers of this blog will recognize, I am obviously very disappointed by the result in Giles. It has unfortunate consequences for the theory of the Confrontation Clause. It will complicate litigation. And it will lead to some bad results – though to what extent it will do so is unclear, depending on how some language in the Scalia and Souter opinions is applied.

It’s going to take me a while to write out all my comments, so I will post them in pieces.

Justice Scalia’s opinion, which except for one section is an opinion for the Court, is overwhelmingly historical. For the most part, it adopts the argument put forward in the amicus brief of the National Association of Criminal Defense Lawyers, written by his former clerk Robert Kry. The basic argument is this: At the time of the Framing, there were two separate doctrines, one for dying declarations and one for forfeiture. (1) The dying declaration exception does not apply because the statement in question was not made while death was, or appeared to be, imminent. (2) (a) The language used to describe the forfeiture doctrine suggests it was limited to situations in which the defendant took actions designed to prevent the witness from testifying, (b) No cases applied the doctrine absent that condition. (c) There were many murder cases in which that condition was not satisfied, and the statement was not admitted unless it satisfied the dying declaration exception. (d) Until relatively recently forfeiture doctrine was not applied absent that condition.

I have offered, in my amicus brief and in a prior posting on this blog, an argument that I believe completely and adequately responds to this line of reasoning. The state did not endorse it, presumably because it did not like the long-term implications. Justice Scalia never addressed the argument. Briefly, the argument is this:

The dying declaration exception should be regarded as a manifestation of forfeiture doctrine, limited by the principle that the state cannot invoke forfeiture doctrine if it has not taken advantage of reasonable opportunities to preserve the confrontation right in whole or in part. When a lingering murder victim made an accusatory statement, it was standard practice to bring the accused to the victim, and take the victim’s testimony, under oath and in the presence of the accused. If the testimony of such a victim was taken without the presence of the accused, it would not be admitted. But if the victim was, and appeared to be, on death’s door, then the testimony of the victim could be admitted even though the accused was not present. So the results of these cases are in accord with the following principles:

(1) The accused forfeits the confrontation right with respect to testimonial statements by the victim by murdering her.

(2) Notwithstanding (1), if the state can reasonably arrange for testimony by the victim subject to confrontation, but it does not do so, then it cannot invoke forfeiture doctrine.

(3) If death is, or appears to be, imminent, then it is no longer reasonably practical and humane to provide for testimony subject to confrontation, and so the absence of confrontation is excused.

I don’t believe a single one of the old cases cited in the course of briefing and arguing Giles is inconsistent with this set of principles. In a case in which the victim makes the statement at issue after the fatal blow, but the accused has had no opportunity for confrontation, then principle (2) would prevent admission of the statement unless the circumstances satisfying principle (3) are present. But Giles fits a different mold. In cases like Giles, the victim makes a testimonial statement against the accused before the crime being charged, and then is murdered; in Giles, there was no opportunity after the fatal blow to arrange for confrontation. Cases fitting that mold apparently didn’t arise in the Framing era – none of the litigants or amici cited such a case. The reason is simple. Domestic violence short of death generally wasn’t prosecuted. A victim of domestic violence who was not likely to die as a result of the wounds already suffered had no occasion to make a testimonial statement of the type that Brenda Avie, Giles’s victim, did. There is really no basis for saying that if such cases did arise, the courts would have excluded the evidence on the basis of the defendant’s argument that he had no chance to be confronted with the witness. The principles I have enunciated suggest that courts would have admitted the evidence. Certainly there was no settled practice of exclusion.

Note the appealing structure of Confrontation Clause doctrine that can emerge from the principles that I have enunciated: The accused forfeits the confrontation right if he commits serious misconduct that can be reasonably expected to, and does, cause the unavailability of the witness. But the accused should not be deemed to have caused that unavailability to the extent that the state could, by reasonable measures, preserve confrontation notwithstanding the accused’s wrongdoing. Putting aside waiver and forfeiture – not really exceptions to the right, but rather qualifications on its exercise, ones that apply to other Sixth Amendment rights as well – there are no exceptions to the confrontation right.

Now compare the structure that apparently emerges given the result in Giles: The accused forfeits the confrontation right if he engages in conduct that is designed to, and does, render the witness unavailable. But if the accused engages in serious intentional misconduct without a purpose to render the witness unavailable, the facts that the misconduct did in fact make her unavailable, and that this was entirely predictable, do not lead to forfeiture. Apart from forfeiture doctrine, there is an exception to the confrontation right for declarations made in the anticipation of imminent death. The reason this exception is recognized – without any basis for it in the text of the Confrontation Clause – is that it was extant at the time the Sixth Amendment was adopted. (The Court offers no other reason.) The fact that the principal reason given for it at that time – that such statements are highly reliable because of the imminence of death – conflicts squarely with the essence of Crawford is of no apparent concern.

This strikes me as originalism gone way overboard. As I have said, my argument accounts for the results of all the cases. It varies from the language and stated rationale of the old cases. But to say that the modern doctrine of the Confrontation Clause is bound – with respect to forfeiture, a doctrine that has a basis outside the text of the Clause (because it has no basis in the text) – by the language and stated rationale of 18th century cases, precluding a more sensible doctrine consistent with the results of those cases, seems to me to be taking originalism at least a step too far. Put another way: Crawford did to prior doctrine exactly what I am saying the Court should have done to the old cases – articulate a different and far more satisfactory rationale that is consistent with at least most of the results.

Giles vacated and remanded

The Supreme Court decided Giles v. California today. You can see the opinion by clicking here. Giles won; the decision is vacated and remanded, and the forfeiture theory does not apply. I have not had time yet to read the opinion, and so can't say much more (except that I think this is a veyr unfortunate result), but I will add more later, probably later in the day.

Top-side amicus briefs in Melendez-Diaz (updated, June 24, pm)

Yesterday was the deadline for amicus briefs in support of the petitioner in Melendez-Diaz v. Massachusetts, No. 07-591, the case raising the issue of whether forensic laboratory reports are testimonial within the meaning of the Confrontation Clause. I have filed a brief, which you can see by clicking here. For the brief of several other law professors, click here. For the brief of the National Innocence Network, click here. And for the brief of the National Association of Criminal Defense Lawyers, the National Association of Federal Defenders, and the National College for DUI Defense, click here. My understanding is that these are no other amicus briefs filed in support of the petitioner.

Petitioner's brief in Melendez-Diaz

While we wait for the Supreme Court to decide Giles, Melendez-Diaz v. Massachusetts, the case that will decide whether forensic lab reports are testimonial, is moving ahead. To see the petitioner's main brief on the merits, filed this past Monday, click here. Jeff Fisher is lead counsel for the petitioner. Amicus briefs supporting the petitioner are due next Monday, June 23. I expect to file one; I believe these statements are clearly testimonial.

Cert petition in a burden-shifting case

In several posts, I have discussed, and railed against, statutes that shift to the accused the burden of producing a prosecution witness, typically the author of a lab report. Yesterday, I filed a cert petition raising this issue, and seeking review of the decision of the Supreme Court of Virginia in Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d 113 (2008). You can read the petition, in Briscoe and Cypress v. Virginia, by clicking here.

Failure to answer questions on cross

In United States v. Owens, 484 U.S. 554 (1988), the Court – per Justice Scalia, who also wrote Crawford – held that the Confrontation Clause permitted introduction of a prior accusation made by the victim, Foster, even though Foster did not remember the incident itself or most relevant events since then. I have long thought that Owens was wrong in stating that the accused had the benefits of cross-examination by showing that Foster had a “bad memory.” Foster’s memory was bad because his head was bashed in during the assault being tried; the fact that he could not remember the incident at the time of trial said rather little about his ability to remember at the time of the prior statement, when he purported to remember. It certainly did not provide an adequate substitute for a full cross-examination, which might have probed his opportunity to observe who hit him and any reasons he may have had for speculating that the assailant was Owens. I believe the result in Owens – admitting the statement – can be justified on a forfeiture theory, but only if the state prevails on the issue now before the Supreme Court in Giles – that is, only if the accused may forfeit the confrontation right by serious misconduct that predictably renders the witness unavailable to testify even though that effect was not a purpose of the misconduct. But taking Owens on its own terms, how far does it go? Foster did at least remember making the prior identification. But suppose the witness does little more than sit on the witness stand and take the oath. Would that be enough, given the dictum in Crawford 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. (I think that’s wrong; see my article Prior Statements of a Witness: A Nettlesome Corner of the Hearsay Thicket, 1995 Sup. Ct. Rev. 277 – but let’s put that aside for now, too.) What constitutes “appear[ing] for cross-examination at trial”?

Blog reader Sylvia Ornstein, a public defender in New Jersey, has brought to my attention the pending case of State v. Nyhammer, 396 N.J. Super. 72, 932 A.2d 33 (A.D. 2007), which she won in the Appellate Division and is now on review by the state supreme court. The defendant is accused of sexual abuse of a child, A.N., who made a videotaped statement to investigators for the prosecutor describing an incident of abuse. According to the court,

At trial, A.N., then age eleven, testified. Despite many attempts by the prosecutor, she was non-responsive to many questions. She was unable to testify that defendant touched her inappropriately, despite leading questions, although she did write his name on the blackboard. The transcript of her testimony discloses many “no response” notations instead of answers to questions. When the prosecutor used anatomically correct dolls, asking A.N. to indicate where she had been touched or what part of a boy's body she had seen, A.N. made no response. Further, A.N. was unresponsive to the following questions: “has [defendant] touched you anywhere?” and “can you show us what they touched you with on your private area?”

On cross-examination, defense counsel could not elicit recollections from A.N. on questions going to the heart of the charges. She did not describe on direct or cross-examination the acts described in her videotaped statement. Neither did she corroborate her accusation that defendant engaged in sexual activity from the videotaped statement.

Referring to Owens, the court said:

A.N.'s complete inability to present current beliefs about any of the material facts, or to testify about her prior statements, is distinguishable from a situation where a trial witness for the prosecution simply has a bad memory.

Thus, admission of the statement was error.

I think this is the right conclusion. This was a failure, or inability, to testify, not simple bad memory. And I don’t think the proper result would change if the child said, “I don’t remember” instead of declining to respond altogether. If cross was adequate in this case, then I don’t see how it can ever be deemed inadequate so long as the witness is able to go to the witness stand and take the oath. But if that is all the witness is able to do, how can one reasonably say the accused has gotten the benefits of cross-examination? All the accused has been able to show is that at this moment, in these circumstances, the witness is no better able to answer questions than is a corpse.

I'd be curious to know whether readers are familiar with other cases presenting similar facts.

Transcript of Giles argument

The transcript of the Giles argument is available through SCOTUSblog -- actually, it was avialable yestgerday -- and you may see it by clicking here.

Further thoughts on the Giles argument, from David Salmons

David Salmons of Bingham McCutchen LLP, lead counsel on the DV LEAP amicus brief in Giles, hasalso taken up my invitation to post thoughts on the argument. here they are, without editing by me.

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I too attended the argument yesterday in Giles. The Court spent considerable time on the question of whether the common law dying declaration cases preclude California's application of the forfeiture by wrongdoing doctrine in the Giles case. It seems to me the most persuasive reason for why they do not is because the common law treated dying declarations as a special category of evidence, and subjected statements made after a potentially fatal wound had been suffered to particularly exacting standards of reliability. If a purported dying declaration did not satisfy those standards, it was excluded -- not because the admission would violate the confrontation right, but because the statement was insufficiently reliable given the special and dramatic nature of dying declarations and the risks such statements could overly influence the jury. See DV LEAP Amicus Br. at 17. Because dying declarations were a distinct category of evidence with their own rules for admissibility, the common law cases involving statements that do not satisfy the standards for admission as dying declaration do no go on to examine the evidence under the forfeiture doctrine. But that fact tells us nothing about the application of the forfeiture doctrine to cases that do not involve dying declarations. The dying declaration cases simply did not involve the forfeiture by wrongdoing rule at issue in Giles.

But, importantly, while the dying declaration cases are distinguishable, they are also consistent with the forfeiture doctrine adopted by California. The best example of this is McDaniel v. State, 1847 WL 5865 (Miss. Err. & App. 1847) -- an early American case. After holding that the standards for a dying declaration were satisfied, the Court rejected the defendant's claim that admission of the statement would nonetheless violate his confrontation right, expressly relying on the forfeiture by wrongdoing principle for why confrontation was not violated. McDaniel therefore supports the view that the dying declaration exception incorporates and is consistent with California's view that the forfeiture-by-wrongdoing doctrine satisfies confrontation concerns even outside the traditional witness-tampering context, even though the dying declaration exception also includes additional reliability limitations above and beyond the confrontation right that are not at issue here.

Reflections on the historical discussion at the Giles argument

I attended the argument in Giles v. California yesterday. The question, for those who have not been following closely, is whether an accused forfeits the confrontation right by murdering a witness, even though he did not do so for the purpose of rendering her unavailable as a witness. I think the answer is clearly affirmative – but now we will have to wait to see what the Court does. I present below a first set of my reflections on the argument. I will follow up tomorrow with some other reactions. I will also post links to the transcript and to the oral recording when they become available.

Giles’ counsel (Marilyn Burkhardt) gained some traction with an historical argument that was emphasized especially in the amicus brief of the National Association of Criminal Defense Lawyers – that if forfeiture was as broad at the time of the framing of the Sixth Amendment as California contends, there would have been no need for a dying declaration that applied only when the victim believed death was imminent. Don DeNicola, for the state, attempted to respond that forfeiture addressed the confrontation concern, and there was a separate hearsay obstacle addressed by the dying declaration exception. But in response to questioning, he pretty much admitted that this was an anachronistic view, because there was no sharp distinction then between a body of confrontation law and one of hearsay law.

One possible response, of course, is to play down the importance of framing era history. Justice Breyer suggested this approach – to the predictable opposition of Justice Scalia (who mistakenly said that Justice Breyer dissented in Crawford). Justice Breyer suggested various respects in which the law of testimony has changed since the framing era, and wondered whether these were binding today. A problem pointed out by Justice Scalia is that these rules – all rules of incompetency, if I heard right – didn’t have much to do with the confrontation right. Nevertheless, it will be interesting to see to what extent the Court feels it is free to decide the case on some basis other than asking what a 1791 court would do in similar circumstances. My own view is that Crawford gained great power by showing that its fundamental conception of the confrontation right was consistent with practice not only at the framing era but for many years before and even after – but when we get down to more detailed issues that the text of the Confrontation Clause does not address the search for historical guidance becomes much less significant.

Having said that, I believe that Giles’ historical argument can be met effectively on its own terms. I was not surprised that the state did not raise what I believe to be the best answer to that historical argument (not coincidentally, the answer I presented in my amicus brief), because that answer involves recognition that the state has an obligation, if it wishes to invoke forfeiture doctrine, to do what it reasonably can to preserve the confrontation right. I’ll summarize my view briefly here.

Suppose in the framing era a defendant cast a fatal blow but the victim lingered for some time in a communicative state. If the authorities took a deposition of the victim, standard practice was to conduct the examination in the presence of the accused – and if the accused was not present, the deposition could not be admitted against the accused, even though the victim later died and so was obviously unavailable to testify at trial. But if the victim was aware of impending death when she made the statement, then absence of the accused was excused. Now of course the rationale usually given for the impending death cases was that the imminence of death was a guarantee of reliability akin to an oath. But the results reflect these principles:

1. Even though a victim may be dying, the authorities must, subject to proposition 2 immediately below, do what they reasonably can to preserve the confrontation right.

2. If the victim is aware that death is imminent, then the obligation to preserve the confrontation right does not apply.

And the most sensible rationale for this pair of principles is that the accused forfeits the confrontation right by murdering the witness, but only to the extent that the right cannot be reasonably preserved – and the point at which the victim is aware of the imminence of death marks the point at which, at least in the framing era, it was no longer deemed feasible and humane to examine the witness subject to confrontation.

In Crawford, Justice Scalia crafted a doctrine that adhered to the results of most of the precedents even though not their rationales; even to a strict originalist, it should not be terribly upsetting to do the same with respect to framing-era cases.

Justice Scalia asked Mr. DeNicola whether he had even one framing-era case in which a court had held the confrontation right forfeited in the absence of a demonstrated purpose to render the witness unavailable. Mr. DeNicola gave one important response – there are no cases clearly holding the other way, and the principle guiding forfeiture is broad enough to apply even in the absence of such a purpose. But I think he also could have given another, more satisfying response: “Yes, there are many such cases in which the accused murdered the victim, who made a statement shortly before dying, in circumstances that did not feasibly and humanely allow for confrontation. They are called dying declaration cases, and the rationale then given was that the statements were reliable, but the more persuasive rationale, the one that fits better with Crawford, is is that these were really instances of forfeiture.”

Thoughts from Joan Meier on the Giles argument

Giles v. California was argued today. I attended, but I've been traveling most of the time since, and it won't be til later tonight or tomorrow that I'll be able to post my reflections on the argument. Meanwhile, I invited Joan Meier, of George Washington Law School and DV LEAP, to offer her thoughts. They are presented below, without editing by me. I'll be happy to post reactions from anybody else who was at the argument, on any side of the issue.

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Today's oral argument in Giles - concerning whether a defendant forfeits his confrontation right by killing the witness for reasons other than to silence her testimony - provided an interesting and frustrating glimpse into the Court's wrestling with the implications of originalism for its confrontation jurisprudence. Several points emerged, for this writer:

1. History does not answer the question presented in this case. Neither side can cite any Framing-era case which addressed the question raised here - of whether a defendant forfeits his right to confrontation under the "forfeiture by wrongdoing" doctrine, when the wrongdoing did not involve intentional witness-tampering. The State does, however, have one case from the mid-18th-century which affirmatively applies forfeiture in such a context (which Petitioner repeatedly fails to acknowledge). Smeade

Petitioner's argument that the fact that the only forfeiture cases in the Framing-era concerned witness-tampering means that those are the only cases we can apply it to today, grossly over-reads history. Merely because the Framing-era courts did not face this problem, and therefore there is no caselaw on it, cannot mean that we, who do face this problem, can do nothing about it.

Petitioner claims incorrectly that the common law courts required specific intent. There is not only no such requirement in the common law forfeiture cases, several of them actually find witness-tampering on facts that barely indicate a causal link to the defendant, let alone a specific intent. But the more important point - on which we can agree - is that framing-era courts seem to have only applied forfeiture in witness-tampering contexts. The question is - what does the absence of other cases (positive or negative) mean? If it was so clear that forfeiture could not apply outside the witness-tampering context, surely there would be a case, or two or three, saying so. In this writer's view, the complete absence of such caselaw indicates something quite different: That framing-era courts simply did not face this problem.

How/why would this be? For three reasons. First, domestic violence was not dealt with as a crime in the Framing-era's legal system. There would thus not be any police reports or comparable reports, of battering prior to domestic homicide. When a wife was murdered, authorities may have suspected the husband, but they would neither have had evidence of prior wife-beating, (certainly not statements to police), nor would they have been likely to have connected the wife-beating to the murder. Even in this country, the connection between wife-beating and murder was not understood until after the OJ Simpson case. At that time, I had conversations with colleagues - who knew me as a domestic violence lawyer - about the Simpson case. They could not understand why this case was of importance to my work on domestic violence. The unspoken and widespread assumption was that domestic violence is about hitting. Murder was different. We may have a better understanding now, but it was not so long ago, that we lacked it.

Returning to the the framing-era, the triviality with which wife-beating was perceived is aptly captured by John Adams' blythe response to his wife's impassioned plea to include some protection for wives in his "new code of laws": "I cannot but laugh... Depend upon it, we know better than to repeal our masculine systems... [we must avoid] the despotism of the petticoat." It is inconceivable that in that culture, courts or prosecutors would have seen a logical or legal link between wife- beating and murder. One was trivial and laughable - the other a serious crime.

A second reason why framing-era courts would not have faced the question of past hearsay presented in this case, is that they also did not face any other types of cases in which a history of criminal behavior might precede a homicide. Those cases are gang cases, drug cases, and mafia cases. Do any of these appear to have historical resonance?

Third, even assaults and threats between men were minimally prosecuted in Framing-era courts. Assault and battery was "for the most part treated as a civil matter between individuals..." Ruth Bloch, The American Revoslution, Wife Beating, and the Emergent Value of Privacy, Early American Studies, Vol. 5, No. 2, Fall 200, pp. 235-236.

In short, framing-era courts did not regularly prosecute assaults or threats, did not have reports of assaults or threats in the legal system, and would not have logically connected past assaults to a murder. They therefore had no occasion to consider whether a df should forfeit his right to confront the witness when he commits prior criminal wrongdoing which causes the witness not to appear. The Petitioner's (and Scalia's) assumption to the contrary simply misconstrues and over- simplifies history in order to draw inferences that are not supportable by the historical evidence.

2. Finally, lacking direct cases, if we wanted to surmise (or "infer," as the Court has suggested) what the Framer's intent might have been on a question like this one, there are at least two reasons to suspect that Framing-era courts would have applied forfeiture in a case like this, had it arisen (if they operated in an evidentiary world like ours, where, unlike theirs, much hearsay is admissible).

(1) The dying declaration cases, as the State's lawyer argued, are actually indicative of the fact that confrontation was forfeited in cases where the df had killed the witness - if the witness' statements met the dying declaration standards. Since dying declarations of other witnesses were not admissible - presumably, because the df's confrontation rights precluded it - it is clear that the admission of dying declarations in cases where the df killed the witness, represents an implicit recognition that confrontation is forfeited in that context.

(2) The children's rape cases - in which the courts routinely admitted children's hearsay before they could be sworn - and even after they began to be sworn, until at least 1788, continued to admit children's hearsay, for "necessity" and fairness, because no other evidence could prove the crime, which was committed behind closed doors, in secret, against a non- testifying victim - are strong support for inferring that Framing-era courts would have been sympathetic to the need to admit a murdered victim's past statements - IF they existed in a world where hearsay was frequently admissible, unlike their own.

J. Scalia, like the Petitioner, seems to believe that prosecutors and courts would have fallen back on forfeiture by wrongdoing in those dying declaration cases, had it been understood as the broad doctrine the State now argues for. Hence, they argue, the dying declaration doctrine would have been totally subsumed by forfeiture and would have been unnecessary. But this is another instance of mistakenly projecting modern norms and practices onto an earlier era. In those common law courts, virtually no hearsay ever came in. Only dying declarations, a narrowly cabined category, were admitted, and only as against the killer. Dying declarations were their own little legal box - because they were seen as unduly powerful and prejudicial - therefore, if a statement did not meet the strict standard, it did not come in. Forfeiture could not supply an independent basis for admitting something that failed to meet that category. Credit for this argument - which he can state far better - goes to David Salmons, the pro bono lawyer on the DV LEAP brief.

3. It seems to me that this case is emblematic of the perils and pitfalls of superficial originalism. In addition to the mistaken assumptions discussed above that fuel the "strict" view of what history "requires" here, some deep fault lines in the new jurisprudence are emerging. Crawford said that evidence standards and constitutional (aka confrontation) standards must be treated as distinct. Crawford also said that we must emulate history, with respect to confrontation standards. But framing-era courts treated confrontation and evidence concerns as merged. The implications of this are undoubtedly variable from case to case, and hard to spin out - and ultimately, in the eye of the beholder. There simply is no definitive, objective, nonarguable "meaning" that can be drawn from an ambiguous history. (Hence we spend untold hours speculating about what the Framers would have thought about something they did not think about.) Originalism of this sort, then, becomes merely a mask for values and policy goals, while disclaiming any such values and policies. I prefer a more honest discussion of policy and constitutional values.