Taking the declarant's perspective – and perspecives on emergency

Blog reader Ryan Scott has called to my attention the decision by the Oregon Supreme Court in State v. Camarena (Jan. 25, 2008), which is interesting in one respect. This is a rather typical domestic violence case involving a 911 call; as in Davis v. Washington, 126 S.Ct. 2266 (2006), the call was made shortly after the incident, in this case after the accused had already left the house. The court affirms the conviction, and holds the key portions of the call non-testimonial – right up to and including the victim’s identification of the defendant. The court holds that the portions after that, which are (coincidentally?) not necessary to uphold the conviction, are deemed testimonial, but their admission was harmless. Nothing particularly notable there. But, more clearly than most in the genre, this opinion clearly, and appropriately, views the matter from the perspective of the speaker; it gives more force than do most courts to the statement in Davis that “it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate.” And it emphasizes that “statements made in situations not amounting to ‘interrogation’ may, depending on the circumstances, nevertheless qualify as testimonial.” Thus, the court seems to have the right idea of how the concept of emergency fits into confrontation doctrine. The balance of the complainant’s responses, the court says,

were unnecessary to resolve an ongoing emergency. Viewed objectively, the remaining questions and responses were directed at establishing facts only relevant to a subsequent criminal action.

I wish the word “only” were not in there; it should not be a requirement for the statement to be characterized as testimonial that it only bear on criminal proceedings. But at least, it seems to me, the court is giving the basic idea of emergency right its proper place in the doctrine – emergency is a factual consideration that might help determine whether or not a reasonable person in the position of the declarant would be focused on likely prosecutorial use of the statement. So, though the court’s analysis of the particular facts is open to question – but pretty much what one would expect given Davis – and the word “only” seems misplaced, its overall approach is mildly encouraging.

A Case Comment in the Harvard Law Review takes a different approach to the emergency doctrine. The Comment argues that, in determining whether an emergency exists for purposes of Confrontation Clause doctrine, courts should draw from cases applying emergency doctrines under the First, Fourth, Fifth, and Fourteenth Amendments and “consider the immediacy, particularity, and magnitude of [the] danger.” This is an interesting approach, but I don’t think it proves to be productive. It is divorced from any proper role of emergency under the Confrontation Clause. Unlike the author of the Comment, I do not believe emergency doctrine is meant to help the Clause in “balancing the procedural rights of criminal defendants against the need to protect the public.” Crawford is about as non-balancing an opinion as one could imagine. Courts should not consider whether a statement was made to help resolve an emergency as part of a balance of confrontation rights against the common interest in public safety; that is simply not an appropriate balance under the Clause. Rather, this should be a much more factually focused inquiry, as to whether the fact of emergency would likely crowd out consideration of prosecutorial use of the statement in the minds of a reasonable person in the position of the declarant.

The case on which the Comment focuses is People v. Nieves-Andino, 9 N.Y.3d 12, 872 N.E.2d 1188 (2007), involving a statement by a shooting victim to a responding officer at the scene of the crime. This is one of those cases in which the court not only views the matter from the point of view of the questioner but, very generously to the prosecution, concludes that the police officer was primarily focused on protecting the victim and others – even when asking the name and address of the accused, and even though the officer’s partner was meanwhile searching the area for shell casings. The Comment concludes that emergency doctrine should not have resulted in characterizing the statement as non-testimonial; this seems clearly to be the proper conclusion, and the one that three judges of seven on the New York Court of Appeals reached. Because the victim ultimately died – the prosecution was for second degree murder – it may be that admitting the statements could have been justified on the basis of forfeiture doctrine, depending on whether a deposition of the victim would have been practical.

Cert denied in capital sentencing cases

Lyle Denniston tells me the Supreme Court denied cert this morning in the three pending cases raising the question whether the confrontation right applies at the selection phase of capital sentencing. No surprise in view of the fact that the Court didn't act on the petitions Friday; at this time of year, the Court accelerates briefing schedules to fit cases in before the end of term, so it announces grants shortly after the conference on Friday, and waits until Monday to announce denials. Sooner or later, this is probably going to be an issue the Court will have to resolve.

Supreme Court to hear Giles case (updated)

Lyle Denniston reports that the Supreme Court has granted certiorari in Giles v. California. You can read more on www.scotusblog.com. I believe this is excellent news. You can read my prior posting on Giles, and get links to the papers in t he case -- including the brief I put in supporting a grant of certiorari -- by clicking here, and you can see the Court's order by clicking here. Ann Murphy has provided a link to Linda Greenhouse's article on the grant in today's New York Times. It's a good article, though with some errors; I think Greenhouse is about the only general-readership journalist who has appreciated the significance of Crawford.

The petitioner's brief is due February 20, and the state's brief is due March 19; the briefs of amici are due at the same time as that of the party being supported. The date the reply brief is due will depend on the argument date, which will be some time in April. The Court set a moderately expedited schedule to allow the case to be argued, and presumably decided, this term.

There was no order in the capital sentencing cases yesterday. The best bet probably is that an order denying cert will be issued Monday. But two of the cases were held over before, and it could happen again.

I was hoping that the Court would grant cert because I think this is an excellent case on which to test an important issue, whether a desire to render the witness unavailable is an absolute prerequisite for forfeiture of the confrontation right. But I believe the California Supreme Court was correct that the answer is no.

Florida decides that discovery depositions do not qualify as an opportunity for cross-examination

Rocky Sharwell informed me yesterday that the Florida Supreme Court has just issued a long-awaited decision, State v. Lopez, 2008 WL 9979, resolving an intrastate conflict as to whether a discovery deposition constitutes a pre-trial opportunity for confrontation. The court answered the question in the negative -- correctly, resoundingly, and unanimously.

Lopez was convicted of possession of a firearm by a convicted felon. A witness, Ruiz, had made a statement to a police officer that he had Lopez had abducted him at gunpoint. Florida is one of several states that provides for extensive discovery in criminal cases, and Lopez's counsel took Ruiz's deposition. But Ruiz absconded before trial, and the prosecution introduced Ruiz's statement to the officer. The intermediate appellate court, disagreeing with its counterpart in another district, held that this violated the Confrontation Clause, and now the state supreme court has affirmed that holding.

Florida made the decision easy, in a sense, because its rules provide that, absent stipulation of the parties or an order of the court upon a showing of good cause, the defendant may not be physically present at the deposition, and Lopez apparently was not present at Ruiz's deposition. Maryland v. Craig notwithstanding, an opportunity to be face-to-face with the witness is at least presumptively required to satisfy the Confrontation Clause, and the absence of that opportunity here was enough to make this deposition inadequate to preserve testimony.

Moreover, Florida's rules provide that a discovery deposition is only admissible for impeachment and not as substantive evidence. Perhaps that should not be a show-stopper -- unless the defendant secures affirmatively helpful evidence, his purpose in using the deposition at trial is likely to be to impeach the credibility of the witness whose prior statement is being admitted. But this provision indicates quite clearly that the expectation behind the discovery deposition procedure is not that it is being taken for the preservation of testimony at trial; indeed, Florida has another procedure for discovery deposition.

And this ties into a more fundamental point: As the court says, "the motivation for the deposition does not result in the 'equivalent of significant cross-examination."" This is in part because "the purpose of a discovery deposition is at odds with the concept of a meaningful cross-examination." The purpose of the defendant is generally to learn useful information, not to impeach the witness. Indeed, defense counsel may well hold back a line of attack that she believes would be more effective if first used at trial. Quoting a prior case, the court said that a defendant cannot be "expected to conduct an adequate cross-examination as to matters of which he first gained knowledge at the taking of the deposition." I suspect that point won't be ultimately persuasive as a matter of federal constitutional law -- defense counsel must often conduct cross-examination as to matters they first learn about at trial. But as the court emphasizes, the inadequacy of the opportunity for cross is especially glaring if the defendant is "unaware that this deposition would be the only opportunity he would have to examine and challenge the accuracy of the deponent's statements." Of course, one could take the view that if the discovery deposition were deemed a sufficient opportunity for confrontation then the defense would always be on notice that if the witness is unavailable at trial her statements could be admitted without any additional opportunity for confrontation.

The problem, of course, is that this would severely burden the defense, and the entire system, because the defense would have to treat every discovery deposition as if it were the one and only opportunity for confrontation -- unless tactical considerations of the type suggested above made counsel hold back, reserving lines of examination for trial but by doing so taking a chance that the defense would have no chance for confrontation at all.

What should happen, of course, is that when the prosecution, the proponent of the evidence, believes that there is a substantial chance that the witness will be unavailable at trial, it gives notice to the defense and arranges for a deposition to preserve testimony. And Florida does provide for such depositions. It is like most jurisdictions in this respect, I believe. Indeed, depositions to preserve testimony have been around for several hundred years. (Depositions were the form in which equity courts took testimony, and common law courts found them to be a good substitute for live testimony if the witness was unavailable for trial. As I understand it, this idea of the deposition as a means of taking and preserving testimony predates their use for discovery by several hundred years.) I have argued that prosecutors should make more aggressive use of such depositions. (Note, for example, my recent posting, A duty to mitigate with respect to statements made before the crime being charged?

But the Florida court is on solid ground in refusing to treat every-day discovery depositions as if they were preservation depositions. The difference is fundamental, not trivial. To put it simply, in the case of preservation depositions, but not in that of discovery depositions, the warning light is on that this may be the one and only opportunity for confrontation, and the prosecution is willing for the witness to endure the additional ordeal that this may entail.

The Florida court put its decision solely on the gro0und of the U.S. Constitution. It could have protected the decision against review by relying also on the state constitution. But I don't think the U.S. Supreme Court is likely to take this case, in part because the decision is so clearly right. Note also that it is in general accord with People v. Fry, 92 P.3d 970 (Col. 2004) ("the preliminary hearing is not intended to be a mini-trial . . . "), on which I commented in a posting back in 2005, Prior opportunity for cross-examination.

One other aspect of Lopez is particularly noteworthy. Ruiz made his statement six to eight minutes after the report of the alleged assault; the state supreme court affirmed a ruling that it qualified as an excited utterance. He was still near the scene, as was Lopez himself, standing twenty-five yards away in the same parking lot. A short time later, Ruiz revealed that the gun in question was under the front passenger seat of his car. The court held that the statement was testimonial, and that there was no ongoing emergency at the time. I believe that is correct. But many courts would have taken the path of least resistance and come out the other way. Good for the Florida court for its steadfastness!

Pending cert petitions on capital sentencing

Lyle Denniston, who writes for scotusblog and follows the Supreme Court very closely, has alerted me to the fact that, in addition to the Giles case, discussed in my posting of December 24 (and later updated), there are other Crawford-related petitions before the Court at its conference this Friday, posing the important issue of whether the confrontation right applies at the selection phase of capital sentencing proceedings – that is, at the proceeding held, after the defendant’s guilt and eligibility for the death penalty have been determined, to decide whether the death penalty actually should be imposed. See the prior postings, Crawford and Capital Sentencing, from Aug. 20, 2006, and Crawford and Sentencing, from April. 4, 2005, and comments to them. One of the cases is Fields v. United States, No. 07-6395, seeking review of United States v. Fields, 483 F.3d 313 (5th Cir. 2007), which has an extensive discussion and a fine dissent on the issue. The others are Johnson v. Nevada, No. 06-10345, seeking review of Johnson v. State, 148 P.3d 767 (Nev. 2006), and Thomas v. Nevada, No. 06-10347, seeking review of Thomas v. State, 148 P.3d 727 (Nev. 2006). The Nevada decisions relied on this point on the holding of a companion case, Summers v. State, 148 P.3d 778 (Nev. 2006), in which the discussion on this point was rather cursory and not nuanced. Both the Nevada cases were distributed for a previous conference, but with no decision made.

You can see the cert petition inFields by clicking here, the brief in opposition by clickinog here, and the reply brief by clicking here. The brief in opposition in Thomas is available at 2007 WL 2238110. I'll post other papers on these cases as I am able.

Children and forensic interviews, revisited

The Idaho Supreme Court recently issued a decision, State v. Hooper, 2007 WL 4472263 (Dec. 24, 2007), that came to the right result with respect to videotaped statements made by a child during an interview by a forensic examiner at a sexual trauma abuse response (STAR) center, but that also illustrates the dangers in the way the courts are dealing with such statements.

In this case, the police directed the child, who was 6 years old, to the center, and a detective observed the interview from another room. The examiner, who was forensically trained, consulted with the detective towards the end of the interview and then returned to ask a few more questions. At the end of the interview, the police took the tape and swabs taken from a physical examination of the child.

It seems plain to me that the child's statements were testimonial, and the court so held. But the rationale is not entirely satisfying. The court explicitly said that it was using “a totality of circumstances analysis,” which of course indicates that it is providing very little constraint on future decisions. In part, the court emphasized the expectation of “the parties” – it’s not entirely clear to whom this referred – that the interview would replace in-court testimony by the child. But the court’s primary emphasis was on purpose rather than expectation, and it clearly viewed that question from the perspective of the interviewer; the court concludes (accurately) “that the primary purpose of the interview was to establish or prove past events potentially relevant to later criminal prosecution, as opposed to meeting the child's medical needs.” In support of this conclusion, it notes various factors concerning how the interview was conducted. Some of these could not be avoided by an interviewer whose true purpose is to create evidence for use at trial – for example, the interviewer’s attempt to determine who the assailant was. Others could be avoided, but at the potential cost of impairing the usefulness of the interview – for example, the interviewer reminding the child of the importance of telling the truth, and consulting with the detective on additional questions to ask. And some could very easily be avoided. Thus, the court said:

[The interviewer] did not ask any questions regarding [the child]'s medical condition, or whether the child was injured. Further, this interview took place after a medical assessment and separately from the medical assessment. The police officer was present only at the second interview, not during [a physician’s] examination.

So if I were an Idaho prosecutor, I would follow one of several paths. I might try to train physicians to conduct interviews that would have an apparent medical purpose but also be designed to generate evidence, and do without forensic examiners. Or I might suggest that a forensic examiner and a physician meet with the child at the same time. At the very least, I would advise forensic interviewers to ask repeated questions about the child’s medical condition. I would probably also accept some impairment of the fact-finding purpose of the interview – I might advise interviewers not to remind children of the importance of telling the truth, because doing so would make the interview look more forensic.

The problem, I think, lies in addressing the problem by emphasizing the purpose of the interviewer. I have written numerous times before that I believe this perspective – an easy but not inevitable one to draw from the Davis opinion – is the wrong one to take. It is also the most vulnerable to manipulation, because the interviewer has the motivation and the ability to disguise her purpose in conducting the interview.

Ironically, though, in the case of forensic interviews of children, if the interviewer does not disguise her purpose, this perspective clearly yields a characterization of the child’s statements as testimonial, because the interviewer so plainly is in fact motivated by a forensic purpose. If the courts instead take the perspective I believe is proper – the reasonable expectation of someone in the position of the speaker – the matter is somewhat more complicated, because the child might not anticipate, or even understand, forensic use. But if one adopts either of two principles, the statements still appear testimonial: (1) The proper perspective is that of a reasonable adult, not of a speaker of the child’s age; just as we do not consider the actual declarant's intelligence or sophistication when we apply an objective standard, we should not consider the declarant's age, and instead apply a "one size fits all" notion of the reasonable declarant. (2) The statement can be testimonial even if a child declarant does not anticipate formal forensic use, so long as she anticipates that some adverse consequence will be visited upon the person accused. I am inclined to believe the first of these principles, though it is controversial, and the second one strikes me as quite clearly correct.