Wednesday, March 26, 2008

Bottom-side briefs in Giles

Today is the deadline for amicus briefs in support of the respondent state in Giles v. California, and they are streaming in. You can read the brief of

the National Association to Prevent the Sexual Abuseof Children's National Child Protection Training Center, by clicking here;

the National Association of Counsel for Children, and the American Profesisonal Society on the Abuse of Children, by clicking here;

Illinois and 36 other states, by clicking here;

the Domestic Violence Legal Empowerment and Appeals Project (DV LEAP), California Partnership to End Domestic Violence, Legal Momentum, plus two other organizations and one individual (D. Kelly Weisberg), by clicking here; and, finally,

Richard D. Friedman (i.e., me), by clicking here.

Happy reading!

Wednesday, March 19, 2008

State's brief in Giles

California, the respondent, has just filed its brief in Giles, the case posing the issue whether a purpose to render the witness unavailable is necessary for forfeiture, even assuming the accused murdered the witness. You may see the brief by clicking here. If you want to look at papers previously posted, you may see the decision below and the petitioner's brief through this link, and the amicus brief of the National Association of Criminal Defense Lawyers through this link. Amicus briefs supporting the respondent are due March 26, and the argument will be April 22.

Monday, March 17, 2008

Cert granted in Melendez-Diaz

The Supreme Court granted certiorari today in Melendez-Diaz v. Massachusetts, posing the issue of whether certificates of forensic lab results are testimonial. You can see papers filed in the case so far by clicking here and following the links. The case will be argued in the fall. Good! This is an issue that must be resolved, and it should be resolved by acknowledging the obvious, that these reports are indeed testimonial.

Saturday, March 01, 2008

“If anything happens to me . . .”

Several readers have asked me about the recent Jensen case in Wisconsin, which has generated considerable national publicity – including a piece on ABC's 20/20. Mark Jensen was recently convicted of murdering his wife Julie. Among the evidence against him was a handwritten letter that Julie gave to a neighbor in an envelope addressed to the local police department, with instructions that the neighbor give the envelope to the police if anything happened to her. The letter discussed their deteriorating relationship and suspicious behavior by Mark, and said. “[I]f anything happens to me, he [Mark] would be my first suspect.” It also explicitly declared that she would not commit suicide. Julie also left voice-mail messages to similar effect for one officer, Ron Kosman. Last year, on interlocutory appeal in State v. Jensen, 299 Wis.2d 267, 727 N.W.2d 518 (Wis. 2007), the Wisconsin Supreme Court held that these statements were testimonial in nature, but that if the state proved that wrongdoing by Mark caused Julie’s unavailability then forfeiture doctrine would remove the Confrontation Clause bar to admissibility of the statements. The trial court did make the predicate finding, the evidence was admitted, and now the jury has found Mark guilty.

The fact pattern here occurs from time to time. That is, an ultimate homicide victim makes a statement – sometimes orally, sometimes in writing – suggesting that if she is found dead suspicion should fall on a given person. After the victim's death, the identified person – the victim’s husband or boyfriend – is charged with the murder, and the prosecution seeks to introduce the victim’s statement. Other post-Crawford cases fitting this mold are State v. Cunningham, 337 Or. 528, 99 P.3d 271 (Or. 2004), and the very recent State v. Sanchez, 341 Mont. 240, 2008 WL 273926 (Mont. 2008). In Cunningham, the court concluded that the confrontation issue had not been preserved, and held the statement admissible. As in Jensen, the Sanchez court held the key statement to be testimonial in nature, but was willing to apply forfeiture doctrine to permit its admissibility.

I think the result in these cases is the right one. Statements of this sort are almost certainly testimonial in nature. The ultimate victim is anticipating her possible murder, and taking steps to ensure that if indeed she is found dead the authorities will focus on the possibility that the person designated by her has murdered her. Some of the judges in Sanchez thought the statement there – a letter found among the victim’s personal effects – was written to provide information for her health care in case she was found near death as a result of poisoning. That’s awfully strained. This was in effect testimony from the grave, and the courts should be frank in recognizing it as such.

But then the next question is forfeiture. If the courts are willing, as I believe they should be, to adopt forfeiture even in a reflexive situation – that is, when the wrongdoing alleged to have rendered the victim unavailable is the same act for which the accused is on trial – then, assuming the court makes the necessary findings, the accused should be held to have forfeited the confrontation right. The future of reflexive forfeiture is at stake in the Giles case now pending before the United States Supreme Court; the actual question presented there is whether there can be forfeiture even if the accused did not engage in the wrongful conduct for the purpose of rendering the witness unavailable, but if the Court answers in the negative then reflexive forfeiture will not be possible in most cases. I have already written extensively on this issue, and expect to put in an amicus brief on the merits in Giles, so I’ll limit myself here to two comments.

First, the “If anything happens to me” cases illustrate why I think that adopting a purpose requirement for forfeiture would tend to lead to an unduly narrow view of what is testimonial. The inclination of most judges is to admit these statements. I think forfeiture doctrine explains why – if the accused did in fact kill the victim without justification, then his own serious wrongdoing has created the unavailability about which he is complaining. If nevertheless judges were to be precluded from applying forfeiture doctrine in such cases, they would look for ways to treat such statements as non-testimonial, perhaps by adopting unrealistic theories such as the “for her health” rationale in Sanchez, or perhaps by adopting am unjustified rule that a statement made before the crime in question is committed cannot be deemed testimonial with respect to that crime.

Second, a dissenting judge in Jensen, responding to the majority’s reliance on my work, says that my approach,
if fully embraced by the majority, would clearly lead to nonsensical applications. For example, Friedman suggests that ‘[t]he prosecution should bear the burden of taking all reasonable steps to protect whatever aspects of confrontation are possible given the defendant's conduct, and of demonstrating that it has done so.’ [Confrontation and the Definition of Chutzpa] at 525. Thus, under the reflexive forfeiture principle advocated by Friedman, once Julie left the voicemail to Officer Kosman that indicated that she thought Jensen was trying to kill her, the State had an obligation to notify Jensen that Julie made the statement, and give him an opportunity to cross-examine her by way of videotape or deposition. Id. For obvious reasons, the majority does not advance that view. Yet, this is the proper application of Professor Friedman's reflexive forfeiture doctrine adopted by the majority in this case.
Well, no it isn’t. The judge’s attempt to lampoon my view is fallacious on its face. Yes, I do believe that the prosecution should take all reasonable steps to protect whatever aspects of confrontation are possible given the defendant’s conduct. But as suggested by the judge himself, if a terrified woman calls a police officer to say that she believes her husband is poisoning her, most courts would not say that it is reasonable to expect that the police should notify the husband of the statement and give him a chance to take her deposition. What steps the state should be expected to take is often an immensely difficult question – but I don’t think most courts would find it so in this setting.

Shifting the Burden, Take 3

In a 5-3 decision yesterday in Magruder v. Commonwealth, Virginia joined those jurisdictions upholding a statute that makes certificates of lab reports admissible but provides that the accused may, if he wishes, call the author as a witness. This is an issue on which there is a clear split, and it is ripe for the Supreme Court to decide, perhaps when it decides whether such certificates are testimonial. In three prior posts – one from 2005, one from 2006, and one from 2007 –I have explained my view that these burden-shifting statutes are unconstitutional because they impair the ability of the accused to examine the author. By contrast, a statute that simply requires that the accused make a timely demand that the author testify at trial seems perfectly acceptable.

Given my prior postings, I won’t add much here. But a few comments:

(1) The defendants argued that if this burden-shifting procedure is acceptable, then the Confrontation Clause poses no obstacle to an entire trial being conducted by affidavit. The Virginia Supreme Court simply punted on the matter, saying (footnote 5) that it would not engage in speculation. Translation: “We don’t want to consider the logical consequences of our decision.” It also added a mysterious sentence that, I think, amounts to saying that this procedure saves money, because otherwise (unless the accused waived the right) an analyst would have to testify at every trial requiring proof that the stuff in question is cocaine. Golly, and the state has to provide lawyers and juries, too, before it can get a conviction.

(2) In response to the argument that the procedure amounts to a shift of burden, the court punts again; it regarded this as a due process argument that is not cognizable under the Sixth Amendment and that was not properly presented; apparently a defendant would have to secure the attendance of the author and then claim that the state should call him. That seems to be quite a heavy procedural demand, but in any event it misses the point. The burden-shifting argument is not separate from the Confrontation Clause claim but an integral part of it: It is basically that by requiring the accused to call the author himself, the procedure impairs the accused’s ability to confront the author. Neither the majority (which indicates incorrectly that all that is at stake is timing) nor the dissent addresses what I think is the real impairment, elaborated in my prior posts: An accused has to take a far greater chance to call the author as his own witness (even if he gets to ask leading questions) than he does if he merely has to stand up and ask some questions on cross. Proof: The accused usually does cross a key witness who testifies at trial, and almost never calls one to the stand if the witness’s written testimony is admitted.

This points up a key difference between the type of statute here and a simple timely demand statute. With respect to both statutes, unless the accused demands live testimony the certificate is admitted. And with respect to both, if the accused does demand live testimony, he gets to examine the author. So given the option of a simple demand statute what is the advantage to a state of a burden-shifting one? It does not need this type of statute for a legitimate efficiency reason: The simple demand statute ensures that if the accused has no interest in examining the author then the author need not be produced. The advantages to the state of a burden-shifting statute are that (it impairs the opportunity to confront the author, and (2) therefore, the accused is less likely to avail himself of the opportunity.