Third petition on surrogate experts

Tim Provis, counsel for the petitioner in Roalson v. Wisconsin, No. 15-6037, which presents an issue similar to Griep and Katso, has kindly provided me with copies of the papers on cert.  Here are links to the Petition, the State's Brief in Opposition, and the Reply Brief supporting the Petition.

New cert petitions on the "expert witness end-run"

At least two cert petitions are currently before the Supreme Court on the question of whether, or when, a prosecution may present the substance of an out-of-court testimonial statement through an in-court witness who bases an opinion in part on that statement.  One is Griep v. Wisconsin.  The State originally declined to file a brief in opposition to the petition, but the Court requested one.  Here are links to the petition, to the brief  in opposition, and to the reply brief.  The second petition, on which I am counsel of record, is Katso v. United States.   The Government has twice asked for extensions of the time to file a brief in opposition; its time now expires on January 4.  You can read the petition by clicking here. 

Audio of public radio show on Ohio v. Clark

Joan Meier, who commented last week on this blog, and I appeared on Friday on a Los Angeles public radio show, discussing Ohio v. Clark. If you're interested, you can listen to it by clicking here.  
By the way, Joan cited favorably a recent book by Ross Cheit,  The Witch Hunt Narrative: Politics, Psychology, and the Sexual Abuse of Children.  Here for comparison is a very different view of the book.

I have insufficient knowledge of the subject matter to engage usefully in a debate over the Cheit book.  I will say, though, that I have great faith in the scholarly fairness and integrity of Sam Gross, my colleague of over a quarter century, and of Steve Ceci, with whom I have partnered on a few projects over the last fifteen years and more.

Ohio v. Clark: Some Initial Thoughts

A few thoughts on the decision in Ohio v. Clark:

1.  The result is totally unsurprising, and I was not even surprised by the unanimity as to the result; it was difficult at argument to perceive that any justice thought the statement was testimonial. 

2.  I don’t think the statement should have been considered testimonial: I don’t think three-year-olds have the capacity to make testimonial statements.  (Steve Ceci and I asserted this position in our amicus brief and in the law review article on which we based it.)  And I wish the Court had left it at that.  On p. 9, the Court does emphasize the age of the victim, saying that statements by very young children “will rarely, if ever, implicate the Confrontation Clause,” because of their cognitive limitations.  All correct, I think.  Future cases are going to have to work out what the boundary is as to when a child is old enough that his or her statements may fall within the Clause.

3.  Justice Scalia objects to Justice Alito’s treatment of Crawford as being just “a different approach” from Roberts, not emphasizing that it was a total repudiation.  But the fact is that the majority opinion deals entirely within the Crawford framework.  That’s good news.

4. At argument, several justices seemed to have doubts about the “primary purpose” test, but now eight of them double-down on it.  Too bad.  It really isn’t a coherent test, because so often purposes are joint and it’s really not possible to tell which is primary.  Consider Justice Alito’s statement, p. 11, that the teachers “undoubtedly would have acted with the same purpose [to protect the child and remove him from harm’s way] whether or not they had a state-law duty to report abuse.”  Well, you could flip that and say that they “undoubtedly would have acted with the same purpose [to aid in law enforcement] whether or not they had a protective purpose in mind” – if, for a gruesome example, the child seemed clearly on the verge of death.  And the “primary purpose” test is easily manipulable; we can anticipate that many statements will be funneled to professionals other than law enforcement and the state will cite some purpose other than law enforcement as primary.  I think there’s really only going to be clarity and a solid basis when the Court uses a test based upon reasonable anticipation, from the point of view of the speaker.  But we seem to be a long way away from that. 

5.  The Court indicates that the “primary purpose” test is a necessary but not always sufficient condition for a statement to be excluded by the Confrontation Clause.  P. 7.  This is, I suppose, dictum, as Justice Scalia says.  It’s potentially dangerous, though.  If it’s limited to the one kind of case Justice Alito mentions – “out-of-court statements that would have been admissible in a criminal case at the time of the founding”  – I suppose it’s not so bad.  What kinds of statements are those?  The only ones mentioned so far are dying declarations, which Crawford says are sui generis.  (I think dying declarations should be treated under forfeiture doctrine, but that’s another matter.)  But if the “not always sufficient” language becomes the excuse for the Court to say that even though the primary purpose of a statement was to create evidence for law enforcement, it still isn’t going to be treated a testimonial because, well the Court doesn’t want to treat it as testimonial, that could be a destructive wedge.  I’m hoping not.

I'll add in here a response to a question asked by Paul Vinegrad -- what do I think about Justice Scalia's comment on the defendant's "burden" to get the benefit of the Confrontation Claue's exclusionary rule.  I think that Justice Scalia sometimes has a tendency to read majority opinions with which he disagrees in what he considers the worst possible light -- which can have unfortunate results for him if his comments tends to be self-fulfilling prophecies.  I hope this is not such an instance.  He says, p. 3, that under the majority opinion future defendants and "confrontation Clause majorities" have a "burden" to provide “evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding."  But gee, I think all the majority said was that neither Crawford nor its progeny "has mounted evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding."  I think all that means is that if it is shown -- presumably by the prosecution or its backers -- that a given type of evidence was regularly admitted at the founding, then the Confrontation Clause presumably was not intended to admit it.  Nothing so dramatic there, and nothing that Justice Scalia should find particularly distasteful.  If evidence was regularly admitted at the founding, it's a pretty good indication that it was not considered testimonial in nature.  And the only type of statement that both (a) is testimonial and (b) was regularly admitted against criminal defendants at the time of the founding -- at least the only type discussed so far by the courts -- is dying declarations.  So I think Justice Scalia should have saved his powder there.

6.  The Court declines to adopt a categorical rule excluding statements not made to law enforcement officers from the reach of the Confrontation Clause.   That’s good.  It says that such statements are “much less likely to be testimonial than statements to law enforcement officers.”  I suppose that’s right.  (Statements to known law enforcement officers describing a crime are highly likely to be testimonial.)  But although the Court says such statements could “conceivably raise confrontation concerns,” I think some almost certainly do.  If we took a case very similar to Clark but made the victim an 13-year-old, as in a hypothetical posed by Justice Kagan at argument, p. 12 (I had mentioned a 18-year-old in a prior post), I think the case would have looked very different.

7.  Justice Alito says, p. 11, “It is irrelevant that the teachers’ questions and their duty to report the matter had the natural tendency to result in Clark’s prosecution.”  For support, he cites Davis and Bryant, in which statements were not testimonial though made to the police.  But “irrelevant” in the sentence I just quoted has got to be too strong; he might better have said “not completely dispositive”.
8.  Following that passage is this curious one:

Thus, Clark is also wrong to suggest that admitting L.P.’s statement would be fundamentally unfair given that Ohio law does not allow incompetent children to testify.  In any Confrontation Clause case, the individual who provided the out-of-court statement is not available as an in-court witness, but the testimony is admissible under an exception to the hearsay rules and is probative of the defendant’s guilt.  The fact that the witness is unavailable because of a different rule of evidence does not change our analysis.

I find this passage very difficult to understand.  (Jeffrey Bellin has also expressed uncertainty on EvidenceProfBlog about the meaning of this passage. What does Justice Alito mean by “any Confrontation Clause case”?  It does not seem that it could mean any case in which there is a violation of the confrontation right, for two reasons: 

(a) It is not true that in all such cases the maker of the statement is not available as an in-court witness.  There was no proof, for example, that those who made the key statements in Hammon v. Indiana, Melendez-Diaz v. Massachusetts, or Bullcoming v. New Mexico were unavailable.  Indeed, availability of the maker of an out-of-court testimonial statement in itself means that the Confrontation Clause renders the statement inadmissible.   Could Justice Alito be using “not available as an in-court witness” to mean “not testifying in court”?  That would not only be a failure to use ordinary terminology properly, but it would not help make any point, given that in Clark the maker of the statement could not be made a witness.

(b) If there is a violation of the confrontation right, then it makes no sense to say “the testimony is admissible under an exception to the hearsay rules.”  (Does he mean “would have been admissible but for the Confrontation Clause”?  But then what does the passage prove?)  If there's a violation of the Confrontation Clause, it doesn't matter what the hearsay rules would otherwise say.

So does “any Confrontation Clause case” refer to a case in which the accused makes a seemingly plausible yet ultimately failed contention under the Clause?  Again, it’s not true that in all such cases the declarant is unavailable; the declarant may be available but ultimately the statement is determined to be non-testimonial

And what of the last sentence in this passage and its reference to "a different rule of evidence"?  I don't think Justice Alito means to suggest that in most cases the maker of the statement is unavailable by virtue of a rule of evidence; that's simply not so.  I suppose "different" is in distinction to the reference to a hearsay exception in the prior sentence.  So maybe the passage is intended to mean something like, "Often, when an accused makes a failed Confrontation Clause argument, the maker of the statement is unavailable and yet that does not stop the statement from coming in.  So it doesn't matter that here the cause of unavailability is a state rule."But there is a very significant difference between the situation in which the maker of the statement is unavailable by reason of circumstances beyond the state's control and that in which a rule created by the state renders the maker unavailable.

9.  The point that the state rendered the child incompetent to be a witness is particularly important because, given the result in Clark, states may have an incentive to declare  broader category of children as incompetent to be witnesses.  If statements made by those children are not testimonial, then the Confrontation Clause provides no constraint on use of their statements, and the state may be delighted not to call the child as a witness nor to allow the defendant to do so.

10.  Due process arguments are not resolved by the case, and I hope that defense lawyers now recognize that they are what is left to them.  Steve Ceci and I have argued that, given that the child is not capable of being a witness, if the statement is to be offered, the accused should have a right to have the child examined out of court by a qualified forensic interviewer.  I believe it is now particularly important that defense lawyers now claim this right.  (The "fundamentally unfair" language quoted above does not stand in the way; our argument is not that it is fundamentally unfair that the statement be admitted given that the child is not competent to be a witness.  Rather, we say that, if the statement is to be admitted, given that the child is not competent to be a witness, it is unfair not to allow the defense the chance to have an out-of-court examination of the child, the source of the evidence, through a qualified forensic interviewer.)

11.  It seems to me that Justice Thomas as actually loosened up a bit.  Instead of talking in terms of formality, he talks about indicia of solemnity.  That seems reasonable, if solemnity is understood to mean understanding the gravity of the consequences of the statement.  I would like to think that perhaps Justice Thomas has second thoughts about the extreme test of formality he applied in Williams v. Illinois.  Time will tell.

Clerk reversed

The Supreme Court decided Ohio v. Clark today.  You can see the opinions here.  The result is a 9-0 reversal in favor of the State.  No particular surprise there.  Justice Alito wrote the majority opinion.  Justice Scalia, joined by Justice Ginsburg, wrote separately, concurring only in the judgment, and Justice Thomas did the same.  The majority opinion indicates that statements to private persons or by young children will rarely be testimonial for Confrontation clause purposes, but it does not make a categorical holding on either point.  Justice Scalia objects to some of what he regards as anti-Crawford dicta in the majority opinion.  More later, probably this evening.

Civil Confrontation

The Confrontation Clause, of course, only applies in favor of a criminal defendant.  But it has long appeared to me that it reflects a broader principle in common-law adjudication, that ordinarily at least a party should have a chance to cross-examine those who testify against the party.  The Supreme Court has recognized that there is a constitutional basis, in due process, for such a right. But I was curious as to the circumstances in which this right has been asserted and what the response of courts has been.  I asked Nick Klenow, a former student of mine, to do some digging.   Nick, who graduated from Michigan Law earlier this month, has produced a Note, Due Process:  Protecting the Confrontation Right in Civil Cases, that I'm pleased to post here.  This memo is Nick's work, and the conclusions are his, not mine; I offered some guidance before he set out and a few very minor editorial suggestions.  I think the Note shows the wide range of circumstances in civil proceedings in which a confrontation right has been asserted, and often upheld, as a matter of due process.

As Nick's Note suggests, just what the bounds of the civil confrontation right are or should be is a difficult, perhaps intractable, issue; the answers seem highly context-dependent.  But I'll offer one comment to provide some theoretical perspective. Let's suppose there is a civil proceeding in which the state proposes to deprive an individual of some valuable right, privilege, or asset.  The state calls a witness and examines her, and at the conclusion of the direct the judge or other presiding official excuses her.  The individual whose rights are at stake protests, saying that he would like to ask some questions as well.  And the adjudicator responds, "No need.  I don't want to take the time.  That testimony was good enough."  It seems clear to me that this has to be, or at least can be in many circumstances, a violation of due process.  This, of course, is a strong case, but it demonstrates that the set of circumstances in which there is a violation of due process for failing to provide a confrontation opportunity in a civil case is not empty.  How much further the right applies -- for example, when instead of presenting a live witness the state instead presents an affidavit prepared for the sole purpose of creating evidence for the proceeding -- is the tricky question.

 

Remote testimony

Here's a belated report on a recent development in a long-standing issue.  Last month, the Supreme Court denied certiorari in New Mexico v. Schwartz, No. 14-317.  The petition presented the issue whether the confrontation right bars the presentation, over the accused's objection, of testimony taken, by two-way video, from a witness in a remote location.  But the case was not a good vehicle for presenting this issue, because the opinion of the New Mexico Court of Appeals turned on narrow questions of fact rather than on any broad question of principle.  It's an important issue, and sooner or later I hope the Supreme Court addresses it squarely.  I wrote on it years ago, pre-Crawford, in a piece titled Remote Testimony, 35 U. Mich. J. L. Ref. 695 (2002).  I'm going to want to think about the issue more; for now, I will offer a few thoughts and ask a question on which perhaps readers can shed some light.

The basic question is whether remote video testimony should ever be allowed over the accused's objection.  To take the strongest case, assume that the witness cannot feasibly be brought to or near the place of trial and that the accused cannot be brought to where the witness is; this may happen, for example, if the witness is in custody in a foreign jurisdiction.  Assume also that transmission is done as well as can be:  Crisp video, clear audio, no noticeable delays, the witness and accused each able to see each other, precautions taken to ensure that no one is able to give the witness signals or distract her.  So assuming all this, should the remote testimony be allowed though the accused objects on confrontation grounds?

The Confrontation Clause issue is not, or at least is not primarily, whether the ability of the trier of fact to assess the testimony is impaired by the fact that the witness is not in the courtroom.  It's a longstanding principle that, if the witness is unavailable at trial, testimony taken subject to confrontation at a prior proceeding may be introduced as a second-best substitute -- and of course until relatively recently the method by which the prior testimony was presented was almost always someone reading a transcript of it, which gives the trier of fact no benefit of demeanor evidence at all.

Rather, the question is whether confrontation between the witness on the one hand and the accused and his attorney on the other is undermined.  In 2002 (before Crawford), when the Supreme Court, by a 7-2 vote, declined to transmit to Congress an amendment to Fed. R. Crim. P. 26 that would have authorized remote testimony in some circumstances, Justice Scalia issued a statement that included the wonderful line, "Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones."  I don't think, though, that there is any principle that clearly makes it impossible to count confrontation through video transmission as the equivalent of in-court confrontation, any more than if witness and accused can see each other only through glasses.  I believe the issue should depend on empirical questions.  In my 2002 article, I asked two such questions:  

First, even with two-way transmission, would the distance and sense of insulation diminish the sense of confrontation--not an idly chosen term--that a prosecution witness faces when testifying against an accused? Second, would defense counsel be impaired to any significant degree in cross-examining such a witness by the sense of distance and by the delay in transmission that, even with up-to-date technology, is still noticeable?

I still think those are the questions, except that, unless I am mistaken, in most cases use of good technology will prevent any noticeable delay in transmission.  I think that before assuming that remote testimony is an adequate substitute for in-court confrontation, we should assure ourselves that the answers to both questions are negative.  As of the time I wrote the 2002 article, I was not able to find any studies that bore closely on these issues.  (I cited a few that bore rather distantly on them.) So that's my question:  Does anybody know of any research that helps answer these questions?

If the answers are indeed negative, then I think that remote testimony could be a great thing in some cases, making it far easier to provide confrontation than it otherwise be (and likely making courts more willing to require confrontation).  There would still be three important sets of issues to resolve, and for now I won't add more on these to what I said in my 2002 article:  (1) In what circumstances should the witness be deemed sufficiently unavailable to make remote testimony?  (I argued in the 2002 article that a rule on remote unavailability needs its own standard of unavailability, rather than incorporating the one in Fed. R. Evid. 804(a)). (2) In what circumstances should video confrontation not be deemed satisfactory, even though the witness is unavailable to testify at trial, because the accused  and counsel can be brought face-to-face with the witness.  (3) Assuming remote testimony is to be allowed in the given case, what quality standards must it satisfy?

Whatever the rule with respect to prosecution testimony, it seems to me that courts should be receptive, in appropriate cases, to remote testimony offered by the accused.  The confrontation right is not symmetrical, and it does not constrain the defense's offer of useful evidence.

An Op Ed: How courts should hear from children

Today's Washington Post is publishing an Op Ed piece by Steve Ceci and me, How courts should hear from children.  It summarizes the views that Steve and I presented in an amicus brief in Clark and in the law review essay on which the brief is based.

Justice Breyer's "30 exceptions" concern

A notable moment in the argument of Ohio v. Clark came when Justice Breyer acknowledged “misgivings” about confrontation doctrine and identified what he felt was the source:

I don’t want to see the Confrontation Clause swallow up the 30 exceptions to the hearsay rule, and therefore you have to draw lines. . . .

What’s at issue here to me, is the problem of not having th[e] Confrontation Clause swallow up the 30 exceptions which are necessary in many instances for the justice[] of a trial.

Argument transcript, at 49.

It seems to me this is a concern that Justice Breyer has expressed repeatedly, though perhaps not so clearly, at the argument of Confrontation Clause cases.  In this post, I’ll first elaborate on what I understand the concern to be, and then explain why I believe that the consequence that Justice Breyer hypothesizes, while certainly a valid matter to consider, does not in fact arise and need not constrain development of Confrontation Clause doctrine.

I think what Justice Breyer is responding to is basically this:  Over 200 years, a complex web of hearsay law has been worked out, reflecting judgments of what hearsay should be admissible and what not.  Then in 2004 along comes Crawford v. Washington, stating a big, blunt rule that, with very few qualifications (forfeiture, maybe dying declarations) excludes a significant category of hearsay when offered against an accused, unless the maker of the statement is unavailable and the accused has had an opportunity for confrontation.  So the concern, as I understand it, is that by following the theory of Crawford we will be denying the adjudicative system of important information it needs to achieve just results.

Now of course at one level we should not be concerned if the Confrontation Clause requires exclusion of evidence that escapes the rule against hearsay:  These are two separate bodies of doctrine, and just because a statement is not excluded by the rule against hearsay does not mean that the statement should be admissible; a given jurisdiction’s hearsay rule does not preempt all other exclusionary doctrines, especially a constitutional one such as the Confrontation Clause.

Nevertheless, I think Justice Breyer raises a legitimate concern.  The motivations underlying the confrontation right and the rule against hearsay are sufficiently similar that we might be very uncomfortable with a new theory of the confrontation right that rendered inadmissible wide swaths of prosecution evidence that for centuries have passed through hearsay screening.  (I know, the Confrontation Clause has nothing to do with reliability, and according to standard doctrine reliability is one of the principal factors determining whether statement is exempted from the rule against hearsay.  But I don't buy the standard doctrine.)   At least any large-scale exclusions of previously admissible evidence should make us take a reality check of the theory that causes the exclusions.  So, for example, I think that any theory of the Confrontation Clause that would generally render inadmissible statements made by a conspirator of the accused, during the course of and in furtherance of the conspiracy, would not have been viable.  (And in fact some passages in the Crawford argument suggest strongly that the Supreme Court would not have adopted the testimonial approach in that case had it thought that this would be the result; it was Justice Breyer who pointed out that a sound conception of what is testimonial avoids the problem, because such a statement is not made in reasonable anticipation of evidentiary use.  Argument transcript at 14;  for a copy of the transcript with questioners identified, click here.)

But in fact I do not think there is a real problem.  Conscientious adherence to the confrontation right requires exclusion of surprisingly little evidence that would not be excluded by prevailing hearsay law as expressed in the Federal Rules of Evidence, which has become the dominant modern template for ordinary evidence law in the United States.  Indeed, I think that there are only three basic areas in which this has occurred regularly since Crawford – and even in those it was only relatively recent doctrinal changes, or in some cases an essential abandonment of doctrine, that prevented hearsay law from excluding the statements:

First, before Crawford some courts had been admitting third-party confessions and statements made in formal, judicially supervised settings, such as grand jury testimony and allocution hearings.  Sometimes this was done under the hearsay exception for declarations against interest.  But extension of this exception to statements exposing the declarant to criminal liability and offered to inculpate the accused was a 20th-century development, greatly accelerated by the Federal Rules themselves.  And often application of the exception in that context appeared dubious, because it was not clear that the portion of the statement inculpating the accused was genuinely against the declarant’s interest.  And sometimes admission of these statements was allowed under the residual exception to the hearsay rule, which of course provided virtually no constraints at all.  As I understand it, post-Crawford admission of these statements, absent unavailability and an opportunity for cross, has essentially ceased, and I haven’t heard any complaints about that development.

Second, particularly in the decade or so before Crawford, many courts admitted relatively fresh statements describing a criminal incident.  As in Hammon v. Indiana, many of these got past the hearsay bar on generous interpretations of the exceptions for excited utterances or statements of present sense impression.  This was the phenomenon that Bridget McCormack and I described as dial-in testimony.  Since Crawford, this practice has been limited, but hardly eliminated.

Finally, there are forensic lab reports, as in Melendez-Diaz v. Massachusetts; it was only under generous interpretations of, or modern additions to, the exceptions for public and regularly kept records that in the previous decades some jurisdictions (not all!) let these get these past the hearsay rule.

Those are significant areas, to be sure, but they hardly represent the destruction of the web of hearsay exemptions.  (I'll sometimes use the term "exemptions" here because, covering carve-outs from the definition of hearsay, it's more inclusive than "exceptions".)  Why has Crawford not created havoc with hearsay law?   The fundamental reason, as I argued last year in an essay titled The Mold that Shapes Hearsay Law, 66 Fla. L. Rev. 433, 449-58 (2014), is that, to a perhaps surprising degree, prevailing hearsay law, as expressed in the Federal Rules of Evidence, replicates the confrontation principle as expressed in Crawford.  What I call the confrontation principle is the general principle that one should not be allowed to testify against a party unless that party has had a chance to cross-examine, face to face, the witness who gave the statement.  And I’ll add that if one makes a statement aware of its likely use in litigation and it is admitted at trial against a party, then the maker of the statement is effectively a witness against that party.

So I’ll make three claims.   First, a descriptive claim: The rule against hearsay, as reflected in the Federal Rules, tends to conform to the confrontation principle.   That is, to a large extent, the hearsay rule tends to require exclusion of a statement if and only if  violates the confrontation principle.  That is why I call the confrontation principle the mold that shapes hearsay law.  Second, an historical claim:   The confrontation right developed before the hearsay rule, and the hearsay rule developed largely in conformity to the confrontation principle.  Over time, as the hearsay rule came to dominate the scene, it obscured the confrontation right, and the tie between the two diminished to some extent, but it is still strong.  And finally, a normative claim: To a very large extent, what is worth preserving of the rule against hearsay lies in the confrontation principle; we’d be better off throwing the rest of the rule against hearsay away.

I’ll begin with, and devote most of the remainder of this post to, the descriptive claim (though bits of history will creep in), because I think it’s most directly responsive to Justice Breyer’s concern.  I contend that if (a) a statement is made in anticipation of evidentiary use, (b) the statement is offered at trial for its truth, and (c) the declarant does not testify at trial, then the statement will probably be excluded by hearsay law unless either (c)(1) the declarant is unavailable and (2) the party-opponent has had an adequate opportunity for cross-examination, or (d) the opponent has forfeited the objection.  And in circumstances in which this principle does not require exclusion, hearsay law tends to be receptive to the evidence.

Note at the outset several structural limitations common to both the Confrontation Clause and hearsay law:

1. If a party makes or adopts a statement and it is then offered against him, there is no problem under either the Confrontation Clause or hearsay law. As has often been said, an accused has no right to confront himself.  Fed.  R. of Evid. 801(d)(2)(A) and (B) exempt from the hearsay rule statements made or adopted by the party-opponent.

2.  If the statement in question is not offered for the truth of a proposition that it asserts, then neither confrontation doctrine nor the rule against hearsay applies.  Crawford makes this explicit.  And so does Fed. R. Evid. 801(c)(2)

3.  If the declarant testifies at trial, that eliminates the confrontation problem (under prevailing doctrine) and it may eliminate the hearsay problem.  FRE 801(d)(1), 803(5).  Again, Crawford is explicit on this point.

4.  Neither the Confrontation Clause nor the rule against hearsay will block admission of a testimonial statement made out of court if the witness is unavailable to testify at trial and the party opponent has had an adequate opportunity for cross-examination.  Once again, Crawford is explicit on this point, which reflects long-standing practice, and which is established with respect to hearsay law by Fed. R. Evid. 804(b)(1).

5.  Both the confrontation right and an objection to the hearsay rule may be forfeited by at least some wrongful conduct that renders the declarant unavailable to testify at trial.  Fed. R. Evid. 804(b)(6) establishes forfeiture doctrine as part of hearsay law, and Crawford recognized the doctrine as part of the law governing the Confrontation Clause.   Fed. R. Evid. 804(b)(2) states a dying declaration exception to the rule against hearsay; I have argued many times that the best account for this exception is as an example of forfeiture.  But even putting aside that theory, Crawford suggests strongly that, on unique historical grounds, there may be an exception to the confrontation right for dying declarations.  Once again, this is not a type of evidence that passes hearsay scrutiny but then is excluded by the Confrontation Clause.

Note that these structural principles account for several of the important exemptions to the hearsay rule.  So now let's look at those that these principles haven't accounted for.   What we'll find is that in almost all circumstances the exemptions are crafted in such a way that, especially if conscientiously applied, they do not apply to statements made in anticipation of litigation use.  And we'll see that, when these exemptions have been applied to such statements, it is almost certainly a latter-day extension or peripheral application of the exemption.

Fed. R. Evid. 801(d)(2)(C), (D), and (E) address what are sometimes called vicarious admissions (respectively, statements by an agent authorized by the principal, statements by an agent on the subject matter of the agency, and conspirator statements).  Statements falling within these categories are almost by definition made in the course of going about one's business, without anticipation of litigation use; they are not testimonial.  Notice in particular conspirator statements, made during the course of and in furtherance of the conspiracy.  Such statements are clearly not made in anticipation that they will be used in prosecution.  This is the point made by Justice Breyer at the Crawford argument, as noted above.

Fed. R. Evid. 803 (1) - (4) is the family of spontaneous declarations -- present sense impressions, excited utterances, statements of current bodily, emotional, or mental condition, and statements made for purposes of medical diagnosis or treatment.  At the time of the framing, there were no such exceptions; all there was, well into the 19th century, was the res gestae doctrine, the idea that statements that themselves formed part of the story being told could be admitted on a non-hearsay basis.  As late as 1879, in R. v.Bedingfield, 14 Cox's Crim. Cas. 341, a statement made by a woman whose throat had just been slashed seconds before was held not admissible to prove the identity of the assailant.  (I think it probably should have been admissible on forfeiture grounds, but that's another matter.)  In the first decade of the 20th century, Wigmore wrote that for a generation a hearsay exception had been recognized for statements of this sort.  But the exception was still tightly confined to statements made very close to the time of the event.  In the late years of the 20th century, courts became far less restrained, being willing to characterize statements made long after the event as spontaneous.  Meanwhile, the exception for statements made for purpose of medical diagnosis and treatment grew out of the one for statements of current condition; the Federal Rules accelerated the development by making the exception apply to statements of past events related to the diagnosis or treatment.
 

Fed. R. Evid. 803(6) - (10) is the family of exceptions for public and routinely kept records (and the absence of them).  Most of these are made before the litigation arises.  Traditionally, as Melendez-Diaz pointed out, these exceptions did not apply to statements made with litigation in mind.  See, e.g., Palmer v. Hoffman, 318 U.S. 109 (1943).  And to a considerable extent the exceptions are crafted to make sure that they do not include such statements when offered against an accused.  See, e.g., Rule 803(8)(a)(ii) ("a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel"), (iii) ("a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel").  It was only very modern developments – occasional generous interpretations of these rules but more frequently special-purpose statutes – that allowed forensic lab reports to get past the hearsay rule in many jurisdictions.  Such statutes were invovled, for instance, in Melendez-Diaz and Briscoe v. Virginia,  130 S.Ct. 1316 (2010), the two recent Supreme Court cases involving formal admission of such reports without live testimony.  

Fed. R. Evid. 803(11) - (21),  (23), 804(b)(4)  –  Here is the great run of hearsay exceptions, perhaps what Justice Breyer had in mind more than anything else, covering records of religious organizations, family records, documents affecting interests in property, ancient documents, market reports, statements in learned treatises and the like, reputation, certain judgments, and statements of personal or family history.  Pretty much all of these will have been made before the present case arose pretty much all of the time, and they are almost certainly made without reference to the particular subject matter of the present case, especially if that case is a criminal one.  They are almost universally not testimonial for purposes of the Confrontation Clause.  So far as I am aware, none of these have ever raised an issue under Crawford. 

Fed. R. Evid. 803(22)  – This is an exception for certain judgments of previous convictions when offered to prove "any fact essential to the judgment".  Under a primary-purpose test, I don't think these are testimonial.  Under a reasonable-anticipation test, perhaps they are; one suffering the judgment of conviction might anticipate the later use of the judgment in another litigation.  But these judgments are used principally against the person who suffered the conviction, and usually, I think, in civil cases.  Even when used in a criminal case, this hearsay exception seems to amount to a lesser form of issue preclusion.  In any event, I am unaware of any cases since Crawford having raised an issue under this exception.

Fed. R. Evid. 804(b)(3) – This is the exception for declarations against interest.  In the case of Thomas Tong, 84 Eng. Rep. 1061 (1662), the judges of King's Bench agreed unanimously that a confession could be introduced against the person who made it but not against his former confederate.  This fundamental principle likely underlay the traditional resistance of courts, as there developed a hearsay exception for declarations against interest, to apply the exception to statements against penal interest.  The Federal Rules wiped out that limitation.  The Advisory Committee said the limitation was "indefensible in logic" but in saying so it pointed to Justice Holmes' well-known dissent in Donnelly v. United States, 228 U.S. 243 (1913), a case involving the confession of another person offered by the accused.   With respect to statements admitting guilt and inculpating the accused, the Committee did not advert to the sharp line established by Tong's Case but said that such a statement, if "made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest."  Nevertheless, in the years preceding Roberts, some courts admitted such statements.  And the Supreme Court consistently resisted these efforts.  It held in Lee v. Illinois, 476 U.S. 530 (1986), that the concept of declaration against interest "defines too large a class for meaningful Confrontation Clause analysis" and that, "when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another," there was presumptively a violation of the Clause.  It went further in Lilly v. Virginia, 527 U.S. 116 (1999), holding explicitly that "accomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence." And, in a foreshadowing of Crawford, the Court noted that the statements at issue there "were obviously obtained for the purpose of creating evidence that would be useful at a future trial."  (Justice Breyer's concurrence was a broader foreshadowing of Crawford)  This still didn't put a complete stop to the practice, because some courts concluded that the particular third-party confession at stake was supported by individualized guarantees of trustworthiness.  That's what happened in the state courts in Crawford itself.

And finally, there is the residual exception, now in Fed. R. Evid. 807.  In restoring the residual exception, which the House had deleted, the Senate Judiciary Committee said, "It is intended that the residual hearsay exceptions will be used very rarely, an only in exceptional circumstances."  But over time, courts used it rather freely, applying it even to admit grand jury testimony against criminal defendants.  I'm not sure if anybody defends such uses now (absent evidence indicating forfeiture); they seem blatantly in disregard of any plausible theory of the confrontation right.   Indeed, the residual exception is so open-ended – it doesn't define a category of statements by circumstances, but only gives criteria guiding the decision – that I suspect it was not have been one that Justice Breyer had in mind when he expressed his "swallowing up" concern.

To sum this up, it appears clear that, for the most part, hearsay law (especially as applied to statements offered against an accused) conforms to the basic principles of confrontation doctrine. There are departures, of course, but they are almost all a result of latter-day extensions of or peripheral expansions of the hearsay exemptions.   And with respect to most of those departures, I don't think there's even all that much controversy over the proposition that the confrontation right should be understood to trump hearsay law's tolerance of the statement.  That is, I don't think too many people think that (absent forfeiture) grand jury testimony ought to be admissible against an accused, or confessions and other statements deemed to be against interest, made knowingly to the authorities, and describing criminal conduct (as in Lee, Lilly, and Crawford), or accusatory statements like Amy Hammon's made to the police in her living room while her husband was held at bay, a considerable time after the alleged incident.  There's considerable resistance, of course, to applying the confrontation right to forensic lab reports.  Notice, though, that not only was introduction of those reports a relatively new phenomenon, but because admissibility was usually achieved by a special-purpose statute rather than a hearsay exception as such, they do not illustrate the "swallowing up" concern.

If I'm right in my descriptive claim, that to a very considerable extent the rule against hearsay conforms to the confrontation principle, how did that come to be historically?  I think part of the explanation lies in the fact that the confrontation right developed long before the hearsay rule as we know it.  It's been a commonplace in the common-law tradition since the 16th century that witnesses testify live, face to face.  Sometimes this principle was enforced by using the word hearsay, but until the last years of the 18th century at the earliest there was nothing resembling the hearsay law as we know it – with a definition of hearsay expansive enough to reach any out-of-court statement introduced to prove the truth of a matter asserted in it, and even conduct offered to prove the truth of a belief apparently motivating the conduct, see, e..g., Wright v. Tatham, 7 E.R. 559, V Clark & Finnelly 670 (H.L. 1838), but modified by a long list of exceptions.  It is not surprising, then, that as the language of hearsay became dominant the newly developing rule incorporated the old principle.  Over time, I believe that because hearsay law was so broad, it occluded the confrontation principle lying at its core.  It was obvious that such a broad rule of exclusion at times impaired the search for truth, and so it must have exceptions, and because the hearsay rule was not conceptualized in terms of witnesses or testimony, and ran far beyond the scope of testimonial statements, the exceptions were not conceptualized in those terms, either, and sometimes they tended to chip away at the confrontation right. In a sense, to put a spin on Justice Breyer's concern, the right began, to some extent, to be swallowed up by the exceptions to the hearsay rule.

But that development only went so far, and my explanation lies in my normative claim:  What's really worth preserving in the hearsay rule, or at least most of it, lies in the confrontation principle.  I think that this can be demonstrated by a thought experiment.  Think of a situation – civil or criminal case – in which it seems really clear that hearsay ought not be admitted.  I'll be that the statement in that situation was testimonial – i.e., made in anticipation of use in litigation.  So I think that sense, that we really ought not let people testify against others without having to face them and answer questions, has continued to have a powerful hold on us, and has shaped hearsay law over the last couple of centuries even when it hasn't been well articulated.  And as a result we continue to have a high degree of conformity between the confrontation principle and hearsay law.

If I'm right about all that, then as a matter of policy we ought to think about transforming hearsay law so that, instead of an exclusionary rule punctuated by a Swiss-cheese-like array of exceptions, we articulate general principles constraining the use of testimonial statements.  (I think how those principles play out may be very different when the statement is not offered against an accused.)  I've written a law review article, soon to be published, outlining how this might work out; I'll provide a link here as soon as the editors let me.  I'm tempted to say that as a matter of policy, the confrontation principle should swallow up and replace hearsay law as we know it.

But that's another matter, for the crafters of state and federal evidence law.  For now, I think the key point is this:  Sure, conscientious adherence to the confrontation right calls for some results different from those that had come to be tolerated after many years of inattention to and misunderstanding of the right.  But for the most part this effect is limited to a few salient areas.  For the most part, the confrontation right does not swallow up hearsay law because for the most part hearsay law already conforms to the right. 

Solemnity

When the Supreme Court first mentioned solemnity as a criterion for determining whether a statement is testimonial, I thought that it was misplaced:  It’s not as if one has to be solemn to be a witness.   If that were so, the word would soon go out:  “Laugh and smile a lot when you make your video for the police.  Try to tell a joke or two.  Then you won’t have to come to court to testify.”

But now I realize that solemnity, properly interpreted, can express the essence of what makes a statement testimonial – that is, the act of witnessing.  And I believe Justice Scalia used it in this sense in the Clark argument, when he suggested that lack of solemnity was what made L.P.’s statement non-testimonial.  (Transcript, p. 4.)

I believe the proper way to think of solemnity in this context is not as a matter of tone or mood but as appreciation of the potential consequences of one’s statement and the gravity of those consequences.   Steve Ceci and I have argued, in our amicus brief and in the law review essay on which it was based, that for a person to be capable of being a witness he or she must  be capable of recognizing the truths in the following causal chain: 

As a result of my statement, my listeners may believe that what I say happen did in fact happen; as a result of that belief they may take action; and as an ultimate result of that action, the person whose conduct I am describing may suffer serious adverse consequences.  Accordingly, my listeners, or others, regard it as important that I speak truthfully.

Our emphasis in the brief and essay was on the capacity of the speaker.  But let’s move beyond that question – let’s assume an adult who is plainly capable of being a witness.  I think recognition of a similar chain of causation (by a posited reasonable person) is what determines whether the given statement is testimonial.  That is, if a reasonable person in the position of the speaker would realize that as an ultimate result of the statement the legal system may plausibly take action of significant consequence, and therefore the speaker is regarded as under an obligation to speak truthfully, the statement should be deemed testimonial.   The speaker is self-consciously creating evidence that may be used in adjudication; that is witnessing.    If the legal system allows a statement made under such circumstances to be admitted against an accused without the speaker confronting the accused, then we have created a system in which a prosecution witness can testify without confrontation.

I think solemnity viewed in this way can clear up a good deal of misunderstanding about what it takes to bring a statement within the Confrontation Clause.  Consider first the alleged limitation of the Clause to statements made to government agents.  At the Clark argument Justice Scalia said that it’s “clearly not true” that “no person who's not an agent of the government can trigger a Confrontation Clause protection”; “[i]t’s a question of solemnity,” he said, “but . . . solemnity has nothing to do with whether you’re a civilian . . . or a policeman.” (Transcript, pp. 4-5.)  Exactly right.  It may be true that most of the time in which someone makes a testimonial statement it is to a government agent, but in numerous circumstances one may say that a reasonable person in the position of the speaker would appreciate the solemnity of her statement, because of its potential litigation consequences, even though the immediate audience was only a private person (or no one at all).

Similarly, I think solemnity does the work that is sometimes mistakenly loaded onto the term “formal”.  In deciding Hammon v. Indiana, the Court said, “It was formal enough that Amy’s interrogation was conducted in a separate room, away from her husband (who tried to intervene), with the officer receiving her replies for use in his ‘investigat[ion].’”  In other words:  The potential consequences of the statement were clear, which gave it the solemnity of testimony.  There is no need for a separate inquiry into formality.

Thinking past Clark: Make that Due Process demand now! (And what to demand.)

Let’s assume that the Supreme Court holds in Ohio v. Clark that there was no Confrontation Clause violation when the trial court admitted evidence of three-year-old L.P.’s out-of-court statement, even though L.P. not only did not testify at trial but was held incompetent to do so.  In light of the argument yesterday, I think no one will say that assumption is unrealistic.  But the argument also indicated that there may be a Due Process problem with introducing evidence of this sort without the accused having any remedy at all.  Let's also assume for the sake of argument that the Court doesn't use Clark itself as the vehicle to clarify what role the Due Process Clause might play in this realm.

So my suggestion for defense lawyers with clients accused of child abuse, especially of very young children – or more generally, in cases in which it appears the statement of a young child may be significant evidence: Starting right now, make a Due Process demand.  And don’t wait until trial or immediately before trial.  Make it as soon as you know that the child has made a statement that the prosecution is likely going to want to introduce at trial, even if charges have not been brought.  You might prevail.  At least you will have preserved the issue, and in the strongest possible light.

Let’s suppose a case just like Clark arises.  The plausible Due Process contention is not that L.P.’s statement is so unreliable that it would violate Due Process to admit it.   Lots of evidence that is readily admitted is unreliable – including eyewitness testimony!  Reliability is not a useful threshold for the admissibility of evidence.  Triers of fact are supposed to consider all sorts of evidence, some of which may be very unreliable, and make a finding based on the totality of all that evidence.  L.P.’s statement is clearly not reliable, but neither is it so worthless and prejudicial that admitting it is in itself a Due Process violation.

Readers of this blog will not be surprised to know that I think the best argument is to claim the procedural rights outlined in the amicus brief that Steve Ceci and I submitted and the law review essay on which it is based.  Defendants should argue, in essence:

It would be fundamentally unfair, and a violation of the Due Process Clause of the Fourteenth [or Fifth, in a federal prosecution] Amendment [and of the similar clause of the state constitution] if the child’s statement were offered against my client at trial without us having any right to examine the child at all.  Adverse examination at trial, the usual remedy with respect to adults, is [fill in:  “impossible,” if a court has held, as in Clark, or clearly would hold that the child is incompetent to be a trial witness; “not a plausible or satisfactory alternative,” otherwise].  Accordingly, we must have another remedy, as we would in case of a nonhuman source of evidence – that is, to have a qualified expert of our choosing examine the source of the evidence.  In this case, that expert would be a psychologist who is qualified by training and experience to conduct forensic interviews.  The aim of the interview would be to assess the child’s truth-telling inclination and ability, both in general and with respect to the matter asserted in this case – and in particular how it may have come about that the child made the assertion even though it was not true.  It is important that this interview happen quickly, to avoid the effects further suggestion and of corruption and deterioration of memory.  I recognize that the interview must be conducted according to a protocol agreed on with the prosecutor or prescribed by the court.  [Our essay suggests standards that such a protocol might include.]

I think it is important to make this demand as soon as possible because one of the advantages of this procedure is that the interview can be held long before trial, shortly after the child makes the initial statement.  Accordingly, if the demand is made early but denied, the accused will be in the best possible position to argue that the denial was prejudicial.  I would therefore make the demand even if no formal prosecution has begun:  Even assuming governing criminal procedure rules don’t have a readily available mechanism for getting a court-ordered interview at that time, the accused can make the demand of the prosecutor or of the police, who are in a position at the very least to try to secure the presence of the child for the interview.

I think it’s important that the interviewer be well qualified and of the defense’s choosing, that the defense ought to be able to review the case with the expert before the interview and discuss possible lines and methods of inquiry, and that the interview be videotaped.  Our essay suggests other standards as well.  I don’t think that the defendant ought to have a right to demand during the interview that the interviewer ask certain questions – this is not cross-examination – but of course that is one issue among many that would ultimately have to be decided.  The big-ticket issue is whether the defendant has a right to the interview at all.  I do believe fundamental fairness requires an affirmative answer.

If enough defendants make a demand of this sort, some of them will be granted and some will be denied.  Ultimately, the question of whether, in at least some circumstances, the accused has a right to such an interview will reach and be decided by the Supreme Court.

The Clark argument

Update, March 3:  Here is a link to the transcript.

I attended the argument in Ohio v. Clark today.  I thought the case was well argued on all sides (including by Mathew Meyer for the State; he was put on the case, as I understand it, only seven days ago).  Here are a few impressions.

The State got nowhere with its argument that there was no confrontation violation because the preschool teacher was not an agent of the state.  Justice Scalia said it was "clearly not true" that a statement could not be testimonial unless made to an agent of the state. Meyer responded that Crawford implies that the recipient of the statement must be a government agent, but he did not press the point.  It was never raised again.

Justice Scalia also said that the question was one of solemnity, and he asked, apparently rhetorically, how could this child ever have testimonial intent.  Later Justice Kagan said something like, "We can all agree that a 3-year-old child doesn't have testimonial intent."  Jeff Fisher, for Clark, made the argument as well as it could be made that the child may have understood punishment.  (In fact, I don't think that L.P. could understand that his words to a preschool teacher might wind up in punishment of Dee.)  But I think that no one on the Court indicated a view that the presumed intent or state of mind of the child would lead to considering L.P.'s statement testimonial.

Some of the justices clearly thought the case -- or at least cases of this sort -- do not end with the question of whether the statement is a confrontation violation.  Justice Kennedy first raised the question of whether there was a due process violation.  Justice Kagan asked at one point "is there another inquiry?"  I'm not certain, but she may have been suggesting that a due process inquiry was appropriate.  towards the end of the argument, Justice Breyer, saying that this case presented a"a tragedy either way," said explicitly that it was "tailor-made for the Due Process Clause."  And shortly after that Justice Sotomayor said something to the effect of, "Are you raising the right challenge?  Is this really the Confrontation Clause?"  One particularly interesting aspect of the argument, as suggested by these comments and others, was that although none of the justices seemed ready to say this was a confrontation violation neither was any of them saying, "There's no problem here; just admit this evidence for what it's worth."

Fisher indicated that in his view there was a good deal of flexibility in his view of what the Confrontation Clause required here. He said we start with Maryland v. Craig, and he indicated that he did not think it was necessary that the questioning be actually conducted by a lawyer.    I think Fisher was trying to make the softened-cross that he advocates look a lot like the forensic interview that Steve Ceci and I have advocated. In a post last night, I compared the two approaches.  Among the advantages I see to the quasi-witness approach is that it avoids distorting the Confrontation Clause, in two respects, really -- no need to stretch the Clause to reach statements by a 3-year-old, and no need to diminish the impact of the Clause when it does apply.  The justices' comments today indicated that they also see the virtue of applying a due process standard in this realm.

Justice Kagan posed a hypo that was very similar to the one I presented in a post a couple of weeks ago: Imagine similar facts but L.P. were 13 and the teacher told him of an obligation to report.  (I used an 18-year-old without the explicit statement.)  She thought the statement would be clearly testimonial, Meyer indicated that it might be, and nobody indicated a contrary view.  Later, Justice Alito noted how different that hypothetical was from the actual case.

Finally, some of the justices indicated a good deal of discomfort with the "primary purpose" test, in part because of the difficulty of separating out purposes.  It was by no means clear that this is the case that they will choose to use to clean that up.

I'll have more to say about the argument later, but on the whole I was heartened; I think the aspects on which I'm reporting here suggest that, whatever the outcome of this case, the Court may move doctrine in a productive direction.

Comparing the Quasi-Witness and Craig Approaches

I have previously posted the amicus brief that Steve Ceci and I have submitted in Clark and an essay about to be published in the University of Chicago Law Review.  Both present what we call a quasi-witness approach in dealing with statements by very young children.  Under this approach, the accused does not have a right to cross-examine the child at trial, but does have a right to have the child examined out of court by a qualified expert pursuant to a court-approved protocol.  Under the Supreme Court’s decision in Maryland v. Craig, child witnesses who appear, on the basis of an individualized showing, to be likely to suffer trauma as the result of confronting the accused may be examined out of the courtroom, with only the attorneys present.  So there are some similarities in practical effect between our approach and that of Craig: Both allow for some form of examination out of court rather than in court.  But the approaches are very different both theoretically and practically.  In this post, I will argue that our approach is clearly superior on both scores.

1.  It’s useful to note at the outset that the majority opinion in Craig, a 5-4 decision, was written by Justice O’Connor, one of the two members of the Court who did not sign onto Justice Scalia’s majority opinion in Crawford v. Washington, and it generated a bitter dissent by Justice Scalia.  Not surprisingly, it is the dissent in Craig, not the majority opinion, that bears a closer resemblance to the majority opinion in Crawford.  Justice O’Connor’s Craig opinion, as a product of the pre-Crawford regime of Ohio v. Roberts, is filled with balancing language; it explicitly balances the right of confrontation against other values, most notably the protection of children, and it concludes that “face-to-face confrontation” – what Justice Scalia says is merely “confrontation” – is sometimes dispensable.  Naturally, this approach makes Justice Scalia apoplectic.  And in Crawford he wrote for the Court in establishing a view of the Confrontation Clause that is very much in keeping with the views he expressed in his Craig dissent: The Clause establishes a procedure for giving testimony, and it operates categorically, not by weighing costs and benefits case by case. 

The Supreme Court had turned down opportunities to decide whether Craig survives Crawford, so they have coexisted for a decade.  And they do answer different questions: Crawford says when a person should be considered to be witnessing for purposes of the Confrontation Clause, so that the confrontation right attaches, and Craig addresses the procedures that may be used to satisfy that right with respect to certain children.  Nevertheless, a system that requires the continued viability Craig in the Crawford era is theoretically uncomfortable at best.  This is especially true because what Craig takes away is the historical heart of the confrontation right – the right to be “face to face” with the witness.

By contrast, our approach fits the categorical nature of Crawford perfectly.  The confrontation right gives the accused a categorical right to be confronted with adverse witnesses, subject only to the qualifications that it may be waived and forfeited and to a possible sui generis exception, as Crawford termed it, for dying declarations (which I think ought to be considered instances of forfeiture, but that’s another battle).  So the big question is who the adverse witnesses are.  The Court has made clear since Crawford that only by making a testimonial statement does one act as a witness, not by making any out-of-court statement that may later be introduced at trial.  Similarly, we are contending that some very young children are simply outside the category of witnesses.  The Confrontation Clause simply does not apply to them.

2.  I think that if Craig persists, it could expand.  If the state has a compelling interest in protecting children from trauma, and that is sufficient to relieve them from having to testify in court, then one might ask what other witnesses likely to suffer from trauma may claim Craig-like procedures – and what considerations other than trauma might justify such procedures.  The quasi-witness approach, I believe, is much more tightly confined.  Beyond a set of very young children, one could argue that it should apply to severely impaired adults.  But I think the basic idea of a person lacking the cognitive skills to be a witness is applicable to very few adults, and (unlike children) they do not tend to provide evidence for trial very often.  The Supreme Court might also hold that, because it prefers setting objective tests, it makes sense applying the quasi-witness approach to children – below a given age, virtually all children lack a given set of cognitive abilities – but not to impaired adults, because each case would have to be assessed on its own.

3.  The confrontation-as-softened-by-Craig approach – what I’ll call the prevailing approach – offers help to the accused only if in the given case the particular statement is determined to be testimonial.  Courts plainly resist reaching that conclusion with respect to statements of very young children, and it is easy to see why.  If a court decides that the particular statement is not testimonial, then the accused has no rights at all under the prevailing approach to examine the child.  (That is especially true in a case like Clark, in which the child was deemed to be incompetent to be a trial witness.  Even if the child is deemed competent to be a trial witness, the opportunity to call her to the stand is usually of little avail to the defense.)  State hearsay law, of course, may keep the statement out, but hearsay law is a sieve.  That is especially true with respect to statements of young children.  Courts are especially inclined to let their statements in, and many jurisdictions have adopted “tender years” exceptions.

Under our approach, by contrast, if the child is deemed to lack the capacity to be a witness, the statement may be admitted but the accused right to examine her (out of court, through a qualified interviewer, under a prescribed protocol) without reservation; there is no need to ask questions such as whether the statement would be deemed testimonial if it has been made by an older person.  This is much simpler.

4.  Craig only applies if the trial court determines that the child will likely suffer trauma from having to confront the accused.  (Trauma from having to testify in open court is not enough.)  Otherwise, if the confrontation right attaches the child must come in and testify in open court or the child’s statement cannot be used.  There is no such limitation on the quasi-witness approach.  If the child is below a prescribed threshold – such as a given age – then the quasi-witness model applies, and the right to examine the child out of court automatically attaches. 

5.  Under a Craig approach, if the accused has any right with respect to the child, it is a right to cross-examination – which means, at least in the model envisioned by Craig itself, that the examination is conducted by a lawyer, and there are two lawyers in the room.  That’s not good for truth-determination – cross-examination of young children is generally not useful, and lawyers tend not to have well developed skills for questioning them – and it’s bad for the child.  Perhaps one could hold that confrontation demands less – not only does it not require that the accused have an opportunity to be “face to face” with the witness, but it does not require that he have the right to have the one who asks questions on his behalf be a lawyer – but then I worry even more about sapping substance from the confrontation right. 

Under the quasi-witness model, by contrast, the out-of-court examination would be designed to maximize usefulness and minimize trauma.  Only one person – a qualified interviewer operating under a court-approved protocol – would be in the room with her.  The surroundings and the entire process could be designed in a way to make the child as comfortable as possible and to generate as useful an interview as possible.  The interviewer could use whatever techniques appear appropriate for making the interview productive as well as humane.

6.  Under the prevailing approach, even if the child is compelled to testify, whether in the courtroom or under some alternative procedure, it likely will not do the accused much good.  A cross-examiner is unlikely to get much out of the child.  (The common logic of cross– “You just testified to X. But Y is true, right?  And they can’t both be true, right?” – rarely gets off the ground young children.)  Even if the child fails to confirm the substance of the prior statement, it does not much matter, because, given that the prosecution has called the child as a witness, prevailing confrontation law allows the prosecution to introduce that statement.  And if the child fails to answer questions on cross or direct, the jury is unlikely to infer that this undercuts the credibility of the child’s account; it will almost certainly appear that the child is just scared or bewildered or, long after the fact, forgetful. 

Under the quasi-witness model, by contrast, the accused has the benefit of an expert of his choosing examining the child in an attempt to determine what limitations there are on the probative value of the child’s statement.  It may still be that the child will completely clam up in that setting, of course – but it is far less likely than in a lawyer-dominated cross-examination setting.  And even if the child does clam up on the subject of the incident at issue, the examination will put the expert in a better position to evaluate and report to the jury on the child’s limitations and the significance of the statement.

7.  Ultimately, trying to treat very young children as witnesses is a matter of a bad fit, like trying to jam a square peg into a round hole.  When Sylvia Crawford spoke to the police in the station-house, she was witnessing; if that statement were to be allowed as proof, then we would have system in which witnesses could testify by talking to the police in the station-house.  Similarly with Amy Hammon speaking to the cops in her living room, or the lab analysts writing their reports in Melendez-Diaz and Bullcoming.  But poor bewildered little L.P. was not acting as a witness, and he did not have the capacity to.  Trying to jam him into the witness category, and provide rights that are appropriate to his age, will almost certainly fail on both ends – not yield a procedure that makes sense for three-year-olds and distort the procedure for older people.  If we recognize that very young children are not just smaller versions of adults, but categorically different, and that though they can observe and report they lack the capacities that are essential for one to be a witness who should be subject to confrontation, we can then design a system that makes sense for them – and leave the confrontation right undistorted.

Responses to the Nessons

[Slightly edited, Feb. 24, 2015]

Charlie and Fern Nesson have been energetically promoting their view of the Confrontation Clause, on this blog and in other forums.  I briefly responded some time ago to some of their contentions (see comments to the posting of November 25, 2014, Top side briefs and joint appendix in Ohio v. Clark; the Nessons' amicus brief, by the way, was mistakenly identified as a bottom-side brief and styled as one in favor of the respondent, but it is clearly a top-side brief in favor of the petitioner State). I promised more comments later, and here they are.  Given the volume of the Nessons' writings in the last few weeks, I’m sure I could fill up a great deal of time and space replying to further commentary by them, but I intend this to be my last shot on the issue.  Silence does not suggest assent!

The Nesssons’ basic theory is that the Confrontation Clause should be read as a requirement that
the prosecution present a sufficient case – that is, enough to survive a motion for judgment of acquittal –  without relying on hearsay.  Once it does that, then under their theory the Clause does not constrain the introduction of further evidence, even of testimonial statements by witnesses who have not confronted the accused.  I think the theory has no basis in the language of the Clause, and on cursory inspection none in its history, either.  It would yield bad both results on both sides, allowing statements to be admitted when they shouldn’t be and excluding them when they should be admitted.

1.  As an introductory matter, I’ll respond to this question by the Nessons:  "Do you not recognize that twentieth century confrontation doctrine has been a mess?"

Of course it was a mess in the twentieth century.  I suppose, though, the Nessons mean to bring in the twenty-first century as well.  There my answer is more nuanced.  I think Crawford v. Washington got it right for the most part; Melendez-Diaz v. Massachusetts got it exactly right; Davis v. Washington began to muddle things up by speaking of primary purpose; Giles v. California made a bad mistake in not giving fuller force to forfeiture doctrine; Michigan v. Bryant further muddled things in various ways; and Justice Thomas’s insistence on a narrow formality test created confusion in Williams v. Illinois.  So overall I’m disappointed with the way matters have developed since Crawford; see my recent piece, Come Back to the Boat, Justice Breyer!   But Crawford is not the problem.  I think the muddle was created in large part by 200 years of lack of attention to the confrontation principle, with a focus instead on the oddities of hearsay law.  I suppose we shouldn’t be surprised that matters didn’t get set aright instantly with Crawford.

By the way, the Nessons claim coherence as one of the virtues of their approach.  I’m not sure that’s right – note their treatment of conspirator statements, discussed below – but at best coherence comes at a steep price, including, as I’ll show below, a lot of intolerable results (both pro-prosecution and pro-defense).  But there’s nothing incoherent about a testimonial approach, if properly developed.  Its essence can be stated simply while standing on one leg:

A testimonial statement (essentially, one made in reasonable anticipation of litigation use) may not be introduced against an accused unless the accused has an opportunity to be confronted by the witness who made the statement, and that opportunity must occur at trial if reasonably possible.  The accused may, however, forfeit the right by engaging in serious intentional misconduct that foreseeably renders confrontation impractical.

That’s mighty coherent, which is not to say that it would produce no close cases.

2.  I actually agree with the Nessons (and with Raymond LaMagna, a message from whom they have posted) that originally the principal value claimed for confrontation was the fact of bringing the witnesses face-to-face with the accused, not cross-examination.  (Wigmore, on whom the Nessons rely, belittled the face-to-face idea).  This is not surprising because the right to counsel developed late in felony cases.  But I think this fact is less important than might at first appear. Sir Thomas Smith’s description of a trial in the middle of the 16th century describes an “altercation” between accuser and accused, so the accused certainly did have the opportunity to address the accuser in a challenging, adversarial way.  And in Dial-In Testimony, 150 U.Pa. L. Rev. 1171, 1205 & n.125 (2002), Bridget McCormack and I showed that by the middle of the 17th century it was accepted in treason cases that the accused, even though not represented by counsel, would have an opportunity to pose questions to the prosecution witnesses.  In any event, there is simply nothing incompatible between the testimonial approach and the emphasis on bringing the witnesses face-to-face.  Indeed, the essence of the theory is that witnesses must testify face-to-face and not in other ways, such as by speaking privately to government officials as under the old Continental systems.

When I made this point in a prior comment, the Nessons responded: “Yes, and how can you say this and yet not recognize the Clause as a production rule?”  My reply: Sure, you can call the Clause a production rule if you want, in the sense that it says, “Prosecutor, if you want to present testimony from this witness, you have to produce the witness in court.”  It does not say, “If you present a barely sufficient case in court, then you can add onto it all the out-of-court testimony you want.” 

3.  LaMagna’s message says, as others have, that the distinction between testimonial and nontestimonial hearsay is arbitrary.  I think those who make this argument are thrown off by terminology.  The confrontation right is about witnesses.  That, of course, is the key term used by the Confrontation Clause; it does not refer to hearsay.  I think lots of history, much of it summarized in the Dial-In article, makes clear that the Confrontation Clause was meant to bring witnesses to trial.  The confrontation right was established, as I have said many times before, long before anything resembling the modern law of hearsay was.  (The confrontation right may be seen quite clearly in ancient times, as in the reference in the Book of Acts, 25:16, to insistence on witnesses being brought face-to-face; hearsay law didn’t develop in anything close to its modern form until about 1800.)  It’s no surprise, then, that the Clause spoke in terms of witnesses and not in terms of hearsay.  Now, who are witnesses?  They’re people who testify (in many languages, "witness" and "testify" have the same root) – and the Clause insists that they do so face-to-face with the accused rather than behind closed doors.  They’re not people who make causal statements going about their daily business.  That’s the basic distinction that Crawford drew, and it’s not at all arbitrary; if the Court had spoken in terms of "witness-y" statements, it might have been accused of butchering the English language, but I don't think anybody would have said that it was drawing an arbitrary distinction.  The term “testimonial hearsay” is a modern-day coinage, an anachronistic term that is meant to capture the idea of what happens when a person effectively acts as a witness without coming to trial.

4.  I said that if production of a minimally adequate case is what the confrontation right meant, it would have become apparent long ago.  The Nessons responded: “It was. Raleigh and Kirby are good authority for that. How do you dispute our reading of those cases?”

In reply, I’ll first amplify on my point.  If the confrontation right meant what the Nessons say it does, cases over the centuries would have been argued far differently.  When a prosecutor offered a testimonial statement made out of court, there would have been debate over whether the prosecution had presented a minimally adequate case at trial to prove the proposition in question, and if so, the out-of-court statement would have been admitted.  There would have been, for example, considerable litigation over just what the prosecution had to prove by other evidence.   Would it really be enough that the prosecution presented enough to withstand a motion for judgment of acquittal, and once that standard was satisfied the prosecution could present all the out-of-court statements (testimonial or not) that it wanted?  Or would it be necessary for admission of an out-of-court statement that the prosecution had proven every single material proposition contained in the statement – and if so had it done that in the particular case?  I just don’t think you see any of this at all in the cases.

I’ve already responded to the reading of Raleigh.  So briefly: Sure, Raleigh was able to argue, in effect, “Cobham’s testimony is no good, and without that you’ve got an inadequate case against me.”  But just as a matter of simple logic that doesn’t suggest that he was conceding – or that the historical revulsion to his treatment amounts to a concession – that if a barely adequate case were presented against him through other evidence then it would be just fine to present Cobham’s testimony without confrontation.

I think the response to the Kirby argument is similar.  There, an element of the crime – that stamps were stolen – was proven by the confession, made in another case, of another party to the transaction, and the Supreme Court held this was improper.  There’s nothing in the case suggesting that if there had been sufficient proper proof of the theft to get to the jury then it would be fine to introduce the confession as well.

5.  I also said that if production of a minimally adequate case was what the confrontation right was about, the Confrontation Clause wouldn't have been worded as it was.  The Nessons responded: “The wording of the clause says that the prosecution must confront the defendant with witnesses, not the other way around. Do you just pretend this isn't so?”

Actually, not only do I not pretend it isn’t so, I (successfully) litigated a Supreme Court case, Briscoe v. Virginia, to ensure that the point, which had been established in Melendez-Diaz, remained firmly established.  I’m always careful to say that the Clause gives the accused the right “to be confronted with” the witnesses against him, not “to confront” the witnesses against him.

But note that it’s “the witnesses against him” – not just some of the witnesses against him.  There is no suggestion in the language of the Clause, none whatsoever, that if the prosecution presents a minimally adequate case then other prosecution witnesses do not have to confront the accused.

The Confrontation Clause mimicked the language used in some of the early state constitutions.  Other early state constitutions used the formula that was more familiar – from, among other sources, treason statutes, saying that the witnesses had to be brought “face to face” with the accused.  Bridget McCormack and I quoted several of these in Dial-In Testimony, 150 U.Pa. L. Rev. at 1207 nn. 134, 135.  All of them used the definite article.  None contained any suggestion that production of a sufficient case might excuse production of other witnesses whose testimony the prosecution wished to use.  And note a Massachusetts statute of 1647, quoted id. at 1206, providing that “in all capital cases all witnesses shall be present wheresoever they dwell” (emphasis added).  If one wanted to write a provision requiring merely that sufficient proof of all elements of a crime be presented by live testimony, none of these formulations would have been appropriate.

6.  The Nessons rely heavily on a passage from a 1904 article by Wigmore, repeated verbatim in § 1364 of his treatise, in which Wigmore says that in the late 17th century there was “still a doctrine, clearly recognized, that a hearsay statement may be used as confirmatory or corroboratory of other testimony.”  They do not quote the sentence that immediately follows this passage, both in the article and in the treatise:

This limited doctrine as to using [a hearsay statement] in corroboration survived for a long time in a still more limited shape, i.e., in the rule that a witness’ own prior consistent statements could be used in corroboration of his testimony on the stand, and the latter was probably accepted as late as the end of the 1700s.

So even taken at face value, Wigmore contends at most that there had been, well before the time of the Confrontation Clause, a doctrine generally allowing hearsay (he does not distinguish between testimonial and non-testimonial statements) as corroboration of other testimony.  Wigmore does not appear to say that the hearsay could be used to corroborate circumstantial evidence; he seems to be speaking only of corroboration of testimony.  Nor does he suggest that if the prosecution proved a sufficient case for the matter to be submitted to the jury, there would be no constraint on the use of hearsay.  In any event, he acknowledges that the doctrine he describes withered away decades before the Confrontation Clause.  The remnant was a doctrine – entirely consistent with the testimonial approach – that if the declarant testifies at trial consistently with the prior statement, the statement is admissible as corroboration.  (Crawford actually goes further, and in my view too far, in suggesting that there is no confrontation problem in admitting a prior testimonial statement if the maker of the statement testifies at trial, even if inconsistently with the prior statement.)  And in fact, Knox’s Trial, 7 Howell’s St. Tr. 763, 790 (1679), the first of the four cases that Wigmore cites for the broader doctrine, involves only the narrower situation of a witness’s former statement.  The other cases are far less significant, even with respect to the earlier period and even with respect to the supposed doctrine described by Wigmore, than he contended.  They provide no support at all for the proposition that, even in this earlier period, out-of-court testimonial statements were acceptable so long as they corroborated admissible evidence.  To show involves going deep into the weeds; here is a link to a sort-of extended footnote on this point.

7.  I said previously, "The Nessons are just plain wrong in contending that Crawford continues to confound confrontation and hearsay."  They responded by pointing to my recent article, The Mold That Shapes Hearsay Law.  They claim that the thesis of that piece “makes Crawford nothing more than a constitutional back-up hearsay rule . . . to ‘plug the holes’ [not a phrase I used, by the way] left when the hearsay exceptions let testimonial hearsay slip by.”  This rendition distorts my article beyond recognition.  I argued (among other points) that the confrontation principle – the idea that a party has a right to demand that adverse witnesses testify face-to-face – shaped hearsay law, so that to a surprising degree the bounds of the various exemptions conform to that principle.  But over time, as the confrontation principle became obscured, the degree of this conformity loosened up.  This in no sense makes the confrontation principle a constitutional backup to the hearsay rule.  On the contrary, I believe the confrontation right existed long before the hearsay rule; it exists under the European Convention on Human rights, so it governs in jurisdictions where nothing resembling the hearsay rule applies; and if, as I hope, the hearsay rule as we know it is eliminated, the right will still exist. (I have an article soon to come out in DePaul Law Review, titled Jack Weinstein and the Missing Pieces of the Hearsay Puzzle, discussing this.)

The Nessons’ argument on this score is particularly perplexing to me because their own theory of confrontation is so heavily dependent on a definition of hearsay.  Here is a passage from their amicus brief in Clark:

Confrontation cases fall into two categories. In one category are the cases in which the non-hearsay and circumstantial evidence against the defendant is sufficient to convict. In this category, hearsay may corroborate the prosecution’s case but is not essential to it. This means that, even without the hearsay, the prosecution would survive a motion for dismissal at the close of the prosecution’s case.

    The second category consists of cases in which there is a hole in the prosecution’s proof that it tries to fill with hearsay. Without the hearsay, the prosecution’s case is legally insufficient. In this category, the hearsay, if admitted in evidence, is not merely corroborative of an otherwise sufficient case, but rather is essential to it. The admission of hearsay in such a case as a substitute for live testimony should violate the Confrontation Clause.

8.  As I understand the Nessons’ theory, its restrictive aspect – that an element of the prosecution’s case cannot be proved by hearsay alone – applies whether or not a statement falls within a traditional exception (and whether or not it is testimonial in nature).  Some impractical results, representing remarkable and unjustified changes from long-prevailing practices, would follow.

Others have already commented on two illustrations.  Roger Park raised the case of business records.  The Nessons shrugged aside the particular illustration presented by Roger on the basis that it involved a jurisdictional issue.  But of course that is not always the case.  It is often part of a prosecutor’s case to prove that a given transaction occurred at a particular time, and perhaps at a particular price.  For centuries, the shopbook rule has made clear that this may be done by bringing in records that can be shown to have been prepared as part of a business routine, rather than in contemplation of litigation.  Under the testimonial approach, by contrast, these statements are easily handled: Statements that are not made in contemplation of litigation are not testimonial (contrast most lab reports), and the Confrontation Clause has nothing to do with them.

The other, raised by Alex Whiting, involves conspirator statements.  The Nessons shrug this aside, too, saying that a statement made during the course of and in furtherance of a conspiracy of which the accused is a part is deemed to be a statement of the accused.  Well, that’s what the prevailing hearsay law says, but one of the virtues of the testimonial approach is that it frees us from having to spout such fictions.  Of course if A and B are both members of a conspiracy and B makes a statement that may be deemed to advance the conspiracy’s goals, that statement is not truly A’s statement.  The fictitious quality of a rule deeming such a statement to be one made by A is augmented by courts’ willingness to perceive very far flung conspiracies and to be creative in imagining how given statements may have advanced the aims of the conspiracy.  I should emphasize that I am not suggesting that conspirators’ statements should be inadmissible.  On the contrary, I think they should be, and the courts’ tendency to stretch the hearsay exemption for them is perfectly understandable.  Though these statements are often dubious, often they are very probative evidence.  The reason they should be admitted against an accused is not that they are in any meaningful sense a statement of the accused but that they are not testimonial in nature; they are statements made in the ordinary course of daily (dirty) business.

A third case is dying declarations.  These have been admitted for three centuries or so, and I don’t think any theory that put a flat ban on them would be happily tolerated.  They often provide critical information not corroborated by any other evidence.  As I understand it, the Nesssons’ theory would bar prosecution based on a dying declaration.   Perhaps they would concede to reality, at the price of undermining coherence, by creating an exception to their theory.  (Crawford, similarly, suggested that dying declarations may be a sui generis exception to the treatment of testimonial statements.  I have argued repeatedly that these cases would be better handled by applying forfeiture doctrine to them.  It would require a significant alteration of the holding in Giles v. California to achieve this result; this is one reason among several to hope for such an alteration.)

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The time I've spent responding to the Nessons reflects my longstanding connections to both of them and my personal regard for the.  But I suppose I've conveyed that I don't think much of their theory.