Wednesday, September 04, 2019
Laird Kirkpatrick on forensic reports
I previously posted an entry about Stuart v. Alabama and Justice Gorsuch's dissent from the denial of certiorari in that case. Laird Kirkpatrick, who for decades has been one of the nation's outstanding Evidence scholars, has written a very fine analysis of that dissent and what it, and other auguries, suggest about the law governing the Confrontation Clause implications of forensic reports. I'm attaching it here. It has been published, without footnotes (and a slightly inaccurate bio; Laird has been teaching for a long time, but not at GW until the first decade of this century) in the University of Chicago Law Review Online. He makes many excellent points. I think his treatments of the "targeted individual" and formality tests are particularly telling. And he gives reason to think that the Court may not be ready to turn its back on Crawford and Melendez-Diaz.
Wednesday, August 28, 2019
BIO and reply in support of petition in White v. Louisiana
I previously blogged about White v. Louisiana, in which a cert petition is pending. You can find the documents here. They now include the State's Brief in Opposition and the Reply Brief in support of the petition. The case has gotten a good bit of attention. We'll learn soon if the Court will take the case. I think it should; the egregious result in this case is itself a demonstration that this area of confrontation law badly needs cleaning up.
Wednesday, August 21, 2019
Important DC Circuit opinion on unavailability
Yesterday, the U.S. Court of Appeals for the D.C. Circuit issued an opinion, in U.S. v. Burden, that may be important in determining unavailability of a witness. I consulted informally with Burden’s counsel during the appeal, so I will be constrained in making comments until I am confident this issue is resolved in the case. But briefly:
Burden was convicted of illegal export of defense articles. A critical witness against him was Yindeear-Rom (Y-R). Trial was twice postponed, in part to allow for translation of documents. But the second postponement pushed the trial date until after Y-R was scheduled to be released from prison; he was to be deported after that. So the Government moved to take his deposition to preserve his testimony. The defense objected, at least largely on the basis that given the state of the documents it was unable to prepare for the deposition. But the trial court allowed the deposition, and it took place over four days. It was videotaped in court before the trial judge; Burden was present and counsel cross-examined on his behalf. Y-R was then deported to Thailand. According to the DC Circuit, there is no record that the Government made any efforts before deporting him to secure his presence at trial. It did make efforts afterwards, but to no avail; Y-R had no interest in returning. I gather the Government had no means (say, through a treaty provision) of compelling him to do so. The Government sought to use the deposition at trial. Burden objected, but the trial court allowed the use.
The D.C. Circuit treated the case as if the only issue was unavailability, citing Crawford, 541 U.S. at 57. (Burden still had the argument that the opportunity for cross was inadequate, but the appellate court paid no attention to that.) The court emphasized that in a situation like this, where the Government seeks to use prior testimony of a witness it contends is unavailable, it must demonstrate that it made as vigorous an attempt to secure the witness’s appearance at trial as it would have made had it not had the prior testimony to rely on. The court declined to hold that there is a per se rule that if the Government deports the witness it cannot claim unavailability, but it said that in such a case the Government would have to make “greater exertions” to satisfy the standard of good faith and reasonable efforts. Here, before deportation, the Government “did not give Yindeear-Rom a subpoena, offer to permit and pay for him either to remain in the U.S. or to return here from Thailand, obtain his commitment to appear, confirm his contact information, or take any other measures.” The court declined to say just what the Government should have done in this case. But it held explicitly that “the duty to use reasonable means to procure a witness’s presence at trial includes the duty to use reasonable efforts to prevent a witness from becoming absent in the first place.” And here, though of course the Government had taken Y-R’s deposition, in light of the fact that the Government had made no efforts before deportation to secure his presence at trial, Y-R could not be considered unavailable.
Notably, the court did not inquire as to whether Burden was prejudiced, given the opportunity to cross-examine Y-R at deposition, by Y-R’s absence from the trial itself. That may be because the Government conceded that if use of the deposition was error it was not harmless. But, because assessment of prejudice in determining whether there was an error is not the same as assessment of harmlessness of an error, I am inclined to read the court’s opinion as effectively holding that, even given a videotaped deposition in the presence of the judge and with cross-examination, in the absence of any substantial efforts before deporting a witness to secure the witness’s attendance at trial, the witness should not be deemed unavailable, and the defense need not show prejudice.
Burden was convicted of illegal export of defense articles. A critical witness against him was Yindeear-Rom (Y-R). Trial was twice postponed, in part to allow for translation of documents. But the second postponement pushed the trial date until after Y-R was scheduled to be released from prison; he was to be deported after that. So the Government moved to take his deposition to preserve his testimony. The defense objected, at least largely on the basis that given the state of the documents it was unable to prepare for the deposition. But the trial court allowed the deposition, and it took place over four days. It was videotaped in court before the trial judge; Burden was present and counsel cross-examined on his behalf. Y-R was then deported to Thailand. According to the DC Circuit, there is no record that the Government made any efforts before deporting him to secure his presence at trial. It did make efforts afterwards, but to no avail; Y-R had no interest in returning. I gather the Government had no means (say, through a treaty provision) of compelling him to do so. The Government sought to use the deposition at trial. Burden objected, but the trial court allowed the use.
The D.C. Circuit treated the case as if the only issue was unavailability, citing Crawford, 541 U.S. at 57. (Burden still had the argument that the opportunity for cross was inadequate, but the appellate court paid no attention to that.) The court emphasized that in a situation like this, where the Government seeks to use prior testimony of a witness it contends is unavailable, it must demonstrate that it made as vigorous an attempt to secure the witness’s appearance at trial as it would have made had it not had the prior testimony to rely on. The court declined to hold that there is a per se rule that if the Government deports the witness it cannot claim unavailability, but it said that in such a case the Government would have to make “greater exertions” to satisfy the standard of good faith and reasonable efforts. Here, before deportation, the Government “did not give Yindeear-Rom a subpoena, offer to permit and pay for him either to remain in the U.S. or to return here from Thailand, obtain his commitment to appear, confirm his contact information, or take any other measures.” The court declined to say just what the Government should have done in this case. But it held explicitly that “the duty to use reasonable means to procure a witness’s presence at trial includes the duty to use reasonable efforts to prevent a witness from becoming absent in the first place.” And here, though of course the Government had taken Y-R’s deposition, in light of the fact that the Government had made no efforts before deportation to secure his presence at trial, Y-R could not be considered unavailable.
Notably, the court did not inquire as to whether Burden was prejudiced, given the opportunity to cross-examine Y-R at deposition, by Y-R’s absence from the trial itself. That may be because the Government conceded that if use of the deposition was error it was not harmless. But, because assessment of prejudice in determining whether there was an error is not the same as assessment of harmlessness of an error, I am inclined to read the court’s opinion as effectively holding that, even given a videotaped deposition in the presence of the judge and with cross-examination, in the absence of any substantial efforts before deporting a witness to secure the witness’s attendance at trial, the witness should not be deemed unavailable, and the defense need not show prejudice.
Wednesday, July 03, 2019
Julien v. State, 2019 WL 2750591, a decision issued yesterday by the Texas Court of Appeals, First District, shows how vulnerable the law of confrontation is with respect to fresh accusations. As in Hammon v. Indiana, this was a domestic violence case, involving a statement made in the house by the complainant a considerable time after the alleged incident to responding police officers; here it was three hours later because, unaccountably, that is how long it took to respond to repeated 911 calls. The principal difference was that here the suspect had left the house by the time the officers arrived; in Hammon, he was kept at bay by one officer while another spoke with the complainant.
In supporting the conclusion that the purpose of the questioning was to relieve an ongoing emergency, the Julien court first noted that on arrival the officers asked what happened -- which is ironic given that in Davis-Hammon that question (as contrasted to "What is happening?") was considered an indicator that the response would be testimonial. Of course, in this case, as in Hammon, the speaker was protected as she made the statement, and given that the allegation was of domestic violence there was no plausible fear that the suspect was off on a rampage against others. But, the court said, the whereabouts of the suspect were not known. Therefore: "The primary purpose of the questioning was not to document a past crime, but instead to assess the situation, determine the location of the suspect, and ascertain whether the threat remained."
I think everybody has to have understood that the complainant was giving the officers evidence that could be used in prosecuting Julien. It should have been an easy case to call this testimonial. The holding to the contrary just provides a glaring demonstrating of how completely malleable the "primary purpose" test is; if a court wants to wave the evidence in it can almost always mouth sufficient words to reach a conclusion that the primary purpose of the conversation (and usually the court will focus on the officers rather than on the speaker) was something other than the transmission of evidence.
Let's also not ignore the horrible incentives this decision creates. Sure, officers, you can respond at leisure to a 911 call; we'll still be able to say that the conversation was meant to respond to an ongoing emergency. Better to wait, in fact, because then the suspect will likely have left, and you can say you didn't know his whereabouts.
These cases should be decided from the point of view of a reasonable person in the position of the speaker, not from that of the investigator or some kind of mishmashed joint perspective. And the question should be whether there was a reasonable expectation that the statement would be used in prosecution. That was clearly so here. The statement was testimonial -- and the confrontation right should have prevailed, unless Julien forfeited it, as by intimidating the speaker.
Tuesday, May 28, 2019
White v. Louisiana: a cert petition to watch
White v. Louisiana, No. 18-8862, may provide the Supreme Court with an opportunity to begin clarifying and repairing the doctrine governing prior statements of a witness who takes the stand at trial but who has insufficient memory to allow a genuine opportunity for cross. The docket sheet for the case, including links to case documents, is here.
In White, a murder case, the only evidence implicating White was the (subsequently recanted) videotaped statement of one Coleman, made to police officers. Coleman took the stand at trial, but because of an accident that had occurred since the time he made the statement, he could remember neither the statement nor the underlying events. The trial court nevertheless held that this was sufficient. White was convicted and sentenced to life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. The Louisiana Court of Appeals affirmed, and the Louisiana Supreme Court declined to take the case.
The cert petition is in form pro se, but my understanding is that it was written by a fellow prisoner who is an extremely capable lawyer; it is very effective. The State waived the right to respond to the petition, but the Court has asked for a response, and it is due on August 13. Meanwhile, the National Association of Criminal Defense Lawyers and I have each submitted amicus briefs in support of the petition, and Jeff Fisher has appeared for White as counsel of record.
My own feeling is that it cannot be the law that if a shell of a person is able to take the witness stand and take the oath, that constitutes an adequate opportunity for cross-examination, even if the witness has essentially no memory of the event or even of the statement. This should have been an easy case, because Coleman suffered a catastrophic memory loss after the statement and before trial, and the fact that the Louisiana courts thought there was nevertheless no constitutional violation shows the need for Supreme Court intervention. Ultimately, I hope the Court recognizes that prior statements of a witness pose a problem if the witness has suffered such a memory loss since the time of the statement as to impair cross-examination significantly. But the extreme nature of the facts in this case means that the Court need not make any grand pronouncements; it can take a small step in this case to begin to develop the law in this area along satisfactory lines.
In White, a murder case, the only evidence implicating White was the (subsequently recanted) videotaped statement of one Coleman, made to police officers. Coleman took the stand at trial, but because of an accident that had occurred since the time he made the statement, he could remember neither the statement nor the underlying events. The trial court nevertheless held that this was sufficient. White was convicted and sentenced to life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. The Louisiana Court of Appeals affirmed, and the Louisiana Supreme Court declined to take the case.
The cert petition is in form pro se, but my understanding is that it was written by a fellow prisoner who is an extremely capable lawyer; it is very effective. The State waived the right to respond to the petition, but the Court has asked for a response, and it is due on August 13. Meanwhile, the National Association of Criminal Defense Lawyers and I have each submitted amicus briefs in support of the petition, and Jeff Fisher has appeared for White as counsel of record.
My own feeling is that it cannot be the law that if a shell of a person is able to take the witness stand and take the oath, that constitutes an adequate opportunity for cross-examination, even if the witness has essentially no memory of the event or even of the statement. This should have been an easy case, because Coleman suffered a catastrophic memory loss after the statement and before trial, and the fact that the Louisiana courts thought there was nevertheless no constitutional violation shows the need for Supreme Court intervention. Ultimately, I hope the Court recognizes that prior statements of a witness pose a problem if the witness has suffered such a memory loss since the time of the statement as to impair cross-examination significantly. But the extreme nature of the facts in this case means that the Court need not make any grand pronouncements; it can take a small step in this case to begin to develop the law in this area along satisfactory lines.
Saturday, April 27, 2019
A reminder that an excited utterance can be testimonial
People v. Allen, a decision handed down yesterday by a justice of the Supreme Court of New York (the trial court of general jurisdiction) for Queens County provides a useful reminder that a statement may be testimonial even though it fits within the malleable hearsay exception for excited utterances.
Allen is accused of weapons possession charges. He allegedly robbed two men, Forbes and Warner, at gunpoint. Shortly afterwards, three officers saw a gun being pointed out of Allen’s vehicle. After a high-speed chase, ending conveniently enough outside a precinct station house, Allen was apprehended and handcuffed; one of the officers said that the threat he posed had been “neutralized.” Forbes and Warner had joined in the chase, and Forbes, with considerable excitement, told the officers that Allen had robbed him. Allen was initially charged with robbery, among other offenses, but Forbes stopped cooperating, and that charge was dropped; the prosecution proceeded on weapons charges. The People sought to present the officer’s testimony of Forbes’s statement to prove the robbery on various non-propensity grounds. (If the statement were admissible for its truth, then it presumably could have supported the robbery charge; perhaps the prosecution had some sense that this was not quite right.)
The judge, Hon. Joseph A. Zayas, held that Forbes’s statements “land firmly on the testimonial side of the divide.” He first swatted away, quite properly, an argument that the statements could not have been testimonial because they were unprompted; Davis v. Washington, 547 U.S. at 822 n.1, had already made clear that there’s no merit to that argument. Moving beyond that, the justice noted that “ it would have been obvious to Forbes, even in his agitated state, that defendant was under arrest and the emergency he allegedly created by speeding through the streets of Astoria, armed with a gun, was over”; he made his statement to the officers “to make them aware of a crime defendant had committed a short time earlier.” And the conclusion that the statements were testimonial was not undermined by the fact that the circumstances “lacked the formality and structure of, for example, a sit-down interview inside a station house”; the statements were “a weighty allegation leveled in a setting in which it was likely to be immediately acted upon.”
And finally, though the justice had little doubt that the statements would qualify as excited utterances for hearsay purposes, that did not answer the confrontation question. The statements were still testimonial, because even in his excitement “it must have been obvious to Forbes — or at least it would have been obvious to a reasonable person in his position — that his accusatory statements would be used to further the investigation of the man who was standing before him, in front of a police station, handcuffed and surrounded by officers.”
These points should all be obvious, and Justice Zayas had good authority for all of them, but not all judges are so clear-headed on these matters, so it was refreshing to see this opinion.
Allen is accused of weapons possession charges. He allegedly robbed two men, Forbes and Warner, at gunpoint. Shortly afterwards, three officers saw a gun being pointed out of Allen’s vehicle. After a high-speed chase, ending conveniently enough outside a precinct station house, Allen was apprehended and handcuffed; one of the officers said that the threat he posed had been “neutralized.” Forbes and Warner had joined in the chase, and Forbes, with considerable excitement, told the officers that Allen had robbed him. Allen was initially charged with robbery, among other offenses, but Forbes stopped cooperating, and that charge was dropped; the prosecution proceeded on weapons charges. The People sought to present the officer’s testimony of Forbes’s statement to prove the robbery on various non-propensity grounds. (If the statement were admissible for its truth, then it presumably could have supported the robbery charge; perhaps the prosecution had some sense that this was not quite right.)
The judge, Hon. Joseph A. Zayas, held that Forbes’s statements “land firmly on the testimonial side of the divide.” He first swatted away, quite properly, an argument that the statements could not have been testimonial because they were unprompted; Davis v. Washington, 547 U.S. at 822 n.1, had already made clear that there’s no merit to that argument. Moving beyond that, the justice noted that “ it would have been obvious to Forbes, even in his agitated state, that defendant was under arrest and the emergency he allegedly created by speeding through the streets of Astoria, armed with a gun, was over”; he made his statement to the officers “to make them aware of a crime defendant had committed a short time earlier.” And the conclusion that the statements were testimonial was not undermined by the fact that the circumstances “lacked the formality and structure of, for example, a sit-down interview inside a station house”; the statements were “a weighty allegation leveled in a setting in which it was likely to be immediately acted upon.”
And finally, though the justice had little doubt that the statements would qualify as excited utterances for hearsay purposes, that did not answer the confrontation question. The statements were still testimonial, because even in his excitement “it must have been obvious to Forbes — or at least it would have been obvious to a reasonable person in his position — that his accusatory statements would be used to further the investigation of the man who was standing before him, in front of a police station, handcuffed and surrounded by officers.”
These points should all be obvious, and Justice Zayas had good authority for all of them, but not all judges are so clear-headed on these matters, so it was refreshing to see this opinion.
Friday, April 26, 2019
A belated assessment: People v. Sanchez
I realize I never posted anything about the California Supreme Court’s 2016 decision in People v. Sanchez, 63 Cal.4th 665, 374 P.3d 320, 204 Cal.Rptr.3d 102 (Cal. 2016). This case deals with the Confrontation Clause implications of expert testimony. It is one of the most significant post-Crawford cases dealing with the Clause from the lower courts, and probably the most significant lower-court treatment of the mess resulting from Williams v. Illinois.
Marcos Sanchez was tried on firearms charges and on gang-related charges. A key witness against him was David Stow, a detective and gang expert. Stow testified about gang culture in general and about the Delhi gang, the one involved in this case. This evidence, based on his long familiarity with this gang among others, appears to have been unproblematic.
The questioning then turned to Sanchez personally. Stow relied on certain police documents. Under California’s Street Terrorism Enforcement and Prevention Act, police give so-called STEP notices to individuals associating with known gang members. The notice informs the recipient that he is associating with a known gang and therefore putting himself at increased legal peril. The officer records the date and time of the notice and identifying information for the recipient and his associates. The notice may also record statements made by recipients at the time. Such statements may also be recorded by the officer, along with other information about the interaction, on field information or “FI” cards. Stow testified that a STEP notice given to Sanchez in 2011 included a notation that Sanchez had “kicked it” – associated – with guys from Delhi for four years and had gotten “busted” with two Delhi members. Based on this and other police records, Stow, who had never met Sanchez and was not present at the police contacts with him, gave his opinion that Sanchez was a member of the Delhi gang and that certain of his actions were intended to aid the gang. Sanchez was convicted and appealed. The intermediate appellate court reversed his conviction for active gang participation but otherwise affirmed. The state supreme court then granted his petition for review.
The court reviewed history with respect to the intersection of the rules on hearsay and on expert opinions. Traditional law allowed an expert to give an opinion based on general knowledge of the field of expertise; the hearsay rule did not pose an obstacle to the expert’s reliance on out-of-court sources. But, the court noted, “an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge.” The court gave several examples. For example, it would be a case-specific fact that 15 feet of skid marks were measured at an accident, or that a particular associate of the defendant had a diamond tattooed on his arm. In time, the courts recognized exceptions to the general rule barring disclosure of, and reliance on, case-specific hearsay; the exceptions covered testimony about property valuation and medical diagnosis. Courts recognized that experts in the these areas relied on other people’s observations as to case-specific facts in making their assessments in their ordinary practice, and the court adopted the practice. Ultimately, the California Evidence Code, § 801, broadened this exception so that it swallowed the rule; this provision, a precursor to Fed. R. Evid. 703, prescribes that an expert may base an opinion on information made known to him or her, whether or not admissible, if it is of a type that may be reasonably relied on by experts in forming similar opinions. Moreover § 802 generally allows the expert to state on direct examination the reasons for the opinion. Under this paradigm, there was no need to distinguish carefully between background information and case-specific facts. Instead, California courts asked whether a jury could properly a limiting instruction (to use information otherwise inadmissible only for the purpose of assessing the opinion). But, the court concludes, “this paradigm is no longer tenable because the expert’s testimony regarding the basis for an opinion must be considered for its truth by the jury.”
The court notes that in Williams, in the Confrontation Clause context, the U.S. Supreme Court addressed the issue of whether “basis” testimony is offered for the truth of the matter asserted. The court comes down squarely on the side of a majority of justices – Justice Thomas and the dissenters – on this issue: “When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert’s opinion, it cannot logically be asserted that the hearsay content is not offered for its truth.”
Thus, the court resurrects the significance for hearsay purposes of whether the out-of-court statement is case-specific. And it also gives that factor significance in determining whether there is a Confrontation Clause problem. (Probably a statement relied on by an expert that is not case-specific would not be testimonial.) So in this case:
(1) The court holds that when Stow testified to case-specific facts based on out-of-court statements on which he had relied in forming his opinion, he was reciting hearsay. True, but suppose the statement is case-specific but not testimonial (e.g., the results of a blood test), in which case, of course, it does not pose a Confrontation Clause problem. Should the hearsay rule nevertheless exclude it? Personally, I don’t think that has to be so; in this sense the decision may be more stringent than necessary as a matter of hearsay policy. (I wonder also whether the police officer’s statements come within the exception for official records. Note that Sanchez’s statements would be personal admissions.)
(2) If such a case-specific statement is testimonial, then there is a Confrontation Clause violation unless the maker of the statement is unavailable and the defendant had a prior opportunity for cross or forfeited the right by wrongdoing. Absolutely right.
In this case, Stow relied in part on police reports compiled during investigation of completed crimes. The court holds these testimonial, and rejects the Williams plurality’s “targeted individual” test. Good!
The court also holds that the portion of the STEP notice retained by the police, which contained an officer’s recording of statements made by the defendant, was testimonial. It was clear that this recording was made to be able to use the statements, and the notice that Sanchez was associating with gang members, for possible enhanced punishment in a later prosecution. I think it’s an interesting issue whether this is correct even though the statement was made before the crime with which Sanchez was charged had been committed. Is this different from, say, a record of deportation, which most courts do not treat as testimonial when offered in a prosecution for illegal re-entry? Arguably, it is different. The STEP notice indicates an ongoing association, and an anticipation that the recipient will be accused of a future crime.
The court leaves undecided whether the FI card on which Stow relied was testimonial; whether it was produced in the course of an ongoing criminal investigation was not clear.
Finally, the court decides that the error in allowing Stow to rely on the reports and the STEP notice was not harmless, because that accounted for the great majority of the evidence associating Sanchez with the Delhi gang. Thus, it reversed the trial court’s findings supporting enhancements for street-gang association.
This is an important, clear-eyed case. It may be more restrictive than necessary with respect to non-testimonial hearsay, which of course does not invoke the Confrontation Clause. But it emphatically recognizes that when an expert relies on the truth of a statement in reaching an opinion that statement is effectively being used for its truth. And it also recognizes that the reports and STEP notices here were made for prosecutorial purposes; it does not try to evade the consequences of characterizing them as testimonial.
Marcos Sanchez was tried on firearms charges and on gang-related charges. A key witness against him was David Stow, a detective and gang expert. Stow testified about gang culture in general and about the Delhi gang, the one involved in this case. This evidence, based on his long familiarity with this gang among others, appears to have been unproblematic.
The questioning then turned to Sanchez personally. Stow relied on certain police documents. Under California’s Street Terrorism Enforcement and Prevention Act, police give so-called STEP notices to individuals associating with known gang members. The notice informs the recipient that he is associating with a known gang and therefore putting himself at increased legal peril. The officer records the date and time of the notice and identifying information for the recipient and his associates. The notice may also record statements made by recipients at the time. Such statements may also be recorded by the officer, along with other information about the interaction, on field information or “FI” cards. Stow testified that a STEP notice given to Sanchez in 2011 included a notation that Sanchez had “kicked it” – associated – with guys from Delhi for four years and had gotten “busted” with two Delhi members. Based on this and other police records, Stow, who had never met Sanchez and was not present at the police contacts with him, gave his opinion that Sanchez was a member of the Delhi gang and that certain of his actions were intended to aid the gang. Sanchez was convicted and appealed. The intermediate appellate court reversed his conviction for active gang participation but otherwise affirmed. The state supreme court then granted his petition for review.
The court reviewed history with respect to the intersection of the rules on hearsay and on expert opinions. Traditional law allowed an expert to give an opinion based on general knowledge of the field of expertise; the hearsay rule did not pose an obstacle to the expert’s reliance on out-of-court sources. But, the court noted, “an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge.” The court gave several examples. For example, it would be a case-specific fact that 15 feet of skid marks were measured at an accident, or that a particular associate of the defendant had a diamond tattooed on his arm. In time, the courts recognized exceptions to the general rule barring disclosure of, and reliance on, case-specific hearsay; the exceptions covered testimony about property valuation and medical diagnosis. Courts recognized that experts in the these areas relied on other people’s observations as to case-specific facts in making their assessments in their ordinary practice, and the court adopted the practice. Ultimately, the California Evidence Code, § 801, broadened this exception so that it swallowed the rule; this provision, a precursor to Fed. R. Evid. 703, prescribes that an expert may base an opinion on information made known to him or her, whether or not admissible, if it is of a type that may be reasonably relied on by experts in forming similar opinions. Moreover § 802 generally allows the expert to state on direct examination the reasons for the opinion. Under this paradigm, there was no need to distinguish carefully between background information and case-specific facts. Instead, California courts asked whether a jury could properly a limiting instruction (to use information otherwise inadmissible only for the purpose of assessing the opinion). But, the court concludes, “this paradigm is no longer tenable because the expert’s testimony regarding the basis for an opinion must be considered for its truth by the jury.”
The court notes that in Williams, in the Confrontation Clause context, the U.S. Supreme Court addressed the issue of whether “basis” testimony is offered for the truth of the matter asserted. The court comes down squarely on the side of a majority of justices – Justice Thomas and the dissenters – on this issue: “When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert’s opinion, it cannot logically be asserted that the hearsay content is not offered for its truth.”
Thus, the court resurrects the significance for hearsay purposes of whether the out-of-court statement is case-specific. And it also gives that factor significance in determining whether there is a Confrontation Clause problem. (Probably a statement relied on by an expert that is not case-specific would not be testimonial.) So in this case:
(1) The court holds that when Stow testified to case-specific facts based on out-of-court statements on which he had relied in forming his opinion, he was reciting hearsay. True, but suppose the statement is case-specific but not testimonial (e.g., the results of a blood test), in which case, of course, it does not pose a Confrontation Clause problem. Should the hearsay rule nevertheless exclude it? Personally, I don’t think that has to be so; in this sense the decision may be more stringent than necessary as a matter of hearsay policy. (I wonder also whether the police officer’s statements come within the exception for official records. Note that Sanchez’s statements would be personal admissions.)
(2) If such a case-specific statement is testimonial, then there is a Confrontation Clause violation unless the maker of the statement is unavailable and the defendant had a prior opportunity for cross or forfeited the right by wrongdoing. Absolutely right.
In this case, Stow relied in part on police reports compiled during investigation of completed crimes. The court holds these testimonial, and rejects the Williams plurality’s “targeted individual” test. Good!
The court also holds that the portion of the STEP notice retained by the police, which contained an officer’s recording of statements made by the defendant, was testimonial. It was clear that this recording was made to be able to use the statements, and the notice that Sanchez was associating with gang members, for possible enhanced punishment in a later prosecution. I think it’s an interesting issue whether this is correct even though the statement was made before the crime with which Sanchez was charged had been committed. Is this different from, say, a record of deportation, which most courts do not treat as testimonial when offered in a prosecution for illegal re-entry? Arguably, it is different. The STEP notice indicates an ongoing association, and an anticipation that the recipient will be accused of a future crime.
The court leaves undecided whether the FI card on which Stow relied was testimonial; whether it was produced in the course of an ongoing criminal investigation was not clear.
Finally, the court decides that the error in allowing Stow to rely on the reports and the STEP notice was not harmless, because that accounted for the great majority of the evidence associating Sanchez with the Delhi gang. Thus, it reversed the trial court’s findings supporting enhancements for street-gang association.
This is an important, clear-eyed case. It may be more restrictive than necessary with respect to non-testimonial hearsay, which of course does not invoke the Confrontation Clause. But it emphatically recognizes that when an expert relies on the truth of a statement in reaching an opinion that statement is effectively being used for its truth. And it also recognizes that the reports and STEP notices here were made for prosecutorial purposes; it does not try to evade the consequences of characterizing them as testimonial.
Objecting to hearsay, and forgetting about the Confrontation Clause
Before Crawford, it was not surprising that defense counsel sometimes failed to make Confrontation Clause objections; it wasn't clear what the Clause added to hearsay law. But now counsel really should be more careful. And yet some fail to do so. A case decided yesterday by the California Court of Appeal, People v. McCormick, underlines the point in an odd way.
This was a robbery case. Almost 12 weeks later, after a chance encounter, one of the victims, C.G., identified McCormick to a police officer. C.G. did not testify at the preliminary hearing, and by the time of trial he had moved out of state. Nevertheless, the officer testified to the identification made by C.G. Defense counsel objected on hearsay grounds, but not on Confrontation Clause grounds.
The court of appeal noted that the hearsay objection should have been sustained. But oddly, the appeal was not on the basis of evidentiary error. Rather, it appears to have been only on the ground of ineffective assistance of counsel; the lawyer also missed an obvious Miranda objection.
The court of appeal, quite properly, had no doubt that the identification statement was testimonial. Perhaps leaning over backwards, the court held that "counsel may have made a reasonable tactical decision to forgo requiring the prosecutor to establish" that C.G. was legally unavailable. But it asserted that the same could not be said with respect to a prior opportunity for cross-examination; plainly, there was none. And counsel did object on hearsay grounds, so there was no plausible tactical reason not to object on Confrontation Clause grounds. The performance was constitutionally deficient, and it was clearly prejudicial.
So it's the right result, and it should have been reachable on hearsay grounds. But it's frustrating, 15 years after Crawford, to see defense counsel failing to be sufficiently sensitized to the Confrontation Clause to make an obvious objection.
This was a robbery case. Almost 12 weeks later, after a chance encounter, one of the victims, C.G., identified McCormick to a police officer. C.G. did not testify at the preliminary hearing, and by the time of trial he had moved out of state. Nevertheless, the officer testified to the identification made by C.G. Defense counsel objected on hearsay grounds, but not on Confrontation Clause grounds.
The court of appeal noted that the hearsay objection should have been sustained. But oddly, the appeal was not on the basis of evidentiary error. Rather, it appears to have been only on the ground of ineffective assistance of counsel; the lawyer also missed an obvious Miranda objection.
The court of appeal, quite properly, had no doubt that the identification statement was testimonial. Perhaps leaning over backwards, the court held that "counsel may have made a reasonable tactical decision to forgo requiring the prosecutor to establish" that C.G. was legally unavailable. But it asserted that the same could not be said with respect to a prior opportunity for cross-examination; plainly, there was none. And counsel did object on hearsay grounds, so there was no plausible tactical reason not to object on Confrontation Clause grounds. The performance was constitutionally deficient, and it was clearly prejudicial.
So it's the right result, and it should have been reachable on hearsay grounds. But it's frustrating, 15 years after Crawford, to see defense counsel failing to be sufficiently sensitized to the Confrontation Clause to make an obvious objection.
Friday, February 15, 2019
A new and interesting case on the not-for-truth end run
Stu Dedopoulos, a blog reader who diligently keeps me informed, has told me about Orlando v. Nassau County District Attorney’s Office, an interesting Second Circuit case decided this week. In a 2-1decision, the majority (Circuit Judge Droney, joined by Circuit Judge Jacobs), upheld a Confrontation Clause challenge on habeas. I think this was probably the right decision, but it’s a tough case, and there’s a very fine dissent by District Judge Shea. The case is a good illustration of the difficulties that arise when the prosecution tries to justify what appears at first glance to be a blatant Confrontation Clause violation by citing an arguably plausible not-for-the-truth basis of admissibility. Evidence teachers might find that it’s good fodder for an exam question.
Mark Orlando was accused of paying Herva Jeannot to murder Bobby Calabrese, allegedly to avoid paying a $17,000 gambling debt. The police, believing that Orlando and Jeannot had been together the night of the shooting (in Island Park, NY, a few miles from where I grew up), interviewed them separately. Orlando at first said he and Jeannot had gone together to pay Calabrese, they did so, and then left, without incident. After some hours, one of the detectives returned repeatedly, eventually telling Orlando that Jeannot had given what they felt were “truer versions” of the events, and that Jenanot had admitted shooting Calabrese but said that Orlando had paid him to do it. At that point, Orlando, who had said he was afraid of Jeannot, gave another statement, to the effect that after he paid Calabrese Jeannot unexpectedly shot him and took the money.
Orlando and Jeannot were both charged with murder. The trials were severed, quite properly given Jeannot's confession, which plainly could not be introduced against Orlando for the truth of what it asserted. But at Orlando's trial, the prosecution, over objection, presented evidence of all of the encounters between Orlando and the police described above – Orlando's first statement, the later interchange between Orlando and the detective, including the detective's summary of and apparent endorsement of Jeannot's statement admitting to the shooting and implicating Orlando, and Orlando's second statement acknowledging being present at the time Jeannot shot Calabrese. Orlando was convicted, lost on appeals in the New York system and before the district court on his habeas petition, but won in the court of appeals.
I think the majority was right to emphasize that Jeannot was effectively a witness against Orlando; his statement was plainly testimonial. I think it's also clear that, despite a limiting instruction that the trial judge gave, it's virtually certain that the jury would consider Jeannot's statement for the truth of its assertion that Orlando paid for the killing. And, as the majority points out, in this case the evidence included not only the substance of the accusatory confession but also an effective endorsement by the police, a factor not present in Bruton.
But the case is not quite like Bruton. There, the statement was admissible against the confessor, Evans, not against his co-defendant, Bruton. The Supreme Court held that a limiting instruction would be ineffective; severance was required. Here, there already was severance. But the argument is that the evidence was admissible against Orlando for some reason other than to prove the truth of what it asserted. And it is clear under Tennessee v. Street, which was reaffirmed by Crawford, that a statement does not pose a Confrontation Clause problem when it is admitted to prove some proposition other than the truth of a matter it asserted.
So what was that other proposition? I take it as given that the prosecution had good grounds to show that Orlando gave shifting exculpatory stories; a person is more likely to shift stories if he is guilty and is adjusting to new information than if he is innocent. The explanation given by Orlando in the police station, and by counsel at trial, is that he was afraid of Jeannot, and so unwilling to say that Jeannot had shot Calabrese until he heard that Jeannot had confessed to doing so. (Orlando had no objection to the jury hearing that Jeannot had confessed to being the triggerman.) The fact that Orlando had also heard that Jeannot accused Orlando of having paid for the murder, and that the police were disposed to believe Jeannot, might make this account less plausible; it might suggest that Orlando changed his story only under pressure of knowing he was being credibly accused, and that he came up with an account that was exculpatory but fit the evidence that he knew the police had in hand (proof that he had the debt to Calabrese, that he was with Jeannot the night of the murder, and that Jeannot had admitted being the triggerman).
I'm willing to assume that this is a valid basis for admission. Nevertheless, it appears to me to be a bad case of the tail wagging the dog. The harm to the prosecution of not allowing this contextualizing evidence is nowhere near as weighty as the virtual certainty that the jury will take Jeannot's statement as proof that Orlando paid for the killing. So I think sometimes the Confrontation Clause demands a balancing of how significant the valid evidentiary use is as compared to the probability that the jury will use the out-of-court testimonial statement, notwithstanding a limiting instruction, as proof of what it asserts. Here, I think the majority drew the balance correctly. It was virtually certain that the evidence would result in a Confrontation Clause violation, on the issue at the core of the case. And the evidence, while helpful to the prosecution on the basis on which it was offered, was by no means essential.
I think this last point is especially so because, as the majority suggests, there were lesser alternatives. For example, I believe a good solution would have been to allow the detective to testify that he had told Orlando that Jeannot had confessed to pulling the trigger but that the police had reason to believe that Orlando may have paid for the killing. (There was some other evidence besides Jeannot's statement suggesting this that was presented to the jury, starting with the existence of the gambling debt and Orlando's friendship with Jeannot; there was also the lack of an apparent motive on the part of Jeannot.) That, it seems to me, would have given the prosecution essentially all it needed, but without recital of the substance of an out-of-court accusation.
Two related points make the type of problem exemplified by this case both interesting and difficult. First, I believe we are looking for second-best solutions. That is, the ideal solution would be that the prosecution gets everything to which it is entitled and the accused's conforntation right is fully protected, but that is not always possible. (In this case, I think we can get close.) Second, I believe we are in an area of balancing – probability of a Confrontation Clause violation against loss of evidence used for a valid purpose – and that makes me very uneasy. Sure, balancing is appropriate in many areas of the law, certainly including evidentiary matters, but when the Confrontation Clause is at stake hard-edged rules are more likely to provide protection, and that is one of the advantages of Crawford as compared to the old regime of Ohio v. Roberts. (I do believe there are other areas of Confrontation Clause doctrine that demand balancing. For example, determining unavailability is often a matter of degree, and I believe so also is the question of the extent of mitigating action the state should be required to take before it can successfully contend that the accused forfeited the confrontation right by misconduct.) It's too easy in cases of this sort, especially on habeas, just to say the prosecution had a good enough reason to justify admission, and so I give the majority credit, especially in the face of a careful and perceptive dissent, for declining to take that path.
Mark Orlando was accused of paying Herva Jeannot to murder Bobby Calabrese, allegedly to avoid paying a $17,000 gambling debt. The police, believing that Orlando and Jeannot had been together the night of the shooting (in Island Park, NY, a few miles from where I grew up), interviewed them separately. Orlando at first said he and Jeannot had gone together to pay Calabrese, they did so, and then left, without incident. After some hours, one of the detectives returned repeatedly, eventually telling Orlando that Jeannot had given what they felt were “truer versions” of the events, and that Jenanot had admitted shooting Calabrese but said that Orlando had paid him to do it. At that point, Orlando, who had said he was afraid of Jeannot, gave another statement, to the effect that after he paid Calabrese Jeannot unexpectedly shot him and took the money.
Orlando and Jeannot were both charged with murder. The trials were severed, quite properly given Jeannot's confession, which plainly could not be introduced against Orlando for the truth of what it asserted. But at Orlando's trial, the prosecution, over objection, presented evidence of all of the encounters between Orlando and the police described above – Orlando's first statement, the later interchange between Orlando and the detective, including the detective's summary of and apparent endorsement of Jeannot's statement admitting to the shooting and implicating Orlando, and Orlando's second statement acknowledging being present at the time Jeannot shot Calabrese. Orlando was convicted, lost on appeals in the New York system and before the district court on his habeas petition, but won in the court of appeals.
I think the majority was right to emphasize that Jeannot was effectively a witness against Orlando; his statement was plainly testimonial. I think it's also clear that, despite a limiting instruction that the trial judge gave, it's virtually certain that the jury would consider Jeannot's statement for the truth of its assertion that Orlando paid for the killing. And, as the majority points out, in this case the evidence included not only the substance of the accusatory confession but also an effective endorsement by the police, a factor not present in Bruton.
But the case is not quite like Bruton. There, the statement was admissible against the confessor, Evans, not against his co-defendant, Bruton. The Supreme Court held that a limiting instruction would be ineffective; severance was required. Here, there already was severance. But the argument is that the evidence was admissible against Orlando for some reason other than to prove the truth of what it asserted. And it is clear under Tennessee v. Street, which was reaffirmed by Crawford, that a statement does not pose a Confrontation Clause problem when it is admitted to prove some proposition other than the truth of a matter it asserted.
So what was that other proposition? I take it as given that the prosecution had good grounds to show that Orlando gave shifting exculpatory stories; a person is more likely to shift stories if he is guilty and is adjusting to new information than if he is innocent. The explanation given by Orlando in the police station, and by counsel at trial, is that he was afraid of Jeannot, and so unwilling to say that Jeannot had shot Calabrese until he heard that Jeannot had confessed to doing so. (Orlando had no objection to the jury hearing that Jeannot had confessed to being the triggerman.) The fact that Orlando had also heard that Jeannot accused Orlando of having paid for the murder, and that the police were disposed to believe Jeannot, might make this account less plausible; it might suggest that Orlando changed his story only under pressure of knowing he was being credibly accused, and that he came up with an account that was exculpatory but fit the evidence that he knew the police had in hand (proof that he had the debt to Calabrese, that he was with Jeannot the night of the murder, and that Jeannot had admitted being the triggerman).
I'm willing to assume that this is a valid basis for admission. Nevertheless, it appears to me to be a bad case of the tail wagging the dog. The harm to the prosecution of not allowing this contextualizing evidence is nowhere near as weighty as the virtual certainty that the jury will take Jeannot's statement as proof that Orlando paid for the killing. So I think sometimes the Confrontation Clause demands a balancing of how significant the valid evidentiary use is as compared to the probability that the jury will use the out-of-court testimonial statement, notwithstanding a limiting instruction, as proof of what it asserts. Here, I think the majority drew the balance correctly. It was virtually certain that the evidence would result in a Confrontation Clause violation, on the issue at the core of the case. And the evidence, while helpful to the prosecution on the basis on which it was offered, was by no means essential.
I think this last point is especially so because, as the majority suggests, there were lesser alternatives. For example, I believe a good solution would have been to allow the detective to testify that he had told Orlando that Jeannot had confessed to pulling the trigger but that the police had reason to believe that Orlando may have paid for the killing. (There was some other evidence besides Jeannot's statement suggesting this that was presented to the jury, starting with the existence of the gambling debt and Orlando's friendship with Jeannot; there was also the lack of an apparent motive on the part of Jeannot.) That, it seems to me, would have given the prosecution essentially all it needed, but without recital of the substance of an out-of-court accusation.
Two related points make the type of problem exemplified by this case both interesting and difficult. First, I believe we are looking for second-best solutions. That is, the ideal solution would be that the prosecution gets everything to which it is entitled and the accused's conforntation right is fully protected, but that is not always possible. (In this case, I think we can get close.) Second, I believe we are in an area of balancing – probability of a Confrontation Clause violation against loss of evidence used for a valid purpose – and that makes me very uneasy. Sure, balancing is appropriate in many areas of the law, certainly including evidentiary matters, but when the Confrontation Clause is at stake hard-edged rules are more likely to provide protection, and that is one of the advantages of Crawford as compared to the old regime of Ohio v. Roberts. (I do believe there are other areas of Confrontation Clause doctrine that demand balancing. For example, determining unavailability is often a matter of degree, and I believe so also is the question of the extent of mitigating action the state should be required to take before it can successfully contend that the accused forfeited the confrontation right by misconduct.) It's too easy in cases of this sort, especially on habeas, just to say the prosecution had a good enough reason to justify admission, and so I give the majority credit, especially in the face of a careful and perceptive dissent, for declining to take that path.
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