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.
Saturday, April 27, 2019
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.
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