A significant decision on remote testimony

Yesterday, the Michigan Supreme Court issued its decision in People v. Jemison, a case that I have mentioned in a prior post and in which I appeared as amicus.  The opinion, by Chief Justice McCormack (a former colleague and co-author of mine) is excellent – and it was unanimous, with one justice not participating.

Briefly, Jemison was convicted of rape.  One of the witnesses against him was a DNA analyst, who was in Utah and testified, over objection, via Skype.  The court held that this violated both federal and state protections of the confrontation right.  Two aspects of the decision are particularly notable.  

First, the decision is clear, crisp, and categorical, appropriately so:  There was no doubt that there was testimony involved here – the only difference from in-court testimony was that this was by Skype – and so the confrontation right was invoked.  And an opportunity for face-to-face confrontation is an essential aspect of the confrontation right.  That wasn’t provided, so there was a violation.  Period.  It didn’t matter that the expert was a witness, nor that it would have been expensive to bring him to Michigan to testify.  (Indeed, the court notes the perverse incentive that would be created by allowing the state to choose an out-of-state expert and then plead cost to prevent face-to-face confrontation.)  The court doesn’t discuss the situation in which it might be unfeasible to create confrontation – which I think would only be where both the witness and the accused effectively can’t travel – but by implication that wouldn’t matter either; the prosecution and not the defense bears the risk of this rare occurrence.  And though the court considered the case during the pandemic crisis (it was argued March 5), there is no suggestion in the opinion that the greater appeal of remote testimony in such circumstances would alter the result.  (I previously posted on this issue; the confrontation right can be fully satisfied so long as the accused, counsel, and the witness are in the same room, so social distance can be maintained.)


Second, and also appropriately, the decision limits Maryland v. Craig to its particular setting – a witness who is both a child and an alleged, with a case-specific showing of the necessity of remote testimony – and casts doubt on its continuing validity in light of Crawford.  The court says that “Crawford did not specifically overrule Craig, but it took out its legs.”  That’s certainly accurate: The categorical, procedural approach of Crawford is entirely antithetical to the balancing, reliability-oriented approach that underlay Craig.  Indeed, the court goes further.  After quoting passages from Justice Scalia’s Craig dissent that certainly sound like precursors to his majority opinion in Crawford –  he said that “the Confrontation Clause does not guarantee reliable evidence” but rather “specific trial procedures that were thought to assure reliable evidence” and that the text “simply does not permit” interest-balancing – the Jemison court says that in Crawford “his dissent from Craig became the Court’s view.”  (In passing, the Court notes that even if Craig were applicable, the result would be the same; there was no case-specific necessity for remote testimony.)

The court remanded for a determination of harmless error.  But on the questions of principle transcending the facts of this case, the opinion was about as clear and as strong as one could hope.

To be clear, I don’t think it’s implausible that at some point the technology and our knowledge of the impact of remote confrontation will get to a point where we can say that remote confrontation is a satisfactory substitute for actual, face-to-face confrontation.  But we’re not there yet.

The dying, blinking witness

Chris Miller, an excellent former student of mine, has pointed out Woods v. Cook, a recent Sixth Circuit opinion of interest by Judge Sutton, who is sensitive to Confrontation Clause issues.  This was an “eye blink” case:  A shooting victim, Chandler, was grievously wounded, and was able to communicate only by blinking his eyes.  Five days after the shooting, in a police interview, Chandler identified Woods as the assailant; two days later, he suffered the first of a series of strokes, and he died ten days after the interview.  His eye-blink statement was admitted against him at a murder trial in Ohio court, he was convicted, and the Ohio courts affirmed the judgment.  He brought a federal habeas petition, which the district court denied, and now a Sixth Circuit panel has unanimously affirmed that judgment.

In the circumstances, it is not surprising that the Ohio courts deemed the identification to be within the dying-declaration exception to the hearsay rule.  Chandler did not die all that soon after the statement, but he was in bad shape, and as the exception is usually articulated (including in Fed. R. Evid. 804(b)(2), all it requires with respect to imminence is that the declarant believed death to be imminent.  So maybe Chandler believed his death to be imminent.

And what about the Confrontation Clause?  The federal courts were treating this case under the constrained standards of habeas, but that doesn’t seem to have made much difference to the federal judges.  Crawford and Giles v. California both indicated that there is a dying declaration exception to the confrontation right, which I think is unfortunate – I’ve written enough about this before, that these cases ought instead to be considered applications of forfeiture doctrine, but the cramped view of forfeiture adopted by Giles made that impossible.

But let’s put that issue aside.  My difficulty with the outcome in this case – and it was not one that could be appropriately considered in a federal habeas case -- is that there was ample opportunity to take Chandler’s deposition.  Does that sound grotesque?  Clearly, the police had no compunction against taking a statement from Chandler that was intended for prosecutorial purposes; the session was videotaped (so indicates the decision of the Ohio Court of Appeals) and the police showed him a photo of Woods.  So how about bringing in the defendant and counsel?  It could have been done.  And in the old days, the courts would have insisted on it.  Consider R. v. Forbes, 171 Eng. Rep. 354 (1814):  A dying victim was giving a statement, and the accused was brought before him partway through.  The court held that only the portion from that point on could be admitted.  To similar effect, consider R. v. Smith, 171 Eng. Rep. 357 (1817).  There, the dying victim (though he was not yet under apprehension of death) made a statement to two justices of the peace.  When it was almost over, the defendant was brought in, and the statement was read over to the victim, who assented to it.  The defendant ought to be present, said the court, but given that he was present when the victim assented to what he had previously said, and had an opportunity for cross-examination, that was good enough. 

In some cases, there is no time to arrange for a deposition.  But where there is, and the authorities are willing to take a testimonial statement from the victim, the right of confrontation, including cross-examination ought to be preserved.