Thoughts on the Criminal Justice Legal Foundation brief in Smith v. Arizona

              I’m hoping to write more in a few days on the Arizona and SG briefs in Smith v. Arizona.  But my old friend Eric Freedman has called to my particular attention the amicus brief of the Criminal Justice Legal Foundation (CJLF), which makes some dramatic assertions, and I want to offer a few thoughts on it.

              As I understand it, the CJLF advocates doing away with the testimonial-non-testimonial distinction, and instead treating the confrontation right as simply a rule of trial procedure – that is, prescribing what rights the accused has with respect to those witnesses whom the prosecution chooses to present at trial, or maybe also with respect to those who testify at very formal proceedings.  As I will explain below, I disagree sharply with this, and I believe it ignores a whole lot of history.  But first let me note that there are some aspects of the brief with which I agree.

              One of these is that the current doctrine is murky and gives too little guidance.  That shouldn’t be a reason to throw out Crawford (and the CJLF brief relies a lot on dissents and the views of Crawford-skeptic judges).  It does mean that current doctrine can be improved on.  I agree with the CJLF that the “primary purpose” test is ahistorical and does not work well. 

              I also agree that Crawford does not account well for the allowance of dying declarations.  I agree with the CJLF that there is a long history of allowing them, and I believe that there would not be much support for a doctrine that did not do so.  Crawford made room for them by suggesting that they constituted a sui generis exception to the general principle that the maker of a testimonial statement presented against an accused must be subject to confrontation, and I agree with the CJLF that this is a patchwork, not a satisfying account.  (A patchwork can be an acceptable second-best solution, though.) As I have often argued, the solution seems rather simple:  Dying declarations should be considered as an aspect of forfeiture doctrine.  The imminence requirement should be considered as marking a boundary of the state’s duty to mitigate by providing an opportunity for confrontation.  I’ve explained this approach in numerous places, including this article.  Adopting this view would mean walking back from Giles v. California, but so far as I am concerned that would be a very good thing.  I’ll also note that the CJLF gives no account of why, even before hearsay law had gelled, courts imposed stringent requirements on dying declarations.

              Now, the CJLF says that nowhere in the early materials do we see anything like the line between testimonial and nontestimonial.  I think this misconceives a few hundred years of history.  Until the late 18^th century, there was no well-formed hearsay doctrine, nothing resembling the elaborate doctrine we have today.  But there was an elaborate law governing witnesses.  What do witnesses do?  They testify.  Many sources make clear that it was regarded as one of the glories of the English system that it insisted that witnesses give testimony face to face with the adverse party, in open court if reasonably possible, and not in any other way.  The idea of the Confrontation Clause was not just to say, “Here are the witnesses whom the prosecution has produced at trial; you may face them and cross-examine them.”  Rather, it was to ensure a system in which witnesses would be brought in to trial, or if necessary another formal testimonial proceeding such as a deposition.

              So we have to think in systemic terms:  What are the consequences of allowing, or not allowing, this evidence for how witnesses testify?  What then do we make of Rast’s notes, which the CJLF says are not close to being covered by the Confrontation Clause?  If they are not, then anyone in Rast’s position knows, “If I do not testify at trial (and perhaps even if I do) my notes may be used by a prosecutor against the person who is charged with possessing this substance.”  Then in any realistic sense we have created a system in which a lab analyst can testify against an accused by writing out lab notes.  Without ever taking an oath, or facing the accused, or answering questions under cross-examination, she can knowingly make factual assertions that she understands will be used as evidence to convict a person of a crime.  We could expect that lab analysts would often testify in this way, and other witnesses as well.  This would be not only a clear violation of the confrontation right but a profound alteration of our method of trials.

Comments on the Arizona and SG briefs in Smith v. Arizona, Part 1

Smith v. Arizona, in which I am hoping the Supreme Court will clear up some of the confusion created by its splintered decision in Williams v. Illinois, will be argued on January 10.  As a reminder:  Smith was convicted of drug-related crimes in large part on the basis of the testimony of a lab analyst, Longoni.  But Longoni did not perform the tests on the materials in question, nor write a report on those tests.  Instead, Longoni relied on writings by another lab analyst, Rast, who was no longer with the lab (for unexplained reasons) at the time of trial.  The state court held that this was OK, and that Rast’s findings were not being used for the truth of what they asserted but only in support of Longoni’s opinion.

Arizona, the respondent, filed its brief on Dec. 13, and the supporting amicus briefs were filed a week later.  You can find all the briefs in the case through the Supreme Court’s docket sheet, here.

Below, somewhat belatedly, is the first portion of comments on Arizona’s brief and the one submitted on behalf of the United States by the Solicitor General’s Office.  I hope to offer more within a few days. The SG’s brief argues for reversal, but on narrow grounds, without upsetting the supposed distinction between offering a testimonial statement for its truth and offering it in support of an expert’s opinion, even when, as is almost always the case, the statement supports the opinion only if true.

Both Arizona and the SG try to make an argument that the procedure here uses a long-accepted method of proof.  I believe the attempt fails.  Notably, they come up with at most a single case (and that one a civil one) from the founding era or anywhere close of an expert being allowed to testify to an opinion on the basis of facts asserted in a testimonial statement that was not itself admissible evidence.  They do make clear that experts have to rely on general underlying information, to be found in treatises and the like.  (Just as, by the way, ordinary percipient witnesses rely on what they’ve been told about the world by other people.)  And they cite a couple of civil cases from the founding era and a few from well after in which maybe experts were allowed to offer opinions on the basis of otherwise inadmissible statements of case-specific information.  (This is not clear, because the cases do not dwell on whether those statements could have been admitted on their own; and in at least some, e.g., one involving “daily price lists,” they probably could have been.) But they do nothing to undermine the well-established fact, which the drafters of Fed. R. Evid. 703 openly acknowledged, that that Rule, allowing an expert to rely on otherwise inadmissible evidence if it is of the type ordinarily relied on by experts in the field, went against the great weight of the common law.  Note, for example, the discussion and citations in my amicus brief  in this case at 6-7 and 17.

Arizona and the SG contend that Arizona law and the Federal Rules take the position that in situations such as that involved here the out-of-court statement is presented only in support of the expert’s opinion, not for the truth of what it asserts.  But a court, ultimately the Supreme Court, construing and applying the Confrontation Clause must make its own assessment on that point.  And the simple fact is that, assuming that only if the out-of-court statement is true does it support the opinion, then, as five justices recognized in Williams, there is no real distinction between presenting the statement in support of the opinion and presenting it for its truth.  The logic of the jury, assuming it accepts the opinion, has to be: “Predicate Fact F is true, and therefore Opinion O is more likely true.”  There are innumerable other situations in which a predicate fact supports the probative value of other evidence (“The letter was sent to the intended addressee, and therefore it gave notice”) and there is no doubt that the predicate facts is being proven for its truth.  This situation is no different.  Neither Arizona nor the SG suggest any way in which telling the jury in a case like Smith to use the out-of-court statement only in support of the opinion actually alters what the jury can or will do with it.

Arizona and some of the other bottom-side amici suggest that the statements by Rast on which Longoni relied were not testimonial.  The Court should reject this argument as well.  I’ll assume for purposes of argument that Longoni did not rely at all on Rast’s report, but only on her notes.  So let’s understand right off that if those are not deemed testimonial, then a prosecution has a surefire way of never having to present for confrontation the lab technician who performed the test in question and recorded the results:  Simply give those notes to some other lab tech, who can then testify in court to a conclusion based on the facts asserted by the first tech (and which might, as in this case, follow obviously assuming the truth of those facts).  Then we have a system in which a lab witness can testify – creating evidence knowing it will likely be used in prosecution – just by writing lab notes.

 But, Arizona argues, the notes are not formal and they are not solemn.  Though sometimes the Supreme Court has spoken of formality as a requirement for a statement to be testimonial, I think that is potentially misleading.  Suppose a  statement is given very informally, but in full knowledge, and even with the purpose, that it will be used as evidence in prosecution.  Then it seems clear that it ought to be deemed testimonial.  Formality, as I have often said, is not a requirement for a statement to be testimonial.  Rather, certain formalities, if you want to call them that – the oath, subjection to confrontation, presence at a formal testimonial event – are necessary for testimony to be acceptable.  As for solemnity, I think that gets closer to the mark, if properly conceived.  I think solemnity in this context means appreciation of the gravity of the consequences of the statement (which is why we ask witnesses to “solemnly swear.”)  And notes can have this solemnity; if they can be used as prosecutorial evidence, and the writer of them understands that – which would of course be true if Rast’s notes are deemed admissible – then the writer understands that her notes may be a critical factor in convicting a person of crime.  That’s enough for the statement to be considered testimonial.

More later.

Smith v. Arizona -- top-side briefs filed

Petitioner filed his brief in Smith v. Arizona last week, and today a bunch of amici, most in support of Petitioner, filed theirs.  You can get to them all by going to the Supreme Court's docket sheet.  Among the briefs are one by the United States, in support of neither party, disputing some of Petitioner's arguments  but contending that the case should be remanded, are rather unusual position for the U.S. in a criminal case.  Among those in support of the Petitioner are one on behalf of the National Association of Criminal Defense Lawyers, with Jeff Fisher on the brief, and (to the surprise of nobody who has been reading this blog) one by me, on behalf of myself.  I hope to offer further comments on the U.S.'s brief over the next few weeks.  The State's brief is due December 13, the remaining amicus briefs December 20, and argument will be January 10.  Stay tuned.

Smith v. Arizona -- cert grant in a case that might clear up the Williams mess

 Yesterday, the Supreme Court granted certiorari in Smith v. Arizona, No. 22-899, a case that might help provide some clarity much needed since the Court's decision in Williams v. Illinois.  Here are some preliminary thoughts.

Williams involved a DNA report in a cold-hit case.  Five justices concluded that the report was not testimonial, but no rationale leading to that proposition gained the support of a majority.  Four of those five justices also concluded that the prosecution did not use the report for the truth of a matter asserted in it.  The primary reason that they cited in favor of that conclusion was that the prosecution used the report in support of the opinion offered by an expert who testified at trial; this, they believed, was not using it for the truth of what it asserted.  Although five justices rejected this analysis, some courts have adhered to it -- and one of those is the Arizona Court of Appeals in the Smith case.  Smith was tried on various drug charges.  A forensic analyst from a state lab testified to what the substances were, but the factual predicates of his testimony were drawn from the report of another analyst, who (for reasons apparently not explained) no longer worked for the lab.  Not a problem, thought the court; the testifying analyst was giving his "independent opinion" and the report was only used in support of this opinion.

I have written several times previously on this blog about the theory that presenting (whether by formal admission or otherwise) a lab report in support of an expert's opinion is not presenting it for the truth.  If the report supports the opinion only if it is true, then, as I have said, I think it is a sham to say it is not being presented for the truth.  This is what I have called the expertise end run, one example of the not-for-the-truth end run.  I thought it should have been disposed of nearly 18 years ago once the New York Court of Appeals issued its very fine opinion in People v. Goldstein. (Among my other posts on the topic are this one and this one.) Smith provides an opportunity to put the issue finally to rest.

By the way, the report in Smith was not formally introduced into evidence.  In the context of a case like this, in which the substance of the report is clearly conveyed to the jury and is a predicate for the testifying expert's opinion, that should not matter.  See especially this post and also this one

Another issue raised by the Smith petition is that the Arizona court said, as the four justices did in Williams, that if the accused wanted to examine the absent analyst he could have called the analyst himself.  That idea should have been completely disposed of by Melendez-Diaz v. Massachusetts, which proclaimed that "the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court." The two are not close to equivalent; for a full elaboration of this argument, see my brief for the petitioners in Briscoe v. Virginia. It appears the dissenters in Melendez-Diaz took another shot at the issue by granting certiorari in Briscoe , but the Court slapped that attempt down by remanding the case for reconsideration in light of Melendez-Diaz.  We can hope this issue as well will finally be resolved, though I'm not sure how the Court can be much clearer than it already has been.

Samia v. United States: The Supreme Court cuts back on Bruton

The Supreme Court today decided Samia v. United States, and in doing so cut back substantially on the rule of Bruton v. United States (1968) and essentially nullified Gray v. Maryland (1998) a Bruton follow-on.  A premise underlying all these cases is that a confession of one defendant cannot be introduced against another defendant.  That has been clear since the Case of Thomas Tong, 84 Eng. Rep. 1061 (1662), though before Crawford some courts tended to forget it.  In Bruton two defendants were tried jointly, the confession was introduced, and the trial court instructed the jury not to use it against the non-confessing defendant.  That was not good enough, said the Supreme Court; though usually we assume that a jury will follow instructions, in a case such as this that is too dangerous an assumption to make.  Thus, if the confession is to be introduced against the defendant who made it, the other defendant must have a different trier of fact -- perhaps, though not inevitably, at a separate trial.  Gray was similar to Bruton but instead of the confession being read unaltered the word "deleted" was inserted.  Not good enough, said the Court, given that the jury would easily understand the reference.  Samia is similar except that the confession was recounted by referring to an "other person" rather than identifying Samia by name.  The Court, in a 6-3 decision per Justice Thomas, held that this was acceptable.

Justice Thomas's opinion spent a great deal of space demonstrating that, during an earlier historical period courts found it perfectly acceptable to rely on limiting instructions when a confession was admissible against one defendant but not another.   Justice Barrett, concurring in part and concurring int he judgment, did not join this part of the opinion; she pointed out that Justice Thomas's sources did not reach back to the framing era, and they did not, at least not explicitly, consider constitutional considerations.  Justice Thomas spent much less energy attempting to distinguish Gray.  Justice Kagan, joined by Justices Sotomayor and Jackson in dissent, found the attempted distinctions inexplicable and unprincipled. She also pointed out that there was now no need for the majority to overrule Bruton because the prosecution could always replace the name of the non-confessing defendant with words such as "a woman" and avoid the problem.

Justice Jackson also dissented separately.  She pointed out that the majority skipped over the fact of a Confrontation Clause violation and treated Bruton improperly as an exception to a general rule rather than as an ordinary implementation of the law of the Confrontation Clause.  I think she may be overstating hte difference of opinion.  Although Justice Thomas's opinion is less clear on the point than it might have been, I believe that it takes as a premise that if the confession had been introduced against Samia, a non-confessing defendant, without a limiting instruction, there would have been a Confrontation Clause violation.  So the issue is one of remedy.  The majority here thinks that the limiting instruction – which does in effect render the evidence inadmissible against the non-confessing defendant – suffices.  The minority disagrees.  I do not take anything in the majority opinion as suggesting that a statement presents a confrontation problem only if it identifies the defendant against whom it is offered.  I would not be surprised if some prosecutors try to make the opinion say something like that, but it doesn't.

Cert denied in Shields. What should counsel do at preliminary hearing?

    This morning, the Supreme Court denied certiorari in Shields v. Kentucky, No. 22-450, on which I have previously posted, here and here.  As usual, the Court did not give any explanation; there were no dissents from the denial.

    In Shields, the prosecution presented an elderly witness at preliminary hearing, without giving notice to the defense, making the discovery that would be required before trial, or indicating that it was presenting her in the thought of preserving her testimony in case she became unavailable by the time of trial.  As it happened, she did indeed die before the scheduled trial date, and the issue was whether the prosecution should therefore be able to present her testimony form the hearing.  The Kentucky Supreme Court said yes, and the U.S. Supreme Court has now declined to review that ruling.

    The Court may have believed that this case was a bad vehicle for considering the issue of whether, or when, a preliminary hearing gives an adequate opportunity for confrontation; the evidence against the defendant, though not without some difficulties, was very strong.  But it could well be that the Court is simply disinclined for now to consider the issue.

    The uncertainty puts defense counsel in a difficult position.  Ordinarily, counsel is not expected to cross-examine aggressively at a preliminary hearing, because usually it is a foregone conclusion that the accused will be bound over for trial, and in some states cross addressed to credibility issues is not even permitted.  But if counsel holds back at the hearing and the witness becomes unavailable before trial, the courts might hold that the hearing gave an adequate opportunity for cross and the testimony from there is admissible.

    I believe, therefore, that defense counsel should make it a regular practice to present the conundrum to the court:

        (a) If counsel is prepared to conduct a full cross, she can ask the court whether it will allow that, noting that if it is allowed she will have to do so or risk being held later to have had her opportunity if the witness becomes unavailable before trial.  Most often, I believe, the court will say that the full cross is not allowed; neither the court, nor the prosecution, nor the defense is likely to want to have cross conducted then.   

    If, however, the prosecution wishes the hearing to serve a preservation function, in case the witness becomes unavailable before trial, then it would have to so indicate to the court, and then the defendant should be given a full opportunity for cross.  In my amicus brief in support of the petition in Shields, I laid out conditions that I think ought to be required if preliminary-hearing testimony is to satisfy the confrontation right.  One of them is that the prosecution should indicate that it wants the hearing testimony to serve a preservation function.  What I am suggesting here would essentially require the prosecution to make that declaration if it wants the testimony to serve that function. 

        (b) If counsel has been given inadequate opportunity to prepare for cross -- inadequate time, inadequate opportunity to consult with the accused, incomplete discovery -- she should so state on the record, and ask the court either to confirm that or to postpone the hearing so that she will have an adequate opportunity.  Once again, in most cases neither the court nor the prosecution is likely to want to complicate matters, but if the prosecution wants to maintain the preservation function it will have to so indicate.

    I'd be very grateful to learn of readers' responses to these suggestions, and of the experience any counsel have in this situation.

Another good decision in a fresh-accusation case

 There are, in my view, a lot of bad decisions involving fresh accusations, made shortly after the alleged crime, often to a 911 operator or a responding police officer.  I believe the "primary purpose" test insisted on by the Supreme Court muddies up this field and makes it too easy for trial courts to admit out-of-court statements that any reasonable observer would likely understand from the beginning were likely to be used as evidence in a prosecution.  Several months ago, I posted about a good decision by the Minnesota Court of Appeals.  And now there's another, State v. Johnson, issued by the Ohio Court of Appeals, 8th District.  But it's 2-1, and the fact that there was even an issue is one more demonstration of the weakness of the "primary purpose" test.

This is a domestic-violence case.  The complainant fled the house, went to her parents', and there made a 911 call that included the statements at issue.  The majority, in an opinion by Judge Eileen Gallagher, did the best it could within the confines of the "primary purpose" test and held the statement testimonial.  The dissenting judge, Sean Gallagher, thought the primary purpose of the complainant was to get police protection.

In my view, the majority was clearly right in deeming these statements testimonial.  Any reasonable person in the position of the complainant must have known that the statements would likely be used to arrest the accused and ultimately might be used in prosecuting him.  If they can be used without the complainant coming to testify, then we have a system in which a witness can find a safe place, make a 911 call, and make extensive statements that will be used to convict the person she accuses.  In what way is that not testifying against him?  

The primary-purpose test asks for an unmanageable inquiry into the psyche of the speaker, and as sometimes applied (as by the dissent here, in a well-written and perceptive but, I think, misguided opinion), relies on an untenable distinction between seeking police intervention for protection and creating testimony.  The sooner it is discarded, and replaced by a test that depends on the reasonable anticipation of a person in the position of the speaker, the better. 

Shields v. Kentucky: BIO, reply, and ready for conference

 I reported in an earlier post on the cert petition in Shields v. Kentucky. The Commonwealth has now filed its brief in opposition, and Shields has filed a reply.  The case materials have been distributed for the Court's conference of March 3.  So we should know whether the petition will be granted on Monday, March 6.