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.