People v Washington: pending Michigan case with multiple interesting issues

 I have previously posted about a Michigan case, People v. Washington.  It is now in the state supreme court, and will be argued in March; I have filed an amicus brief and hope to argue as amicus as well.  The case is an interesting one on several points (and good fodder for exams!).

You can find papers in the case here.

Washington blew past a toll at a border crossing between the US and Canada.  Some time later, Canadian officers brought him back.  None of them testified at trial.  But the American officer in charge, Paul Stockwell, testified that he had communications with the lead Canadian officer, Matthew Lavers, and that as a result he took custody of Washington and body armor that the Canadian officers brought along with him.  Washington was charged with possession of body armor by a person who has been convicted of a violent felony.  (He also made statements to his mother acknowledging that he had had the body armor; the admissibility of those is in question on other grounds.) 

The court of appeals held that the evidence concerning the Lavers-Stockwell exchange violated the Confrontation Clause, and the State has appealed.  There are several issues related to the Clause.

First, nothing Lavers said was formally introduced, but in context, the evidence made clear that Lavers told Stockwell that Lavers had been found in possession of body armor.  So, as indicated in my prior post, I think the court of appeals was correct in treating the evidence as tantamount to admission of Lavers’s statement.  The dissent in the court of appeals and the State have confused matters by speaking of this case as involving an “implied assertion.”  I never find that term useful, and it is particularly misleading here.  It is usually used to refer to the conduct of an out-of-court person who does not assert a material proposition but acts in a way arguably reflecting belief in that proposition – think of the classic example of the sea captain embarking on a voyage with his family after inspecting a ship, offered to prove that the ship was seaworthy.  But here, it is clear that Lavers asserted that Washington was in position of the body armor.  (Indeed, other evidence in the record, not admitted at trial, is explicit on the point.)  What is left to implication is not the connection between his conduct and the material proposition, but the connection between the in-court testimony and his assertion.  Here, the implication is very clear.

Second, was Lavers’s statement testimonial?  The State argues that the Canadian officers had no reason to believe that Washington’s possession of the body armor was a crime.  But Washington had sped past a toll barrier and got into an altercation with the Canadian officers.  They returned him in force – half a dozen officers or more in three vehicles.  They plainly regarded this as more than a simple case of toll jumping, and they must have known that the body armor would be at least relevant information in any potential prosecution of Washington.

Third, was Lavers’s statement presented for the truth of what it asserts?  The State, as prosecutors often do, contends that the statement was used to show Stockwell’s subsequent conduct (though in another part of its brief it says that “Stockwell did not processor criminally charge Defendant based on the information provided by Lavers.”).  This is a move that is often rejected by courts, but too often accepted.  (Note, for example, just from yesterday, State v. Glavic, 2024 WL 229787 (Ohio Ct of Apps Jan 22 2024).)  In most cases, as here, the prosecution really has no need to explain the officer’s subsequent conduct – and here it is clear that the jury would take the evidence for its most obvious use, as proof that Washington had been found in possession of the body armor.

Finally, the State argues that the circumstantial evidence – Washington being brought back, with the body armor in the car – is enough to prove possession.  Two responses: First, whether or not that is so, that is not all the prosecution presented concerning the handoff; it also presented the evidence about Lavers’s communication with Stockwell, which taken together with proof that Stockwell took custody of Washington and the armor amounted to proving that Washington had been found in possession of the armor.  Second, the circumstantial evidence argument cannot be correct.  That would be something like proving that a defendant committed a crime because shortly after a police officer who had been there was leading him off in handcuffs.  

Argument in Smith v. Arizona; a preliminary report

 The Supreme Court heard argument this morning in Smith v. Arizona.  It's going to be a couple of days until I can give a fuller report, but for now:  I think it is highly likely that Smith will get a reversal.  I don't think more than one or two justices, if that, will adopt the principle that admission of a testimonial statement in support of an opinion is not admission for the truth of what the statement asserts, when the statement supports the opinion only if it is true.  The Court seemed more interested in the enduring question of what are the bounds of the category of testimonial statements.  And Justice Kavanaugh asked each of the three advocates what they thought of Justice Thomas's formality-solemnity test.  But the Court seemed strongly disposed to conclude that the question of whether the statements here are testimonial had not been preserved for review; the Court might be prepared to take another case to reconsider thee "primary purpose" test, but I don't believe it will be here.

Comments on the Arizona and SG briefs in Smith v. Arizona, Part 2

 Arizona and the SG, and some of the other supporting amici as well, raise once more the supposed multi-witness problem – i.e., the idea that if the Confrontation Clause is deemed to require that an analyst in the position of Rast testify subject to confrontation then there will often have to be a parade of lab witnesses.  I have often (most recently in my amicus brief in this case at 24-26) responded to this supposed concern, which I believe is raised largely as a scare tactic.  A few quick points. 

First, there’s no data presented suggesting that this is a problem in reality.  On the contrary, I’ve presented data indicating that it isn’t.  Part of the reason is that very often defendants have no interest in having a lab witness testify live. 

Second, only those who make testimonial statements that the prosecution chooses to present need testify subject to confrontation.   See Melendez-Diaz, 557 U.S. at 311 n. 1.  Yes, there may be a question of whether the prosecution has left such large gaps in its proof that there isn’t enough to support a conviction, but that is not in itself a confrontation problem. 

Third, most lab tests are performed by a single lab analyst – and if a lab is worried about multiple analysts having to testify, it can organize itself in a vertically integrated way, even for DNA tests.  (Note the case of the army lab, highlighted in my brief.) 

Fourth, in most cases (not all, as the SG points out, but most), retesting is a possibility, so that if in fact a lab witness has to testify and one who otherwise would do so is unavailable, or multiple witnesses would have to testify, it’s a simple matter to have an available witness retest and testify. 

Fifth, the state can reduce any burden by various means.  Notice-and-demand statutes help.  If a lab is far away from where many trials are conducted then – even assuming it is not practical to locate a lab closer – a lab tech who must testify in several cases can do so on one trip by giving depositions.  Courts can be flexible about scheduling.

Finally, even assuming there is some extra expense, that has no constitutional significance.  We have to remember that all times that lab witnesses are witnesses like any other, and they are providing testimony that may be crucial in convicting a person, perhaps leading to a multi-year sentence.  It is not asking too much to require them occasionally to testify in front of the person whose future they may be affecting so gravely.

One other, somewhat related point:  The SG says that in many cases the jury would not even understand what the lab tech reports.  So what?  If a witness testifies in a foreign language, most jurors will not understand the testimony without translation.  We still require confrontation by the witness.  Here, the lab tech is providing crucial information; maybe she can translate it herself, maybe another witness can, but in any event the accused has a right to examine her about how she came to make the assertions she did.