A Ninth Circuit decision -- room for improvement

 The United States Court of Appeals for the Ninth Circuit just issued a decision, not designated for publication, in United States v. Riggs, that is worth commenting on, both for its good aspects and a couple of curious ones.

Riggs was accused of killing his boyfriend, Martinez; the death apparently occurred in Indian country, which is why the case was in federal court.  The prosecution was allowed to introduce statements Martinez made to the police after two prior alleged assaults.  The Ninth Circuit properly held that Martinez’s statements on these occasions were testimonial.  In each case, “Martinez was alone with the officers and safe from harm during the questioning.”  Good!

The court then adds that “even if there was an ongoing emergency when the officers initially arrived on the scene, by the time Martinez identified Riggs as the assailant, it was clear that ‘what appeared to be a public threat [was] actually a private dispute’ with no ongoing emergency. Michigan v. Bryant, 562 U.S. 344, 365 (2011).”  That this was a private dispute and not an ongoing emergency appears clear.  But I think it’s an unfortunate relic of Bryant that courts continue to look at these matters largely from the point of view of the inquiring police officer rather from that of the speaker – who knew all along that there was not a continuing emergency.

And then the court says that the district court should have redacted the statements to exclude the portions that had become testimonial.  But what happened to the first part of the court’s discussion, in which it indicated that there never was an emergency?  Moreover, the court goes on to hold that Martinez’s statements were not admissible under the excited-utterance, medical-diagnosis, or residual exceptions.  But why was the court discussing these at all?  If, as the first part of its discussion seems to indicate, Martinez’s statements were testimonial, then their hearsay status shouldn’t matter.  I hope the court doesn’t think that those exceptions are also exceptions to the confrontation right.  Maybe all it meant was that if parts of the statements were not testimonial (notwithstanding the beginning of its discussion), then the hearsay status would have to be determined – but the court doesn’t make this at all clear.

One other aspect:  The setup of the case resembles Giles v. California – that is, a killing, and prior statements to the police by the victim alleging domestic violence by the accused.  I think it should be open to the trial court to determine that the accused wrongfully rendered the victim unavailable and therefore forfeited the confrontation right.  Giles makes that impossible unless the trial court determines that the accused rendered the victim unavailable for the purpose of preventing testimony – but it makes that determination somewhat easier in the context of domestic violence.  But the Riggs court doesn’t even mention the possibility of forfeiture.

An unpublished opinion, I know, but by a panel of one of our federal courts of appeals, and I think it's suggestive of how courts' Confrontation Clause analysis could improve.