Pitts v. Mississippi: Supreme Court appears to reaffirm Craig in a per curiam opinion

Maryland v. Craig, 497 U.S. 836 (1990), an important pre-Crawford case, held that in some circumstances a child witness may be allowed to testify against an accused at trial without being brought face to face with the accused; in Craig, the child was allowed to testify via one-way closed-circuit television.  A major question, which the Supreme Court has declined several times to address, has been whether Craig survives Crawford.  The results are perfectly compatible with one another:  Crawford established that witnesses against an accused must testify at trial, under oath and subject to cross-examination; Craig prescribes how that testimony may be conducted for a subset of witnesses.  The two decisions have co-existed for more than twenty years.  But they stand on radically different theoretical grounds.  Craig was issued in an era of balancing, and it was written by Justice O'Connor, a classic balancer.  It was a 5-4 decision, with the dissent by Justice Scalia, who tended to prefer hard-edged rules.  Crawford, written by Justice Scalia, adopted such rules for the Confrontation Clause, and clearly eschewed balancing; Justice O'Connor was one of the two dissenters.  So it's been an interesting question whether, if the Supreme Court took up the question, Craig would survive.  

Today the Court gave an answer, of sorts, in a per curiam summary reversal in Pitts v. Missisippi. Itts was accused of sexually molesting his young daughter.  At trial, the child, who was then four years old,  testified from behind a screen that permitted the judge and jury to see her but that obscured her view of the defendant; a Mississippi statute purported to give her the right to testify in this manner, and the trial judge applied it without holding an evidentiary hearing.  Pitts was convicted, lost on appeal, and then petitioned for certiorari.  The petition did not seek to have Craig overruled; indeed, it never even mentioned Crawford.  On the contrary, it argued that Mississippi stood alone in failing to adhere to Craig and Coy v. Iowa, 487 U..S. 1012 (1988), an earlier decision holding that use of a screen to shield witnesses from the accused was improper under the Confrontation Clause, but not absolutely foreclosing such use in another case.

The Supreme Court obviously fund the petition persuasive, because it reversed summarily.  Like the petition, the brief and unanimous per curiam did not cite Crawford and assumed that Coy and Craig are good law.  Here is how it began: 

      Ordinarily, the Sixth Amendment’s Confrontation Clause “guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U. S. 1012, 1016 (1988). In child-abuse cases, however, that rule sometimes gives way. Consistent with the Sixth Amendment, a court may screen a child witness from the defendant when “necessary to protect [the child] from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child’s ability to communicate.” Maryland v. Craig, 497 U. S. 836, 857 (1990).

It then went on to say, though, that "before invoking this procedure, a court must proceed with care."  Here the Mississippi court had failed to hear evidence leading to a case-specific finding of likely trauma, and so the judgment had to be reversed. The Court was emphatic on this point, allowing it to decide summarily and unanimously.  

Given that nobody in the case argued that Craig should be discarded given the radically different framework of Crawford, I do not think this brief, summary per curiam reversal forecloses the issue, but it does probably give a hint of how the Court would ultimately decide.  My own view, which I have often presented, sometimes in conjunction with Steve Ceci, is that very young witnesses – and the 4-year-old here would qualify – should not be deemed witnesses at all, though they are sources of evidence, and the accused should have a right of examination by a qualified forensic examiner, but not cross-examination at trial.

The Pitts Court cautioned that the Confrontation Clause violation might be deemed harmless error.  As I have indicated previously on this blog, I believe that the proper method of answering the harmless-error question is not to speculate as to  how effective properly held cross-examination might have been, but rather to consider the case as if the witness in question had not testified at all.

One other point:  The first paragraph of the opinion, quoted above, gives no indication that Craig might be extended to extenuating situations involving adult witnesses, and the implication appears to be to the contrary.  That's good news, I think.

Franklin v. New York -- interesting statements accompanying a cert denial

For decades, I have benefited from the extraordinary efforts of three friends to keep me informed on matters I should know about – my co-clerk Ed Krugman, my former law-firm colleague Eric Freedman, and regular blog reader Stu Dedopoulos.  On Monday, all three of them told me about the cert denial in Franklin v. New York.  Justices Alito and Gorsuch issued very different statements accompanying the denial.  I haven’t been able to offer my thoughts before today, but I’m glad to do so now.

First, Justice Alito’s statement.  He contends that in a future case the Court should reconsider Crawford.  This isn’t entirely surprising news.  As a very junior justice, he joined in the 8-1 decision in Davis v. Washington, but in Giles v. California he expressed misgivings about Hammon v. Indiana, which was part of the Davis decision and held the statements there to be subject to the Confrontation Clause.  And he was one of the dissenters in Melendez-Diaz and Bullcoming, and author of the prevailing opinion in Williams v. Illinois and of a separate opinion in Smith v. Arizona, echoing the views of those earlier opinions.  But in Smith, the prior Gang of Four was reduced to two, and in Franklin Justice Alito stands alone; that is probably good news.  Justice Alito based his argument on two points – that Crawford does not clearly reflect the original meaning of the Confrontation Clause and that it has proved unpredictable in application.

           Justice Alito says that Crawford’s treatment of a person who makes a testimonial statement as a witness for purposes of the Confrontation Clause is “radically different” from the meaning of the term witness elsewhere in the Constitution; his point is that elsewhere the term “refer[s] to people who testify in court.”  Three responses.

           First, there really is no incompatibility.  As Justice Alito recognizes, the Compulsory Process Clause, on which he puts his primary reliance, gives a defendant the right to subpoena witnesses to come to court to testify in his favor.  The Confrontation Clause, which as he recognizes, is the other side of the coin, gives the defendant a right to demand that those who testify against him do so in court.  (On both sides, we must recognize a qualification; if the witness cannot come to trial, a deposition might do.) 

           Second, what do witnesses do?  They testify; they give testimony.  In English, as I have pointed out, we have different words for witnesses and what they do, but in many other languages they are the same root.  (For instance, témoin and témoinage in French.) There are various ways in which one might give testimony, some of which are allowed in other jurisdictions, but as Crawford makes clear the way that is acceptable under the Confrontation Clause is face to face, presumably at trial. So the difference really isn’t a different meaning of the word witnesses, but a different function of the respective clauses.  The Compulsory Process Clause gives the defendant the right to bring favorable witnesses to court, the Treason Clause requires the prosecution to bring two witnesses to court, and the Confrontation Clause more generally gives the defendant the right to insist that the prosecution bring its witnesses to court.

           Justice Alito goes on to cite academic literature that in his view casts doubt on Crawford’s perception of Framing-era practice with respect to “what we now call hearsay.”  I’m not going to try to get into an extended historical argument here.  But two quick points:  I think it is clear that the Confrontation Clause was not rooted in a doctrine resembling the modern law of hearsay; it was, and is, a rule about how witnesses give testimony.  Second, the laser-like focus in some of the literature on the Framing era – what did the Framers know, and when did they know it – while historically interesting, doesn’t resolve the question that is important for construing the Clause.  The norm that prosecution witnesses must testify face to face, ordinarily in open court, and not by, say, giving a statement in private to a government official, had developed over hundreds of years, and had ancient roots; Crawford clearly recognized this and was dead right about it.

           And that ties in to my third point.  Justice Alito’s apparent belief that the Confrontation Clause gives the accused rights only with respect to those witnesses who testify in court (a theory at one point adopted by the second Justice Harlan) would be an utter disaster.  It would allow a prosecutor to try a case entirely by affidavit, putting the burden on the defense to compel the attendance of those affiants it wanted to examine (if they were even available, and presumably with only non-leading questions allowed).  That has never been how a common-law criminal trial has been conducted.

           As to unpredictability, as my colleague Rick Lempert has pointed out there is a certain degree of chutzpah in Justice Alito’s claim, because much of the unpredictability has been attributable to his own promotion of untenable theories. (A statement not directed against a “targeted individual” cannot be testimonial.  Really?  A description of the crime scene?  A description of the crime itself, without any information identifying the perpetrator?)  As Crawford pointed out, Roberts was inherently unpredictable.  The Supreme Court can develop a sturdy conception of what is testimonial; it just hasn’t done so yet.  But let’s bear in mind that it’s just a little over twenty years since Crawford was decided, and the Court addresses the issue only very occasionally.  (It reminds me of the old joke about a member of a religious order who is allowed to speak only every ten years, to the abbot.  After ten years, he says, “The beds are hard.” After twenty, “The food stinks.” After thirty, “I quit.”  And the abbot replies, “Not surprising; you’ve been doing nothing but complaining for thirty years.”)

           I’ve said the Court can develop a sturdy conception of the meaning of the Confrontation Clause, and that brings me to Justice Gorsuch’s statement.  As in Smith, he casts doubt on the “primary purpose” test.  Well, good for him, because that test truly is inherently unpredictable and manipulable; Justice Thomas pointed this out from the start.  A test based on the reasonable anticipation of a person in the position of the purported witness would provide good guidance and would express the essence of what the Clause is about.  That does not mean, of course, that there would be no close cases.  But that is true of just about any area of law.  When the Court heard argument in Ohio v. Clark, there was so much dissatisfaction with the “primary purpose” test that I thought it might be on the chopping block.  But in the end, Justice Alito’s opinion for the Court stuck with the test, and the Court doubled down on it, at least to some extent, in Smith.  But I always say the future is bigger than the past, and there’s plenty of future in which the Court can change course.  Perhaps continued dissatisfaction with the “primary purpose” test, and pressure from Justice Gorsuch to take a different course within the Crawford framework (and perhaps even Justice Alito’s pressure from outside that framework) will cause the Court to take another look.