Lab reports and a notice-and-demand statute -- a significant decision from Minnesota

The Minnesota Supreme Court's decision yesterday in State v. Caulfield, 2006 WL 2028676 (Minn. Oct. 5, 2006),is notable and on the whole encouraging.

Noting a conflict among courts but (properly) finding the matter untroubling, the court unanimously held that a Bureau of Criminal Apprehension lab report, offered at trial to prove that a substance seized from the defendant was cocaine, was testimonial. The court correctly rejected the argument by the state "that state crime lab analysts play a nonadversarial role and are removed from the prosecutorial process." Although the underlying standard used by the court is somewhat unclear, the court soundly criticized decisions treating lab reports as non-testimonial, saying that those decisions "wrongly focus on the reliability of such reports."

The court was divided 4-3 in holding unconstitutional Minnesota's notice-and-demand statute, Minn. Stat. sec. 634.15, which allows admission of certain lab reports without testimony of the analyst unless the defendant "request[s], by notifying the prosecuting attorney at least ten days before the trial, that the [analyst] testify in person at the trial on behalf of the state." A critical aspect of this statute is that the defendant may demand that the analyst be called to testify at trial "on behalf of the state." The effect of this provision is that the statute does no more than require early assertion of the confrontation right; this is much more justifiable than provisions (such as one recently upheld in the neighboring state of North Dakota and discussed in another post) that effectively treat the confrontation right as abandoned unless the accused subpoenas the witness and makes her his own witness. In general, I think, statutes that merely require the defendant to assert his confrontation rights at some reasonable time prior to trial do not raise a serious constitutional problem; the state should be allowed to use a report without presenting the live testimony of the analyst if the defendant doesn't object, and long enough ahead of trial to make planning possible the state should be told whether it has to bring the analyst in. A ten-day period in this context does not seem unreasonable, though probably there should be leeway allowing the defendant to invoke the confrontation right later if he can show good reason why he did not earlier but needs to now. The Minnesota Supreme Court agreed that a properly drafted notice-and-demand statute might be constitutional. Nevertheless, the court held this one unconstitutional, declaring:

At a minimum, any statute purporting to admit testimonial reports without the testimony of the preparer must provide adequate notice to the defendant of the contents of the report and the likely consequences of his failure to request the testimony of the preparer.

The first point, that the defendant needs adequate notice of the contents of the report -- and, the court might have said, of the prosecution's intent to offer it -- is a good one, because absent such notice the defendant cannot intelligently decide whether to invoke the confrontation right. (Indeed, while the court refers to sec. 635.14 as a "notice-and-demand" statute, the only notice for which it provides, so far as I can see, is notice of the demand by the defendant that the preparer testify.) This is probably all the court needed to say. The second point, that the defendant needs notice of the likely consequences of failure to demand testimony of the preparer, seems rather odd to me, and this is what generated the dissent: It is pretty obvious from the statute that the report will be admitted and the preparer will not testify at trial unless the defendant demands the testimony. In any event, there is an easy fix: The state just has to draft a good notice provision to deliver to defendants.

Crawford-Davis Symposium at Regent Law School

As mentioned in a previous post, Brooklyn Law School is holding a one-day symposium on Crawford-Davis related issues this Friday. Two weeks later, on Oct. 13-14, Regent Law School in Virginia Beach, Virginia, is holding a two-day symposium, titled "Crawford, Davis, and the Right of Confrontation: Where Do We Go from Here?" You can read about it here.

I'll be happy to give notice on this blog about any other confrontation-related events.

Crawford and Capital Sentencing

Andy Fine has called to my attention two recent cases, one quite good and the other not. I’ll discuss the bad one in another posting. The good one is United States v. Mills,, 2006 WL 2381329 (C.D.Cal., Aug 17, 2006), which holds that Crawford applies throughout the sentencing portion of a capital case. At least one other court had held that Crawford applies at the so-called “eligibility” phase – which establishes whether the accused is eligible for the death penalty – but not at the “selection” phase – which determines whether the death sentence actually will be imposed. The Mills court explicitly relied upon, and praised, John Douglass’s article, Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105 Colum. L. Rev. 1967 (2005).

As I have suggested before, it appears to me the result reached by Mills has substantial appeal – if not under the Confrontation Clause then under the Due Process Clause. Suppose a person gives testimony in court during the selection phase. The court should not be able to excuse that witness from cross-examination simply because the court believes the testimony to be true. And, considering just a strong case, it seems clear the result should remain the same if the person makes a statement out of court with the intention that it be used at trial. Otherwise, the person could effectively testify without coming to trial and without taking an oath or being subject to cross-examination. This argument doesn’t distinguish capital sentencing from other sentencing proceedings; I don’t have any settled opinion as to whether the arguments treating death penalty proceedings as constitutionally different have merit.

One aspect of Mills is perplexing. The court says in a footnote, “As to non-testimonial statements, the post-Crawford standard remains unclear.” Aw, come on. The judge is aware of Davis – he had just cited it shortly before – but for that proposition he only cites pre-Davis cases. (Some of the court’s rulings as to whether particular statements are testimonial may also be arguable, but I won’t analyze those.) Really, it should be clear by now: If a statement is not testimonial, the Confrontation Clause doesn’t apply.

James Duane on the Puzzling Failure to Recognize the Death of Roberts

Crawford, in holding that testimonial statements lie at the core of concern of the Confrontation Clause and that satisfying the Roberts reliabiity standard does not suffice to render them admissible, left open the question of how, if at all, the Clause applies with respect to non-testimonial statements. Crawford suggested that Roberts may still apply to such statements, or that perhaps the Clause poses no obstacle at all to them. Now Davis has provided an answer, or at least Justice Scalia surely thought it has. James Duane of Regent Law School has written a short piece on the puzzling failure of some lower courts to recognize that Davis declared that the Confrontation Clause places no constraint at all on the admissibility of non-testimonial statements. The piece will be published in the Fall issue of Criminal Justice, but with permission it is available to read now, by clicking here.

In time, I assume it iwll be clear enough that Davis has left no room for the Roberts standard: Crawford held that an opportunity for confrontation, not reliability, is necessary with respect to testimonial statements, and Davis says that with respect to non-testimonial statements the Confrontation Clause simply does not apply. That, in my view, is the proper result as a matter of principle -- the Clause referes to witnesses, and witnesses are those who make testimonial statements -- and I think it will help lend a useful focus and clarity to the law of the Confrontation Clause. It may well be, however, that in occasional cases the failure of the prosecution to facilitate the production of the declarant of a non-testimonial statement will be held to be a violation of due process. If the prosecution is very sloppy with a small DNA sample, thus preventing the defense from examining it, I think that raises a possible constitutional issue; the same result could apply if the prosecution is very sloppy about allowing the defense to cross-examine the declarant of an important statement, even if the statement is non-testimonial and so the Confrontaiton Clause does not apply.

By the way, I suppose Roberts is still good (though somewhat dubious) law in one respect. The case itself involved the question of whether the witness should be deemed unavailable for Confrontation Clause purposes. That issue remains an important one under Crawford with respect to prior testimony, and although one may easily question the Roberts Court's conclusion that the prosecution made sufficient efforts to procure the witness's testimony for her to be be deemed unavailable, the Court has never indicated any doubt about that holding.

No Confrontation Problem if Not Offered for the Truth

The confrontation right only arises if the statement in question is offered into evidence for the truth of what it asserts. This basic principle, enunciated in Tennessee v. Street, 471 U.S. 409 (1985), was specifically reaffirmed in Crawford, 541 U.S. at 59 n.9. Occasionally a court will forget this point and create a Confrontation Clause issue where none exists.

I was reminded of this by the decision yesterday in State v. Woinarowicz, 2006 N.D. 179, 2006 WL 2360187. This was a drug case, and the defendant objected to the introduction of evidence found in her hotel room. A police officer testified at a suppression hearing that a friend of the defendant had given consent to enter and search the room. The defendant objected on the basis of the Confrontation Clause.

The North Dakota Supreme Court rightly rejected this objection. The basis for the Court's decision was that the Confrontation Clause doesn't apply at suppression hearings. Well, fair enough. That's certainly what the decisions say, though as I've pointed out before if the Clause itself doesn't apply there still should be some confrontation right as a matter of due process at suppression hearings: A court wouldn't let a prosecution witness step down from the stand without being subjected to cross, and the prosecution shouldn't be able to avoid cross by taking the testimony out of court.

A crisper, cleaner way of reaching the result in this case would have been to hold that there could not have been a confrontation problem because the friend's utterance was not being offered for the truth of any proposition that it asserted. Now, one might say that it literally asserted that the police had consent and that it was offered to prove that the police had consent. But the utterance here was not a report of any matter. Rather, it was an act of operative significance. If the friend said what the officer testified she said, the police had consent because she said it -- that utterance was the act giving the police consent. The officer therefore testified to a consent-giving event that he personally witnessed, and one could not ask the prosecution to do better than that.

Analysis of post-Davis Supreme Court decisions

I previously posted a brief, preliminary summary, prepared by Andrew Fine, of the Supreme Court's decisions after Davis, denying certiorari in some Crawford-related cases involving fresh accusations and GVRing (granting, vacating and reversing for reconsideration in light of Davis) in others. Here is a more extensive analysis, prepared by the Public Defender Service for the District of Columbia under the supervision of Tim O'Toole, and presented here with their permission and my thanks. How the GVRed cases will eventually be resolved is not yet certain, of course, but I think it is clear that the Court's decisions reflect an unwillingness to assume that a fresh accusation was probably made during an "ongoing emergency".

"First Impressions" -- An On-Line Symposium from the Michigan Law Review

The Michigan Law Review has begun an on-line "companion" journal called First Impressions, which has just published its first edition, a set of essays on Davis and Hammon. The contributors are Andrew Fine, Lisa Griffin, Tom Lininger, Joan Meier, Robert Mosteller, and me. (No, this was not my idea; this project is entirely attributable to the gumption of the student editors.) The essays reflect a wide range of views. You may see them by clicking here. Congratulations to the editors!

Shifting the Burden, Take 2

One response to Crawford that has been attempted by prosecutors in some states has been to tell defendants, in effect, "We are introducing into evidence a testimonial statement made by a witness whom we are not calling to the stand. But the witness is available, and if you like you may subpoena her and call her as your own witness." In State v. Campbell, 2006 ND 168, 2006 WL 2074742, called to my attention by James Duane, the North Dakota Supreme Court recently held this procedure constitutionally acceptable in the context of the report of a state crime lab. The court strongly suggested that the report was testimonial (I think it plainly was), but decided it need not determine that issue definitively because, in its view, the defendants had waived the confrontation right. The basis for this conclusion was that a statute gave the defendants the right to subpoena the author of the report and they did not do so. I have previously discussed at some length on this blog reasons why I believe that such a procedure is constitutionally inadequate. I will not repeat those arguments; you may read the prior posting by clicking here.

I will add several further thoughts, though. First, suppose that a state adopted a general procedure that whenever a prosecution witness testified the accused could indicate his desire for cross-examination, but that cross would be deferred until the close of the prosecution's case, at which time the accused would have the option of recalling the witness. Obviously, such a procedure would be a dramatic change of traditional criminal trial procedure. It seems unlikely to me that it would satisfy the Confrontation Clause. But the subpoena process approved by Campbell is worse, because the initial testimony is not presented live and the defendant has to subpoena the witness, not simply demand cross.

Second, the logic of the Campbell opinion appears to be unlimited with respect to types of statement. That is, the prosecution could present its entire case through affidavits and say to the defense, "We believe these witnesses are available. If you insist on confronting them, subpoena them and call them as part of your case." That would work an even greater revolution in criminal trial procedure. Perhaps implicit in Campbell is the idea that the declarant there was under the control of the state, so that there could be no doubt about his or her availability. But if so, why should the defense have to subpoena the witness, rather than simply demand that the state produce him or her? And if that is all the defense has to do, shouldn't the witness have to testify as part of the prosecution's case rather than as part of the defense's?

Third, the subpoena procedure would make inevitable frequent litigation over availability of the witness, with the incentives twisted. Note that under Crawford, as under Roberts before it, it is the prosecution, the party seeking admission of the prior statement, that sometimes claims the witness is unavailable. Under the ordinary post-Crawford procedure, the issue of unavailability arises only if there has been a prior oportunity for confrontation. Even within that relatively small category of cases, the prosecution has a strong incentive to produce the witness -- it may prefer the live testimony of the witness to the out-of-court statement, but in any event producing the witness avoids the issue and so is safer. Thus, the prosecution will want to demonstrate unavailability in those cases, and pretty much only those cases, in which it is not able easily to produce the witness. But the subpoena process turns the incentives around. Under that process there has not been an opportunity for confrontation, so if the witness is unavailable the out-of-court testimonial statement must be excluded. Thus, the defendant, the party on whom the burden of producing the witness is placed, has a strong incentive to demonstrate that he cannot do so. If the defense reports that it subpoenaed the witness but the witness does not appear, then the prosecution would frequently contend that the fault is the defense's -- the subpoena was too late, or it went to the wrong place, or it wasn't served properly, or no effort to enforce it was made. (And what effort should the defense make?) If the witness is determined to be unavailable, the statement must be excluded and the process will have achieved nothing. The prosecution might demonstrate that the witness is available by producing her itself, in which case also the process will have achieved nothing. Or perhaps the court will determine that the witness could have been produced by proper efforts, but that seems unacceptably speculative.

Fourth, it is perfectly acceptable, and probably virtually inevitable, to require the defendant, as a condition of predicating error on a denial of confrontation, to make a timely demand that the witness be produced. The critical differences between such a requirement and the subpoena process approved by the Campbell court are: (1) Under the subpoena process, but not under a timely demand requirement, it is the defense that does the work of procuring the witness's attendance. (2) Under the subpoena process, the witness testifies as part of the accused's case, raising numerous difficulties analyzed in my prior posting. Under a timely demand requirement, the witness testifies as part of the prosecution case, which is as it should be. Note, then another recent case, Howard v. United States, 2006 WL 1834995 (D.C. Jul. 6, 2006; amended, Jul. 10), called to my attention by Jeff Fisher. The situation was similar to that of Campbell, and the court likewise held that the accused waived the confrontation right by not subpoenaing the author of a lab report. But here the court not only emphasized that the subpoena was cost-free to the defendant but declared:

Had the defense served a subpoena on the chemist, as the statute permits, the government could have presented him in its case in-chief, and the chemist then would have been available for cross-examination by the defense.

If the court insists that the witness, if subpoenaed, testify as part of the prosecution's case, then a subpoena procedure that is cost-free to the defendant looks very much like a requirement of a timely demand.

Finally, having said all this, I think it may be possible to articulate situations in which the accused may be required to certify that he has some good reason for not being willing to waive the confrontation right -- just wanting to impose costs on the prosecution and thereby gain a litigation advantage not being a good reason. Indeed, in my prior post on burden-shifting, I said that I would soon present another post discussing this possibility. But I have not made good on the promise yet; as I began drafting it became apparent to me that the matter was more complex than I had anticipated. I will continue mulling, because I think this is a crucial subject, and I welcome comments.

Andy Fine on Davis and Hammon

Andy Fine has written a fine practitioner's guide to issues presented in light of Davis and Hammon. Its primary audience is New York appellate defense lawyers, but it should be useful to a far wider range of readers than that. Accordingly, with Andy's permission, I am attaching it here.

New Crawford Symposium at Brooklyn

Brooklyn Law School, under the leadership of Bob Pitler, ran an excellent symposium on Crawford in February 2005. They are now holding another conference, on September 29. For more information, click here.

Regent Law School, in Virginia Beach, Va., will also be holding a symposium on Crawford issues in October. More information later.

Post-Davis decisions by the Supreme Court: A Preliminary Look

The Davis opinion left many questions unanswered, even within the realm of statements made shortly after a crime to law enforcement officials. Some indication beyond the opinion of what the Supreme Court is thinking about these issues may be gleaned from its post-Davis decisions, denying certiorari in some cases and granting, vacating, and remanding in others. Andy Fine has drawn these cases to my attention and written a very brief summary, which I am posting here with his permission, and with a very short comment afterwards; I am hoping to post a more detailed analysis before too long.

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Very Early Fallout From Davis/Hammon

Some may have thought that the Supreme Court’s term ended on June 29 with its decisions in Hamdan v. Rumsfeld and Clark v. Arizona, but the Court also issued an interesting batch of “GVRs” on June 30, granting cert, vacating and remanding for reconsideration in light of Davis/Hammon in seven cases. Criminal defendants were the petitioners in each instance. Six of these seven cases involved crime-scene statements to responding police, and two of those, Wright v. Minnesota and Lewis v. North Carolina, were appeals from state supreme court decisions holding such statements to be nontestimonial under Crawford. See State v. Wright, 701 N.W.2d 802 (Minn. 2005); State v. Lewis, 619 S.E.2d 830 (N.C. 2005). The Lewis decision is particularly intriguing, since the North Carolina Supreme Court’s analysis in some respects resembled that adopted in Davis/Hammon; the state high court said that when police responding to emergency calls for help ask preliminary questions at the crime scene to ascertain whether the victim, other civilians, or the police themselves are in danger, they are not obtaining information for the purpose of making a case against a suspect, and the ensuing statements therefore are not testimonial. And in Forrest v. North Carolina, the Court “GVR’ed” where the declarant, described as nervous, shaking, and crying, blurted out most of her statements before any questions were asked. See State v. Forrest, 596 S.E.2d 22 (N.C. App. 2004).

On the other hand, the Court denied cert to the state in Gonsalves v. Massachusetts, in which the Massachusetts Supreme Judicial Court had held that statements that are the product of any questioning by law enforcement agents other than to secure a volatile scene or ascertain the need for medical care are testimonial per se, and that other statements are testimonial if a reasonable person in declarant’s position would anticipate the statement’s use against the accused in a prosecution. Commonwealth v. Gonsalves, 833 N.E.2d 549 (Mass. 2005). The Court also denied cert to one criminal defendant appealing from an adverse state supreme court decision involving crime-scene statements to responding police, Hembertt v. Nebraska. See State v. Hembertt, 696 N.W.2d 473 (Neb. 2005).

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Friedman psotscript: Hembertt, involved a woman running outside of a house as police arrived, crying and saying , "[H]e's inside. He's upstairs." This appears to be the type of case that the Court had in mind when it noted that some statements made to police at the scene are non-testimonial because within the emergency doctrine. To this case, we might also add
Foley v. Massachusetts, denying cert in Commonwealth v. Foley, 833 N.E.2d 130 (Mass. 2005), a companion case to Gonsalves involving responses to the question "[W]here is he?" and to an inquiry about the need for medical care. In addition, the issue had not been properly preserved in Foley, as in Greene v. Connecticut, denying cert in State v. Greene, 874 A.2d 750 (Ct. 2005).

An interesting sidelight on Crawford and Craig

In its decision today in United States v. Gonzalez-Lopez, the Supreme Court, per Justice Scalia, has an interesting discussion in passing of Crawford with an intriguing citation to his dissent in Maryland v. Craig, 497 U.S. 836 (1990), which allowed children to give testimony outside the presence of the accused in some circumstances. The Court holds that the right to have counsel of one's choice is violated without the need to show prejudice. In doing so, it refuses to follow the following logic: The right is meant to ensure a fair trial, and therefore unless a fair trial was impaired there is no violation. The Court says:

It is true enough that the purpose of the rights set forth in that Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair. What the Government urges upon us here is what was urged upon us (successfully, at one time, see Ohio v. Roberts, 448 U. S. 56 (1980)) with regard to the Sixth Amendment's right of confrontation--a line of reasoning that 'abstracts from the right to its purposes, and then eliminates the right.' Maryland v. Craig, 497 U. S. 836, 862 (1990) (SCALIA, J., dissenting). Since, it was argued, the purpose of the Confrontation Clause was to ensure the reliability of evidence, so long as the testimonial hearsay bore 'indicia of reliability,' the Confrontation Clause was not violated. See Roberts, supra, at 65-66. We rejected that argument (and our prior cases that had accepted it) in Crawford v. Washington, 541 U. S. 36 (2004), saying that the Confrontation Clause 'commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.' Id., at 61.

So also with the Sixth Amendment right to counsel of choice. It commands, not that a trial be fair, but that a particular guarantee of fairness be provided-- to wit, that the accused be defended by the counsel he believes to be best. . . .

The discussion is significant for Confrontation Clause analysis for at least two reasons.

First, it offers a key to the intellectual foundations behind Crawford. Scalia indicates that an unrestrained functional approach -- determine the purpose of the rule, and then simply decide on a case- by-case basis whatresult would support that purpose -- is unacceptable in this context. He is operating more categorically, but assessment of the purpose of the doctirne is essential in determining what the critical categories are.

Second, Scalia was able to take a pot shot at Craig on behalf of a majority of the Court -- the four more liberal members of the Court and himself. Scalia dissented bitterly in Craig, and while Crawford untouched, its categorical nature certainly had more affinity with Scalia's dissent in Craig than with Justice O'Connor's opinion for the majority. Gonzalez-Lopez (a return to the win column for Jeff Fisher, by the way) provides Scalia with a little more ammunition for oerruling Craig in light of later developments.

Hammon and Davis decided

The Supreme Court decided Hammon v. Indiana and Davis v. Washington today, in a consolidated opinion written for the Court by Justice Scalia; Justice Thomas wrote a separate opinion. Hammon won 8-1 and Davis lost 9-0. You may see the syllabus and the opinions by clicking here. I'm obviosuly delighted by the victory in Hammon (the case I argued) and very disappointed by the result in Davis. Commentary on the decisions by several people, including me, may be found at www.scotusblog.com/ . For today, I will probably not comment further here or there (we've just started a vacation, I got very little sleep last night, and I am going to take a nap!), but your comments are more than welcome, and I'll join in later.

Supreme Court to decide retroactivity of Crawford

The Supreme Court granted cert today in Whorton v. Bockting, No. 05-595, thus agreeing to review the decision of the Ninth Circuit that Crawford applies retroactively to habeas cases. In one sense, this is utterly unsurprising, because the conflict between the Ninth Circuit, on the one hand, and other circuits is very clear. But the Court conferred on the case in January, issued no decision, and then held it without another conference until last Thursday. I had thought maybe the Court was holding the case because it thought the decisions in Davis and Hammon might bear on it, but if that were so one would not expect a decision now. So what's up? An explanation, which seems plausible, offered to me by one knowledgeable Corut-watcher is that there were four but not five votes for summary reversal, and the Court was waiting to see whether the new justice would make five. When the answer was no, the Court had to grant cert.

As I understand it, it is possible the Court may decide the case under a threshold issue, not specific to the Confrontation Clause, that AEDPA severely restricts the retroactive application of Supreme Court decisions in habeas cases.

Comments on any aspect of this case?

Later-arising evidence and adequacy of the opportunity for cross

Crawford, quite properly, gives prosecutors incentive to take the testimony of witnesses before trial, under oath and subject to confrontation, in case the witness is unavailable at the time of trial. It appears to me that prosecutors should do so far more often than they do now and that procedural rules making it difficult to hold such a pretrial examination should be amended. But pretrial examinations inevitably raise the question of whether the opportunity for cross-examination was adequate. One problem is whether counsel had adequate time to prepare. Another, to some extent the other side of the same coin, is whether the earlier opportunity should be deemed inadequate because some information that might have been used in cross and that is available at trial was not available at the time of the earlier proceeding.

In People v. Jurado, 2006 WL 870936, a capital case decided yesterday, the California Supreme Court weighed in. There, the prosecution had taken the "conditional examination" – basically, as I understand it, a deposition held for purposes of preserving testimony – of a key witness, who became unavailable by the time of trial. The prosecution offered the prior examination over the objection that the opportunity for cross was inadequate because the witness had subsequently made an important statement that would have been valuable in cross-examination. The state supreme court rejected this argument, pronouncing flatly, "Absent wrongful failure to timely disclose by the prosecution, a defendant's subsequent discovery of material that might have proved useful in cross-examination is not grounds for excluding otherwise admissible prior testimony at trial."

This issue is a difficult one, posing the question of what is the baseline against which to measure adequacy of the opportunity for cross. On the one hand, it appears that if the trial been held at the time of the prior examination there would have been no basis to contend that the opportunity for cross was inadequate; furthermore, later-arising evidence, such as a new statement by the witness, would not likely require a new trial. On the other hand, if the witness had testified at trial – which is when we expect most witnesses to testify – then the defense would have had the benefit of cross-examining on the basis of the later statement. It may be that the accused could still impeach the witness effectively, even without the witness being present for cross, but it is doubtful that this would eliminate altogether the differential between earlier and later cross.

I am inclined to think that the later time – the time of the trial – is the more appropriate baseline, and that the court should consider how serious is the lost opportunity to cross-examine on the basis of the later-received evidence. This would leave matters rather indeterminate in this area, but that might be better than the broad decision by the California Supreme Court.

Transcripts of Arguments in Davis and Hammon

The transcripts of the arguments in Davis and Hammon are now available. You can get the Davis transcript by clicking here, and the Hammon transcript by clicking here. I'm sure every stammer of mine reported in the transcript is accurate, but there are two words reported inaccurately in the Hammon transcript that I will note here, for whatever it might be worth. On p. 3, line 12, in my very first sentence, it has me using hte word "similar" when I said "simple". And on p. 61, line 18, right in the middle of my peroration it has "abated" when I said "evaded".

Report on the Hammon and Davis arguments

Davis and Hammon were argued on Monday, and now we wait for the decisions.

Robert H. Jackson once wrote, “[A]s Solicitor General, I made three arguments in every case. First came the one I had planned – as I thought, logical, coherent, complete. Second was the one actually presented – interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night…” Advocacy Before the Supreme Court: Suggestions for Effective Case Presentations, 37 A.B.A. J. 801, 803 (1951). I think the main difference between Justice Jackson and me is that my too-late thoughts wake me up early in the morning rather than keeping me up late at night.

When the transcripts of the arguments become available, I will post them on the blog. Meanwhile, readers can find accounts in the press, and I offer below the observations recorded that night, at my request, by my 13-year-old daughter, who sat through the full arguments in both cases, two hours in all.

Hammon v. Indiana case
Supreme Court of USA
March 20, 2006

Rebecca’s Supreme Court Decoration Notes

Ceiling Notes

• 25 red boxes on ceiling.
• 4 flowers in each box (flowers weren’t always in the same pattern)
• 100 total flowers in red boxes
• 84 little white boxes on ceiling
• 40 long white flowers in 20 blue boxes on ceiling
• Blue squares w/ flowers in each of 4 corners
• 6 lights in blue boxes on ceiling
• 30 little blue boxes with white flowers (not counting corners or lights) in total

Other Notes

• In mural above justices, there were 30 people total
• Facing towards front of court room on left, the mural has only 15 people in total
• 24 pillars total

Reply Briefs in Davis and Hammon

Yesterday was the second anniversary of Crawford, and to celebrate I filed my reply brief in Hammon, which you can get by clicking here. Jeff Fisher filed his reply brief in Davis last week, and you can get it by clicking here.

The cases are now set for argument on Monday, March 20.

A Personal Confrontation Bibliography

Areader has asked for a listing of my writings on confrontaiton. Here are citations. I will try to add in links in the near future.

Is Barking Up the Wrong Tree Assertive Conduct? and other contributions to an electronic symposium published in 16 Mississippi Coll. L. Rev. 1 (1995).

Prior Statements of a Witness: A Nettlesome Corner of the Hearsay Thicket, 1995 Sup. Ct. Rev. 277.

Confrontation Rights of Criminal Defendants, J. F. Nijboer & J. M. Reijntjes, Proceedings of the First World Conference on New Trends in Criminal Investigation and Evidence, 533-41 (1997).

Confrontation and the Definition of Chutzpa, 31 Israel L. Rev. 506 (1997).

Anchors and Flotsam, Book Review of Mirjan Damaška, Evidence Law Adrift, 107 Yale L. J. 1921 (1998).

Confrontation: The Search for Basic Principles, 86 Georgetown L.J. 1011 (1998).

Truth and Its Rivals in the Law of Hearsay and Confrontation, 49 Hastings L.J. 545 (1998).

Thoughts from Across the Water on Hearsay and Confrontation, Oct. 1998 Crim. L. Rev. 687.

Lilly v. Virginia: A Chance to Reconceptualize the Confrontation Right, AALS Section on Evidence Newsletter (Spring 1999), at 5.

Confrontation Confronted (with Margaret A. Berger and Steven R. Shapiro), an adaptation of the amicus curiae brief submitted to the U.S. Supreme Court on behalf of the American Civil Liberties Union in Lilly v. Virginia (No. 98-5881), 42.3 Law Quadrangle Notes 90 (Fall/Winter 1999).

The Suggestibility of Children: Scientific Research and Legal Implications (with Stephen J. Ceci), 86 Cornell L. Rev. 1 ( 2000)

Lilly v. Virginia: Glimmers of Hope for the Confrontation Clause?, International Commentary on Evidence http://www.law.qub.ac.uk/ice (July 10, 2000)

"E" is for Eclectic: Multiple Perspectives on Evidence, 87 University of Virginia L. Rev. 2029 (2001).

The Conundrum of Children, Confrontation, and Hearsay, 65 Law and Contemporary Problems 243 (2002).

Dial-In Testimony (with Bridget McCormack), 150 University of Pennsylvania L. Rev. 1171 (2002).

No Link: the Jury and the Origins of Confrontation Right and the Hearsay Rule, in John W. Cairns and Grant McLeod (eds.), The Dearest Birth Right of the People of England: The Jury in the History of the Common Law, 93, Hart Publishing Ltd. (2002).

Remote Testimony, 35 Michigan J. of Law Reform 695 (2002).

Crawford v. Washington, AALS Section on Evidence Newsletter (Fall 2003), at 2.

Confrontation as a Hot Topic: The Virtues of Going Back to Square One, 21 Quinnipiac L. Rev. 753 (2003).

‘Face to face’: Rediscovering the right to confront prosecution witnesses, 8 Int’l J. Ev. & Proof 1 (2003).

Minimizing the Jury Over-Valuation Concern, 2003 Mich. St. DCL L. Rev. 967.

Adjusting to Crawford: High Court Decision Restores Confrontation Clause Protection, 19 Crim. J. No. 2, p. 4 (2004).

The Crawford Transformation, Section on Evidence Newsletter (Spring/Summer 2004), at 2.

The Confrontation Clause Re-Rooted and Transformed, 2003-2004 Cato Supreme Court Review 439 (2004).

Crawford Surprises: Mostly Unpleasant, 20 Crim. J. No. 2, p. 36 (2005 (symposium issue).

Grappling with the Meaning of “Testimonial”, 71 Brooklyn L. Rev. 241 (2005).

State-side briefs in Davis and Hammon

The state-side briefs in Davis and Hammon were filed on Thursday, February 2. To look at PDF copies of each brief, click below.

1. Brief of the respondent State of Washington, in Davis v. Washington.

2. Brief of the respondent State of Indiana, in Hammon v. Indiana.

3. Amicus brief of the United States, in Davis.

4. Amicus brief of the United States, in Hammon.

5. Amicus brief of 27 states, in both cases.

6. Amicus brief of Cook County, Illinois, in both cases.

7. Amicus brief of Wayne County, Michigan, in Hammon.

8. Amicus brief of the National District Attorneys Association, in both cases.

9. Amicus brief of the National Network to End Domestic Violence and 56 other organizaitons (and one individual) devoted to remedying and addressing domestic violence, in both cases.

10. Amicus brief of the National Association of Counsel for Children, in both cases.

Reply briefs are due March 9.

Crawford and Bruton -- any relation?

I've gotten a couple of inquiries tonight -- and some others before -- about the relation of Crawford to Bruton. It seems to me that the two cases address issues along different dimensions. The question addressed by Crawford is when introduction of an out-of-court statement would violate the accused's confrontation rights. The Bruton problem, at least in its classic form, arises when there are co-defendants and introduction of a confession by one defendant would violate the confrontation rights of the other defendant but not those of the declarant. Bruton, in other words, assumes the answers to the substantive confrontation questions -- OK against one defendant, a violation against the other -- and then addresses the question of how to resolve that situation. Thus, it seems to me that Crawford and Bruton have very little to do with one another, except that Bruton problems are more likely to arise under Crawford than under the prior regime, because confrontation problems are recognized more often.

I am not particularly confident on this because I don't know a lot about Bruton. I'd welcome comments from anybody who has any insights or information to offer on this question. Please identify yourself!

The Not-for-the-Truth End Run

The recent decisions of the Second Circuit in Martha Stewart’s case, United States v. Stewart, 2006 WL 27583, and of the First Circuit in United States v. Walter, 2006 WL 51398, may portend a disturbing new trend – to evade the confrontation right simply by holding that the statement in question was admitted for some proposition other than the truth of what it asserted. There is no doubt that, even though a statement is testimonial in nature, it may, in an appropriate case, be admitted for some proposition other than the truth of what it asserts without raising a Confrontation Clause issue; Crawford holds this explicitly, 541 U.S. 36 at 59 n. 9, reaffirming Tennessee v. Street, 479 US 409. But these recent cases highlight the dangers created by this doctrine.

In Stewart and Walter, from what I gather from an exchange of messages with defense counsel (and I would be glad to lear any information bearing on the point), the not-for-the-truth theories were, at least for the most part, not the ones on which the statements were actually admitted; rather, they appear to have been creations of the appellate courts. This is not an acceptable result. If, in responding to a post-conviction motion or appeal raising a confrontation issue, the prosecution wants to claim the not-for-the-truth end run, then it seems to me the court must first make sure that in fact the statement was not offered for the truth. It seems that something like this set of conditions should be rpescribed: (1) Assuming the defense made a confrontation objection, the prosecution must have asserted the alternative theory of admission. (2) The trial judge must have offered to give a limiting instruction. (3) The prosecution must have argued to the jury, if at all, on the basis of the alternative theory and not on the basis that the facts are as asserted in the statement because that is what the statement asserts. (4) Unless some other, non-testimonial statement by the declarant is also admitted, the prosecution must not have tried to support the declarant’s credibility. Only if these conditions are satisfied should the court conclude that the statement was genuinely admitted for a purpose other than the truth of what it asserted. I doubt that these conditions were satisfied in either Stewart or Walter.

Even if these conditions are satisfied, that does not end the problem. In some settings at least, it is relatively easy for the prosecution, or for a court eager to aid the prosecution, to come up with some material proposition other than the truth of the matter asserted that the statement helps prove. The court can then do an end run around the Confrontation Clause, ruling that the statement is admissible on this alternative basis rather than for the truth of the matter asserted. But if the statement is powerful enough, the jury will in all likelihood consider it for the truth of what it asserts, notwithstanding an instruction. Indeed, the prosecution may have devised that alternative theory in hopes that the jury would do precisely that. Say witness W makes a statement to a police officer accusing defendant D of a crime – and if you think any other conditions are necessary for the statement to be characterized as testimonial (I don’t) assume those conditions as well. So then the prosecution says, "Oh no, we’re not offering this on the ground that because W made the statement it makes those facts more probably true. Perish the thought. We’re just offering it to dispel any concerns the jury might have that D was arrested as a result of police animus." And then assume the prosecution adheres rigidly to that constraint in argument. This strikes me as a transparent evasion of the confrontation right. The value of the evidence to prove the proposition for which it is supposedly offered is minimal, but it will be very tempting for the jury to consider the statement for its truth, the instruction notwithstanding.

The problem has particular bite because, in general, there are not constitutional restraints preventing the use of evidence to prove a given proposition on the grounds that the need for proving the proposition is minimal. Given the Street rule, therefore, the path seems open to courts and prosecutors to devise alternative propositions for which a statement may be offered. But because in this setting such an alternative path to admissibility may be an end run around a constitutional right, it seems to me the Constitution must come into play. At a minimum, when a prosecutor offers a testimonial statement on grounds other than the truth of the matter asserted, the Confrontation Clause should be deemed to require that the court ask the following questions: (1) Is it likely that, even with an instruction, the jury would use the statement for the truth of what it asserts? (2) Is admission of the statement necessary on some alternative basis to correct a misimpression that otherwise would be left by the accused? (See my prior post on "Opening the Door".) (3) Does the prosecution genuinely have some other substantial need for the statement on the alternative ground of admission, taking into account other alternatives (and a stipulation, if the defense offers one)? What to do with the answers to those questions may be a rather complex problem. As an initial crack, I would say that the statement may be admitted only if (A) the answer to (2) is yes, or (B) the answer to (1) is no and the answer to (3) is yes.

I don’t claim any confidence that this is an optimal result, and I would be curious what other solutions readers have to offer. I am pessimistic for a couple of reasons. The use of prior bad acts by prosecutors supposedly to prove propositions other than the propensity of the accused to commit the crime – knowledge, motive, etc., etc. – indicates that many courts will tend to be receptive to prosecutors’ arguments that they really need to introduce evidence on some alternative ground (even though the forbidden ground is what will do them the most good). And the post-Crawford history suggests that many courts will tend to bend doctrine in whatever way seems available to secure the admissibility of evidence, notwithstanding an assertion of the confrontation right. I do believe that where crisp rules and clear-cut procedures can be enunciated they may confine the courts. That should make the aspect of the problem represented by Stewart and Walter reasonably tractable. But this other aspect of the problem – what to do if the prosecution adheres to the form of offering the statement on a ground other than the truth of the matter asserted – is harder to solve.

I have, by the way, previously commented on the not-for-the-truth end run in a particular context, when the statement is offered supposedly in support of an expert opinion. Most recently, I did so in a post commenting on the decision of the New York Court of Appeals in People v. Goldstein, a much more satisfactory opinion in this realm than either Stewart or Walter.

Arguments set for March 20 in Davis and Hammon

The Supreme Court has scheduled arguments in Davis v. Washington and Hammon v. Indiana for March 20 -- Davis first and Hammon immediately after.

By the way, my brief in Hammon is now posted on the blog in PDF form. Sorry for any inconvenience to those who couldn't open theother version.

R. v. Brasier -- a classic case from 1779

I have been commenting on very recent cases, but here is R v. Brasier, 1 Leach 199, 168 E.R. 202, a case from 1779 that has been much cited over the years. It bears on the treatment not only of fresh accusations but also of statements made by children and of accusations made to private care-givers. The report is as it stands in the English Reports, later annotations and all.

______________________


(An infant witness under seven years of age, if apprized of the nature of an oath, must be sworn; for no testimony is legal except it be giyen upon oath.)
[S.C. 1 East, P.C. 443; Bull. N. P. 293, Edit. 1790. Referred to, R. v. Guttridge, 1840, 9 C. & P. 471; R. v. Paul, 1890, 25 Q.B.D 202; R. v. Lillyman, [1896] 2 Q.B. 167.]
This was a case reserved for the opinion of the Twelve Judges, by Mr. Justice Buller, at the Spring Assizes for Reading, in the year 1779, on the trial of an indictment [1-Leach-200] for an assault with intent to commit a rape on the body of Mary Harris, an infant under seven years of age.
The case against the prisoner was proved by the mother of the child, and by another woman who lodged with her, to whom the child, immediately on her coming home, told all the circumstances of the injury which had been done to her: and there was no fact or circumstance to confirm the information which the child had given, except that the prisoner lodged at the very place which she had described, and that she had received some hurt, and that she, on seeing him the next day, had declared that he was the man; but she was not sworn or produced as a witness on the trial.
The prisoner was convicted; but the judgment was respited, on a doubt, created by a marginal note to a case in Dyer's Reports (Dyer, 303, b, in marg; 1 Hale, 302, 634; 2 Hale, 279; 11 Mod. 228; 1 Atkins, 29; Foster, 70; 2 Hawk. 612; Gilb. L. E. 144); for these notes having been made by Lord Chief-Justice Treby, are considered of great weight and authority; and it was submitted to the Twelve Judges, Whether this evidence was sufficient in point of law?
The Judges assembled at Serjeants'-Inn Hall 29 April 1779, were unanimously of opinion, That no testimony whatever can be legally received except upon oath; and that an infant, though under the age of seven years, may be sworn in a criminal prosecution, provided such infant appears, on strict examination by the Court, to possess a sufficient knowledge of the nature and consequences of an oath (see White's case, post, 430, Old Bailey October Session, 1786), for there is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court; but if they are found incompetent to take an oath their testimony cannot be received. The Judges determined, therefore, that the evidence of the information which the infant had, given to her mother and the other witness, ought not to have been received. The prisoner received a pardon (see the case of Rex v Travers, 2 Strange, 700).

United States v. Hadley: Not My Views on Fresh Accusations!

I must resist the temptation to comment here on every interesting Crawford case that comes down, and while Hammon and Davis are pending I will particularly refrain in general from commenting on cases presenting the type of issue raised there, the applicability of the Confrontation Clause to fresh accusations. But because the opinion of Hon. Gerald E. Rosen, a district judge sitting by designation on the Sixth Circuit, in United States v. Hadley specifically cites my work and contends that the result he reaches (the issue is not addressed by the other members of the panel) is "fully consistent" with my post-Crawford writings, I will say this: Judge Rosen's opinion does not at all reflect my views, and I do not think it reflects my writings, either. He cites my article, The Confrontation Clause Re-Rooted and Transformed, 2004 Supreme Court Review 439, 459-60 (available from Westlaw here or for purchase from the Cato Institute by clicking here). It is, frankly, hard for me to understand how one could read the pages he cites, or the carryover to the next page, and reach the conclusion about my views that he does. To whatever extent the confusion may be attributable to lack of clarity on my part, I hope it will be relieved by my brief in Hammon.

The Expertise End Run and People v. Goldstein

The New York Court of Appeals, the highest court in the state, issued a brave opinion on Deember 20 in People v. Goldstein, a notorious case in which the defendant pushed a woman he did not know to her death in front of an approaching subway train. Goldstein raised a defense of insanity, and in response the state presented the testimony of a forensic psychiatrist, Angela Hegarty, who testified that in her opinion Goldstein was sane at the time. Hegarty relied in substantial part on statements made to her by others, and the trial court admitted these statements.

The Court of Appeals, per Judge Robert Smith, held that New York evidence law did not prevent admission of Hegarty's opinion, notwithstanding the fact that it was based in part on out-of-court statements. Pointing to the 2000 amendment to Fed. R. Evid. 703, the court reserved an issue not presented by the parties, whether New York evidence law required exclusuion of the statements themselves. All this was preliminary, because the court held that the Confrontation Clause required exclusion of those statements.

The court first rejected the argument that the statements should be deemed to have been offered not for the truth of what they asserted but only in support of Hegarty's opinion. The court pointed out that the statements provided no support for that opinion unless they were true. In this context (not entirely clear how broad a context the court meant), the court said, the distinction between offering a statement for its truth and offering it to support an expert's opinion is "not meaningful." The court thus rejected the path of least resistance, down which others have gone in accepting the distinction; see my prior posting on the subject. The court is clearly correct that in this case the distinction is an empty one. And perhaps there should indeed be a per se rule that when the statement supoprts the esxpert's opinion only if true then the statement should be deemed to be offered for the truth for Confrontation Clause purposes. Add one more to the list of Crawford-related issues the Supreme Court will have to resolve.

The court also held, without apparent difficulty, that the statement was testimonial. Hegarty was hired by the state to testify for the People, and the court infers that the interviewees should reasonably have understood that she was involved in trial preparation and that their statements were likely to be used prosecutorially. The court properly and quickly rejected arguments that the statement could not be testimonial becausei t was informal and because Hegarty was not a government official.

The only issue the court seemed to find problematic was the question of harmless error. the cour tc oncluded that the error was not harmless, and reversed the conviction. This issue, and only this one, led to the only dissent, by a single judge, Susan Phillips Read.

Leaving aside the harmless error portion, which I have not examined carefully and on which I have no view, the majority opinion is solid, persuasive, and terse; the last point is worth emphasis, even apart from style, because it treats isues that should not be difficult in a clear and straightforward way. And yet it is sensitive to the human cost of sending the matter back for another trial. I would like to ascribe the quality of the opinion to the fact that I worked for Judge Smith in practice a quarter century ago, but I don't see anything in the opinion to support this hypothesis.

Petitioner-side briefs filed in Hammon and Davis

The briefs for the petitioners and supporting amici in Hammon v. Indiana and Davis v. Washington were filed on December 22. You can see the brief I filed for the petitioner in Hammon by clicking here . For the petitioner's brief in Davis, filed by Jeff Fisher, click here. For the amicus brief filed in both cases by the American Civil Liberties Union and its Indiana and Washington affiliates, click here. For the amicus brief in Hammon of the National Association of Criminal Defense Lawyers and the Public Defender Service for the District of Columbia, click here, and for the amicus brief filed in Davis by the same two organizations and also the Washington Association of Criminal Defense Lawyers, click here.

Cert granted in Davis and Hammon

The Supreme Court today granted certiorari in both Davis v. Washington, No. 05-5224, and Hammon v. Indiana, No. 05-5705. Davis primarily involves accusatory statements made in a 911 call, while Hammon involves accusatory statements made to a responding officer. In each case the state supreme court held that the statements at issue were not testimonial, and in each case I believe this was erroneous. Jeff Fisher, who won Crawford, represents Davis, and I represent Hammon. The arguments will be in tandem, probably in March. The cases give the Supreme Court a chance to ensure that Crawford will be properly applied throughout the nation. Given my involvement in one of the cases, I will be abstemious in comments on the blog. But in case anybody is in doubt, I'm pretty excited.

Waiting for the Supreme Court; National Law Journal article on pending cert petitions

The Supreme Court will have the cert petitions in Hammon v. Indiana and Davis v. Washington before it at its conference on Friday; my understanding is that it will probably announce its decisions whether to take the cases on Monday. Meanwhile, here is a link to a helpful article in the National Law Journal discussing these two cases and the split among jurisdictions in treating fresh accusations made to governmental agents.

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1129898335844

If you are not a subscriber to the Journal, you can take a free 30-day subscription!

Hammon: papered and ready for Conference

I have previously posted my petition for certiorari in Hammon v. Indiana (lower court decision: State v. Hammon, 829 N.E.2d 444 (Ind. 2005)); you can find the petition by clicking here. The Public Defender Service for the District of Columbia and the National Association of Criminal Defense Lawyers have filed an amicus brief in support of the petition; you can find it by clicking here. The State has also filed a brief in opposition to the petition, which you can find by clicking here. And yesterday I filed a reply brief in support of the petition, which you can find by clicking here. So now we wait!

Supreme Court developments

I have previously reported on pending cert petitions in two cases, Davis v. Washington and Hammon v. Indiana, but htere is another one ahead of them on the docket, Ferguson v. West Virginia. This is a murder case, involving statements by the decedent months before his death in which he expressed his fear of the accused. The state did not initially respond to Ferguson's petition for certiorari, but the Court called for a response, so it has fileda brief in opposition, to which Ferguson has filed a reply.

Meanwhile, the Court has called for a reesponse in Davis. And in Hammon, the state filed a brief in opposition without waiting for a call from the Court. I hope to have it, and the reply that I am now preparing, on the blog soon.

Fixed website for Fisher outline

Jeff Fisher has prepared, and updates from time to time, an outline of post-Crawford developments that many readers have found very useful. He now has it at a fixed website, which you can get to at any time by clicking here.

Fresh accusations -- interesting developments, useful in part

The conflict in the lower courts with respect to fresh accusations has been deepened by two recent decisions.

I have been holding off reporting on Commonwealth v. Gonsalves, 445 Mass. 1, 2005 WL 2046000 (Aug. 29, 2005) because I have wanted to write a long post on it but have not yet had time, so I will report on it briefly. This was a domestic violence case involving statements made at the scene. With only one justice not joining the majority opinion, the court held that “questioning by law enforcement agents, whether police, prosecutors, or others acting directly on their behalf, other than to secure a volatile scene or to establish the need for or provide medical care, is interrogation in the colloquial sense,” and was therefore per se testimonial within the meaning of Crawford. Moreover, the court said explicitly, “This includes ‘investigatory interrogation,’ such as preliminary fact gathering and assessment whether a crime has taken place.” If the statement is not made in response to interrogation – in particular, if it is made in response to “questioning by law enforcement agents to secure a volatile scene or establish the need for or provide medical care,” that does not mean that it is not testimonial; that just means that there must be a case-by-case inquiry as to “whether a reasonable person in the declarant's position would anticipate the statement's being used against the accused in investigating and prosecuting the crime.” Thus, the court deals rather neatly with Crawford’s references to interrogation, but without treating interrogation as a prerequisite for a statement being deemed testimonial; the ultimate test, the one adopted previously by the Sixth Circuit among others, is the correct one. The court remanded for further findings, but indicated strongly that a statement made by the complainant to responding officers was probably per se testimonial and that a statement made by her to her mother was probably not testimonial. The first of these conclusions is clearly correct. I think the second one is much more questionable, and I wish the court had paid more attention to the question. The matter of private accusations made by the victim of a crime to a confidante is, in my view, a very troubling one; such confidantes do sometimes pass the complaint on to the authorities (as happened in this case, though apparently someone else reported the disturbance). In general, though, I think Gonsalves is a very helpful development.

Just today, the United States Court of Appeals for the Third Circuit issued United States v. Hinton. This involved two statements, one a 911 call and the other a statement by the complainant made in a squad car identifying the accused. The court adopted the Sixth Circuit approach, which is good news, and held that the statement made in the squad car was testimonial, which is also good news; the court was not distracted by the fact that this statement was made informally and not in response to interrogation. (But no good news for Mr. Hinton; the court held that admission of this statement was harmless error.) The court also held that the 911 call – in which the complainant said that an unknown assailant, whom he described, had brandished a gun and had warned him not to return to the area – was not testimonial. In this aspect of the case, the court’s analysis was quite cursory. Having (properly) applied a test based on the reasonable anticipation of someone in the complainant’s position to the statement made in the squad car, the court said that this formulation was “less helpful” in the context of the 911 call, and then pointed out that the purpose of the call was to seek police assistance. Certainly that was at least one purpose, and perhaps the dominant purpose, but if the question is one of anticipation rather than of purpose, then at least arguably the statement was testimonial; perhaps the case is less strong, though, than others in which the assailant is identified.

NACDL-PDSDC Amicus in Davis

Here is a link to the amicus brief of the National Association of Criminal Defense Lawyers and the Public Defender Service for the District of Columbia in support of the petition for certiorari in Davis v. Washington. The brief also urges the Court to grant the petition in Hammon v. Indiana, but I expect these organizations will file a separate brief in that case.

A Useful Case on Forfeiture -- and Some Procedural Thoughts

While sitting with the Sixth Circuit, Judge Algenon Marbley wrote the very useful opinion in People v. Cromer, 389 F.3d 662 (6th Cir.2004). It was Cromer that prompted me to begin this blog; see my posting, United States v. Cromer – an important case from the 6th Circuit. Judge Marbley has now written a very useful opinion on forfeiture, United States v. Mayhew, 2005 WL 1847239 (S.D. Ohio Aug. 5, 2005). The facts of Mayhew are quite gruesome. Mayhew was accused of murdering his ex-girlfriend and her fiancé, and then kidnapping and killing his daughter. Before she died, the daughter gave a full rendition of the events to police. It was not disputed that this statement was testimonial. The court properly ruled that the statement could not escape the Confrontation Clause by being characterized as an excited utterance or dying declaration. (Unless I missed something, the court slipped by the question of how the statement would avoid the rule against hearsay, but presumably either of these exceptions would have sufficed.) But forfeiture doctrine did apply. The court here was following the decision in United States v. Garcia-Meza, 403 F.3d 364 (6th Cir. 2005), which had held that the confrontation right can be forfeited even though the wrongful conduct on which forfeiture is based was not taken with the specific intent to render the witness unavailable. But Mayhew added a good deal of elaboration – including a straightforward discussion (with generous citations to my work) of why forfeiture can apply even though the forfeiting act is also the act on the basis of which the crime is charged. Two quibbles: First, I don’t think the operative principle is that the accused should not benefit from his wrongdoing; rather, I believe it is that the accused cannot complain about a situation that he has created by his own wrongdoing. Second, I wish the courts would apply a more stringent standard than preponderance to the forfeiture determination – but for now that is where we are.

Mayhew is also useful more generally in demonstrating that Cromer is not the product of some crazed let-‘em-loose mentality. Cromer and succeeding cases in the Sixth Circuit have taken a broad view of what is testimonial under Crawford – and this is perfectly consistent with a broad view of when an accused should be considered to have forfeited the confrontation right.

Indeed, I believe that many of the cases in which courts have an impulse to let in a statement that really ought to be considered testimonial can best be dealt with by invoking forfeiture doctrine – so long as this is done by proper standards and procedures. Consider in this light State v. Wright, 2005 WL 1903860 (Minn. 2005). In a post of yesterday I have commented critically on Wright's refusal to treat as testimonial key statements made by the accused's girlfriend, referred to as R.R., and her sister. Given that holding, the Minnesota Supreme Court acted properly in declining to consider whether Wright had forfeited his confrontation right. But if the court had held, as it should have, that the statements were testimonial, then the forfeiture issue would have been critical. Here are important facts on that issue as stated by the Minnesota court:

While preparing the case against Wright, the Hennepin County Attorney’s office repeatedly telephoned R.R.’s sister, but was unable to reach her. A police investigator attempted several times to reach R.R., and when R.R. finally answered a telephone call, she told the investigator that she did not want to participate in the case. The investigator went to R.R.’s residence to deliver a subpoena, and when no one answered, he slid the subpoena under the apartment door. A domestic violence victims’ advocate told the court that she had spoken with R.R., who said that she was concerned for her safety and her sister’s safety if they were to testify. R.R. also was concerned that Wright still might have keys to her apartment, and told the victims’ advocate that Wright had been telephoning her from jail. According to the advocate, Wright told R.R. that “if she doesn’t do what he wants someone will come over to her house and do something to her.”

Given these facts, should Wright be held to have forfeited the confrontation right? I believe the answer is no. That is not because the contention of forfeiture is based on intimidation rather than, say, kidnaping or murder, or because the intimidation allegedly arose, at least in part, from the same conduct that formed the basis of the criminal charge against Wright. It is perfectly appropriate to apply forfeiture doctrine in such circumstances; see my long prior post on the subject. But a doctrine with such an extensive reach must not be applied in such a way that any complaining witness can avoid confronting the accused simply by having a government official contend that she was intimidated.

To support a determination of forfeiture, the state bears the burden of showing that the witness is genuinely unavailable, that this unavailability is attributable to the wrongdoing of the accused, and that the state has done what it could to obviate the problem. In referring to the state, I am eliding for now the question of what responsibilities belong to the prosecution and what belong to the court.

In some cases, the state must show that it has done what it could to identify and locate the declarant. In Wright, that was not a problem with respect to R.R., but the efforts of the state to locate the sister appear to have been desultory at best. Beyond that, the state must compel the attendance of the witness at trial or at some other testimonial proceeding where she may confront the accused – genuinely compel her attendance, not merely shove a subpoena under her door. If the state has reason to believe that the witness may be willing to testify in the near future but not in the more distant future, then it should arrange for the proceeding to be held as soon as practical. At the proceeding, the state should attempt to administer the oath, to examine the witness, and to allow for cross-examination. To the extent the witness is recalcitrant, the state should attempt to examine her as to why she is. At least arguably, she ought to be subjected to sanctions for contempt if she improperly refuses to testify, and afforded some form of protection if there is reason to believe that she is in genuine danger for testifying.

This is an immensely complex matter to work out, and it is sure to be highly controversial. But it is also very important. If the question of what is testimonial is resolved as it should be, then my guess is that a great deal of the action in the area of confrontation over the next decade or so will concern this question of what process is necessary before an accused may be deemed to have forfeited the confrontation right. In my view, a robust doctrine of forfeiture is essential to developing a satisfactory law of confrontation; otherwise, the courts will find themselves irresistibly tempted to put beyond the scope of the Confrontation Clause statements that clearly should be characterized as testimonial. But we must avoid creating a doctrine under which a crucial prosecution witness may avoid confronting the accused by the mere expedient of having a government official testify, “She was too scared to come to court.”

Retroactivity: Split Confirmed

The Ninth Circuit has denied rehearing en banc, 2005 WL 1906932 (Aug. 11, 2005), of the 2-1 panel holding in Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005), that Crawford applies retroactively in a habeas case; see my prior post, Retroactivity:Issue Joined? There were nine dissenters to the denial of rehearing. This does not count Senior Judge Wallace, the panel dissenter, who recommended granting the rehearing but was not eligible to vote in the full court. There seems little doubt now that the Supreme Court will resolve the issue, because the Ninth Circuit stands in conflict with four others.

Towards a Resolution on Fresh Accusations?

We may be moving towards a Supreme Court resolution of the question of how the Confrontation Clause applies to fresh accusations – that is, to accusatory statements made shortly after an incident, typically either in a 911 call or to a responding police officer. Jeff Fisher has submitted a petition for certiorari, which you can see by clicking here, in State v. Davis, 154 Wash.2d 291, 111 P.3d 844 (Wash. 2005). And I have filed a petition, which you can see by clicking here, in State v. Hammon, 829 N.E.2d 444 (Ind. 2005). The National Association of Criminal Defense Lawyers has filed an amicus brief in Davis suggesting that the Court grant cert in both cases; I anticipate the NACDL will follow up with a brief in Hammon as well. With these petitions pending, I won’t comment further on these cases here. But I will take note of State v. Wright, 2005 WL 1903860 (Minn. 2005), decided since both petitions were filed, in which the Minnesota Supreme Court reviewed the conflict among the lower courts and said:

The Supreme Court stated in Crawford that it would “leave for another day” any effort to put forth a comprehensive definition of testimonial statements. 541 U.S. at 68. We believe that the task of defining the exact parameters of what constitutes testimonial statements for purposes of the Confrontation Clause of the U.S. Constitution is best suited for the Supreme Court.

Wright involves both 911 statements and statements to responding officers, and, like the majority of the cases in this realm, it finds a way to let them all in. Some of the statements were made during an interview at the complainant’s apartment. The court’s opinion includes this remarkable passage:

It is inconsequential that during the interviews the officers took notes that they later used to refresh their memories at trial. We acknowledge that the officers took possession of some evidence at the apartment while interviewing R.R. and her sister, and Wright was in custody at that time. However, we conclude that the officers’ actions represent a response to a call for assistance and preliminary determination of “what happened” and whether there was immediate danger, rather than an effort to gather evidence for a future trial.

The analogy that comes most readily to mind is provided by this memorable passage from Ring Lardner’s The Young Immigrants:

Are you lost daddy I arsked [sic] tenderly.

Shut up he explained.

The Minnesota Supreme Court said:

A consequence of using the Court’s broadest formulation may be the categorization of virtually every out-of-court statement made by a declarant to a police officer as testimonial. But such a consequence would make an analysis of the interrogative qualities of interactions between declarants and the police wholly unnecessary.

Well, yes. I have discussed the question of interrogation at length on this blog, in the posting titled The Interrogation Bugaboo. I believe a statement made to government officials and accusing another person of a crime should be considered testimonial irrespective of whether it was in response to interrogation. In some more doubtful circumstances, the fact that a statement was made in response to interrogation may support the conclusion that the speaker anticipated prosecutorial use of the statement – but when the statement is accusatory and made to police officers, that conclusion is clear even if the statement was made entirely at the initiative of the speaker. The Minnesota court believed that Crawford did not intend such a result. I believe that the Minnesota court is wrong, and that Crawford's references to interrogation were not intended to limit the category of statements deemed to be testimonial. But plainly the matter will not be resolved without intervention by the United States Supreme Court.