Can testimony be preserved before arrest?

It often happens that for some time after commission of a crime, especially a homicide, a suspect is not apprehended, yet the state anticipates that eventually there may be an arrest and a trial. Now suppose that a prosecutor realizes that a key witness may not be available by the time of a trial. May the prosecution preserve the witness's testimony?

Let's divide the problem into three. In the first variation, the ultimate defendant has been identified as the principal suspect, but he has not yet been apprehended. I've speculated about the possibility that counsel could be appointed for the suspect, some form of notice be given to the suspect, and a deposition held. That, it seems to me, gives an adequate opportunity for confrontation, at least if the notice given was reasonable under the circumstances; perhaps the accused would have had to emerge from hiding to confront the witness and to consult with counsel, but he did not have a right to remain in hiding. If there isn't notice of the deposition, but the eventual accused knows that he is being sought, is that enough to constitute a forfeiture of whatever aspects of the confrontation right were not protected by the deposition procedure? I don't know.

In variation two, the ultimate defendant is one of several identified suspects shortly after the crime, and the authorities don't yet have enough evidence to arrest any of them. In this variation, it seems the solution is to give notice to all of them, to offer counsel to each of them, and to appoint counsel for any that do not appear.

The toughest variation arises when the authorities have not yet identified a suspect. May they still preserve the testimony by giving some kind of publication notice, appointing counsel for the ultimate defendant, and taking a deposition? That is considerably more difficult, but the matter is still worth considering. In some cases, and on some issues, counsel may be able to conduct suitable cross-examination even without knowing who his client is. But is this enough?

I've just stumbled across People v. Wilkey, 2004 WL 576659 (Mich. Apps. 2004), which highlights some of the issues with respect to pre-arrest preservation of testimony. This was a homicide committed in the course of a break-in. The victim's widow, who was present at the scene, was 82 years old. Wilkey was one of several suspects from the start, but no arrest was made for some time. So the state held a deposition of the widow. A lawyer, who later became a judge, was appointed to represent the interests of any future defendant. The widow's testimony was quite detailed about the event. She also gave some physical description of the perpetrator, who was wearing a mask. According to the appellate court, the defense lawyer, "in a very respectful manner, asked questions of [the widow] to show that she was of sound mind, e.g., what is the date, and she answered appropriately." At the close of her tesitmony, counsel offered the opinion that she was "not easily confused."

The widow died before Wilkey's trial, and the prosecution introduced the deposition transcript. Wilkey was convicted and the appellate court affirmed. Its decision came fifteen days after Crawford, but the court showed no recognition of Crawford, and held that the deposition was admissible under Michigan's residual exception to the hearsay rule. The court did take into account Wilkey's argument that the appointed lawyer had no motive to develop evidence to support Wilkey's theory that the perpetrator was one of two other men identified by Wilkey. The court acknowledged that "more precise questions could have been asked . . . if counsel was aware of the physical characteristics of defendant," but concluded that the lawyer had the tools to develop evidence about the perpetrator's physical characteristics., and did so.

I think the appointment of counsel in this case before the arrest or even definite identification of the accused is noteworthy. Courts ought to encourage prosecutors to preserve testimony where possible. But in this case, the court could have done better. This was a case fitting within the second variation described above -- Wilkey was one of several suspects identified at the time of the deposition. He, along with the others, should have been given notice before the deposition, and he should have had an opportunity fo separate representation, so his lawyer could have asked the widow questions that might have deflected suspicion away from himself. In a system that guarantees the rights of effective assistance of counsel and confrontation of adverse witnesses, it is not enough to be assured that a lawyer was appointed who had a disinterested opportunity to explore the facts.

Illinois Supreme Court deems statements to clinician and social worker to be testimonial

The Illinois Supreme Court issued a significant decision today in People v. Stechly (and thanks to my former student Brian Koch for pointing it out to me). It holds that a child's statement of abuse made to her mother was not testimonial, but that statements made to a clinical specialist in charge of a hospital child-abuse team and to a social worker at the child's school were testimonial -- and that the error in mischaracterizing these statements was reversible. The Court adopts the view of testimonial articulated in United States v. Cromer, 389 F.3d 662 (6th Cir. 2004). That's good.

The court also adopts a narrow view of forfeiture outside the context of murder, holding that intent (in the sense of purpose, not of anticipation of the natural consequences of one's actions) to procure the witness's absence is necessary for forfeiture. The court distinguishes murder cases -- without holding definitively that intent is not required in those cases -- on the ground that in a murder case the perpetrator has "absolute certainty" that the murdered witness will be unavailable to testify. Well, I don't see how that distinguishes murder -- it's at most just a very strong anticipation of unavailability. And in fact, the perpetrator doesn't have that certainty in most of the cases where the issue arises. The typical case is one in which the defendant (by hypothesis) cast the fatal blow, and the victim makes a statement afterwards; the accused can't necessarily know that the victim won't survive long enough for confrontation at least at a deposition.

Another state decides (at least partially) correctly on lab reports

The Oregon Supreme Court today decided State v. Birchfield (and thanks to Ryan Scott for calling it to my attention even before it was decided!), holding that the trial court violated the accused's right under Article I, sec. 11 of the state Constitution "to meet the witnesses face to face" when it introduced a lab report without presenting the testimony of the criminalist who prepared it or demonstrating his unavailability. The court also holds that a process giving he accused the right to subpoena the witness is no substitute for the constitutional right. The court does not reach contentions under the federal Constitution. Very nice result, crisply reached, immune from federal review, doesn't help set up a conflict for certiorari purposes. My enthusiasm is qualified because the decision leaves open the possibility that the court would say that if the criminalist is available the report can come in even absent an opportunity for confrontation. But clearly that issue is not reached in this decision.

California Supreme Court decision in People v. Cage -- commentary by Jeff fisher

The California Supreme Court issued its decision yesterday in the long-awaited case of People v. Cage. (Thanks to Paul Vinegrad for calling my attention to it.) It treats a statement by a young victim to a police officer, in the station-house and the hospital, as testimonial, and his statement to a doctor, which the court regarded as having been asked and given solely for medical purposes, as non-testimonial. The court acknowledges a conflict in reasoning with State v. Mechling, 633 S.E. 311 (W. Va. 2006), but does not purport to overrule People v. Sisavath, 118 Cal.App.4th 1396 (Cal. App. 2004). I'm sorry that I'm too rushed now with other matters to make a longer comment on the case at this time. But I've asked Jeff Fisher to expand on his initial comments, and here is what he has to say:

The California Supreme Court's opinion in Cage provides a platform to consider a very important category of post-Crawford evidence: statements to doctors and other medical personnel. It also highlights some of the confusion developing in the wake of the Davis v. Washington.

John Cage was involved in an argument and physical altercation with family members. A neighbor called the police to report the disturbance, and over one hour later a police officer found John alone in the hospital waiting room awaiting treatment for a serious cut on his face. The officer asked John to describe the incident to him. John told the officer that his mother, Lisa Cage, had cut him with a piece of glass from a table that had broken during the altercation. A doctor was present for "at least part" of that conversation and then took John back for an examination. The doctor's first question was, "what happened?" John repeated to the doctor the same thing that he had told the officer.

The California Supreme Court held that John's statement to the officer was testimonial because it was not materially distinguishable from the statement Amy Hammon gave the police in Hammon v. Indiana (decided in the same opinion as Davis v. Washington). In the more noteworthy portion of the opinion, the Court also held that the statement John made to the doctor was nontestimonial. In dealing with statements to doctors that describe criminal conduct, there are three general approaches a court might take:

(1) Statements describing criminal conduct as causing a physical condition and identifying an alleged perpetrator are testimonial. Courts, including the California Court of Appeal in an opinion that the California Supreme Court here did not call into question, have taken this approach when the doctors have examined victims as a coordinated part of a criminal investigation. See, e.g., People v. Harless, 125 Cal. App. 4th 70 (2004), rev. granted, 109 P.3d 69 (Cal.), rev. dismissed, 119 P.3d 962 (Cal. 2005) (statement to doctor "in the course of the district attorney's investigation of child abuse" testimonial); Medina v. State, 143 P.3d 471 (Nev. Oct. 5, 2006); Hernandez v. State, 946 So.2d 1270 (Fla. App. Jan. 26, 2007).

(2) Statements describing criminal conduct as causing a physical condition are not testimonial but statements identifying an alleged perpetrator are testimonial. Some courts have adopted this position in cases in which doctors were not coordinating their efforts with the police. See, e.g., State v. Slater, 908 A.2d 1097 (Conn. 2006); In re T.T., 815 N.E.2d 789 (Ill. App. 2004); State v. Bartholomew, 127 Wash. App. 1006 (2005). Some states, in fact, provide that statements identifying an alleged perpetrator to doctors do not even satisfy the medical diagnosis hearsay exception. See, e.g., Commonwealth v. DeOliveira, 849 N.E.2d 218, 224 (Mass. 2006).

(3) No statements made to doctors (at least when police are not also part of the interview) are testimonial. Some courts have adopted this position in cases, as in (2), in which doctors were not coordinating their efforts with police. See, e.g., People v. Vigil, 127 P.3d 916 (Colo. 2006); State v. Vaught, 682 N.W. 2d 284 (Neb. 2004); United States v. Peneaux, 432 F.3d 882 (8th Cir. 2005).

The California Supreme Court avoided approach (1) by stating that "[t]here is no evidence that Dr. Russell was acting in conjunction with law enforcement." This seems questionable. When the doctor asked John "what happened," he was already aware that the police were investigating whether John's injury was a result of criminal conduct. And, as the court acknowledged, California law required the doctor to report any evidence of abuse that came to light during his examination of John. But the court was unmoved, contending "[t]he mere fact that doctors must report abuse they see, suspect, or know of does not transform them into investigative agents of law enforcement," and that an investigative purpose is necessary to trigger the Confrontation Clause. It will be interesting to see how future courts deal with the "mandatory reporter" issue. If states can use such laws to gather accusatory statements and can steer witnesses to mandatory reporters without triggering the Confrontation Clause, they can go a long way toward creating systems that evade the confrontation right altogether.

Perhaps even more troubling, the California Supreme Court chose approach (3) over approach (2) for two reasons that appear illegitimate and one that Davis simply leaves unresolved. First, the court focused on the fact that the doctor's question to John was "neutral in form" and not "structured" to generate evidence. But Davis instructs that answers to "open-ended questions" are just as likely to be testimonial as answers to structured interrogation, for "it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate." 126 S. Ct. 2274 n.1. And whatever relevance may pertain to a question that is asked, it is hard to imagine a question more designed to elicit a testimonial response than "what happened?" That is the most common question asked of witnesses giving direct testimony in court.

So what about John's statement itself? The California Supreme Court's second reason for saying that the statement is nontestimonial is because it was made for the purpose of medical treatment. The court never explains, however, how the part identifying the person who allegedly cut him was necessary for medical treatment. Nor can one perceive any reason why it might have been relevant to such treatment.

Third, the California Supreme Court asserted that John's statement was nontestimonial because it was given in an "informal" setting. Davis did not dispute that formality is essential to a testimonial utterance. But all we really know on that score is that a statement to a responding police officer or 911 operator is sufficiently formal to be testimonial, while a "casual remark to an acquaintance" is not. It seems to me that answering a doctor's question "what happened" is much closer to the former than the latter. Put another way, it does not seem at all strange to say that John was bearing witness when he told the doctor what happened. But we'll have to await further word from the Supreme Court on this.

Finally, it is worth noting that the California Supreme Court explicitly rejected the view that a statement is testimonial if a reasonable declarant would have expected it to be used prosecutorially. This holding diverges from several post-Davis cases that continue to use this formulation outside of the context of "interrogations." Again, the Supreme Court will have to answer this question sooner or later.

Jessica Smith's "Emerging Issues": Links Available

Jessica Smith, a member of the faculty at the School of Government of the University of North Carolina at Chapel Hill, has given me permission to post on the blog links to her monograph, Crawford v. Wsahington: Confrontation One Year Later (2005), and to a supplement about to be published, Crawford v. Washington: Emerging Issues in Confrontation Litigation. These are intended primarily to be practical guides for North Carolina judges, but I think they will be very valuable resources for anybody dealing with Crawford issues. Posting this link does not mean that I vouch for any statement made in these documents, of course.

"A Sixth Sense About Criminal Trials"

The ABA Journal E-Report has a nice write-up on Jeff Fisher, especially emphasizing Crawford and related issues, and discussing how the textually-based arguments that Jeff has made in Crawford and other cases have appealed both to Scalia and to the Court's liberals. You can get to the article by clicking here. There is one, uh, slight factual error in reporting, which I will leave to readers to find. It won't actually be all that hard.

Deepening Conflict on Lab Reports

Yesterday, in State v. March, 2007 WL 828156, the Missouri Supreme Court joined other jurisdictions in holding that a lab report prepared for use in prosecution is testimonial. I believe this result is clearly correct, and appropriately the court did not appear to endure much angst in reaching it. The decision sharpens the conflict among the states. The Supreme Court will have to resolve this matter, and in my view the sooner the better.

A Challenge to Maryland v. Craig

Lawyers from Baker Botts in Washington, D.C., have filed a well-crafted petition for certiorari asking the Supreme Court to take another look at Maryland v. Craig, 497 U.S. 836 (1990), which allows child witnesses in certain circumstances to testify against an accused outside his presence by electronic means. The petition presents a conflict among states in interpreting Craig – some states treat potential trauma to the child as sufficient in itself to justify such a procedure; others require that the trauma threaten to impair the child’s ability to testify. More broadly, the petition asks the Court to overrule Craig.

In arguing for adoption of the testimonial approach in Crawford, Jeff Fisher as counsel for Crawford and I as a supporting amicus emphasized that to do so would not require the Court to rethink Craig; the issues were orthogonal. Similarly, in an amicus brief written a few years earlier on behalf of the ACLU in Lilly v. Virginia, 527 U.S. 116 (1999), Margaret Berger and I wrote, referring in part to Craig, “Our focus here is on when confrontation is necessary, not on what is required for confrontation.” That having been said, I think that the majority opinion in Crawford bears much more affinity to the dissent written on behalf of four justices in Craig than it does to the majority opinion in Craig. This cannot be altogether surprising: Justice Scalia wrote the majority opinion in Crawford and the dissent in Craig, and Justice O’Connor, the author of the majority opinion in Craig, was one of the two justices who did not join the majority opinion in Crawford. Not only does Craig rely heavily on Ohio v. Roberts, 448U.S. 56 (1980), which is now discarded, but the Craig majority opinion reflects a balancing approach to the confrontation right, reflective both of the Roberts era and of Justice O’Connor, while Crawford reflects a more categorical approach favored by its author.

There can be little doubt that Justice Scalia, whose Craig dissent was bitter and pungent, would like to see that decision overruled. Would he now have the votes to do so? Will the Court decide that this is the time to consider the issue? We’ll know before long.

Confrontation Milestone?

I'm still working on my posting on Whorton v. Bockting. But meanwhile, Roger Kirst of the University of Nebraska College of Law, who follows confrontation developments very closely, has sent this message, under the title Confrontation Milestone?, to the evidence professors' e-mail list, and has given me permission to post it here.

For those who follow the details of confrontation doctrine in the Supreme Court there was an interesting denial of certiorari yesterday.

The high-water mark for the Supreme Court's reliability test as a substitute for actual confrontation was New Mexico v. Earnest, 477 U.S. 648 (1986). That was a GVR in which then-Justice Rehnquist added a concurring opinion joined by three others that asserted that Lee v. Illinois had adopted the reliability theory. This was also the last confrontation case the Court decided before Justice Scalia joined the Court. On remand the New Mexico Supreme Court retreated from its earlier conclusion that it was a violation of the right of confrontation to convict on the basis of the confession of an alleged accomplice the defendant could not cross-examine; they declared the confession "reliable" and affirmed the conviction.

After an unsuccessful further petition for certiorari and an unsuccessful postconviction challenge in federal court, Earnest did nothing until Crawford was decided. At that point Earnest filed a postconviction challenge in state court (represented by Tom Sullivan, now at Arkansas-Little Rock). Eventually the state trial court ordered a new trial and the New Mexico Supreme Court affirmed in an opinion that said basically "we were right the first time and Crawford now shows the Supreme Court was in error from 1986-2004 with its reliability test." [119 P. 3d 144 (N.M. 2005)] This time the State filed the petition for certiorari, arguing that Crawford was not retroactive. [New Mexico v. Forbes, No. 05-644]

The Supreme Court was holding No. 05-644 while it heard Whorton v. Bockting. During the wait the State tried to get an untainted conviction, but the alleged accomplice would not testify.

The Court's holding last week that Crawford is not retroactive might seem to suggest at least a GVR in No. 05-644, but that did not happen. Nothing more than a denial of certiorari, meaning the case is now over.

The reliability test was only part of Roberts, so we do not need to revive the debate about when Roberts died, but the decision yesterday is a reminder of how much confrontation doctrine keeps changing.

And Phil Pucillo, of Ave Maria School of Law, now but regrettably not for long of Ann Arbor, had this to say in response (and has also given me permission to post it here):

I just glanced at the New Mexico Supreme Court's opinion. What's fascinating is that the court did not claim to be applying Crawford retroactively. Instead, it emphasized that Crawford did not even announce a new rule, a proposition that the U.S. Supreme Court squarely rejected in Bockting.

It's almost as if the U.S. Supreme Court let this one go because explaining to Mr. Earnest why he won't get a new trial after all would be too embarrassing: "Well, sir, what happened was that the New Mexico Supreme Court was absolutely correct back in 1985 when it reversed your conviction and ordered a new trial for you. But you never got that new trial because, at that time, we thought that the New Mexico Supreme Court was wrong. Well, it turns out that we were wrong, but it took us another 20 years or so to figure it out. But see, the problem now is that you can't receive the benefit of our recent change of heart, because your direct appeal concluded a long time ago. So even though the New Mexico Supreme Court's 1985 decision to grant you a new trial was right on, you're pretty much stuck with our incorrect decision saying that you can't have a new trial. Sorry aboutthat!"

A Flurry of Forfeiture Decisions

There have been three significant decisions on forfeiture within the last few weeks: U.S. v. Martinez, 2007 WL 489217 (D.C.Cir. Feb 16, 2007); State v. Jensen, 2007 WL 543053, 2007 WI 26, Wis., February 23, 2007 (No. 2004AP2481-CR.), and, just today, People v. Giles (Ca. Mar. 5, 2007). I hope to post comments on all three (and also on Whorton) within a few days.

Crawford not retroactive

I'm on vacation but Ive just found out that the Supreme Court held today in the Whorton case that Crawford isn't retroactive. No surprise -- the consequences would have been enormous, more than the Court probably wanted to deal with. I hope to post something mroe substantive about the deciswion within the next few days.

Certiorari denied in Craig

Today the Supreme Court denied the petition for certiorari I filed in Craig v. Ohio. Obviously, I am disappointed. I think the issues that the petition raised are important ones that the Court must ultimately resolve, and I hope the time will come sooner rather than later. Most narrowly, the case posed the question whether an autopsy report in a murder case is testimonial; more broadly, the question is whether a state can immunize from Confrontation Clause review a statement routinely made by government officials in anticipation of litigation by characterizing it as a business or public record. Last week, the Court turned away another autopsy case, seeking review of the Second Circuit's decision -- one I thought was atrocious -- in United States v. Feliz. And several weeks ago, the Court rejected the petition in Campbell and Pinks v. North Dakota, which could have let it resolve the broader question and which more directly posed the question of whether the Confrontation Clause can be satisfied by giving the accused the oportunity to subpoena the witness. It may be that the Court saw problems in each of these cases making it a poor vehicle for review. It may be that the Court wants the lower courts to decide more "business records" cases before addressing the area. It may be that the Court wants to let more time go by before returning to the whole Crawford area altogether. And perhaps there are other explanations as well; as a rule, the Court gives no explanation for cert denials. These denials should not be read as an endorsement of the decisions of the lower courts, which I continue to believe are plainly wrong. There are lots of Crawford-related issues that only the Supreme Court can resolve, and eventually it will do so.

Harmless Error and Confrontation

It is clear that Confrontation Clause errors are subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673 (1986). But it seems to me that there is a significant limitation on how the harmless-error inquiry may be conducted: If a testimonial statement is admitted against an accused without his having had an opportunity for confrontation, the court should not speculate that cross-examination would have been ineffective. On the contrary, the court should address the harmless-error issue by assuming that cross, if it had not been denied, would have been maximally effective.

Where prosecution testimony has been admitted in violation of the confrontation right because the accused never had an opportunity to be confronted with the witness, the reviewing court should consider the case as if that testimony had never been admitted, and declare the error harmless if it is confident beyond a reasonable doubt that even without that evidence the accused would have been found guilty. Van Arsdall, supra, 475 U.S. at 682 n.5 (describing Harrington v. California, 395 U.S. 250 (1969): “Noting that the wrongfully admitted evidence was cumulative and that the untainted proof of the defendant's guilt was overwhelming, the Court concluded that the error was harmless beyond a reasonable doubt.”). One might complain about the exercise that it involves some guesswork about what the jury would have done, but basically it is a practical and necessary judgment: “The tainted evidence is of trivial importance, and a jury that found the accused guilty with that evidence would not fail to do so without that evidence.”

But suppose that after considering the untainted evidence in this way the court cannot say with the requisite confidence that the outcome would have been the same without the tainted testimony. Then it is not appropriate for the court to say, in effect, “The error is still harmless, because if there had been an opportunity for cross-examination of that witness it would have done little or any good.” To do that would be not merely to assess what the jury likely would have done with a slightly altered body of evidence but to speculate what an absent witness would have said if he had faced the adverse questioning that the Constitution guarantees the accused. The Confrontation Clause is meant to prevent the need for speculation, by inducing the prosecution to produce the witness for confrontation.

Van Arsdall supports this interpretation. There, the accused had not been denied the confrontation right altogether; he had cross-examined the witness in question, but the trial court had erroneously prevented him from pursuing a line of questioning that might have revealed his bias; thus, the immediate error was not admitting prosecution evidence but excluding defense evidence. Extending Harrington to this situation, the Court held that the error was subject to harmless-error analysis, and so remanded to the state supreme court, perhaps with a hint that because the testimony of the witness in question was cumulative and peripheral it would be entirely proper to deem the error harmless. The Court said: “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” (emphasis added)

Thus, the reviewing court must act under the assumption that the accused gets the full “damaging potential of the cross-examination.” It is appropriate for the reviewing court to say, “Even under that assumption, the error doesn’t matter, because the most that cross could have done would have been to nullify the testimony of this witness, and the case was still overwhelming.” Possibly, but much more dubiously, it is appropriate for the court to say, “Even if the cross-examination that the accused says he would have conducted had gone entirely his way, achieving its full damaging potential by showing the witness was willing to lie in favor of the prosecution, the testimony would have had some value because even a dishonest witness could not likely have told this story if it were not true, and given that the error is harmless beyond a reasonable doubt.” But what the court should not do is say, “The error is harmless because if the accused had had an opportunity for cross-examination the answers of the witness would in all probability have been unhelpful to the accused.”

Brief in Opposition and Reply Brief in Craig v. Ohio

You can read the state's brief in opposition to the petition for certiorari in Craig v. Ohio by clicking here, and my reply brief in support of the petition by clicking here. To see my prior post describing the case, and the petition, click here. I expect we'll know by the end of the month whether the Court will take the case.

Cert denied in Campbell/Pinks

The Supreme Court denied certiorari yesterday in Campbell v. North Dakota. The primary issue presented by the petition -- whether a state may validly provide that a prior testimonial statement is admissible without the author testifying so long as the accused has the right to subpoena the author -- is a critical one that the Court will have to resolve, better sooner than later. But, for one reason or another, the Court has decided that this is not the case in which to do so.

The Accused Who Doesn't Really Want Confrontation

This posting is actually a response to a comment by Pam Metzger, which you can read under an earlier posting, Lab reports and a notice-and-demand statute -- a significant decision from Minnesota, but I’ve put enough effort into it I decided to make it a posting in itself.

I don’t think there’s anything inherently dishonest about the labels waiver and forfeiture themselves – the phenomena of waiver and of forfeiture of the confrontation both exist, and both should exist. But the labels can be applied dishonestly. I think that’s Pam’s complaint in the context of statutes that provide the confrontation right with respect to various types of government statements is lost unless the defense takes certain steps, and I think it has a good deal of force.

But I do believe a state can constitutionally provide, through a properly drafted statute, that that if the prosecution gives timely notice of its intent to introduce a statement of a particular type then the defendant must make a timely demand that the author be produced by the prosecution, or else the confrontation right is lost (call it forfeiture, waiver, abandonment, estoppel, or what you will). A requirement of writing does not strike me as unduly burdensome in the circumstances; I don’t believe there are great transaction costs, because all defense counsel needs to do is complete a one-sentence form. Indeed, it could be worked out that the prosecution has to give notice on a form, and the defendant makes the demand by returning the same form with the demand box checked off. This is not a big deal.

Pam points to another issue, with her economic analysis, that is quite interesting. I think I can summarize her point by saying that either the confrontation right is valueless to the accused in the particular contexts covered by these statutes, in which case the accused would be willing to give it up, or it has value, in which case the accused should be able to exercise the right, or extract value from it in the form of a trade. But the matter strikes me as somewhat more complicated.

Consider three possible outcomes: (1) The written statement is excluded, without substitute. (2) The written statement is admitted, without the author coming to testify. (3) The author testifies, subject to confrontation, and presumably the written statement is admitted.

Obviously, the accused prefers outcome (1) to outcome (2). But does the accused prefer outcome (3) to outcome (2)? Not necessarily. Maybe confrontation isn’t all that valuable to the accused in this particular context, and the vividness of the live testimony would be harmful from the accused’s standpoint.

Now look at the same outcomes from the perspective of the prosecution. Obviously, the prosecution prefers outcome (2) to outcome (1). And by hypothesis we know that the prosecution prefers outcome (2) to outcome (3) – because if the prosecution preferred outcome (3) it would have just produced the author, and the confrontation issue would never arise. It may be that the reason the prosecution doesn’t like outcome (3) has nothing to do with the fear of confrontation, but is simply a matter of cost. Cost prevents this from being a zero-sum game. Indeed, the cost may be so great that the prosecution prefers outcome (1) to outcome (3) – that is, if not allowed to introduce the statement unless the author testifies, the prosecution does without. Even if this is not so, it may be that outcome (3) is far less preferable to the prosecution than is outcome (2).

So even if the accused doesn’t really “want” to confront the witness, the accused may have ample incentive to insist on the confrontation right. If the accused prevails in his assertion of the right – so that the prosecution cannot achieve outcome (2) without the accused’s consent – then the prosecution might choose outcome (1), the accused’s preferred state of affairs. And even if the prosecution, absent a deal, would choose outcome (3), producing the witness, that does not end the matter. Recall, the prosecution may well prefer outcome (2) (its preferred state) over outcome (3) by a great deal; the defense may not prefer outcome (3) over outcome (2) at all, or the differential may be very small. Therefore, the defendant may be able to demand a good deal as the price of allowing admission of the statement. The deal does not necessarily reflect the value to the accused of confrontation; it may reflect only the cost to the prosecution of providing for the confrontation.

Whether the state can constrain the exercise of the confrontation right to ensure that it is not being used merely to impose costs on the prosecution is an interesting and, to my mind, very difficult question. But for reasons I have stated in one post from March 2005 and another from August 2006, I do not believe that an appropriate response is to shift to the accused the burden of presenting the witness.

Crawford, Davis, and Way Beyond

Here is a link to the draft of my paper from the conference held at Brooklyn Law School in September. The final version will be published, along with other papers from the conference, in the Brooklyn Law Review. In this paper, among other points, I

--argue that Davis is not inconsistent with the adoption of an objective, declarant-oriented definition of "testimonial."

--argue that Davis does not establish an independent formality requirement for a statement to be deemed testimonial; that is, any requirement of formality that the decision might have created adds nothing to the requirement that the statement have been made in anticipation of prosecutorial use.

--lay out, in more detail than I have on this blog, some of the significant pending issues related to the confrontation right.

--suggest how the teaching of hearsay and confrontation should be totally revamped.

--suggest in broad terms how the law of hearsay ought to be reformed, in light of the fact that the confrontation right is now independently protected, and express the hope that evidence scholarship will advance such reform efforts.

I am happy to post draft scholarship of other authors that is related to the confrontation right.

Pending Cert Petitions

Happy new year to all readers!

Here are two pending certiorari petitions. One, filed by Jeff Fisher, seeks review of State v. Campbell, 719 N.W.2d 374 (N.D. 2006), in which the North Dakota Supreme Court upheld a statutory provision allowing introduction of a lab report if the accused does not subpoena the author of the report. I have already criticized the decision, in a posting titled Shifting the Burden, Take 2; see also the prior posting to which that one refers, Shifting the Burden. This is a matter in which the lower courts are in clear conflict – see most recently the decision of the District of Columbia Court of Appeals (the highest D.C. court) in Thomas v. United States, ___ A.2d ___, 2006 WL 3794331 (D.C. Dec. 28, 2006). The North Dakota court assumed, without deciding, that the lab report was testimonial (on this question, I think the court got it right; see my posting on Statements by Government Agents); this also is a matter of clear dispute among the lower courts, and the cert petition advances this question as well. The Supreme Court has asked North Dakota for a response, which you can read by clicking here. You can also read petitioner’s reply by clicking here, and the brief filed in support of the petition by various amici, including the Public Defender Service of the District of Columbia, the National Association of Criminal Defense Lawyers, and the Innocence Project, by clicking here.

Second, on December 19, I filed a petition seeking review of State v. Craig, 853 N.E.2d 621 (Ohio 2006), in which the Ohio Supreme Court held that an autopsy report introduced in a capital murder case was not testimonial. I have till now withheld comment on this blog concerning this opinion or United States v. Feliz, 467 F.3d 227 (2d Cir. 2006), which reached the same conclusion (and which I expect will also soon produce a cert petition), but obviously I think the results of these cases are terrible. Indeed, autopsy reports are perhaps the quintessential type of statement by a government agent that ought to be considered testimonial; these decisions are therefore in clear conflict with the decisions of those state high courts that treat as testimonial lab reports and other statements by government agents routinely generated in anticipation of prosecutorial use. Ohio has until January 25 to respond to the petition.

Audio Recordings of Oral Arguments in Davis and Hammon

This will be of interest to Confrontation Clause junkies and to my mother: I have just learned that audio recordings of the arguments in Davis and Hammon are available, free, instantly, and easily, to anyone with an MP3 player. You can get to the Hammon argument by clicking here and to the Davis argument by clicking here. For that matter, you can get he argument in Crawford by clicking here, and you can get a whole lot more arguments --most of which actually don't deal with the Confrontation Clause -- at the Oyez.org website, by clicking here.

Pending Crawford Issues

I’ve been asked to lay out some significant unresolved issues related to Crawford. Here is a list. It can’t hope to be exhaustive, of course.

(1) What is the basic standard for determining whether a statement is testimonial?

(2) What constitutes an “ongoing emergency” under Davis?

(3) To what extent should statements by government agents, including autopsy and laboratory reports, be considered testimonial?

(4) To what extent may statements other than to law enforcement personnel – to other government agents and to private persons – be characterized as testimonial?

(5) To what extent may the state attempt to constrain exercises of the confrontation right intended only to impose costs on the prosecution?

(6) To what extent, if any, may the state impose on the accused the burden of securing an opportunity for confrontation?

(7) What standards govern the adequacy of a pretrial opportunity for cross-examination?

(8) If the accused has not been identified, or has been identified and not arrested, may the prosecution preserve the testimony of a witness?

(9) To what extent, if any, should the age, maturity, and mental condition of a declarant be considered in determining whether she can be a witness for purposes of the Confrontation Clause and whether particular statements by her are testimonial?

(10) To what extent does the Confrontation Clause apply to the sentencing phase of a capital case, and to what extent is there a right – based perhaps in the Due Process Clause – to confront declarants whose statements are testimonial in nature and are introduced against the accused in criminal proceedings other than the trial?

(11) What standards and procedures should govern forfeiture of confrontation rights? Among the many important questions on this topic are the following:

(a) Must the conduct that allegedly rendered the witness unavailable to testify subject to confrontation have been motivated in significant part by the desire to achieve that result

(b) May the conduct that allegedly rendered the witness unavailable to testify subject to confrontation have been the same conduct with which the accused is charged?

(c) May the challenged statement itself be used in demonstrating forfeiture?

(d) What is the standard of persuasion in demonstrating that the accused forfeited the confrontation right?

(e) To what extent is the prosecution foreclosed from claiming forfeiture because it failed to mitigate the problem? In particular,

(i) If the witness is dead, when is the prosecution foreclosed from claiming forfeiture if it did not arrange for a deposition?

(ii) If the prosecution is contending that the witness is intimidated, what procedures must the government go through to assure that as much of the confrontation right as possible has been preserved? For example, to what extent must it exert coercion against the witness, and must it attempt to secure cross-examination without the witness’s testimony?

Manipulation of the "Objective Witness" Standard

I’m not making any predictions about what will happen in Columbus, Ohio, on November 18, but here’s a prediction I will make: The Michigan Supreme Court will not soon issue a Crawford opinion as absurd as the one issued this week (over a nice dissent) by a 4-3 majority of the Ohio Supreme Court in State v. Stahl, 855 N.E.2d 834, 2006-Ohio-5482. Stahl is an example of a court reciting the optimal standard for what is testimonial – and then flagrantly manipulating that standard. It shows how important it is that the United States Supreme Court start setting some categorical rules.

Stahl was accused of an oral rape. The complainant, Amy Mazurek, made a detailed statement shortly after the incident to a police officer, who took her to a Developing Options for Violent Emergencies ("DOVE") unit, specializing in health-care services for victims of sexual assault and domestic disturbances, at a local hospital. Mazurek signed a consent form that read:

DOVE Program CONSENT FOR FORENSIC EXAM AND RELEASE OF EVIDENCE
I voluntarily consent to this forensic examination and collection of evidence. I have received a detailed description of the steps of the process and understand that I may withdraw my consent to any or all parts of this examination at any time. I authorize the release of evidence, information (including protected health information), clothing, colposcope photos, and photography documentation of injuries to a law enforcement agency for use only in the investigation and prosecution of this crime. I understand that if release of the Sexual Assault Evidence Collection Kit is not authorized, the kit will be kept at the SANE [Sexual Assault Nurse Examiner] Unit for sixty days and then destroyed.

The police officer remained in the examination room throughout the entire exam, which was conducted by a nurse-practitioner, Jenifer Markowitz, who was coordinator for victim services of the unit. Markowitz took a statement from Mazurek, which included an identification of the assailant, and, according to the court,

also collected materials using an approved forensic evidence-collection kit (see Ohio Adm.Code 109:7-1-01), including nail scrapings, oral swabbings, and material retrieved with dental floss. Additionally, Markowitz used ultraviolet lighting to identify any bodily fluids still present. Markowitz also collected a napkin from Mazurek's coat pocket that Mazurek had used to wipe her face after the incident.

Markowitz never saw a doctor, and there is no indication in the court’s opinion that she ever received any treatment at the DOVE unit, apart from advice about the importance of follow-up care.

Fair-minded readers may believe that the statement in the DOVE unit was a classic example of a testimonial statement. But read on.

Tragically, Mazurek died several weeks later of an unrelated seizure disorder. So the trial was based on her statement to Markowitz. (At least the court recognized that the statement to the police officer could not be admitted!)

The court adopted the "objective witness" test for determining whether a statement is testimonial – which I think is correct – and with an elaboration that I also think is at least largely correct. The court said:

In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant's expectations.

I have argued that the declarant’s perspective is the proper one as a matter of principle; I also believe that a test based on that perspective is less manipulable than one based on a questioner’s perspective, because a professional questioner can so often articulate some reason other than law enforcement for asking the question (health, safety, community care). The elaboration that “the intent of a questioner is relevant only if it could affect a reasonable declarant's expectations” is, I think, the best way of making sense of a rather confusing aspect of the opinion in Davis v. Washington, which seems to waffle between declarant’s and questioner’s perspectives. (One qualification: If a law enforcement officer has an evidentiary intent but conceals it from a declarant who is not suspected of wrongdoing for the purpose of being able to use the statement, then the prosecution ought to be estopped form denying that the statement is testimonial.) But make no mistake – in this case, the court’s adoption of the declarant’s perspective and that elaboration served the purpose of avoiding the obvious conclusion that the statement was testimonial; as the court said, “there is little doubt” that Markowitz and the police officer “intended to use the DOVE unit examination results to further their investigation.”

Indeed, the court shrugged aside the overwhelming evidence that the examination was conducted for evidentiary purposes by asking, in effect, “How was the declarant to know?” Well, how about that consent form, which just about screams out that the “forensic exam” is, at least in large part, for evidentiary purposes? Oh, says the court, the declarant wouldn’t think that included statements; after all, she had made a statement to the cops already, which was clearly for forensic purposes, so this further statement couldn’t have been. (As if no witness is ever asked to make more than one statement to police officers.) So, with a cop in the room, the complainant understands that physical evidence collected from her – including from inside her body, is largely for forensic purposes, but the possibility of forensic use of what she says would never occur to her, because the medical purpose is so obviously paramount. Translation: The bad guy is going to get off here unless this statement is characterized as non-testimonial, so it will be.

If Stahl is good law, then the state has a simple way of virtually nullifying the Confrontation Clause in any case of a crime against the person: Bring the accuser to a hospital unit and have her make a statement to someone designated as a care-giver. There does not seem to be any reason why the unit cannot be in close proximity to the police station, or even in a separate part of the station. The creation or expansion of these units can be financed by transferring some police officers into them. There will be less need for police officers, because statements to them are not as useful for forensic purposes as statements to nurses. Of course, there will be some additional short-term costs for new uniforms, but that is much cheaper than bringing non-professional witnesses into court.

The death of Mazurek serves as a reminder that many confrontation problems could be avoided if the state would take depositions of witnesses to preserve their testimony. In this case, with (presumably) no advance warning that there was a substantial chance that Mazurek would not be available to testify at trial, the prosecution’s decision not to take a deposition may have been entirely reasonable. But it should be the prosecution, which has the burden of producing evidence and which wants to rely on the testimonial statement of this declarant, rather than the defendant, who has the right to remain passive and demand that adverse witnesses confront him, that should bear the risk that the declarant will in fact be unavailable to testify at trial.

Argument in the Retroactivity Case

The Court heard argument today in Whorton v. Bockting, posing the question of whether Crawford should be applied retroactively. For a report on the argument by Lyle Denniston from SCOTUSBLOG, under the title Commentary: Crawford grows in stature?, click here. When the transcript of the argument becomes available, I will post a link on this blog.

It sure does seem to me that if anything qualifies as a watershed decision Crawford does. And yet I worry about what the effect will be on the development of confrontation law if Crawford is held to apply retroactively. Where judges do not duck the issue, I am afraid they will be even more inclined than they are now to interpret the confrontation right narrowly, lest they open up some old convictions that would be difficult or impossible to retry. And bad law created in this way may last for a long time.

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.