Written opinion in Jensen on the "dying declaration" point

Judge Bruce Schroeder, the trial judge in the Jensen case, has filed a written memorandum in support of the decision he previously issued orally, deeming Julie Jensen’s letter to be a dying declaration. Because I referred to the oral decision in my brief in Giles – and in unflattering terms – the judge has quite appropriately sent copies of the memorandum to counsel of record in the Supreme Court in Giles and to the Court itself. (Despite my jab at his oral opinion, he has been very polite to me in our brief, non-substantive exchange.) You can read the memorandum by clicking here.

In the oral opinion, the judge contended that Julie’s letter spoke only as of the time that it was opened by another person, after her death. The judge repeats the argument in the written memorandum. I stand by my criticism of it. Ascertaining the time of a statement for purposes of the "dying declaration" excpetion to the hearsay rule is not a matter of determining when, say, a contract offer becomes effective. The law of evidence looks to the realities of the situation, and Julie made the statement as of the time she committed words to paper, just as if she were writing a diary.

But the judge's written memorandum appears to make, or at least suggest, an alternative argument, which put in what I think are the strongest terms conflicts with the first argument: Even though the letter spoke as of when it was first written, Julie could have withdrawn it before it was opened, so in some sense it continued to speak until she was no longer able to withdraw it. Under the supposed logic of the dying declaration exception, if the declarant continuously made a statement, the determinative time should probably be the latest time she did so; if the supposed guarantee of reliability applied then, the fact that it did not apply earlier presumably would not matter.

This is a subtler theory than the “letter from the grave” idea, but I still think it is a distortion of the “dying declaration” exception. For it to be even plausible, there would have to have been a moment when Julie knew she was about to die and yet was able to withdraw the letter. The judge does not show that there was such a moment. Was Julie ever aware that death was imminent? And if she was, could she plausibly have gotten in touch with the letter-holder to pull the letter back? Even if the answers to both these questions are affirmative, I don’t think the argument is persuasive even within the strange logic of the “dying declaration” exception. Assuming a dying victim would be precluded by fear of eternal damnation from using her dying breaths to make a lying accusation, it is not clear that the same factor would prompt her to remember a statement made weeks before that expressed a basis for suspicion, and to use her dying breaths to take the initiative to nullify it.

The distortion of the exception is suggested by the fact that the prosecutor declined to rely on the exception, and the judge was not prompted to do so until the grant of certiorari in Giles made him think that the forfeiture theory on which the state supreme court relied might be vulnerable – therefore possibly leading to a mistrial and precluding the sensible result of allowing admission of the document. Really, rather than stretching the exception out of shape, it would be much better to hold that Mark Jensen forfeited the confrontation right with respect to Julie by killing her. I believe the judge’s reasons for reluctance to adopt this approach are addressed in my amicus brief in Giles.

While I'm at it -- in my discussion of Jensen in the amicus brief, I committed a blooper by saying that in Jensen the Wisconsin Supreme Court cited the California Supreme Court's decision in Giles. Would be amazing if true, given that Giles came down after Jensen. I've corrected the mistake by notifying the Court and counsel. I don't think my substantive argument is changed in the slightest.

Reply brief in Giles filed (updated April 12)

The petitioner in Giles filed his reply brief on Thursday. You can read it by clicking here. I believe this brief leaves intact the main arguments I made in my amicus brief. I just want to emphasize three points here.

1. My basic historical argument is this: (1) The traditional doctrine admitting certain dying declarations is best viewed as an implementation of forfeiture doctrine (though it was rarely articulated that way in the framing era) – a doctrine that applies if serious misconduct by the accused foreseeably rendered the witness unavailable, whether or not that was the purpose of the misconduct. (2) The traditional rule limiting the dying declaration exception to statements made when death appeared imminent to the victim, on which Giles puts great weight, is best viewed as a reflection of a rule that to invoke forfeiture doctrine the state must act reasonably to mitigate the loss of the confrontation right. I do not believe Giles offers any resistance to this view.

Even though a framing-era victim may have been dying, it was standard practice to examine her in the presence of the accused; if the accused was not present, the deposition generally could not be admitted. Only if the victim was aware that death was imminent was the accused’s presence excused. I believe that this well-established practice is entirely consistent with the doctrinal resolution that I recommend – that the accused forfeits the confrontation right if the witness is unavailable as a foreseeable consequence of the accused’s serious wrongful conduct, but that the forfeiture does not apply to the extent reasonable conduct by the state could have preserved the right. Thus, the fact that an assault victim eventually dies means that the accused forfeits the right to be confronted with her at trial – but it should not mean that he forfeits the right to be confronted with her at a deposition, if there was ample opportunity to hold one before the victim died. When is there an adequate opportunity for the state to offer a deposition? That, I believe, should be a matter of judgment on all the circumstances. But if the victim is aware of imminent death, that might be regarded as a pretty good indication that it is no longer civil and humane to make her confront the accused.

2. A case fitting the mold of Giles – in which the ultimate murder victim made a testimonial statement after an earlier, non-fatal incident – is probable only when there is a continuing relationship between the accused and the victim. But non-lethal domestic violence was not generally prosecuted in the framing era, and for many years afterwards, so there would be little occasion for a victim of a non-lethal assault to make a testimonial statement. Giles contends that “there surely were many incidents in which a homicide victim, prior to the fatal attack, had previously reported threats made by the killer in the course of seeking help from a relative, neighbor, local vicar, or even local constable . . . .” Reply Brief at 6. But what is most striking is that Giles does not cite any such case. Perhaps there were occasional cases of this sort (and if there were, under the doctrine of Davis v. Washington, 547 U.S. 813 (2006), some of the statements would not be considered testimonial), but there was obviously no settled practice governing it. Even if one is inclined to give primacy to framing-era practice – and the weight to be attached to it should be diminished given that forfeiture doctrine is not rooted in the language of the Constitution – in this setting there was no well-established practice that should control this case.

3. It is very easy for an advocate to take pot shots at an academic who takes a contrary point of view. But both Giles and the NACDL are very gracious to me in their briefs, and I appreciate that.

Bottom-side briefs in Giles

Today is the deadline for amicus briefs in support of the respondent state in Giles v. California, and they are streaming in. You can read the brief of

the National Association to Prevent the Sexual Abuseof Children's National Child Protection Training Center, by clicking here;

the National Association of Counsel for Children, and the American Profesisonal Society on the Abuse of Children, by clicking here;

Illinois and 36 other states, by clicking here;

the Domestic Violence Legal Empowerment and Appeals Project (DV LEAP), California Partnership to End Domestic Violence, Legal Momentum, plus two other organizations and one individual (D. Kelly Weisberg), by clicking here; and, finally,

Richard D. Friedman (i.e., me), by clicking here.

Happy reading!

State's brief in Giles

California, the respondent, has just filed its brief in Giles, the case posing the issue whether a purpose to render the witness unavailable is necessary for forfeiture, even assuming the accused murdered the witness. You may see the brief by clicking here. If you want to look at papers previously posted, you may see the decision below and the petitioner's brief through this link, and the amicus brief of the National Association of Criminal Defense Lawyers through this link. Amicus briefs supporting the respondent are due March 26, and the argument will be April 22.

Cert granted in Melendez-Diaz

The Supreme Court granted certiorari today in Melendez-Diaz v. Massachusetts, posing the issue of whether certificates of forensic lab results are testimonial. You can see papers filed in the case so far by clicking here and following the links. The case will be argued in the fall. Good! This is an issue that must be resolved, and it should be resolved by acknowledging the obvious, that these reports are indeed testimonial.

“If anything happens to me . . .”

Several readers have asked me about the recent Jensen case in Wisconsin, which has generated considerable national publicity – including a piece on ABC's 20/20. Mark Jensen was recently convicted of murdering his wife Julie. Among the evidence against him was a handwritten letter that Julie gave to a neighbor in an envelope addressed to the local police department, with instructions that the neighbor give the envelope to the police if anything happened to her. The letter discussed their deteriorating relationship and suspicious behavior by Mark, and said. “[I]f anything happens to me, he [Mark] would be my first suspect.” It also explicitly declared that she would not commit suicide. Julie also left voice-mail messages to similar effect for one officer, Ron Kosman. Last year, on interlocutory appeal in State v. Jensen, 299 Wis.2d 267, 727 N.W.2d 518 (Wis. 2007), the Wisconsin Supreme Court held that these statements were testimonial in nature, but that if the state proved that wrongdoing by Mark caused Julie’s unavailability then forfeiture doctrine would remove the Confrontation Clause bar to admissibility of the statements. The trial court did make the predicate finding, the evidence was admitted, and now the jury has found Mark guilty.

The fact pattern here occurs from time to time. That is, an ultimate homicide victim makes a statement – sometimes orally, sometimes in writing – suggesting that if she is found dead suspicion should fall on a given person. After the victim's death, the identified person – the victim’s husband or boyfriend – is charged with the murder, and the prosecution seeks to introduce the victim’s statement. Other post-Crawford cases fitting this mold are State v. Cunningham, 337 Or. 528, 99 P.3d 271 (Or. 2004), and the very recent State v. Sanchez, 341 Mont. 240, 2008 WL 273926 (Mont. 2008). In Cunningham, the court concluded that the confrontation issue had not been preserved, and held the statement admissible. As in Jensen, the Sanchez court held the key statement to be testimonial in nature, but was willing to apply forfeiture doctrine to permit its admissibility.

I think the result in these cases is the right one. Statements of this sort are almost certainly testimonial in nature. The ultimate victim is anticipating her possible murder, and taking steps to ensure that if indeed she is found dead the authorities will focus on the possibility that the person designated by her has murdered her. Some of the judges in Sanchez thought the statement there – a letter found among the victim’s personal effects – was written to provide information for her health care in case she was found near death as a result of poisoning. That’s awfully strained. This was in effect testimony from the grave, and the courts should be frank in recognizing it as such.

But then the next question is forfeiture. If the courts are willing, as I believe they should be, to adopt forfeiture even in a reflexive situation – that is, when the wrongdoing alleged to have rendered the victim unavailable is the same act for which the accused is on trial – then, assuming the court makes the necessary findings, the accused should be held to have forfeited the confrontation right. The future of reflexive forfeiture is at stake in the Giles case now pending before the United States Supreme Court; the actual question presented there is whether there can be forfeiture even if the accused did not engage in the wrongful conduct for the purpose of rendering the witness unavailable, but if the Court answers in the negative then reflexive forfeiture will not be possible in most cases. I have already written extensively on this issue, and expect to put in an amicus brief on the merits in Giles, so I’ll limit myself here to two comments.

First, the “If anything happens to me” cases illustrate why I think that adopting a purpose requirement for forfeiture would tend to lead to an unduly narrow view of what is testimonial. The inclination of most judges is to admit these statements. I think forfeiture doctrine explains why – if the accused did in fact kill the victim without justification, then his own serious wrongdoing has created the unavailability about which he is complaining. If nevertheless judges were to be precluded from applying forfeiture doctrine in such cases, they would look for ways to treat such statements as non-testimonial, perhaps by adopting unrealistic theories such as the “for her health” rationale in Sanchez, or perhaps by adopting am unjustified rule that a statement made before the crime in question is committed cannot be deemed testimonial with respect to that crime.

Second, a dissenting judge in Jensen, responding to the majority’s reliance on my work, says that my approach,

if fully embraced by the majority, would clearly lead to nonsensical applications. For example, Friedman suggests that ‘[t]he prosecution should bear the burden of taking all reasonable steps to protect whatever aspects of confrontation are possible given the defendant's conduct, and of demonstrating that it has done so.’ [Confrontation and the Definition of Chutzpa] at 525. Thus, under the reflexive forfeiture principle advocated by Friedman, once Julie left the voicemail to Officer Kosman that indicated that she thought Jensen was trying to kill her, the State had an obligation to notify Jensen that Julie made the statement, and give him an opportunity to cross-examine her by way of videotape or deposition. Id. For obvious reasons, the majority does not advance that view. Yet, this is the proper application of Professor Friedman's reflexive forfeiture doctrine adopted by the majority in this case.

Well, no it isn’t. The judge’s attempt to lampoon my view is fallacious on its face. Yes, I do believe that the prosecution should take all reasonable steps to protect whatever aspects of confrontation are possible given the defendant’s conduct. But as suggested by the judge himself, if a terrified woman calls a police officer to say that she believes her husband is poisoning her, most courts would not say that it is reasonable to expect that the police should notify the husband of the statement and give him a chance to take her deposition. What steps the state should be expected to take is often an immensely difficult question – but I don’t think most courts would find it so in this setting.

Shifting the Burden, Take 3

In a 5-3 decision yesterday in Magruder v. Commonwealth, Virginia joined those jurisdictions upholding a statute that makes certificates of lab reports admissible but provides that the accused may, if he wishes, call the author as a witness. This is an issue on which there is a clear split, and it is ripe for the Supreme Court to decide, perhaps when it decides whether such certificates are testimonial. In three prior posts – one from 2005, one from 2006, and one from 2007 –I have explained my view that these burden-shifting statutes are unconstitutional because they impair the ability of the accused to examine the author. By contrast, a statute that simply requires that the accused make a timely demand that the author testify at trial seems perfectly acceptable.

Given my prior postings, I won’t add much here. But a few comments:

(1) The defendants argued that if this burden-shifting procedure is acceptable, then the Confrontation Clause poses no obstacle to an entire trial being conducted by affidavit. The Virginia Supreme Court simply punted on the matter, saying (footnote 5) that it would not engage in speculation. Translation: “We don’t want to consider the logical consequences of our decision.” It also added a mysterious sentence that, I think, amounts to saying that this procedure saves money, because otherwise (unless the accused waived the right) an analyst would have to testify at every trial requiring proof that the stuff in question is cocaine. Golly, and the state has to provide lawyers and juries, too, before it can get a conviction.

(2) In response to the argument that the procedure amounts to a shift of burden, the court punts again; it regarded this as a due process argument that is not cognizable under the Sixth Amendment and that was not properly presented; apparently a defendant would have to secure the attendance of the author and then claim that the state should call him. That seems to be quite a heavy procedural demand, but in any event it misses the point. The burden-shifting argument is not separate from the Confrontation Clause claim but an integral part of it: It is basically that by requiring the accused to call the author himself, the procedure impairs the accused’s ability to confront the author. Neither the majority (which indicates incorrectly that all that is at stake is timing) nor the dissent addresses what I think is the real impairment, elaborated in my prior posts: An accused has to take a far greater chance to call the author as his own witness (even if he gets to ask leading questions) than he does if he merely has to stand up and ask some questions on cross. Proof: The accused usually does cross a key witness who testifies at trial, and almost never calls one to the stand if the witness’s written testimony is admitted.

This points up a key difference between the type of statute here and a simple timely demand statute. With respect to both statutes, unless the accused demands live testimony the certificate is admitted. And with respect to both, if the accused does demand live testimony, he gets to examine the author. So given the option of a simple demand statute what is the advantage to a state of a burden-shifting one? It does not need this type of statute for a legitimate efficiency reason: The simple demand statute ensures that if the accused has no interest in examining the author then the author need not be produced. The advantages to the state of a burden-shifting statute are that (it impairs the opportunity to confront the author, and (2) therefore, the accused is less likely to avail himself of the opportunity.

NACDL brief in Giles

The National Association of Criminal Defense Lawyers has filed an amicus brief on behalf of the petitioner in Giles, and you can see it by clicking here. I'll present my comments in the form of another amicus brief!

Supreme Court decides that states may apply Crawford retroactively

Last year, in Whorton v. Bockting, the Supreme Court decided that Crawford does not apply retroactively as a matter of federal constitutional law. Yesterday, in Danforth v. Minnesota, 2008 WL 441059, the Court held that states are free to apply broader rules of retroactivity than the constitutionally mandated ones, and so may apply Crawford retroactively. I hope to comment soon on this decision and on Whorton, too. I don't think Danforth will have a major impact. At least in most circumstances in which a state court would be tempted to apply Crawford retroactively, it could reach the same result by giving retroactive application to confrontation rights under the state constitution.

Petitioner's brief in Giles filed

Here is the brief of the petitioner, the first brief on the merits before the Supreme Court in Giles v. California, No. 07-6053, reviewing People v. Giles, No. S129852, 40 Cal.4th 833, 152 P.3d 433 (Cal. 2007), the case presenting the issue of whether the accused can forfeit the confrontation right with respect to a witness by killing her, even if he did not do so for the purpose of rendering her unavailable as a witness. I will post amicus briefs as I receive them. The brief of respondent is due on March 19 and those of supporting amici on March 26.

Moving to a head on lab reports (updated Feb. 21)

Petitioner has filed his reply brief in support of the petition in Melendez-Diaz, the Massachusetts case on lab reports. You can see it by clicking here, and you can see the other papers filed in the case by looking at my prior post. This case, along withthe O'Maley and Geier cases, discussed in another post, is now scheduled for conference on March 14; we should know on the morning of St. Patrick's Day which, if any of them, the Court will take.

Meanwhile, the conflict continues to thicken. The New York Court of Appeals weighed in yesterday with a decision, People v. Rawlins, 2008 WL 423397, holding in one case that fingerprint reports were clearly testimonial (correct there), but in another that DNA reports were not (wrong there). Unlike some decisions admitting DNA reports, this one tries to make careful distinctions, but I don't think they hold up; I'll try to write about this later.

More cert petitions

I have previously written about the pending cert petition in Melendez-Diaz v. Massachusetts. Alert blog reader (I’m adapting a line from Dave Barry there) Richard Klibaner has called attention to a couple of other pending petitions that pose similar issues.

One is Geier v. California, No. 07-7770. You can read the petition by clicking here and the brief in opposition by clicking here. It appears this case has a big harmless error problem.

The other is O’Maley v. New Hampshire, No. 07-7577. You can read the petition by clicking here, the brief in opposition by clicking here, the reply brief in support of the petition by clicking here, and the amicus brief of the National College for DUI Defense in support of the petition by clicking here. O’Maley – in which the state supreme court relies heavily on the state decision in Geier – is somewhat different from Melendez-Diaz. In Melendez-Diaz, the state took advantage of a state statute allowing admission of a certificate of a lab test without any sponsoring witness. In O’Maley, the assistant lab director testified as to the defendant’s blood alcohol level. But the technician who drew the blood and prepared a report certifying that fact did not testify at trial, and neither did the analyst who tested the blood. The state supreme court held the initial certificate to be non-testimonial. But this certificate was a crucial link in proving the defendant’s guilt, because it was an essential part of the proof that the blood tested did in fact belong to the defendant. And the state supreme court also held the blood test results to be non-testimonial. In a technical sense that is right; the test results are the result of a process and of machinery, not a human statement. But the assistant director’s testimony had no value at all unless the analyst tested the proper sample and performed the test properly. So that testimony amounted to, “I have an opinion as to the defendant’s blood alcohol level, based on my assumption [supported by no evidence that will be presented] as to what the analyst did.” If the witness in court testified, “The analyst told me what blood he worked on and how he did the test,” I think the confrontation violation would be clear. It should be no less clear when the witness implicitly bases his “opinion” on an assumption as to what the analyst did.

The state supreme court’s decision was clearly based in large part on its perception that cross-examination would not be worth much, because the technician and the analyst would not remember the incident anyway. Three points in response: (1) I don't think Crawford leaves room for saying that confrontation is unnecessary because it wouldn't do any good. (2) If the state supreme court's position were adopted it would amount to giving the prosecution the benefit of a shell game of sorts: Crawford has adhered to the doctrine -- mistaken in my view -- that if the witness testifies in court the accused has no basis for a confrontation objection, even if the witness does not remember the substance of her prior statement, because the accused has gotten the benefit of cross-examination by showing the failure of memory. So prosecutors taking advantage of this part of Crawford and of the state decision in O'Maley would argue, "We don't have to bring the witnesses in if their memory would be so bad that cross would be useless. But if we did bring them in, the fact that their memory would be bad would make cross valuable for the accused. (3) The memory problem is real. A solution to it is to provide an early deposition. In fact, I think the Supreme Court ought to recognize that if the witness doesn't remember the subject matter of the prior statement then cross-examination is clearly impaired, so if the prosecution wants to preserve the testimony in the face of likely memory loss it ought to provide an opportunity for a deposition. But that's a battle for another day.

I think that O’Maley as well as Melendez-Diaz presents a cert-worthy situation. The basic approach of the O'Maley court has been taken by others as well, including the U.S. Court of Appeals for the Fourth Circuit in United States v. Washington, 498 F.3d 225 (4th Cir. 2007), from which a cert petition is also pending (though behind the schedule of the others, and presumably to be held if the petition in O'Maley is granted). The issues are sufficiently different, though obviously related, that it might be optimal for the Court to grant cert in both O'Maley and Melendez-Diaz. But if it is inclined to grant in only one case, Melendez-Diaz is probably the one to pick, because it is significantly simpler and more straightforward.

Having it both ways on the declarant's and questioner's perspectives

As my last posting suggested, when courts are considering whether to characterize as testimonial an accusation made to a police agent in a situation that can arguably be considered an "ongoing emergency," they have most often considered the matter from the perspective of the questioner. I have frequently argued, on this blog and elsewhere, that this is the wrong perspective. In this context, this perspective leads more readily than does the one I believe is proper – that of a reasonable person in the position of the declarant – to the conclusion that the statement is non-testimonial. That is in large part because the court can maintain that, before the declarant speaks, the questioner does not know the nature of the situation; in some cases, it is unclear to the questioner whether a crime has been committed and even if that is clear the questioner often will not know where the perpetrator is. The declarant, on the other hand, most likely knows that she is reporting a crime, and if there is not any imminent danger she will probably know that as well; thus, she is more likely to understand from the very start that she is providing information that will be used by the prosecutorial process.

Now compare the situation in which a confederate of the accused makes a statement to a confidential informant or a undercover police officer. In this context, the reasonable-declarant perspective – the one I believe is proper – leads readily to the conclusion that the statement is not testimonial: The declarant presumably has no idea that she is creating evidence for use in the prosecutorial process. But if one takes the questioner's perspective, the statement sure looks testimonial: The questioner is certainly aware that the conversation is generating evidence, and often that is her primary purpose for conducting the conversation. And guess what – in this context the courts are more likely to take the declarant's perspective. The rule seems to be that the prosecution wins. Cf. United States v. Von’s Grocery Co., 384 U.S. 270, 301 (1966) (Stewart, J., dissenting) (“The sole consistency that I can find is that in litigation under § 7, the Government always wins.”).

Consider the decision this past week in United States v. Udeozor, 2008 WL 271295 (4th Cir. Feb. 1, 2008). The defendant was charged with having committed various forms of abuse , in conspiracy with her husband, against a 14-year-old girl brought over from Africa. The husband disappeared before trial, but the prosecution introduced tapes of telephone conversations that the victim held with him. Even on the assumption, apparently well founded, that the girl made the calls at the behest of the Government, the court concluded that the husband's statements were non-testimonial:

Mr. Udeozor's statements are not testimonial because, objectively viewed, no reasonable person in Mr. Udeozor's position would have expected his statements to be used later at trial. Mr. Udeozor certainly did not expect that his statements would be used prosecutorially; in fact, he expected just the opposite. As discussed above [in concluding that the statements fell within the hearsay exception for declarations against interest], Mr. Udeozor made numerous statements to the victim that were contrary to his own penal interests, including admissions that he had hit the victim, had engaged in sexual intercourse with her, and had smuggled her into the United States illegally. Moreover, he made the victim promise that she would keep their conversation between the two of them. These statements would not have been made by a reasonable person who believed his statements would be used in a later criminal prosecution. * * * Because Mr. Udeozor plainly did not think he was giving any sort of testimony when making his statements to the victim during the recorded telephone calls, the admission of these two taped conversations into evidence did not violate Dr. Udeozor's rights under the Confrontation Clause.

Correct result, and, so far as quoted above, at least largely the correct analysis. So has the Fourth Circuit, which had previously minimized the significance of the declarant's perspective, been converted? Nope. The court says, "The intent of the police officers or investigators is relevant to the determination of whether a statement is 'testimonial' only if it is first the case that a person in the position of the declarant reasonably would have expected that his statements would be used prosecutorially." In other words, that the declarant reasonably expected his statement to be used in connection with a prosecution "is necessary – but sometimes not sufficient" for the statement to be deemed testimonial. There really is no justification for this conjunctive test, in which a statement would be testimonial only if both speaker and questioner anticipate from that start that will be used in prosecution; it strikes me as an artificial construct designed simply to limit the category of statements deemed testimonial.

Taking the declarant's perspective – and perspecives on emergency

Blog reader Ryan Scott has called to my attention the decision by the Oregon Supreme Court in State v. Camarena (Jan. 25, 2008), which is interesting in one respect. This is a rather typical domestic violence case involving a 911 call; as in Davis v. Washington, 126 S.Ct. 2266 (2006), the call was made shortly after the incident, in this case after the accused had already left the house. The court affirms the conviction, and holds the key portions of the call non-testimonial – right up to and including the victim’s identification of the defendant. The court holds that the portions after that, which are (coincidentally?) not necessary to uphold the conviction, are deemed testimonial, but their admission was harmless. Nothing particularly notable there. But, more clearly than most in the genre, this opinion clearly, and appropriately, views the matter from the perspective of the speaker; it gives more force than do most courts to the statement in Davis that “it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate.” And it emphasizes that “statements made in situations not amounting to ‘interrogation’ may, depending on the circumstances, nevertheless qualify as testimonial.” Thus, the court seems to have the right idea of how the concept of emergency fits into confrontation doctrine. The balance of the complainant’s responses, the court says,

were unnecessary to resolve an ongoing emergency. Viewed objectively, the remaining questions and responses were directed at establishing facts only relevant to a subsequent criminal action.

I wish the word “only” were not in there; it should not be a requirement for the statement to be characterized as testimonial that it only bear on criminal proceedings. But at least, it seems to me, the court is giving the basic idea of emergency right its proper place in the doctrine – emergency is a factual consideration that might help determine whether or not a reasonable person in the position of the declarant would be focused on likely prosecutorial use of the statement. So, though the court’s analysis of the particular facts is open to question – but pretty much what one would expect given Davis – and the word “only” seems misplaced, its overall approach is mildly encouraging.

A Case Comment in the Harvard Law Review takes a different approach to the emergency doctrine. The Comment argues that, in determining whether an emergency exists for purposes of Confrontation Clause doctrine, courts should draw from cases applying emergency doctrines under the First, Fourth, Fifth, and Fourteenth Amendments and “consider the immediacy, particularity, and magnitude of [the] danger.” This is an interesting approach, but I don’t think it proves to be productive. It is divorced from any proper role of emergency under the Confrontation Clause. Unlike the author of the Comment, I do not believe emergency doctrine is meant to help the Clause in “balancing the procedural rights of criminal defendants against the need to protect the public.” Crawford is about as non-balancing an opinion as one could imagine. Courts should not consider whether a statement was made to help resolve an emergency as part of a balance of confrontation rights against the common interest in public safety; that is simply not an appropriate balance under the Clause. Rather, this should be a much more factually focused inquiry, as to whether the fact of emergency would likely crowd out consideration of prosecutorial use of the statement in the minds of a reasonable person in the position of the declarant.

The case on which the Comment focuses is People v. Nieves-Andino, 9 N.Y.3d 12, 872 N.E.2d 1188 (2007), involving a statement by a shooting victim to a responding officer at the scene of the crime. This is one of those cases in which the court not only views the matter from the point of view of the questioner but, very generously to the prosecution, concludes that the police officer was primarily focused on protecting the victim and others – even when asking the name and address of the accused, and even though the officer’s partner was meanwhile searching the area for shell casings. The Comment concludes that emergency doctrine should not have resulted in characterizing the statement as non-testimonial; this seems clearly to be the proper conclusion, and the one that three judges of seven on the New York Court of Appeals reached. Because the victim ultimately died – the prosecution was for second degree murder – it may be that admitting the statements could have been justified on the basis of forfeiture doctrine, depending on whether a deposition of the victim would have been practical.

Cert denied in capital sentencing cases

Lyle Denniston tells me the Supreme Court denied cert this morning in the three pending cases raising the question whether the confrontation right applies at the selection phase of capital sentencing. No surprise in view of the fact that the Court didn't act on the petitions Friday; at this time of year, the Court accelerates briefing schedules to fit cases in before the end of term, so it announces grants shortly after the conference on Friday, and waits until Monday to announce denials. Sooner or later, this is probably going to be an issue the Court will have to resolve.

Supreme Court to hear Giles case (updated)

Lyle Denniston reports that the Supreme Court has granted certiorari in Giles v. California. You can read more on www.scotusblog.com. I believe this is excellent news. You can read my prior posting on Giles, and get links to the papers in t he case -- including the brief I put in supporting a grant of certiorari -- by clicking here, and you can see the Court's order by clicking here. Ann Murphy has provided a link to Linda Greenhouse's article on the grant in today's New York Times. It's a good article, though with some errors; I think Greenhouse is about the only general-readership journalist who has appreciated the significance of Crawford.

The petitioner's brief is due February 20, and the state's brief is due March 19; the briefs of amici are due at the same time as that of the party being supported. The date the reply brief is due will depend on the argument date, which will be some time in April. The Court set a moderately expedited schedule to allow the case to be argued, and presumably decided, this term.

There was no order in the capital sentencing cases yesterday. The best bet probably is that an order denying cert will be issued Monday. But two of the cases were held over before, and it could happen again.

I was hoping that the Court would grant cert because I think this is an excellent case on which to test an important issue, whether a desire to render the witness unavailable is an absolute prerequisite for forfeiture of the confrontation right. But I believe the California Supreme Court was correct that the answer is no.

Florida decides that discovery depositions do not qualify as an opportunity for cross-examination

Rocky Sharwell informed me yesterday that the Florida Supreme Court has just issued a long-awaited decision, State v. Lopez, 2008 WL 9979, resolving an intrastate conflict as to whether a discovery deposition constitutes a pre-trial opportunity for confrontation. The court answered the question in the negative -- correctly, resoundingly, and unanimously.

Lopez was convicted of possession of a firearm by a convicted felon. A witness, Ruiz, had made a statement to a police officer that he had Lopez had abducted him at gunpoint. Florida is one of several states that provides for extensive discovery in criminal cases, and Lopez's counsel took Ruiz's deposition. But Ruiz absconded before trial, and the prosecution introduced Ruiz's statement to the officer. The intermediate appellate court, disagreeing with its counterpart in another district, held that this violated the Confrontation Clause, and now the state supreme court has affirmed that holding.

Florida made the decision easy, in a sense, because its rules provide that, absent stipulation of the parties or an order of the court upon a showing of good cause, the defendant may not be physically present at the deposition, and Lopez apparently was not present at Ruiz's deposition. Maryland v. Craig notwithstanding, an opportunity to be face-to-face with the witness is at least presumptively required to satisfy the Confrontation Clause, and the absence of that opportunity here was enough to make this deposition inadequate to preserve testimony.

Moreover, Florida's rules provide that a discovery deposition is only admissible for impeachment and not as substantive evidence. Perhaps that should not be a show-stopper -- unless the defendant secures affirmatively helpful evidence, his purpose in using the deposition at trial is likely to be to impeach the credibility of the witness whose prior statement is being admitted. But this provision indicates quite clearly that the expectation behind the discovery deposition procedure is not that it is being taken for the preservation of testimony at trial; indeed, Florida has another procedure for discovery deposition.

And this ties into a more fundamental point: As the court says, "the motivation for the deposition does not result in the 'equivalent of significant cross-examination."" This is in part because "the purpose of a discovery deposition is at odds with the concept of a meaningful cross-examination." The purpose of the defendant is generally to learn useful information, not to impeach the witness. Indeed, defense counsel may well hold back a line of attack that she believes would be more effective if first used at trial. Quoting a prior case, the court said that a defendant cannot be "expected to conduct an adequate cross-examination as to matters of which he first gained knowledge at the taking of the deposition." I suspect that point won't be ultimately persuasive as a matter of federal constitutional law -- defense counsel must often conduct cross-examination as to matters they first learn about at trial. But as the court emphasizes, the inadequacy of the opportunity for cross is especially glaring if the defendant is "unaware that this deposition would be the only opportunity he would have to examine and challenge the accuracy of the deponent's statements." Of course, one could take the view that if the discovery deposition were deemed a sufficient opportunity for confrontation then the defense would always be on notice that if the witness is unavailable at trial her statements could be admitted without any additional opportunity for confrontation.

The problem, of course, is that this would severely burden the defense, and the entire system, because the defense would have to treat every discovery deposition as if it were the one and only opportunity for confrontation -- unless tactical considerations of the type suggested above made counsel hold back, reserving lines of examination for trial but by doing so taking a chance that the defense would have no chance for confrontation at all.

What should happen, of course, is that when the prosecution, the proponent of the evidence, believes that there is a substantial chance that the witness will be unavailable at trial, it gives notice to the defense and arranges for a deposition to preserve testimony. And Florida does provide for such depositions. It is like most jurisdictions in this respect, I believe. Indeed, depositions to preserve testimony have been around for several hundred years. (Depositions were the form in which equity courts took testimony, and common law courts found them to be a good substitute for live testimony if the witness was unavailable for trial. As I understand it, this idea of the deposition as a means of taking and preserving testimony predates their use for discovery by several hundred years.) I have argued that prosecutors should make more aggressive use of such depositions. (Note, for example, my recent posting, A duty to mitigate with respect to statements made before the crime being charged?

But the Florida court is on solid ground in refusing to treat every-day discovery depositions as if they were preservation depositions. The difference is fundamental, not trivial. To put it simply, in the case of preservation depositions, but not in that of discovery depositions, the warning light is on that this may be the one and only opportunity for confrontation, and the prosecution is willing for the witness to endure the additional ordeal that this may entail.

The Florida court put its decision solely on the gro0und of the U.S. Constitution. It could have protected the decision against review by relying also on the state constitution. But I don't think the U.S. Supreme Court is likely to take this case, in part because the decision is so clearly right. Note also that it is in general accord with People v. Fry, 92 P.3d 970 (Col. 2004) ("the preliminary hearing is not intended to be a mini-trial . . . "), on which I commented in a posting back in 2005, Prior opportunity for cross-examination.

One other aspect of Lopez is particularly noteworthy. Ruiz made his statement six to eight minutes after the report of the alleged assault; the state supreme court affirmed a ruling that it qualified as an excited utterance. He was still near the scene, as was Lopez himself, standing twenty-five yards away in the same parking lot. A short time later, Ruiz revealed that the gun in question was under the front passenger seat of his car. The court held that the statement was testimonial, and that there was no ongoing emergency at the time. I believe that is correct. But many courts would have taken the path of least resistance and come out the other way. Good for the Florida court for its steadfastness!

Pending cert petitions on capital sentencing

Lyle Denniston, who writes for scotusblog and follows the Supreme Court very closely, has alerted me to the fact that, in addition to the Giles case, discussed in my posting of December 24 (and later updated), there are other Crawford-related petitions before the Court at its conference this Friday, posing the important issue of whether the confrontation right applies at the selection phase of capital sentencing proceedings – that is, at the proceeding held, after the defendant’s guilt and eligibility for the death penalty have been determined, to decide whether the death penalty actually should be imposed. See the prior postings, Crawford and Capital Sentencing, from Aug. 20, 2006, and Crawford and Sentencing, from April. 4, 2005, and comments to them. One of the cases is Fields v. United States, No. 07-6395, seeking review of United States v. Fields, 483 F.3d 313 (5th Cir. 2007), which has an extensive discussion and a fine dissent on the issue. The others are Johnson v. Nevada, No. 06-10345, seeking review of Johnson v. State, 148 P.3d 767 (Nev. 2006), and Thomas v. Nevada, No. 06-10347, seeking review of Thomas v. State, 148 P.3d 727 (Nev. 2006). The Nevada decisions relied on this point on the holding of a companion case, Summers v. State, 148 P.3d 778 (Nev. 2006), in which the discussion on this point was rather cursory and not nuanced. Both the Nevada cases were distributed for a previous conference, but with no decision made.

You can see the cert petition inFields by clicking here, the brief in opposition by clickinog here, and the reply brief by clicking here. The brief in opposition in Thomas is available at 2007 WL 2238110. I'll post other papers on these cases as I am able.

Children and forensic interviews, revisited

The Idaho Supreme Court recently issued a decision, State v. Hooper, 2007 WL 4472263 (Dec. 24, 2007), that came to the right result with respect to videotaped statements made by a child during an interview by a forensic examiner at a sexual trauma abuse response (STAR) center, but that also illustrates the dangers in the way the courts are dealing with such statements.

In this case, the police directed the child, who was 6 years old, to the center, and a detective observed the interview from another room. The examiner, who was forensically trained, consulted with the detective towards the end of the interview and then returned to ask a few more questions. At the end of the interview, the police took the tape and swabs taken from a physical examination of the child.

It seems plain to me that the child's statements were testimonial, and the court so held. But the rationale is not entirely satisfying. The court explicitly said that it was using “a totality of circumstances analysis,” which of course indicates that it is providing very little constraint on future decisions. In part, the court emphasized the expectation of “the parties” – it’s not entirely clear to whom this referred – that the interview would replace in-court testimony by the child. But the court’s primary emphasis was on purpose rather than expectation, and it clearly viewed that question from the perspective of the interviewer; the court concludes (accurately) “that the primary purpose of the interview was to establish or prove past events potentially relevant to later criminal prosecution, as opposed to meeting the child's medical needs.” In support of this conclusion, it notes various factors concerning how the interview was conducted. Some of these could not be avoided by an interviewer whose true purpose is to create evidence for use at trial – for example, the interviewer’s attempt to determine who the assailant was. Others could be avoided, but at the potential cost of impairing the usefulness of the interview – for example, the interviewer reminding the child of the importance of telling the truth, and consulting with the detective on additional questions to ask. And some could very easily be avoided. Thus, the court said:

[The interviewer] did not ask any questions regarding [the child]'s medical condition, or whether the child was injured. Further, this interview took place after a medical assessment and separately from the medical assessment. The police officer was present only at the second interview, not during [a physician’s] examination.

So if I were an Idaho prosecutor, I would follow one of several paths. I might try to train physicians to conduct interviews that would have an apparent medical purpose but also be designed to generate evidence, and do without forensic examiners. Or I might suggest that a forensic examiner and a physician meet with the child at the same time. At the very least, I would advise forensic interviewers to ask repeated questions about the child’s medical condition. I would probably also accept some impairment of the fact-finding purpose of the interview – I might advise interviewers not to remind children of the importance of telling the truth, because doing so would make the interview look more forensic.

The problem, I think, lies in addressing the problem by emphasizing the purpose of the interviewer. I have written numerous times before that I believe this perspective – an easy but not inevitable one to draw from the Davis opinion – is the wrong one to take. It is also the most vulnerable to manipulation, because the interviewer has the motivation and the ability to disguise her purpose in conducting the interview.

Ironically, though, in the case of forensic interviews of children, if the interviewer does not disguise her purpose, this perspective clearly yields a characterization of the child’s statements as testimonial, because the interviewer so plainly is in fact motivated by a forensic purpose. If the courts instead take the perspective I believe is proper – the reasonable expectation of someone in the position of the speaker – the matter is somewhat more complicated, because the child might not anticipate, or even understand, forensic use. But if one adopts either of two principles, the statements still appear testimonial: (1) The proper perspective is that of a reasonable adult, not of a speaker of the child’s age; just as we do not consider the actual declarant's intelligence or sophistication when we apply an objective standard, we should not consider the declarant's age, and instead apply a "one size fits all" notion of the reasonable declarant. (2) The statement can be testimonial even if a child declarant does not anticipate formal forensic use, so long as she anticipates that some adverse consequence will be visited upon the person accused. I am inclined to believe the first of these principles, though it is controversial, and the second one strikes me as quite clearly correct.

A duty to mitigate with respect to statements made before the crime being charged?

An anonymous reader – please identify yourselves if possible! – has offered the following comment in response to my posting on the pending petition in the Giles case:

Prof. Friedman, take the following scenario:OJ beats Nicole. Nicole calls the police. Nicole provides a testimonial statement to the police -- telling them that OJ said, "If I ever see you with another man I will kill both of you!" Two weeks later, OJ is charged with the beating and pleads guilty. Three months later, OJ spots Nicole with another man entering her apartment. OJ murders both. Under your concept of forfeiture Nicole's highly relevant, testimonial statement would be inadmissible, because the prosecution didn't take Nicole's deposition? The Court has said forfeiture is a doctrine based upon "equity." Where is the equity under your rule? Equity often speaks in terms of "unclean hands." Are you arguing that the prosecutor's are dirtier than OJ's, because a depo wasn't held?

This is an important matter, and justifies a main posting.

First, please note that I have not said that the statement would be inadmissible in this setting; I have only said that I think there is a complex issue and that I hope that if the Court takes the Giles case it does not resolve this issue, which is not presented in the current posture of the case.

Next, note that a premise of my comments is that in general the prosecution cannot invoke forfeiture doctrine if it did not take reasonable steps available to it to preserve the confrontation right, in whole or in part. I have called this the duty to mitigate. If, say, a defendant renders a fatal blow but the victim lingers for weeks, during which time the prosecution takes statements from her but fails to give the defense an opportunity for confrontation, I do not believe the prosecution should be allowed to invoke forfeiture doctrine. In this situation, one could ask the same question that the reader does – how could the prosecution’s hands be dirtier than the defendant’s? But I’m not sure how one could weigh equities. The fact in this situation is that the prosecution has a clear chance to preserve the confrontation right and doesn’t take advantage of it; therefore, I don’t believe it should be able to claim that the accused forfeited the confrontation right by causing the victim to be unavailable.

Now, with this background, the basic issue underlying the reader’s comment is this: Is there a per se rule that the prosecution has no duty to mitigate if the statement in question is made before the crime being tried?

In other words, suppose the sequence is (1) crime 1; (2) testimonial statement about crime 1, but relevant also to crime 2; (3) passage of considerable time; (4) crime 2, the crime being charged, which immediately renders the witness-victim unavailable. The prosecution claims forfeiture with respect to the statement on the basis that the defendant rendered the witness unavailable by wrongful conduct, and the defendant counters by saying that the prosecution could have taken a deposition before crime 2.

In some cases, I think the defense argument would be nearly trivial. Say Informer makes a testimonial statement to police about Kingpin’s drug dealing, and then returns undercover. Several weeks later, Informer and Kingpin get into a fight, and Kingpin murders Informer. The earlier statement turns out to be relevant to the murder charge. I don’t think the defense has a plausible argument that the prosecution should have offered a deposition after Informer made the statement.

But in other circumstances, the argument would be considerably stronger. Consider the common case of a serial domestic abuser. Suppose after assault 1, the victim makes a testimonial statement and indicates willingness to cooperate further, but the prosecution declines to offer a deposition. Then – unfortunately, quite predictably – defendant allegedly commits assault 2, and this time the victim refuses to cooperate. Defendant is charged with assault 2, and the prosecution offers the statement made after assault 1.

It is easy enough to understand the argument that even here there can be no forfeiture – the prosecution should not be foreclosed from introducing evidence by failure to take a step before the crime was even committed. And perhaps in the end that is enough to carry the day. But there is another side, which should not be rejected without careful consideration.

(1) Prosecutors should offer depositions as a routine matter when a domestic violence victim makes a testimonial statement. It is entirely predictable that – even absent any further violence, and in some cases through no further fault of the accused – the victim may decline to testify at trial. Offering a deposition will assure that the testimony is preserved if the crime is prosecuted.

(2) It is, of course, entirely predictable that if the defendant committed one assault on the victim he may commit another, and that the later one may be prosecuted. Even if the state decides not to prosecute the first assault, it knows that there is a substantial probability that the statement will be relevant to a later prosecution.

(3) If the argument is made that offering depositions as a routine matter would be prohibitively expensive, I think there are a few responses.

(a) The expense would not necessarily be so great. Presumably, the defense would have to have counsel, but if the state has no intention of prosecuting the defendant might often decline to take the deposition.

(b) This would be money well spent. It would preserve testimony, obviate the need for many trials (a large cost saving when it occurs), expedite trials that do occur, and result in more convictions.

(c) If prosecutors are able to tell legislators that they will lose domestic violence cases unless they take depositions, that will likely generate considerable funding.

Does the calculus change if the second crime is a murder? Maybe. The prosecution asks how significant evidence in a murder case can be rendered inadmissible because the state failed to offer a deposition after a domestic violence incident. But the same response still applies: It should not require death of the victim for the state to take accusations of domestic violence seriously. The state should routinely offer a deposition after such an accusation.

As indicated earlier, I don’t mean to state definitively what I think the result should be in a situation like the one posed by the reader’s comment, or the Giles case. I only mean to say that I think the issue is a serious one that deserves careful consideration; it should not be decided casually in a case that does not even present it.

Two pending cert petitions (updated as of Feb. 7)

Note: I wrote this post before the Court granted cert in Giles or decided on the petition in Melendez-Diaz. I am providing links to subsequently-filed documents, but otherwise leaving the post substantively unchanged. I will comment on further developments in later posts.

RF
_______________

Currently pending before the Supreme Court are two petitions for certiorari that I hope the Court will grant, because they raise significant issues on which the lower courts are divided. In fact, I have put in amicus briefs in both of them in support of the petitions. The Court has asked for a response from the state in both these cases, suggesting at least that each petition has caught the attention of at least one chambers.

One case is Giles v. California, No. 07-6053, seeking review of People v. Giles, 152 P.3d 433 (Ca. 2007). You can see the petition by clicking here, my amicus brief by clicking here, the state's brief in opposition (without cover) by clicking here, and Giles' reply brief (added since the original posting) by clicking here. Giles presents the issue of whether a purpose to render the witness unavailable is an absolute requirement for forfeiture of the confrontation right. The California Supreme Court thought not, and I agree. I think this is a good case to test the issue, though, and so I submitted my brief in support of the petition even though I basically – note the caveat below – agree with the state supreme court's decision.

Giles is a murder case. It is clear Giles killed the victim. He contends he acted in self-defense. The prosecution introduced a testimonial statement made by the victim (Giles’ former girlfriend) after a prior incident, accusing him of trying to strangle her. The prosecution invoked forfeiture doctrine to overcome the confrontation right, and Giles argued that there was no evidence indicating that he killed the victim for the purpose of rendering her unavailable as a witness. The California Supreme Court held that there is no purpose requirement for forfeiture, at least in the context of forfeiture by serious intentional criminal conduct; I agree. The petition explains why I believe that to be so, why this is an important issue for forfeiture doctrine and confrontation doctrine more generally, and why this is a good type of case in which to address the issue. I will not repeat those arguments here, except to mention two points.

(1) In Hammon v. Indiana, the state and many domestic violence organizations supported a narrow definition of “testimonial” in part on the basis that domestic violence victims are often intimidated from testifying. On behalf of Hammon, I contended that the proper response to this argument was not a narrow definition of “testimonial” but rather a robust doctrine of forfeiture. And Giles is a case in which the Court can start constructing such a definition.

(2) The caveat referred to above is this: I believe that part of forfeiture doctrine must be the principle that the state cannot invoke forfeiture if it did not take reasonable steps available to it to avoid or mitigate the unavailability of the witness for confrontation. This is a complicated issue on which I have commented before. I don’t think the possibility or shape of such a mitigation doctrine is properly presented to the Court in Giles, but I hope that if the Court takes the case it takes care not to dismiss the possibility.

Giles is scheduled for conference on January 11. [The Court granted cert; see subsequent posts.]

The second case is Melendez-Diaz v. Massachusetts, No. 07-591, seeking review of Commonwealth v. Melendez-Diaz, 870 N.E.2d 676 (Mass. App. 2007), an unpublished decision that follows Commonwealth v. Verde, 827 N.E.2d 701 (Ma. 2005). You can see the petition by clicking here, my amicus brief by clicking here, the amicus brief filed by three other law professors and several defense organizations by clicking here, the Commonwealth's brief in opposition by clicking here, and the petitioner's reply brief in support of the petition by clicking here. This one is much simpler: Massachusetts is among the states holding that forensic lab reports are not testimonial. I think this is plainly wrong, and the Supreme Court should resolve the conflict quickly. This is an important theoretical matter, because there is no sound theory of what “testimonial” means under which lab reports are not testimonial. And it is an important practical issue because of the many thousands of cases involving lab reports each year. I think courts holding these reports to be non-testimonial are motivated largely by faith in the reliability of these reports – faith that in some cases is misplaced and in any event is inapposite under Crawford – and by concern about the costs of requiring the authors to testify subject to confrontation. I believe those costs could be significantly reduced by providing for depositions of the authors.

The Commonwealth's response in this case was filed on February 6. If the Court does take the case, it would not be heard until the 2008 term.

Further developments and thoughts on child witnesses

Yesterday, the Ohio Supreme Court decided State v. Siler. In my view, this is a case of considerable interest, significance, and difficulty.

The facts are gruesome and hard to stomach. Brian Siler is charged with murdering his estranged wife Barbara, who was found hanging by a cord in the garage. Medical evidence indicated that she had been choked to death from behind and then hanged. Among the evidence against Siler was the testimony of Detective Larry Martin, a plain-clothes police officer and trained child interviewer who was called to the scene, as to statements the couple’s 3-year-old son Nathan made soon after the body was discovered. According to Martin, Nathan said that his father had scared him the night before by banging loudly on the front door, that his parents had argued loudly in the garage, that his father had hurt his mother, by grabbing her from behind above the shoulders, and that"the yellow thing" that was holding his mother up was put on his mother by his father.

In a pre-Crawford trial, these statements were admitted as – surprise – excited utterances, though apparently Nathan did not exhibit distress until well into the interview. The appellate court, pre-Crawford, affirmed, and the state supreme court, soon after Crawford, denied review; even on a motion for reconsideration, highlighting Crawford, the state supreme court declined review. But then the U.S. Supreme Court – in a decision noted in the very first posting on this blog – vacated and remanded for reconsideration in light of Crawford. Siler v. Ohio, 543 1019 (2004). On remand, the appellate court held unanimously that Nathan’s statements were testimonial and that admitting them in the absence of an opportunity for cross-examination violated the confrontation right. State v. Siler, 843 N.E.2d 863 (Ohio App. 5th Dist. 2005). And now the Ohio Supreme Court has reached the same conclusion, also unanimously on this point. So that is a measure of how far matters have progressed from the pre-Crawford era, and perhaps the immediate post-Crawford era as well.

In State v. Stahl, 855 N.E.2d 834 (Ohio 2006), a case involving an adult declarant, the Ohio Supreme Court had previously applied (or more accurately mis-applied) the objective-witness test. In Siler, that court has now held that this test applies even if the declarant is a child – but only so long as the statement is not made in response to interrogation by "police or those determined to be police agents." Relying on Davis, the court held that when a child does make a statement in response to such interrogation, the primary purpose of the interrogator is the decisive question. Accordingly, the age of the child does not matter in that context. (Two justices issued a separate opinion. They concurred in the judgment, but would have declared that the primary-purpose test applies to statements made in response to police interrogation, whether the declarant is a child or an adult, and they would not have declared that the objective-witness test applies to statements by children to persons other than the police and their agents.) Applying the primary-purpose test in this case, the court easily held that the statement was testimonial, because Detective Martin’s purpose was so clearly investigation of a crime.

Several points:

1. Even assuming this decision stands, the state is not precluded from introducing Nathan’s statements on retrial. It could make Nathan a witness. How much good that would do – he is now 9 and the murder happened six years ago – is another matter. But even if he said he remembered nothing, just putting him on the stand would presumably satisfy the United States Supreme Court, given Crawford’s explicit statement that " when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements," 541 U.S. at 59 n.9, and the fact that Justice Scalia, author of Crawford, also wrote United States v. Owens, 484 U.S. 554 (1988), in which the fact that the witness had virtually no memory because his head was bashed in was not deemed to undercut the value of cross. But perhaps the Ohio Supreme Court – which adopted the appellate court’s formulation of the declarant being "present at trial to defend or explain" the statement – will be more demanding.

2. There is an odd inversion with respect to child statements. In the context of statements by adults, the defendant usually favors the objective-witness standard. True, it is plenty manipulable (and Stahl is a good example; there, the court characterized as non-testimonial a detailed statement alleging sexual molestation and kidnapping, made to a nurse practitioner the day after the alleged incident and after signing a form consenting to "this forensic examination and collection of evidence"). Nevertheless, it is more likely than the primary-purpose-of-the interrogator standard to yield a characterization of a statement as testimonial, in part because often the declarant knows she is reporting a crime before the receiving police agent does and in part because the latter standard is so easily manipulable by a police agent testifying as to a supposedp urpose other than law enforcement. By contrast, in the context of statements by children, the defendant often prefers a test based on the purpose of the interrogator, because often it is clear the interrogator is gathering evidence for prosecution but the child has at best a dim understanding of what is going on. That is the case in Siler. If the primary-purpose-of-the interrogator test applies, the statement is clearly testimonial; if a declarant-based test applies, the matter is more complicated, as discussed below.

3. To underline the point about manipulability made in the last paragraph: Although this statement was undoubtedly testimonial under the primary-purpose-of-the interrogator test, because it was clear that Detective Martin was gathering evidence, I wonder how clear it will be in such cases in the future, now that police agents and prosecutors are forewarned. "What was your primary purpose in asking Nathan these questions, Officer?" "My primary purpose was to protect this child and other people as well. I knew that Nathan's mother had been killed, that the killer was at large, and that Nathan himself would be at risk, especially if the killer was his father or if the killer realized that Nathan had observed some of the incident. I knew also that so long as a killer who had acted with such rage was at large other persons might also be at risk, both people known to the killer and strangers. I needed as much information as possible to help us protect Nathan and the rest of the community."

4. It is certainly understandable that in light of Davis the court – like many other courts – would adopt an approach based on the primary purpose of the interrogator when there is a police interrogator. But as I have argued at length, the proper perspective should be that of the declarant. Grappling withthe Meaning of "Testimonial", 71 Brook. L. Rev. 251, 255-59 (2005). And I have also argued that Davis is perfectly compatible with this approach. Crawford, Davis, and Way Beyond, 15 J. L. & Pol. 553, 557-63 (2007).

The fact that a statement is made in response to a police agent who is preparing prosecution of a crime is a critical factor in determining whether the statement is testimonial, but not because the agent’s purpose is itself the criterion; rather, if the agent is gathering evidence, that fact will usually (at least in the case of an adult) be apparent to a reasonable person in the declarant’s position, and so such a person would necessarily anticipate the likely use of the statement.

5. A significant problem with the Ohio Supreme Court’s approach – which may reflect a developing trend – is that it enunciates two different standards in different settings, which suggests that it is not supported by any underlying theory. The more difficult it is to state a comprehensive standard for what is testimonial, the more the Confrontation Clause will appear to be a bundle of rules without a clear rationale – the more it will look like Roberts.

I wonder, for example, how courts that apply a primary-purpose-of-the interrogator standard in a case like Siler will handle conspirators’ statements made to undercover cops. I do not believe that the Supreme Court would have adopted the testimonial approach in Crawford if it thought that a result would be to render such statements inadmissible – and yet such statements are often gathered for the primary purpose of preparing a criminal prosecution. One could try to cover for this situation by arguing that such statements are not sufficiently formal – but as I have also argued, I believe an independent formality test is misbegotten, e.g., Way Beyond, supra, at 567-71, and it would be so mushy that it would severely weaken the confrontation right.

6. If a court does take the declarant’s perspective with respect to children’s statements, then one cannot simply ask why the police agent interviewed the child. I have already written about some of the issues in a recent, long posting on child witnesses, so I will not go into much depth here.

a. One possible issue is whether the child should be considered so immature that he is deemed incapable of engaging in the act of testifying; see par. 4b of the prior post, and note that in my view, if the child is not capable of being a witness that does not eliminate all constitutional issues, because the defendant may have a due process right to examine the child, perhaps through a child psychologist.

b. Assuming the child is capable of being a witness, there is a question of whether the child’s age should be taken into account in applying the reasonable-declarant standard top the particular statement. This issue is addressed briefly in par. 5 of the prior post.

c. To determine that the child is capable of being a witness, as suggested in paragraph 6.a above, or to determine that the particular statement is testimonial, if the age of the child is taken into account, what level of understanding must the child have? I don’t believe that the child must understand the nature of criminal prosecution and the adjudicative system; it should be enough that he understands that is statement might cause adverse consequences to someone. Perhaps also, as Sherman Clark has argued, the child’s level of moral development ought to be taken into account; see par. 4b of the prior post.

7. How to take all this into account in Siler? Perhaps Nathan was old enough to understand that he was "telling" on daddy, and maybe that is enough for his statement to be considered testimonial. But I am not sure how much good is going to be accomplished by having him take the witness stand now, or even how much would have been accomplished by having him testify at the original trial, at least months after the nurder. Perhaps the way out of this is to say that the state, knowing the limitations on children’s memories and the seriousness of the situation, should have offered Siler a chance to cross-examine Nathan while the memory was fresh. An alternative result would be to hold that Nathan was too immature to be deemed a witness, but because he was a source of evidence the defense should have had a chance to examine him, on videotape, with a child psychologist asking questions in an informal setting.

* * *

for the most part I have avoided commenting on decisions of intermediate state appellate courts, but some time ago reader Justin Eisele posted (in a comment attached to my posting of Sept. 20) another child-witness case, Seely v. State, 2007 WL 2781965 (Ark. App. Divs. I & IV Sept. 26, 2007), and he and another reader posed questions about it. Seely is an interesting case, not because the facts are unusual but rather because (unlike Siler) they reflect a very common pattern and the trial court and two groups of appellate judges each responded in different ways.

A young child -- also three at the time -- made statements to her mother and to a social worker accusing her father of sexual abuse. The trial court held the child, four by then, incompetent to testify at trial, but the mother and social worker were allowed to testify to the statements made by the child. The defendant was convicted. The appellate court held that the statements made to the social worker were testimonial. Accordingly, because the defendant had never had an opportunity to cross-examine the child, admission of the statements was a violation of the Confrontation Clause (and it was not harmless, so the conviction was reversed). But the majority also held that the statements to the mother were not testimonial. Two judges would have held that the statements to the mother, as well as those to the social worker, were testimonial.

First, in response to the anonymous commentator (please do identify yourselves, if possible): I don't think there would be any inconsistency between a holding that a given statement is testimonial and a holding that the declarant is incompetent to testify at trial. (In any event, in this case, it was the trial court that held that the child could not testify at trial and the appellate court that held that some of her statements were testimonial.) The first holding focuses more on the nature of the statement and the second on the capacity of the declarant. Together, these holdings can reflect a perception that the declarant was acting as a witness when she made her statement, but that she lacks the capacity to testify in a way that is acceptable to the judicial system. There is no logical inconsistency there.

Having said that, I’m inclined to think that courts should avoid that pair of characterizations. As noted above, I have held out the possibility that a very young child can have such a dim understanding of the likely consequences of her statement that she should not be considered capable of being a witness at all within the meaning of the Confrontation Clause. (Again, she doesn’t have to understand the legal system for her statements to be testimonial, but if she doesn’t understand that she is making a statement accusing someone of wrongdoing, with the likelihood of that person suffering some kind of adverse consequences, arguably that isn’t testifying.) In other words, there are three possibilities – (a) child incapable of being a witness, or put another way, of making statements deemed testimonial; (b) child capable of making statements testimonial in nature but not of giving testimony in an acceptable way, perhaps because of lack of understanding of the obligation to tell the truth; (c) child capable of testifying acceptably. Personally, I am inclined to think that if a child is capable of making testimonial statements then her testimony ought to be heard in court, even if she doesn’t understand the obligation to tell the truth; plenty of adult witnesses flout the obligation, even assuming they understand it. In other words, I would be inclined to eliminate category #2.

On the merits of the case, I certainly agree with the minority in rejecting a formality test and a standard that statements by a child "to loved ones or acquaintances" are not testimonial.

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I bleieve the confrontation issues posed by statements made by children are enormously important, complex, and troubling. Sooner or later, the Supreme Court will have to begin resolving many of these issues. I believe that, given the limitations on the Court's resources, the chance that the Court will achieve a sound resolution of these issues will be greater if the Court first focuses on basic issues in the context of adult witnesses, and once the framework is built addresses applications to child declarants.

Second Brooklyn Symposium now available on-line

Papers from the second post-Crawford symposium organized by Bob Pitler at Brooklyn Law School are available on-line, and you can reach them by clicking here. Though the symposium was held just over a year ago, I believe most of the papers are still timely. They represent a wide divergence of points of view. I have already commented on Jennifer Mnookin's paper, in a post on expert evidence. I may comment on others, as time allows.