State-side amicus briefs in Bryant

The Solicitor General's Office and 36 states have filed amicus briefs on the state's side in Michigan v. Bryant. You can read the SG's brief by clicking here and the states' brief by clicking here. Both briefs, like that of Michigan, take the perspective of the interrogator in determining whether the statement is testimonial. I think this is a basic error, and I hope the Court does not fall into it.

I assume that if SG Kagan is confirmed to the Court she will be recused from sitting on this case, given that her name is now on the cover of a brief submitted in it. And that means that it is possible that the Court will ultimately be equally divided, which would leave the decision below untouched.

State's brief in Michigan v. Bryant

The State, which is the petitioner, has filed its brief -- a day early -- in Michigan v. Bryant, the pending case on fresh accusations. You can read it by clicking here. I expect to be filing an amicus brief on behalf of the respondent. So for now I will confine myself to a few short comments.

1. The brief justifies its name. It is refreshingly short -- the body is only 17 pages.

2. At the very outset, it poses the Question Presented: "[A]re preliminary inquiries . . . nontestimonial . . . ?" But the question isn't whether the inquiries, preliminary or not, are testimonial. The question is whether the statements, in this case by the victim, are testimonial or not. One of the critical points that I hope will be clarified as a result of this case is that the question of whether a statement is testimonial or not must ultimately be made from the perspective of the speaker (or of a reasonable person in the position of the speaker), not from that of the questioner, if there is one.

3. The brief appears to take the position that any statement made in response to police interrogation before the police have ascertained the identity and location of the perpetrator is non-testimonial. This view would vitiate much of the confrontation right. It would also distort the incentives of police, and detract from their protective function.

More on Bryant

Some more on Bryant: Here, once again, are links to the Michigan Supreme Court opinion, from the court's website and from Westlaw. And here, via Scotusblog, are links to the petition for certiorari and to the brief in opposition.

Bryant will give the Court a chance to resolve several important issues in confrontation law. Here are several points I hope it will establish:

1. The proper perspective for determining whether a statement is testimonial is that of the speaker – that is, of the potential witness – not of a police interrogator, if there is one. The state will try to argue that in this case when the police came to the scene they did not know how dangerous it might be. Even if that assertion were true – and it seems dubious at best – it is clear that the victim knew that the assailant posed no immediater danger. The victim's statement was made for evidentiary purposes, to describe the crime and identify the person who committed it. On this ground, it should be considered testimonial.

2. To the extent formality is a requisite for a statement to be deemed testimonial, it is satisfied by demonstrating that a reasonable person in the position of the declarant would expect the statement to be used in investigation or prosecution of a crime. It would make no sense to adopt a separate formality requirement. The purpose of the Confrontation Clause is to ensure that testimony is given under the proper conditions. To hold that a statement clearly made in anticipation of evidentiary use is not testimonial because it was given informally would stand logic on its head and invite witnesses and government authorities to evade the confrontation right by giving and taking such statmeents informally.

3. That the witness is in a medical emergency does not render non-testimonial his statements describing the crime and identifying the assailant. The situation of the victim was dire – but he did not help it by identifying the shooter and describing the circumstances of the shooting. Plainly, these statements were made for testimonial purposes.

4. That the suspect is at large when the witness speaks does not render the statements non-testimonial. The victim did not have any reason to believe that either he or anybody else was in further imminent danger from the assailant. A rule making a statement non-testimonial whenever the suspect identified by the statement is at large would yield absurd results, invite abuse, and create an incentive for bad policing.

One further thought: As mentioned in my first post on this case, I think it is an interesting question whether, under what I believe to be the optimal rule for forfeiture of the confrontation right, Bryant should be held to have forfeited the right. That depends on whether it was feasible, consistent with standards of humaneness, to take the victim's deposition. I believe that to the extent that one has an intuitive feeling that the statement in this case should be admitted this is responsive to an impulse that Bryant should not be allowed to have killed the victim and then caused his statement to be excluded on grounds of forfeiture. But Giles v. California appears to foreclose this resolution of the matter. I very much hope that what I regard as a mistake in one direction in Giles does not lead the Court to make a compensatory but broader mistake in construing the breadth of the confrontation right in Bryant.

Cert grant in Bryant

I was out of touch, skiing, yesterday, and am slow in reporting the news that the Supreme Crut granted cert in Michigan v. Bryant; I had previously reported on the state supreme court case. More on this later.

Cert petition on "Who must testify?"

Sooner or later, the Supreme Court will have to resolve the question of who must testify to the substance of a lab test. Indeed, with Briscoe now safely off the Supreme Court's docket, this would be a logical next issue for the Court to tackle; the justices were interested in it both in Melendez-Diazand in Briscoe. Jeff Fisher has just filed a cert petition raising this issue in Pendergrass v. Indiana, seeking review of Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009). You can read it by clicking here.

G . . . VR in Briscoe

One June 25, the day the Supreme Court decided Melendez-Diaz, most observers -- including me -- confidently predicted that it would GVR Briscoe -- that is grant the petition, vacate the case, and remand it to the Virginia Supreme Court for further consideration in light of Melendez-Diaz. Well, now that has happened, in a rather odd way. The Court granted the petition on June 29. And, as many readers already know, today -- after full briefing and argument -- it vacated and remanded. You can find the per curiam opinion -- and the Court is listing it as an opinion, rather than as an order -- by clicking here, and you need not budget more than a few seconds to read it.

Thus, we have the result that most observers fully expected right after the Melendez-Diaz decision in June. We will probably not know, at least for a long time, why the Court decided to take the case. But there has been considerable speculation that it did so to give it an opportunity to reconsider Melendez-Diaz, or cut back on it, given the replacement of Justice Souter by Justice Sotomayor. A comment by Justice Scalia at argument lent some force to this theory.

Twenty-five states and the District of Columbia, as amici, explicitly asaked the Court to overrule the case. That didn't happen.

The essence of the argument presented by Virginia and the United States was implicitly that the Court should overrule Melendez-Diaz to the extent that it held that a state violates the Confrontatin Clause if it presents testimony in written form, leaving it to the defendant, if he wishes, to put the witness on the stand. (Virginia contended that the now defunct statute involved in the case required the prosecution to guarantee the presence of the witness, a reading of the statute that I believe is unjustified, and both Virginia and the United States conceded that this would be required to make the statute valid.) That didn't happen.

Instead, we have a per curiam decision, for a unanimous Court that now includes Justice Sotomayor rather than Justice Souter, treating Melnedez-Diaz without question as good law, as one would expect the Court should do.

I hope that states and prosecutors that have been waiting in hopes that somehow the Court would go back on what it just decided seven months ago today will now get on with what they should do. They should recognize that numerous states have long acted in a way that fully complies with the Confrontation Clause as it is so well applied in Melendez-Diaz, and that they can do the same.

No doubt, the issue of who must testify with respect to lab results will have to be resolved by the Court. In fact, Jeff Fisher has just filed a cert petition on this issue, and I will post that soon. Eventually, perhaps, the Court will also adress the lower-significant issues of whether a state may require a defendant who demands live testimony to assert a good faith reason or an intent to cross-examine.

But for right now, on an issue that is -- pardon the expression -- orthogonal to those, the issue of how must a prosecution witness testify, the critical point confirmed by Melendez-Diaz remains the law: A prosecution witness must testify live, face to face with the accused, and not in writing.

Top 50 Criminal Justice and Criminology Blogs

I just received word that Justice City, USA, another blog, listed the Confrontation Blog as one of the top 50 Criminal Justice and Criminology Blogs. I didn't even know there were 50 blogs in the field! But it's an interesting list, which you can find at.

http://careersincriminaljustice.net/?p=60

In any event, my thanks to readers. I look forward to being able to comment with (relative) lack of restraint once Briscoe is decided.

Transcript in Briscoe

The Supreme Court heard argument yesterday in Briscoe v. Virginia. You can read the transcript by clicking here. I will hold substantive comments -- including about the exchange on the word "orthogonal" -- until after the decision.

Here are a couple of corrections, though, as to case names. On page 8, line 21, the case I referred to was Learn, not Warren.

On page 50, lines10-11 the cases to which Ms. Kruger referred were Inadi and White v. Illinois.

Reply brief in Briscoe

I have just served and filed the reply in Briscoe. You can read it by clicking here.

The argument will be on January 11, at approximately 11 am. I will argue on behalf of the petitioners. Steve McCullough, who became the Solicitor General of Virginia while the petition in this case was pending, will argue on behalf of Virginia. I want to take this opportunity to say that he has been extremely gracious, as well as professional, throughout the entire matter. The United States has asked for and received 10 minutes of time, from Virginia's allotment; I don't know who will argue.

Briscoe: Bottom side amicus briefs, and argument date

The Solicitor General has filed an amicus brief in support of Virginia in the Briscoe case. You can read it by clicking here. Twenty-six states and the District of Columbia have also filed a brief in support of Virginia, and you can read that one by clicking here.

The argument has been set for January 11.

Respondent's Brief in Briscoe

The Commonwealth of Virginia has just filed its brief in Briscoe v. Virginia. You can read it by clicking here. The reply brief is due November 25, and I believe the argument will likely be held on January 11.

Joint Appendix in Briscoe

For anybody who might be interested, here is a link to the Joint Appendix in Briscoe

Petitioners' Brief in Briscoe filed

I have filed the Petitioners' Brief in Briscoe v. Virginia (U.S., Supreme Court, No. 07-11191) today. You may see it by clicking here.

Cert granted in Briscoe

As some readers already know, the Supreme Court granted cert today in Briscoe v. Virginia, on a petition I filed last year. The petition sought review of the decision of the Supreme Court of Virginia in Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d 113 (2008). You can read the petition by clicking here, the Commonwealth's brief in opposition by clicking here, and my reply brief in support of the petition by clicking here.

I had said that I would comment on the dissent in Melendez-Diaz. In light of the grant in Briscoe, I will not do that.

An initial reaction to the Melendez-Diaz decision

Here are some early thoughts about the majority opinion in Melendez-Diaz v. Massachusetts, 2009 WL 1789468, and Justice Thomas’s concurrence. I’ll try to write in a few days about the dissent.

First, this is a terrific decision. It is the right result, for the right reasons. It clears up a lot of issues that should have been clear. It should have been unanimous; the principal concern it raises is not anything it says, or doesn’t say, but that only five justices joined it, and one of those five is about to leave the Court.

An anonymous commenter to my earlier post said that the Court never made an affirmative argument as to why the lab reports were testimonial. I don’t think that is correct. Part II of the opinion makes the case. It does so briefly because Justice Scalia believes – accurately, I think – that this is an easy case, a “rather straightforward application of Crawford.” First, the Court says that affidavits are in the core class of testimonial statements identified by Crawford, and these certificates are clearly affidavits. Correct. Sufficient for the result. But then the Court gives an underlying basis. Although it had just quoted the three definitions of “testimonial” recited by Crawford, now it just applied one, the right one (or at least the one closest to right) – the statements were made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” And under that standard, the case is an easy one; indeed, the sole purpose of the certificates was evidentiary. Easy case.

But the Court goes on to respond to a “potpourri” of counter-arguments. As an introduction, it notes that its result does not upset a long-standing, well-established body of law; most of the decisions allowing lab reports in without a live witness are from the Roberts era.

The first counter-argument it knocks down is that the certificates are not testimonial because they are not accusatory. Lots of witnesses give testimony that is not accusatory. It would wipe out a good deal of the confrontation right if it were limited to statements that are accusatory. Descriptions of a crime scene, narrations of the victim’s whereabouts or of the defendant’s – none of these are accusatory.

Next, the Court knocks down the idea that somehow the Confrontation Clause doesn’t apply because lab technicians are not “conventional” witnesses. It breaks this down into three parts. One is that the witness’s observations were “near-contemporaneous” – to which the Court’s response is essentially, “Not really true, and irrelevant in any event.” Second, the lab analyst doesn’t observe the crime or any human action related to it. That’s pretty similar to the “accusatory” argument – lots of testimony falls outside that narrow category. Third, the statement wasn’t made in response to interrogation. Once again, so what? The Court emphasizes a point it made in Davis – a volunteered statement can be testimonial. (And anyway, it says, this was in response to a police request.) All plainly right.

Third is the argument that somehow the certificates are different because they report on a scientific test. That, says the Court, is just an invitation to return to the pre-Crawford regime of Roberts. Right. And anyway, these statements aren’t always so reliable. But lest anyone believe that the Court’s discussion of reliability signaled that it was hedging on its rejection of reliability as the governing criterion for the Confrontation Clause:

The analysts who swore the affidavits provided testimony against Melendez-Diaz, and they are therefore subject to confrontation; we would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.

I didn’t know that Mother Theresa’s reputation for veracity was so strong – but otherwise, clearly correct.

Fourth, the Court blasts the idea that the certificates should be exempt as business or official records. Once again, the Court's basic take is "Not true, and so what anyway?" The certificates don't qualify under the traditional exception because they were produced for use at trial. And if the exception did extend so far, it wouldn't do the prosecution any good. The Court gives a clarification, which was necessary but should not have been, of the relationship between the Confrontation Clause and hearsay exceptions:

Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because – having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial – they are not testimonial. Whether or not they qualify as business or official records, the analysts' statements here – prepared specifically for use at petitioner's trial – were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.

Fifth is the argument that the power to subpoena the analyst, either under the Compulsory Process Clause or a state statute, adequately fulfills the confrontation right. Justice Scalia gives this argument the back of the hand that it deserves, dismissing it in a single paragraph – though several states had adopted it. And it was dangerous, too, because the principle was limitless and would have posed a significant threat to the continuing vitality of the Confrontation Clause. I confess I was a little sorry to see this part of the opinion; my petition in Briscoe v. Virginia, which has been held pending this decision, had raised this issue, and I would have loved to argue it. Instead, we get handed a victory without argument. Darn.

Finally, and perhaps what most motivated the dissenters, is concern about the burden to the judicial system. Once again, the response is basically two-fronted. Sure the Confrontation Clause, like other constitutional guarantees, makes prosecution more burdensome, but that does not give us leeway to ignore it. At greater length, the Court expresses doubt about "dire predictions": "Perhaps the best indication that the sky will not fall after today's decision is that it has not done so already." Plenty of states do not rely on certificates (or on surrogate witnesses), and they have managed. I will write more about this issue later, but for now just a couple of quick points: First, most defendants, as the Court says, have no desire for the lab technician to appear. Second, the Court properly notes that a simple notice-and-demand statute is valid. Under such a statute, if the prosecution gives timely notice of of intent to use a certificate, the defendant must make a timely demand for the witness to appear or give up the right. Correct.

Finally, one brief point about Justice Thomas's concurrence. He has, incorrectly in my view, placed emphasis on formality. But these certificates were as formal as could be. I don't think this was a particularly difficult case for him.

More at a later time. Now, I'm going to celebrate my 20th anniversary with my wife. A better gift from the Court than Giles, which was decided a year ago today.

Melendez-Diaz reversed

Scotusblog reports that Melendez-Doiaz has been reversed, by a 5-4 vote, with Justice Sclaia writing the majority opinion and Justice Kennedy writing a dissent. I will post more when I know more!

Michigan allows judges to bar witnesses wearing the niqab

Nothing today on Melendez-Diaz. But yesterday the Michigan Supreme Court again took an action of interest, though this one I regard as very unfortunate. By a 5-2 vote (with Chief Justice Kelly and Justice Hathaway dissenting) it promulgated an amendment to Michigan Rule of Evidence 611(b) so that the rule now reads:

(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.

Though the Rule does not so indicate on its face, it is motivated by a recent decision of a Michigan judge not to allow a plaintiff to testify while wearing a niqab, a garment worn by some Moslem women that covers the face except for the eyes. I have already summarized in a prior post the reasons why I bleieve this decision was a bad one. The new rule is not necessary to protect the confrontation right or to allow the trier of fact a fair opportunity to assess the credibility of the witness. It is particularly unforutnate for this state -- with a large Moslem population -- to be taking this step now.

Colin Miller has posted a very useful summary of caselaw on the question of court's control over the attire of witnesses. You can see it by clicking here.

Commentary against the amendment in the form in which it was proposed and eventually adopted was submitted by:

(1) the Michigan Civil Rights Commission, available here. I spoke before the Commission in opposition to the proposal.

(2) the ACLU of Michigan, on behalf of itself and numerous other organizations and a couple of indiivduals, including my colleague Doug Laycock. That commentary is available here.

Commentary in favor was submitted by:

(1) the Michigan District Judges Association, available here. The MDJA statement offers no explanation.

(2) an individual, James L. Rudolph, available here. (He says, "We cannot allow cultures of other countries to dictate how we run our court system." I agree with that; I don't think allowing a witness to testify in the dress style she favors on religious grounds threatens that result.).

(3) another individual, Timothy A. Baughman, an attorney, avialable here. He discusses cases in which witnesses have not been allowed to disguise their identity. I don't think those are particularly apposite.

A nice decision from Michigan on fresh accusations

The wait for Melendez-Diaz must be nearly over – Monday is another potential decision day. Meanwhile, I haven’t made any new postings for a while because there haven’t been developments that I thought were worth discussion. But now there is a nice decision, by a 4-3 majority of the Michigan Supreme Court, in the area of fresh accusations. The case is People v. Bryant (Mich. June 10, 2009), and you can see it by clicking here.

Bryant was accused of murder. He had supplied the victim with drugs for years, and the shooting allegedly occurred at his home. The victim drove himself to a gas station about six blocks away, and there police, responding to a radio dispatch, found him lying on the ground, bleeding and in considerable pain. According to the court, "[t]he police asked him what had happened, who had shot him, and where the shooting had occurred." In response to questions, the victim told the officers that the defendant had shot him about 30 minutes before at the defendant’s house. The victim died several hours later.

The only serious constitutional question was whether the victim’s statement was testimonial. (If Giles had come out the other way, there might have been an interesting issue whether the defendant had forfeited the confrontation right, and I think that would depend primarily on whether one thought it was humanely possible to take a deposition of the victim.) The crucial issue here is one of perspective. Given that the victim was lying on the ground, bleeding and badly wounded, when the police approached him, if one takes the perspective of the officers, knowing only what they knew at the very outset, then it might be plausible to conclude that their primary purpose was to respond to an ongoing emergency. That is essentially the position taken by the three dissenters. But the majority realized that this is the wrong perspective. It said:

Davis stated that “in the final analysis [it is] the declarant’s statements, not the interrogation’s questions, that the Confrontation Clause requires us to evaluate.” The declarant here (i.e., the victim) made these statements while he was surrounded by five police officers and knowing that emergency medical service (EMS) was on the way. Obviously, his primary purpose in making these statements to the police was not to enable the police to meet an ongoing emergency of the type identified by the United States Supreme Court, but was instead to tell the police who had committed the crime against him, where the crime had been committed, and where the police could find the criminal. That is, the primary purpose of the victim’s statements to the police was to “establish or prove past events potentially relevant to later criminal prosecution.”

Only after this passage did the court add comments from the perspective of the police. The court said: "The primary purpose of the police questioning of the victim at the gas station was to determine who shot the victim and where the shooter could be found so that they could arrest him." Now, one can quibble with that description if one takes the perspective of the officers at the very beginning of the conversation -- again, they apparently knew nothing, and they may well have worried that the shooter was on the loose nearby. But the court's statement is accurate if it is taken as a description of what the victim (or a reasonable person in the victim's position) would understand the officer's purpose to be. And the anticipation of a reasonable person in the victim's position is the critical one.

The court also rejected the state's argument that there was an ongoing emergency because the police had to stop the assailant from hurting someone else; as the court pointed out, that would almost always be true when a suspect is at large. The court quotes Jeff Fisher approvingly to the effect that emergency must be narrowly construed lest "statements reporting criminal activity or accusing others of crimes . . . always be testimonial until a suspect was in custody and unable to cause further harm."

And the court refused to treat the fact of the victim's condition as creating an emergency for Confrontation Clause purposes; that, it said, would confuse "a medical emergency with the emergency circumstances of an ongoing criminal episode."

On the whole, this is an excellent decision, and I hope other courts follow it.

Maybe they forgot about it?

The Supreme Court completed its latest sitting today without deciding Melendez-Diaz v. Massachusetts. The long wait -- the case was argued November 10 -- suggests that something is brewing. Perhaps the Court is still debating the merits of the particular question presented, whether a forensic lab certificate reporting the presence of cocaine is testimonial. But I still think that should be an easy yes. Perhaps they are debating broader questions concerning the meaning of "testimonial." And perhaps they are debating yet more general questions of constitutional interpretation. April 21 is now the first date on which, barring something unusual, perhaps we will find out.

Still no decision in Melendez-Diaz

The Supreme Court has completed this sitting without issuing its decision in the Melendez-Diaz case, in which it will decide whether a forensic lab report asserting that a substance contains cocaine is testimonial for purposes of the Confrontation Clause. The next date on which the Court is scheduled to issue opinions is March 23.

Giles sent down for retrial

Here is a belated report: The Giles case is wending its way back down through the California courts. After the remand from the United States Supreme Court, the California Supreme Court transferred the case back to the Court of Appeals. In February, that court sent the case back for trial. You can read the opinion by clicking here. It is noteworthy that the court decides, without prejudice given the skimpy nature of the record, that the statement in issue was testimonial. That is the right decision, and encouraging. The court also leaves it open to the state to present evidence that the standard enunciated by the U.S. Supreme Court for forfeiture (whatever that may be) is satisfied. So the further proceedings should be very interesting to follow.

NRC report on forensic evidence casts further doubt on reliability of lab evidence

In deciding the Melendez-Diaz case, the Supreme Court should not give any weight to whether lab reports are reliable; the essence of Crawford is to make this factor irrelevant. But if the Court were tempted to take reliability into account, a series of recent developments should provide strong caution: Lab reports are not as reliable as people are tempted to believe. Now a report by a committee of the National Research Council has struck another nail in the coffin. The report, issued today, criticizes the nation's entire forensic system, including labs, on numerous grounds. You can read the press release announcing the report, and find a link through which you can order the full report, by clicking here.

Confrontation and the Niqab

I was interviewed yesterday on a Canadian Broadcasting Corporation radio program, The Current, about a pending case in which a Moslem woman, the complainant in a sexual assault case, wishes to testify while wearing a niqab – a covering that obscures most of her head but leaves her eyes visible. (You can find out more about the case and a link that will allow you to listen to the broadcast – I'm on for just a few minutes at the end – by clicking here.) The issue is an interesting one. As I understand it, for this woman at least there isn't an absolute religious command to wear the niqab at all times, but it is clear that she wears it as a matter of her longstanding and consistent religious practice. I am inclined to believe that she should be allowed to testify while wearing the niqab.

So far as the trier of fact's ability to judge her demeanor is concerned, I think there is not really a serious issue. First, ability of the trier to observe demeanor has never been deemed absolutely esssential; traditionally, if the witness is unavailable, a deposition transcript may be read. Second, the ability of the trier to determine credibility by observing demeanor is often over-estimated; people really aren't very good at it. Third, the trier does have a chance to observe numerous demeanor clues – body language, eyes, and voice. (If the eyes are not visible to the trier because of the niqab, presumably some kind of projection of her image could be used.)

The aspect of confrontation that is essential is the presence of the accused with the witness when she gives her testimony. (I'm going to put to the side the rule of Maryland v. Craig, which allows a child witness to testify in a separate room, electronically hooked up to the courtroom, if trauma seems likely. Perhaps an American court would draw on Craig to make allowances in this situation. But Craig is of doubtful continuing vitality after Crawford; I don't know the Canadian practice.) But here, too, I don't think the impairment is substantial. The witness can still look the accused in the eye when she gives her testimony; presumably her view is unobstructed, and if his presence carries with it a reminder of her obligation to tell the truth I don't believe the niqab lessens that message. And he can see her eyes and hear her voice. I think he's getting an opportunity to be confronted with her.

What if other complainants, without a religious basis, sought to testify wearing a niqab, saying it made them feel more comfortable? I still doubt there's a violation of the confrontation right, but I think the court should probably say, "Sorry, you have to testify the way we say you do it."

Interesting problem. I welcome comments, and mentions of other cases raising the issue. (I know of one American case, a civil small-claims case from Michigan, in which the judge did not allow the plaintiff to testify while wearing the niqab. Silly, in my view.)

Still waiting for Melendez-Diaz . . .

The Supreme Court issued several decisions yesterday, including a couple from November and even one from December. But Melendez-Diaz, which was argued November 10, was not among them. The Court's next open session is February 23, and a decision could come down that day or soon after. If I were a defendant appealing from a conviction based on a lab or autopsy report that was admitted in the absence of a person who completed it or observed first-hand the event or conditions it states, I would certainly ask the court to postpone proceedings pending the Supreme Court's decision.

Thoughts on Melendez-Diaz: Certificates of Authenticity

At the Melendez-Diaz argument, Justice Breyer posed one of the most interesting issues that is suggested by the case though not directly presented by it. Suppose that it is critical for the prosecution to introduce Joe Jones’s birth certificate (to use Justice Breyer’s example), or information contained in it. The birth certificate itself is not a testimonial statement. But the copy was produced for the particular prosecution, and is accompanied by a certificate of authenticity. Does the Confrontation Clause require the prosecution to present the custodian of records to authenticate the certificate?

I think the answer is no, and this case is clearly distinguishable from Melendez-Diaz, on several grounds.

(1) The certificate of authenticity is probably not testimonial. True, the prosecution agent who procured the copy of the birth certificate and the accompanying certificate of authenticity knew, by hypothesis, that they were to be used in a prosecution. But it is the anticipation of the declarant – in this case, the one who made the certificate of authenticity – that should count in determining whether a statement is testimonial, not the intended use by the one who procures the statement. (This is an argument I have made many times before, on this blog and in other writing.) Records clerks make many assertions that documents are authentic, and most of those are not anticipated for litigation use. Presumably the prosecution agent in a given case does not say to the records clerk, “Please give me a copy of Joe Jones’s birth certificate, with a certificate of authenticity, so that I can use it in a prosecution.” But even if the agent does add those gratuitous words at the end, or if they seem implicit in the request given the source, the certificate of authenticity is the same type of statement that the clerk routinely makes in non-litigation contexts, and presumably the same type of statement the clerk would make about this certificate even if she did not know about the intended use.

The report in Melendez-Diaz stands in sharp contrast to a certificate of authenticity, of course; it was clearly prepared for prosecution use. Similarly, a certificate showing that there is no record of permission given to a particular alien to re-enter the country after deportation should be considered testimonial; such certificates are presumably prepared only for purposes of assisting in prosecutions for re-entry without permission after deportation. (But I think Congress could easily eliminate that problem. I assume that very few deported aliens are given permission to re-enter; the statute could be reframed so that the crime is re-entry after deportation, and permission to re-enter is an affirmative defense. Poof!)

(2) The certificate of authenticity resembles the old official seal; indeed, it is likely to come in the form of a seal directly affixed to the underlying birth certificate, rather than in a separate document. Certain documents under seal have long (since well before adoption of the Sixth Amendment) been admissible. I believe that understanding the historical use of the seal is a fertile area for academic research. One view might be that the seal is not so much an assertion as an official act that effectively makes the copy the equivalent of the original. It may also be that the seal can only be used when, in accordance with the reasoning in point (1) above, it should not be considered testimonial in nature. In any event, the impact of the seal is limited to demonstrating that a given document is an accurate copy of an original official document. That would do the prosecution no good at all in a case like Melendez-Diaz.

(3) Finally, so far as the Confrontation Clause or any other part of the Constitution is concerned, there is no need for the prosecution to present any authenticating evidence at all. If a piece of evidence appears on its face – without the aid of testimonial statements – to be what the proponent claims it to be, then without any additional evidence about it the jury could infer that this is what it is. If a piece of paper says it is Joe Jones’s birth certificate, then the jury does not, as a logical or constitutional matter, need more evidence to prove that it is indeed Joe Jones’s birth certificate. (Note how a certificate of a lab report is different in this respect – the only way we know what that is from the face of it is by virtue of the fact that it says it is a particular lab report, and that statement was made for prosecutorial purposes.)

There is nothing unusual about this idea. Fed. R. Evid. 902 contains a long list of categories of self-authenticating evidence – that is, evidentiary items that do not need “[e]xtrinsic evidence of authenticity as a condition precedent to admissibility.” Some of these, including government records, require certifications of authenticity; in other words, though the proponent does not need to present admissible evidence supporting the authenticity, the document does have th be accompanied by some sort of certification that it is authentic. But others are truly self-authenticating – if the thing appears to be what its proponent claims, then nothing more is needed to satisfy an authentication requirement. These include the following:

(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.

(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.

(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

There is no reason that a jurisdiction could not add to this list papers purporting – without reliance on testimonial statements – to be within certain categories of official records.

If a jurisdiction does adopt this approach, and the prosecution does not present supporting evidence to demonstrate that the document is the birth certificate it purports to be, it is, of course, open to the defense to challenge the authenticity of the document. And if the state does choose to present supporting evidence, that would have to be in admissible form.

In sum, holding for Melendez-Diaz would not commit the Supreme Court to holding that a certificate of authenticity can never be admitted unless the author of the certificate testifies subject to confrontation. The Court need not reach that issue at all in Melendez-Diaz.

Thoughts on Melendez-Diaz: The Product of Machines

One of the issues addressed by some of the cases dealing with lab reports, and in the Melendez-Diaz argument, is the status for Confrontation Clause purposes of the output of the machines that do the testing.

As some courts have noted, the output of a machine is not in itself an assertion that can come within the scope of the confrontation right, or of the hearsay rule. Nor are the raw data. But raw data – the numbers themselves – are meaningless without being linked to the case.

Let’s say Officer A brings to the lab a sample labeled “Melendez.” Lab technician B takes the sample, puts it into a machine, and runs a test to determine whether it contains cocaine. When the test is completed, the machine spits out a piece of paper bearing only test results that an expert can testify indicate the presence of cocaine, without any identification of the sample tested.

Now suppose that the prosecution wants to prove its case based only the testimony of Officer A, the printout, and the testimony of an expert that the numbers on the printout reflect the presence of cocaine. This is plainly inadequate: We have sufficient proof that a sample linked to the defendant was brought to a lab, and a piece of paper bearing numbers that, the expert’s testimony indicates, would, assuming they are the results of a test, demonstrate the presence of cocaine in the tested sample. But we don’t have proof that any test was actually performed on the sample linked to the defendant or that the printout reflects the results of that test.

So let’s say technician B wrote an affidavit stating, “I took the sample Officer A gave me, put it into our machine, and performed a prescribed test for determining the presence of cocaine.” I will call this the input proposition. B’s statement of the input proposition seems plainly testimonial; it is made with the understanding that it will very likely be used in prosecution of a crime. The affidavit should not be admitted unless B testifies to the input proposition subject to confrontation, at trial if she is then available and otherwise in some other setting such as a deposition.

Even with B’s live testimony that she performed the test, the prosecution’s case is incomplete absent proof that the particular piece of paper presented is in fact the printout of the machine after performing the test on the sample in question. I will call this the output proposition. Proof of the output proposition could be supplied by B’s testimony asserting it – but an affidavit stating the proposition is testimonial and should not be admitted absent confrontation.

Now suppose that instead of writing an affidavit asserting the input and output propositions, B types into the testing machine an identification, such as “Melendez,” and when the machine spits out the test results it includes that identifier at the head of the page. Doing so does not render the printout admissible. In context, typing the name amounts to an assertion of the input proposition. It also amounts to an assertion of an altered form of the output proposition – altered because the printout does not exist at the time the assertion is made, so the assertion is that the printout that the machine will produce will be a product of the test on the sample in question. So the fact that the printout generated by the machine bears the name of Melendez does not obviate the need for B to testify. I do believe that incorporating the identifying information on the printout does relieve the prosecution of one potential burden. Suppose B does not stand continuously by the machine during the entire interval between the time she puts the sample in the machine and the time the machine generates the printout. Then absent an identifying mark on the printout she could not say that the printout is the one generated by the test on the sample in question. But if she types in the name, and the name is on the printout, then even if she did not see the printout being generated, I believe she has can testify that this printout is the one for the sample in question: Given the way the machine works, she has effectively tagged the printout by typing the name in.

In the actual Melendez-Diaz case, it was not a machine printout at all that the prosecution offered, but a certificate based on the machine readings. I think it is very clear that this certificate, obviously prepared for prosecutorial use, is testimonial, and the fact that it reports machine readings does not diminish this fact. Even more clearly than the printout bearing an identifying marker, the certificate is a human assertion prepared for prosecutorial use. Obviously, it asserts the input proposition – that the sample in question was submitted to the given test. And it asserts a broader form of the output proposition – not that a machine-generated printout bears the results of the test, but that numbers as described by the writer are the results of the test. The certificate cannot be admitted consistently with the Confrontation Clause unless a witness with personal knowledge – presumably but not necessarily the author of the certificate – testifies to both propositions.

A recent opinion usefully summarizing the decisions on this matter, and coming to the proper result, is United States v. Crockett, 2008 WL 4937029 (E.D. Mi. Nov. 14, 2008). The opinion does not go into as much detail as I have here, but I think its analysis is consistent with that presented here.

Eye contact between defendant and witness

This blog focuses mainly on what might be called the hearsay aspect of the confrontation right — that is, on the question of when the confrontation right precludes the use of out-of-court statements against the accused; that is the aspect of the right that was transformed by Crawford, and so the aspect in which there has been the most dramatic recent development But of course another critical aspect of the Confrontation Clause is the question of what the right of confrontation means if the witness does actually come to court to testify. The case discussed here, and another one that I hope to discuss soon in another posting, deal with different questions related to that aspect – one on the physical nature of confrontation and the other on impeachment for bias.

My former student Craig Chosiad has called to my attention the rather bizarre case of United States v. Kaufman, 2008 WL 4868480 involving a therapist who allegedly kept mentally ill patients essentially as prisoners on a farm and compelled them to engage in extensive activities, some of them sexual, in the nude. At the trial of Kaufman and his wife, the court ordered that the defendants not maintain eye contact with the patient-witnesses. Defense counsel did not object, so the question on appeal was whether this was plain error. The Tenth Circuit properly recognized that it might be. Let’s assume that Maryland v. Craig, 497 U.S. 836 (1990), remains good law after Crawford – an interesting question that will have to be resolved by the Supreme Court. And assume also that Craig applies to unusually vulnerable adults as well as to children – a pretty good assumption. Then the court can in a proper case take steps to protect a witness from the rigors of being face to face with the accused during cross-examination. But Craig makes clear that such unusual steps are permissible only upon an individualized determination that the witness will likely be traumatized by being brought face to face with the accused. In this case, the trial court made no such individualized finding. It merely issued a blanket ruling that eye contact – no matter how unthreatening it might be, no matter whether it might awaken the conscience of a witness inclined to perjure herself or be sloppy with the facts – was not permitted for any of the patient-witnesses.

The reason the appellate court did not go the full distance of holding that the order was plain error was that ultimately it determined that any error was harmless. I think this part of the decision was probably wrong. I’ll suppose that the court was correct as a matter of fact in concluding that it was very unlikely that eye contact would have altered the outcome of the trial. But it appears to me that this was a determination that the court should not have made. As Coy v. Iowa, 487 U.S. 1012 (1988), made clear, when confrontation of a witness is denied, the court may not speculate as to what the impact on the witness would have been, and so on what the witness’s testimony would have been in the end, if confrontation had been permitted. Instead, the court must treat the case as if the witness had not testified. Now of course that involves a certain amount of speculation as well – what would a jury have done with this lesser body of evidence? – but in that case at least we don’t have to speculate what the body of evidence before the jury would be. The Tenth Circuit attempted to distinguish Coy, but the grounds struck me spurious.

Thoughts on Melendez-Diaz: chain of custody, products of a machine, who must testify, etc.

While Melendez-Diaz is pending, I am going to write about various significant issues beaing on it. Here I will write about the chain of custody, products of a machine, who must testify, and other related topics.

Chain of custody is not a technical requirement that should be belittled as a mere technicality. The chain is part of the requirement of authentication, which is that the proponent demonstrate that a piece of evidence is what its proponent claim it to be. Absent authentication, the evidence has no substantial probative value, because its connection to the case has not been demonstrated. Authentication is a fundamental part of the whole story told by the prosecution, which is how a course of events that included the crime charged wound up producing the evidence that the prosecution has presented in court. Some items are treated as self-authenticating because from the face of the item it is readily inferrable, on the basis of information of the type that jurors are allowed to bring with them to court, that the item is what it appears to be; no evidence need be produced that an item that appears to be the New York Times of November 14, 2008 is exactly that. But assuming, as is usually the case, that the item is not self-authenticating, then, like any other part of that story that the jurors cannot infer based on the information they are entitled to bring to the job, authentication has to be proved by ordinary admissible evidence.

So let’s say a breathalyzer spits out a red splotch on paper if the subject’s blood alcohol level is excessive. Plainly, the prosecution cannot prove its case simply by introducing a red splotch on paper of the type generated by the breathalyzer. Absent evidence that this splotch was generated by a test performed on the accused’s breath, the splotch is essentially irrelevant; its connection to the story we are concerned about has not been shown.

Suppose now that a lab technician who performs the test writes on the margin of the paper, "Jack Sparrow, Nov. 14, 2008." Taken in context, that is an assertion that the red splotch is the result of a test done on Jack Sparrow on the date recited. That assertion was plainly meant for evidentiary purposes, and it is testimonial. The red splotch itself is not testimonial, of course – as has been noted on the states' side in this case, and by some courts, that is just the product of a machine. But without a testimonial statement as to just what that product is, it is of no help to the adjudication. And if the paper with the writing is offered by the prosecution, then a testimonial statement has been offered without the witness having been subjected to cross-examination. That is a Confrontation Clause violation.

So what can the state do, assuming the defendant does not waive the confrontation right? Obviously, the way it can most clearly solve the problem is to present as a witness at trial, the technician, who will testify how the splotch was generated. I will discuss here five other possibilities. Two are clearly permissible. Another should be permitted, in my view, though it is controversial. The final ones I believe are clearly unconstitutional.

1. A properly drawn notice-and-demand statute is constitutional. Petitioner has acknowledged that a "bland" notice-and-demand statute is constitutional. That is, so long as all the defendant has to do to get confrontation is make a timely demand, there should be no problem. Of course, a statute could make an unreasonable demand on the defendant, and that could create a problem. And I think some leeway ought to be allowed if some reason arises belatedly giving the defendant reason to demand confrontation. But in general, a well-drafted notice-and-demand statute is constitutional, and that relieves much of the problem; most defendants have no desire to have the technician tesify live.

2. The constitutional requirement is not that the person who performed the test or wrote the report testify subject to confrontation, but that someone testify from first-hand knowledge about the process leading to the reported results. The critical factual propositions to which the technician would testify at trial, if she does appear, are:

a. The person or bsubstance tested was the one material to the case.

b. The test was performed as described by the witness.

c. (1) The results of the test were as testified by the witness, or (2) A
given tangible item is the product of the test.

Testimony subject to confrontation as to these propositions must be presented by a witness with personal knowledge of them. That witness could, of course, be the technician who performed the test, but it need not be. Suppose that at every step along the way the technician is accompanied by a trainee who touches nothing and writes nothing but observes everything the technician does. (Some jurisdictions routinely have multiple physicians present at an autopsy.) Then that trainee could testify at trial as to these propositions. For that matter, suppose the cop who brings the suspect, or the sample, to the lab stays and watches the entire test being performed. The cop could then testify from first-hand knowledge as to these propositions as well.

Now note that if the technician testifies she will often testify as to a fourth proposition:

d. The proper interpretation of the test results is as testified by the
witness.

But even assuming that interpretive evidence is necessary, there is no requirement that the witness providing the interpretation be the one who testifies as to the three factual predicates identified above; as long as a witness with first-hand knowledge is able to testify to those predicates, then any witness with sufficient expertise to interpret the test results may do so.

3. The state may provide a pre-trial opportunity for confrontation, and if it does the courts should be generous in holding that the witness is unavailable at the time of trial. Much of the inefficiency that Massachusetts and its supporting amici complain about would be avoided if the state provides a full pre-trial opportunity for confrontation. The deposition can be scheduled ahead of time, and does not have to depend on what happens at trial. A witness coming from a distant city could schedule several depositions on one trip. In most cases involving lab reports, there is no mystery early on what the lab report would be used to prove and what the defendant would like to achieve on cross. Early cross-examination offers the possibility that the witness will have a clearer memory of the test than at trial. And the deposition can be videotaped.

The sticking point is that under Crawford a pre-trial opportunity for cross suffices only if the witness is unavailable to testify at trial. I think it would be wise to be rather generous in deeming a witness who has been subjected to cross-examination to be unavailable at the time of trial. Unavailability is often a matter of degree, and given the prior cross and the rather small probability that a second cross would add much, I think the trial court should be allowed to characterize as unavailable a lab technician who would have to travel a great distance. Also, if at the time of trial the witness has virtually no memory of the particular incident -- and that should be subject to demonstration without live testimony from the witness -- then that is a basis for holding her unavailable.

Pretrial testimony is a second-best solution. But in this context, I think it should be constitutionally acceptable.

4. A surrogate should not be allowed to testify to the factual predicates necessary for proving the test results. I stated above the three predicates necessary to admit lab results. Notwithstanding the position taken by several other law professors in an amicus brief, I think it is plainly inadequate for a witness who did not observe the conduct of the test or the handling of the substance tested to report someone else's assertions as to the chain of custody of the substance, the test performed on it, and the results of that test. ("I didn't see the stuff being handled, I didn't see the test being performed, and I didn't see the results of the test. But I'll tell you what my colleague wrote on these points.") There is simply no justification for presenting a surrogate witness to report the testimonial statement made by another witness who has not been subjected to confrontation and whom the state cannot or would rather not produce.

5. The state should not be allowed to shift the burden of presenting the witness to the defendant. I have said that a simple notice-and-demand statute should be constitutionally acceptable. But the confrontation right is not satisfied by providing that the defendant may call the technician as his own witness. The passive language of the Confrontation Clause suggests that such a burden-shifting statute is unacceptable. So does the fact that, given the Compulsory Process Clause, the Confrontation Clause would be rendered a virtual nullity if such a statute were valid. But to my mind, the most significant factor is that practical considerations make clear that telling the defendant, "You may call this technician whose report has been entered against you" is simply not the equivalent of telling the defendant, "You may cross-examine the prosecution witness who has just testified against you." My pending petition in Briscoe v. Virginia explores the reasons why this is so.

The Melendez-Diaz argument

I have not been able to work much on the blog lately, because of the press of other work. But I attended the argument of Melendez-Diaz v. Massachusetts in the Supreme Court yesterday and I want to report on that. (The transcript is available on the Court's website; you can see it by clicking here.)

For those who have not been tracking the case, it concerns the question whether the Confrontation Clause covers a certificate of a lab report that a given substance cocaine. I believe the answer is clearly affirmative, and I am hopeful that the Court will reach this result; I would not be amazed if it were unanimous, though that is of course hard to predict.

There was no substantial doubt that the certificate was prepared in contemplation of use in prosecution; the statute makes it clear on its face that these certificates are to be prepared for usei n law enforcement, and the Commonwealth (represented at argument by Attorney General Martha Coakley) has not denied the point.

Much of the discussion concerned the practical impact of holding that lab reports are testimonial. Jeff Fisher, arguing for the petitioner, explained effectively that in most case the author of the report would not have to come to trial because usually defense counsel would be willing to do without confrontation. Defense counsel might make this clear by stipulating to admission of a certificate. Also, a state can validly create a simple “notice and demand” system, under which the state gives notice of intent to introduce the certificate and it is admissible unless the accused demands that the state produce the author of the report. But it is the defense’s choice whether to demand confrontation, not one that can be made by a court. (Jeff made the same point in response to questions about whether cross-examination of the analyst would be futile given the analyst's presumed lack of memory; he might have also added that the Supreme Court has said, in upholding admissibility of a witness's prior statement despite the witness's inability to respond to many questions on cross, that showing the witness's loss of memory is a benefit to the defense.) Jeff also pointed out that numerous states – including California and other large ones – currently have procedures that are constitutionally satisfactory, and they seem to be able to operate effectively. At one point, Ms. Coakley said that California had joined the amicus brief of Attorneys General – but the Chief Justice soon pointed out that she was mistaken.

Lisa Schertler, arguing for the United States as amicus, contended that the certificate should be admitted because it merely reported the output of a machine. I don't think she made much headway with the argument, and for good reason. Justice Scalia presented an interesting hypotheical -- the time of murder is significant, and a witness says the clock was striking twelve. Obviously, that would be testimonial. The output of the machine is of course not itself testimonial, but the certificate reflects much more. At the outset of the argument, I believe there may have been some confusion on this score, but by the end -- there was a good exchange between Jeff and Justice Souter at the very end -- I think the matter was clear: The state must present a witness who can testify from personal knowledge about the chain of custody from the time the material enters the lab to the time the test is performed, and about what test was performed. This, I believe, must include testimony establishing that the particular test output is the result of the test on the relevant substance and not on another. But once this is done, any qualified expert can give an interpretation of the output.

Another issue that came up a couple of times was whether the Confrontation Clause was satisfied because the accused has a right to call the author of the report himself. Jeff answered that this argument could lead to trial by affidavits of any witness the prosecution chose, and that it ignores the passive nature of the confrontation right -- that is, the accused has a right to be confronted with the witness, to demand that the witness be presented to him. Also, it would essentially render the Confrontation Clause a nullity, given the Compulsory Process Clause. He did not address the practical reasons why the defendant's chance to call the analyst is not the equivalent of the right to cross-examine the analyst; his reply brief pointed out that I raised these practical problems in my pending petition for certiorari in Briscoe v. Virginia. If the Court decides to treat this issue outside the question presented by the Melendez-Diaz petition and instead to address it in Briscoe, I would not be unhappy. But it may be that the Court will simply hold here that the right to call a witness does not satisfy the confrontation right.

Justice Breyer in particular pushed one issue: Suppose there is a non-testimonial document, not prepared in contemplation of litigation, and the prosecution offers a certificate, prepared in contemplation of being used in prosecution, that the underlying document is authentic. Must the author of that certificate testify in court, and if not what is the distinction between that certificate and the one at issue here? Jeff responded that a certificate of this sort is not evidence as such, but is akin to a seal, which can be used as foundation for the document. In contrast, the certificate here is being used to establish an element of the crime.

I think this is at least the kernel of the answer. This is a tricky matter that could not be adequately addressed in oral argument -- and that, I believe, warrants further historical research. The United States took the view that "human assertions that merely establish the foundation for admitting nontestimonial evidence do not themselves trigger Confrontation Clause rights," but that cannot be right. Suppose a non-testimonial letter allegedly by the victim is critical in a murder case; the prosecution could not authenticate it by presenting the certificate of a handwriting analyst that the letter was in fact written by the victim. But when the prosecution wishes to produce a copy of an official document, I do not believe there is a constitutional requirement that there be evidence of proof that the document is what it appears to be; there are some documents that the law treats as self-authenticating, and this could be one. Traditionally, documents under seal were regarded as self-authenticated, and certificates of copies are a modern counterpart. They amount virtually to a form of judicial notice of authenticity. It is clear that documents under seal were not thought of in the founding era as an alternative form of testimony (as dying declarations were). They were categorically different from testimony, and they do not resemble the certificates in this case, which report on a test performed in contemplation of prosecution.

States' amicus brief in Melendez-Diaz

I previously posted what I thought were all the state-side amicus briefs in Melendez-Diaz -- but I had not received, and was unaware of, one submitted by 35 states plus the District of Columbia. You can see it by clicking here.

Shoddy forensics in LA police lab

I've previously reported on the closing of the Detroit police lab because of a high error rate. Now , according to a story in the Los Angeles Times, an internal report by the Los Angeles Police Department reveals a pattern of shoddy work in the Department's lab -- including two false accusations in fingerprint cases. At least in part because of lack of funds, neither the Department nor any outside agency has yet conducted a comprehensive review of the lab.

There is little doubt that many other crime labs would, if studied, reveal a similar pattern of problems. See, e.g., Pamela R. Metzger, Cheating the Constitution, 59 Vanderbilt L. Rev. 475 (2006). Detroit probably does not have a worse problem than other cities; rather, it appears, to their credit, that city, county, and state officials have been more aggressive than in other places about addressing it.

Forensic lab reports, especially those suggestive of the commission of a crime, should be deemed testimonial for purposes of the Confrontation Clause, and under Crawford the question of whether they are reliable should not enter into that determination. But to the extent that the Supreme Court, in considering the matter in Melendez-Diaz, may hesitate to characterize such reports as testimonial for fear of imposing gratuitous costs on the criminal justice system, these recent developments highlight the dangers of allowing lab analysts to create evidence for prosecution without being subjected to cross-examination.

Reply brief in Melendez-Diaz

Here is the reply brief for the petitioner in Melendez-Diaz v. Massachusetts, the cased that will determine whether a forensic lab report identifying a substance as cocaine is testimonial for purposes of the Confrontation Clause. The briefs are now all in, and the case will be argued November 10.

Ineffective assistance and adequacy of a prior opportunity for cross

A reader's question raises an interesting issue on which I haven't given much thought: If a witness testifies subject to cross against an accused at a first trial, which ultimately is thrown out, but then is unavailable at the time of the retrial, in what circumstances (if any) can the accused keep the testimony from the first trial out on the ground that the lawyer there did an inadequate job on cross? If I am wrong in what I say below, I hope readers will correct me, but here is the answer I glean from reading United States v. Owens, 448 U.S. 554 n.1, Ohio v. Roberts, 448 U.S. 56, 73 n.1, and Mancusi v. Stubbs, 408 U.S. 204 -- yes, all pre-Crawford cases, but no reason to believe that Crawford overruled any of them on this point:

(1) If a court has not determined on the basis of other conduct that the first counsel was inadequate, the court will not ermine that the accused had an inadequate opportunity to cross on the basis that counsel did a poor job in cross.

(2) If there is an independently-based determination that counsel was inadequate,

(a) that does not automatically mean that the accused had an inadequate opportunity to cross-examine this witness, but

(b) it does mean that the court should examine counsel's actual performance with respect to the witness in question, and if that performance does not meet some minimum level of sufficiency then the prior opportunity should not be deemed adequate for Confrontation clause purposes.

Does that sound right?

Detroit Police Crime Lab closed because of high error rate

My student Brenna Speiser has called to my attention a report by the Detroit Free Press, on freep.com, with this dramatic lead:

The Detroit Police crime lab is so riddled with errors that officials
ordered an immediate shut down today, saying that the local criminal justice
system could be at risk.

The closure results from an audit by the state police indicating a 10% error rate in ballistics evidence. The firearms unit had previosuly been closed, but today the entire lab -- which also handles fingerprint, DNA, and drug evidence -- was closed.

Among the officials announcing the closure was Kym Worthy, the Wayne County prosecutor, who is quoted as saying:

If we have even one person in prison on evidence that was improperly done,
that’s a huge problem. As prosecutors we completely rely on the findings
of police crime lab experts every day in court and we present this information
to juries. And when there are failures of this magnitude, there is a complete
betrayal of trust.

Quite right. But what makes this especially intriguing -- and, I must confess, chortle-inducing -- is that Worthy is a signatory to the prosecutors' amicus brief filed earlier this month in Melendez-Diaz (and previously posted on this blog), contending that an intolerable burden will be cast on the criminal justice system if live testimony by lab analysts is routinely required in drug cases.

But I'm happy to assume that Worthy deserves substantial credit for not attempting to delay the decision to close the lab until the Supreme Court decides Melendez-Diaz.

Respondent-side amicus briefs in Melendez-Diaz

Two amicus briefs supporting hte Commonwealth have been filed in Melendez-Diaz. You can read the brief of the United States by clicking here, and the brief of the National District Attorneys Association and several prosecutors by clicking here.

A legislative response to Giles?

My student Ted Whalen has called to my attention a bill pending in Illinois, which you can read by clicking here, that seems designed to take advantage of the leeway left by Giles (though I suspect it was drafted before the Supreme Court's decision in Giles and was in fact drafted in response to the Illinois Supreme Court's decision in People v. Stechly.

Respondent's brief in Melendez-Diaz

Here is the brief on the merits of the Commonwealth, as respondent, in Melendez-Diaz v. Massachusetts. I expect I will post some comments on it within a few days.

Reply brief in support of cert in Briscoe

Here, rather belatedly, is the reply brief I filed last month in support of certiorari in Briscoe v. Virginia, challenging Virginia's burden-shifting statute. If the Court decides in Melendez-Diaz (as I bleieve it should) that forensic lab reports are testimonial, then the issue posed by this petition will be presented.

Brief in Opposition in Briscoe

The Commonwealth has filed its Brief in Opposition in Briscoe and Cypress v. Virginia, the case in which I filed a petition challenging Virginia's statute shifting to the accused the burden of producing as a live witness the author of a certificate of forensic laboratory results. You can read it by clicking here. I expect to file a reply brief shortly.

No confrontation issue if the statement isn’t even offered.

That seems obvious enough, but the point arose in an interesting context in United States v. Tucker (8th Cir. Jul. 17, 2008). Tucker assisted her boyfriend Robson in a get-away from a bank robbery, and the critical issue was whether when she did so she knew that he had robbed the bank. So, as the 8th Circuit indicated, evidence that Tucker knew that Robson had committed other bank robberies was admissible to show her state of mind on this occasion, and it was also admissible to impeach the credibility of her testimony that she didn’t know Robson had robbed the bank. In cross-examining Tucker, the prosecutor asked whether on three specified prior occasions Robson had robbed a bank and either he had told Tucker about it shortly afterwards or she had helped him get away. Tucker denied each. No evidence of the other robberies was admitted.

If the prosecutor had no good-faith basis for asking questions of this sort, they would be highly prejudicial and improper. But if she did, then they were fair game – even if she had no other admissible evidence of the other robberies, she was entitled to hope that Tucker would tell the truth (as the prosecutor believed the truth is or may be, based on the information that gave her the good faith belief), and that would give her the evidence she wanted. And in this case, she did have a good-faith basis – a statement Robson had made to the FBI. The statement was clearly testimonial, and couldn’t be admitted against Tucker, given that she had not had a chance to cross-examine him. It wasn’t offered, and the jury never even learned of its existence, though they might well have inferred that the prosecutor was basing her questions on something of the sort. But the statement could, without violating the Confrontation Clause, form the good-faith basis for the prosecutor to ask her questions, and that is what the 8th Circuit properly held.

Reflections on Giles, Part 4: The Alito and Thomas opinions

Justice Thomas wrote a brief concurrence in Giles expressing the view that the statement at issue – made by the victim to a responding officer after an alleged assault – was not testimonial in nature. He regarded it as indistinguishable from the statement made to a responding officer in Hammon v. Indiana. I believe he is right that they are materially indistinguishable; of course, I think that the statement in Hammon was clearly testimonial. But given that he dissented from the decision in Hammon, Justice Thomas’s declaration in Giles is hardly surprising.

More intriguing is the separate concurrence by Justice Alito. He says that, “like Justice Thomas,” he is “not convinced” that the statement is testimonial. (Well, if he were entirely like Justice Thomas in this respect, he would be convinced that it was not testimonial.) He expresses sympathy with the dissent’s “displeasure” with the result in this case, but “suggest[]s that the real problem concerns the scope of the confrontation right”; he says it is “not at all clear” that Ms. Avie’s statement is the equivalent of a statement by a witness. Although he is less than definite, Justice Alito sure sounds as if he does not believe this statement is testimonial. But what is notable here is that Justice Alito, like all the justices except for Justice Thomas, joined the majority in Hammon. I suspected from the start that the decision in Davis v. Washington (which included Hammon) was a compromise, from Chief Justice Roberts’s first term, when the Court seemed to be trying hard to achieve consensus (and when Justice Alito was very junior). Justice Alito’s opinion in Giles lends weight to that supposition; it seems likely that he did not like the result in Hammon but went along because other justices who might have been disposed to treat the 911 call in Davis as testimonial were willing to give up that result as part of the overall resolution.

My colleague Chris Whitman, a far more experienced and knowledgeable observer of the Court than I, has raised another issue. She asks whether, given their views, Justices Thomas and Alito should have voted to affirm. I have asked her to write up her thoughts, and she has graciously agreed. Here they are:

Why are Justices Alito and Thomas concurring rather than dissenting? They see no constitutional infirmity in the decision below:

If the statements admitted are not testimonial, as they believe, there is no reason not to affirm the decision.

Alito and Thomas say that the question of whether the statements were testimonial was not the subject of the cert grant. Yet Justices Brennan and Marshall in capital cases repeatedly voted on the basis of their general death penalty views even where cert was granted on a more narrow issue, and Souter (with others) does the same thing in Eleventh Amendment cases. Perhaps the answer is that Alito and Thomas have decided to accept the majority approach to whether a statement is testimonial as a matter of stare decisis, but their opinions in Giles address the issue and certainly sound as if they are not conceding the point.

Under the circumstances of Giles, the result is not so troubling. Here, a criminal
defendant gets a remand even though a majority of the Justices see no constitutional flaw in his conviction. But could there be a case in which the facts are reversed? What if five Justices see a flaw in the trial below, but two of them vote to affirm the conviction on the grounds that the issue critical to them was not the subject of the cert grant? Would we leave a prisoner in jail although five Justices have expressed the view in his case that there was constitutional error below?

I’m not sure she’s right, but I would be glad to know of any readers’ thoughts – in comments either posted here or sent by e-mail to rdfrdman@umich.edu.

Reflection on Giles, Part 3: What Does It Mean?

The accused has intentionally engaged in serious wrongful conduct that has in fact caused the victim to be unavailable as a witness at trial. What state of mind on the part of the accused with respect to that unavailability will support a finding of forfeiture under Giles? There is some ambiguity about that.

Jsutice Scalia’s opinion, which for the most speaks for a majority of the Court, refers repeatedly to the defendant’s “intent.” As Justice Breyer emphasizes, there is a soft meaning of the term intent – one is deemed to intend the expected consequences of his conduct. If that is what Justice Scalia meant, then there might not be much of a dispute at all, because one expected consequence of Giles’ fatal assault would be that Avie would not be able to testify. Even on this assumption, though, there may be some ambiguity. In arguing that Davis v. Washington is consistent with what I believe to be the proper approach to determining what is testimonial – one based on the reasonable expectation of the declarant – I have noted the difference between “armchair” and “heat of the moment” expectation. In each, we consider the declarant dealing with the same information, but we assume different contexts; I think Davis is consistent with the view that the expectation of a reasonable declarant should be judged as of the moment when she actually spoke, not as if she were considering the situation later from the comfort of an armchair. The same dichotomy might apply to a reasonable-expectation test of forfeiture, though I think that if it did there would be a stronger argument for applying the armchair test – the accused ought to bear the burden of difficulties that would be obvious to him if he carefully considered the likely consequences of his wrongful conduct. If one applied the armchair view of a reasonable-expectation test, that would essentially cause forfeiture doctrine to come out where the state (and I) thought it should.

But, despite his use of “intent,” Justice Scalia does not appear to be thinking of any reasonable-expectation test. He appears rather clearly to mean that forfeiture applies only to conduct that was motivated (at least in part, and how much is another question) by the desire to render the witness unavailable. Thus, for example, in Part II.A of his opinion, emphasizing a limited meaning of the term “procurement,” he writes, “The terms used to define the scope of the forfeiture rule suggest that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying.” Slip op. at 5. On pp. 7 and 14 of the opinion, similarly, in speaking historically he uses “designed” language, and on p. 6 he speaks of the historical materials indicating “a purpose-based definition.” And on p. 13, referring to Fed. R. Evid. 804(b)(6), he endorses Mueller and Kirkpatrick’s comment that courts insist that “the defendant [have] in mind the particular purpose of making the witness unavailable.”

So we seem to have a purpose-based test. But there are a couple of sources of ambiguity – one passage in Justice Scalia’s opinion and one in Justice Souter’s concurrence. Justice Scalia writes:

Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution – rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.

Slip op. at 23. Clearly Justice Scalia means to cover the situation in which H, knowing that W will likely testify against him on a charge arising out of a prior incident, murders W so that W will not be able to testify. That is close to a core case of forfeiture, falling within the narrowest plausible definition, but with one twist. The twist is that in the core case the witness's testimonial statement was made in connection with the present case, and the accused murders the witness to prevent testimony in that present case. In the case envisioned by Justice Scalia. the testimonial statement was made with reference to a crime other than the murder charged in the indictment, and the defendant committed the murder to prevent the victim from testifying in that prior case. In other words, the court is willing to allow forfeiture of the confrontation right within a given case if the accused's purpose was to prevent testimony, even if the accused anticipated that testimony being used in another case; if the accused's purpose was only to end a life that he had come to regard as an annoyance, that will not cause forfeiture.

Justice Scalia also means to include abusive conduct “designed” to prevent W from making testimonial statements to authorities – though how this design would be proved in the absence of explicit threats is unclear. Is it enough to present general evidence of the patterns and psychology of abusers, supporting the proposition that in beating W, H was not merely expressing his anger and desire to control her, but also attempting to intimidate her from seeking outside help, including help from the authorities? That seems to be quite an inferential leap.

And, what does Justice Scalia mean by saying that murder may “express[] the intent to isolate the victim” and prevent her from testifying? Murder is not generally an expressive act, so the choice of verb seems odd. Does he mean to cover more than the easy case (in terms of theory even if not of proof) in which the murder was the means by which H effectuated the desire to prevent W from testifying? Does he mean that the murder might reveal that the intent of the prior abuse was to intimidate the witness from testifying – and if so, what does that matter?

Justice Breyer says hopefully that in this passage the majority creates "a kind of presumption that will transform purpose into knowledge-based intent – at least where domestic violence is at issue." Slip op. at 25. Justice Scalia denies that the test he enunciates is one requiring nothing more than "knowledge-based intent," and he is right. But Justice Breyer seems to be making a prediction, and perhaps he is right as well. For example, in a case like Giles itself, perhaps the state will be able to persuade the courts that Giles knew that Avie had made the prior statement to police, so that it should be inferred that killing Avie was designed, at least in part, to prevent her from testifying at a trial.

The interpretive intrigue is greatly compounded by the fact that, even though they joined the key parts of the Scalia opinion, Justice Souter, with Justice Ginsburg concurring, articulates a different standard, with which the three dissenters contingently agree – the contingency being the actual meaning of the standard. Justice Souter says that "the element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process." Slip op. at 2-3. Justice Breyer believes this language "in effect presumes 'purpose' based on no more than a history of domestic violence," and on that understanding agrees with it, or is at least satisfied that it gets to the right result. So it could be that we have five justices agreeing on the proposition that if a domestic abuse complainant is intimidated from testifying, and the prosecutor can show that she and the accused were in a "classic abusive relationship," that is sufficient for forfeiture. Well, that isn't pretty – for reasons stated in the second installment of these reflections, I worry about the theoretical problems with this approach – but it will get a lot of the job done. As Justice Breyer indicates, it seems to wash purpose largely out of the picture; it certainly does not demand that purpose to render the complainant unavailable be the accused's dominant purpose in engaging in abuse.

Justice Souter, again with the qualified endorsement of the dissenters, also includes this potentially significant statement as part of the passage quoted above:

If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger.

Slip op. at 3. True enough. But in the murder case, the instant before the fatal blow (or perhaps even after it) the complainant was presumably willing to testify, notwithstanding a history of abuse; the last piece of information we generally have is that she did make a testimonial statement (the one at issue) to the authorities. (Contrast the intimidation case, in which the last thing we know is that the complainant is not willing to testify.) So it was the single act of fatal violence that prevented her from testifying at trial, not a history of isolation-causing abuse. Perhaps Justice Souter's logic is something like, "If he engaged previously in the type of abuse that tends to cause isolation, then murder should be considered also as motivated at least in part by a desire to prevent the victim from getting help from authorities." I assume many courts will take advantage of this language to admit statements in Giles-like situations. The logic seems shaky to me, but the results will often be good ones – though I remain concerned about the absence of a mitigation doctrine.