Reactions to the Bryant argument -- Part 2

Here are further comments on the Bryant argument.

The consequences of holding this statement non-testimonial – Justice Ginsburg asked an important question: What if the speaker had survived? Lori Palmer, for the state, answered straightforwardly that this would not alter what happened at the time of the statement, so in her view it would still be non-testimonial. But then she said the statement would be excluded by the rules of hearsay unless the speaker were unavailable. Not true! In this case, the Michigan courts held that the statement passed the hearsay bar as an excited utterance. In nearly all cases, the courts will find some way to except a highly probative statement from the rule against hearsay; given the existence of a residual exception, they don't have to work hard. And the consequence of this is that even if the speaker is alive and well and living around the corner, or if he decides to take a vacation during trial, under the state's view there is no bar to admissibility – not only no constitutional bar but really no bar at all.

The perspective question – There was extensive discussion of what might be called the perspective question. The justices asked whose purpose matters, the speaker or the questioner's. As indicated in my first set of comments, I think the optimal test operates in terms not of the purpose of the speaker but rather of the understanding, or anticipation, of a reasonable person in the speaker's position. But the basic question remains the same: Do we test whether it is testimonial from the perspective of the speaker or of the questioner, if there is one? To say that the test should be an objective one does not really answer this, because the question remains – objective based on the information available to whom, the speaker or a questioner? I've stated ad nauseum the reasons why I believe the perspective of the speaker – the person who is arguably a witness for purposes of the Confrontation Clause – is the proper one, and the interrogator's perspective makes no sense. I won't repeat these reasons here. I will say that I don't believe the state, or the Solicitor General, or any justice made a genuine argument that the proper perspective is that of an interrogator. And in this case, once we take the speaker's perspective, I think it becomes very clear that this statement was testimonial. Which ties into . . .

Emergency – It's important to recognize – as I think Peter Van Hoek, arguing for Bryant, made clear – that a defendant contending that the emergency doctrine articulated in Davis does not apply is not suggesting any criticism of the police officers on the scene: The doctrine (unlike, say, the exigent circumstances doctrine of the Fourth Amendment) is not a standard for police conduct, but rather a measure of whether a statement should be deemed testimonial for Confrontation Clause purposes. The emergency doctrine is not an exception to the confrontation right, but rather a marking of its outer bounds. I think the best way of accommodating it with sound confrontation doctrine is to say that in some circumstances the need to respond to the emergency is so urgent that a reasonable person in the speaker's position would not, at that time, be anticipating prosecutorial use of the statement. But whether we look at it that way or simply ask the question in terms of primary purpose, the application in this case is clear, once the speaker perspective is taken: The statement was not responsive to Covington's medical situation. And that was the only exigent circumstance he faced, because he knew the shooter was not around and there was no reason to suppose – certainly he gave no indication – that the shooter was on a rampage. The only purpose the statement served was to bring the shooter to justice. I think that's core testimonial. (Even if we look at it from the (misguided) interrogator's perspective, it's at best a dubious case for calling the interrogation emergency-oriented. The officers were reconstructing past events and do not seem to have been at all oriented to resolving an exigent situation.)

Dying declarations and forfeiture – Justice Ginsburg wondered whether the state might be able to renew the argument that the statement was a dying declaration; she understood that a conscientious application of Crawford raises the potential value of a dying-declaration argument for the prosecution. It is conceivable that the Court will remand for that purpose (though as I understand it, there is nothing in the record suggesting that Covington thought he was on the verge of death).

Justice Scalia expressed doubt as to whether there is a dying-declaration exception to the confrontation right (as opposed to a hearsay exception). Frankly, that surprised me, for two reasons. First, Justice Scalia's majority opinion in Giles v. California relies heavily on the establishment of the exception at common law, and in Crawford he indicated that the exception might be sui generis, an exception applicable to testimonial statements that was established by the time of the framing. Second, dying declarations have been admissible for a couple hundred years, and in many circumstances keeping them out is a very unappealing result. I have argued rather strenuously that in fact there should not be a dying declaration exception to the confrontation right, and that the function should be served by a robust doctrine of forfeiture. But the majority opinion in Giles forecloses that possibility; unless the Court revisits the Giles issue (which I hope it does), either the Court will incorporate the traditional dying-declaration exception into confrontation doctrine, or it will exclude statements that have long been admissible (which I don't think it will do), or it will interpret the scope of "testimonial" unduly narrowly to get these statements in.

Let's see how this all plays out in Bryant. Under the doctrine that I regard as optimal, there would be a good chance that Bryant would be held to have forfeited the confrontation right: If the trial court concluded, to whatever degree of certainty is held appropriate, that Bryant killed Covington, then he should be held to have forfeited the confrontation right, because he has no valid, equitable complaint based upon the foreseeable consequences of his own serious misconduct. In some circumstances, even if the accused kills a potential witness, he can contend plausibly that he still didn't forfeit the right because the state had and forsook reasonable opportunities to preserve the right in whole or part, as by taking a deposition. But as I understand the facts here, there was no such opportunity. Covington underwent surgery almost immediately after reaching the hospital, and he died several hours later; I am guessing that he never recovered consciousness, but in any event there was no chance for a deposition (even if a court were to hold that the state, if it can do nothing else, should hold a deposition in the absence of the accused, who in this case was not found till many months later). So I believe that – again, assuming a predicate finding that Bryant killed Covington – the only truly equitable result is to hold that Bryant forfeited the confrontation right. But Giles seems to foreclose this possibility, because it holds that forfeiture does not apply unless the accused killed the witness with the design of rendering the witness unavailable to testify, and there is no indication that Bryant killed Covington for the purpose of preventing Covington from testifying.

That leaves the troubling possibility that – with the Court having made forfeiture doctrine inapplicable and with the facts apparently not supporting application of a dying-declaration exception – some justices will be inclined to adopt a narrowing definition of "testimonial". I remain hopeful that at least four justices will let the judgment of the Michigan Supreme Court stand. But if that happens, the long-term damage to the confrontation right will be attributable in significant part to the mistake made by the Court in adopting too restrictive a view of forfeiture in Giles.

Reactions to the Bryant argument -- Part 1

I will not make any prediction on the ultimate outcome of Bryant, but here is a first installment of reactions to the argument. More to follow later, but I’m posting this so I don’t have to wait til I’ve written everything.

More than in any previous argument in the Crawford line, in this one the Court was really focusing on the basic questions that go into determining what makes a statement testimonial for purposes of the Confrontation Clause. If the justices write on the case – not inevitable, because there is the possibility of a 4-4 split – they may well resolve some of these issues.

Underpinnings of Crawford; relation of confrontation and hearsay law – Justice Breyer indicated misgivings about how Crawford has developed. He wondered why, if a state treated a matter as within a hearsay exception, the Confrontation Clause should require exclusion.

There was some irony here, because Justice Breyer’s concurrence in Lilly v. Virginia, 527 U.S. 116 (1999), was one of the first opinions to indicate that tying confrontation doctrine to hearsay law might be a mistake. I do hope that Justice Breyer will return to his earlier insight, and will recognize the fundamental nature of the confrontation right as articulated by Crawford.

The right of confrontation is a basic part of our criminal procedure, prescribing how witnesses against an accused must testify – not in a police station, not in their living rooms, not on the pavement of a gas station while talking to police, but in open court (or if necessary another formal procedure), under oath, subject to cross-examination, and in the presence of the accused. I think the key point is this: If a speaker makes an out-of-court statement in given circumstances knowing full well that it is likely to be used against an accused, and the statement is in fact so used, then we have created a system in which speakers can testify against an accused by making statements in those circumstances.

Of course, the confrontation right applies only to statements that are testimonial in nature, not (as Justice Breyer seemed to worry) to the vast majority of hearsay statements. Thus, conspirator statements (an example he cited), even those made to undercover police officers, are not testimonial, because a reasonable person in the position of the speaker would not anticipate prosecutorial use. But where a statement is testimonial, it simply does not do to rely on the hearsay law of the jurisdiction. In formal terms, of course, that is abdicating constitutional responsibility to the rulemakers of the states. In practical terms, it should be recognized that the modern law of hearsay is essentially a sieve – just about anything can get through. Justice Breyer listed a few hearsay exceptions, but the list is long and it is topped off by a residual exception. It would, in my view, be a great misfortune to return to a period in which we hope that courts applying hearsay law will do the work of protecting a fundamental aspect of our criminal procedure.

History – There was a brief allusion to history. I think the history is clear: Neither at the time of the founding nor for many years afterwards — really, I think, nearly two centuries – would a common law court have plausibly admitted the statement at issue in this case. The NACDL amicus brief does an excellent job on this. The res gestae doctrine had not yet developed at the time of the framing. The Brasier case, from 1779, involved a statement made shortly after the crime, with the assailant at large, and the court is very clear in regarding the statement as testimonial and in holding it inadmissible. In the first decades of the development of the res gestae doctrine, the doctrine did not allow narratives of past events. (For example, in the Bedingfield case of 1879, even a statement made seconds after the event was (controversially by then) held inadmissible.) Gradually, courts loosened up – but really, it wasn’t until the late 20th century that a court would have seriously considered admitting a statement like this (putting aside considerations of dying declarations and forfeiture).

It’s also worth emphasizing in this context a point made by Crawford -- putting aside the dying declaration exception and forfeiture, none of the doctrines admitting hearsay that were established at the time of the framing (for example, a develolping doctrine governing business records) were applicable to testimonial statements.

Formality – The state put its primary reliance on a formality test. It appeared to me highly unlikely that a majority of the Court would accept that line of reasoning, and for good reason. As I’ve said (many times) before, a formality test gets things backwards and misses the point of the Confrontation Clause, which was to ensure that testimony be given under proper (formal) conditions; if a statement should otherwise be characterized as testimonial, lack of formality means not that the statement is non-testimonial but rather that it was not given under acceptable conditions. A formality test is also very manipulable – government agents can get around the confrontation clause just by taking testimony under informal conditions. It also distorts incentives – it gives police the incentive to postpone gaining control over a situation until they have taken witness statements made in anticipation of trial. As I have explained before, I believe that if Davis is read as establishing a formality standard – not inevitable, because Davis said merely that it did not deny that formality was essential for a statement to be testimonial – it is best understood as having no independent content beyond the requirement that reasonable person in the position of the speaker would anticipate that the statement would be used for prosecutorial purposes.

Purpose – Justice Alito suggested it makes no sense to ask what the primary purpose of the speaker is. Well, I sure don’t think that test is optimal. I believe the decisive question should be not what the primary purpose of the speaker was but rather what the understanding of a reasonable person in the speaker’s position would be. (And given Davis, I think we have to say that we take the reasonable person in the actual circumstances, acting in the heat of the moment.) Asking about the understanding of a reasonable person avoids the difficult weighing of purposes on which Justice Alito was commenting. It also avoids an inquiry into the subjective frame of mind of the speaker. Even more importantly, it is better justified as a matter of principle: in some circumstances, a witness might not want to create testimony (for example, if it is an unwelcome part of a plea bargain), but if he realizes that in fact he is creating a narrative statement that will be used in prosecution, he is testifying. In this case, I think a reasonable person in Covington’s position clearly would have understood that his statement would be used in prosecuting the assailant.

That's all I can do for now. I'll present comments on the proper perspective - speaker's or interrogtor's -- and on emergency and maybe one or two other issues later on.

Bryant Transcript

The Supreme Court held argument today in Michigan v. Bryant. You can read the transcriupt by clicking here. I will post some comments on the argument, tonight or tomorrow.

Bryant argument on Tuesday

Michigan v. Bryant will be argued in the U.S. Supreme Court on Tuesday. I will be second chair to Peter Van Hoek, lead counsel for respondent Bryant. Here are a few thoughts in advance of the argument. These are my own views entirely, and none should be attributed to Bryant or to Peter.

First, a quick review of the facts. Responding to a 911 call, police arrived at a gas station here they found Anthony Covington lying on the ground, bleeding and in pain. In response to their inquiries as to what happened, he told him that he had been shot about half an hour before at the house of “Rick” – arguably a reference to Bryant – six blocks and had driven himself to the spot where the police found him. Covington died later that day. His statement to the police was a crucial piece of evidence in convicting Bryant of murder.

The question here is whether the statement was testimonial for purposes of the Confrontation Clause. I believe that on careful analysis the answer is clearly in the affirmative.

The basic question, in my view, is whether a reasonable person in Covington’s position would realize that his statement was likely to be used in investigating or prosecuting a crime. And I think there can be no doubt that the answer is yes: Covington was giving information about a gunshot assault on him. The case is not like Davis v. Washington, for at least two basic reasons. In Davis, the assault was in progress or just concluded at the time of the statement; here it was a closed incident in the past. And in Davis, the victim was unprotected and presumably seeking protection from the assailant; here, by contrast, Covington was in no need of protection, because the police were already around him.

In part for this reason, the fact that Bryant was at large does not alter this analysis. A rule that a statement is not testimonial if the accused is not already in custody would lack logical support and it would create a badly distorted incentive for the police – to delay taking a suspect, even a dangerous one, into custody while they are gathering evidence.

Nor does the fact that Covington was in dire medical condition alter the analysis. If his statements were ones that could aid in treating his medical condition, then the case would look different, but this was a simple statement describing the crime. There is no remaining contention in the case that the statement was a dying declaration – and even if it were, that would be a separate question from whether the statement was testimonial. If the doctrine governing forfeiture that I regard as ideal were in place, a court might conclude as a preliminary matter that Bryant forfeited the confrontation right by killing Covington. But that possibility – which is also a separate question from the one of whether the statement is testimonial – has been foreclosed by the Court’s decision in Giles v. California, because there is no evidence suggesting that Bryant killed Covington for the purpose of rendering him unavailable as a witness.

It should be borne in mind in this context that nothing in the state’s argument depends on the fact that Covington in fact died before trial. In the state’s view, if he had made a full recovery – or if, though he needed prompt medical attention his life was never in serious danger – and he or the state simply decided that he would not testify at trial, the case would look the same, and because the statement would be characterized as non-testimonial, nothing in the Confrontation Clause would preclude admitting the statement. Indeed, when stripped of the fact that the victim died before trial, this case looks very much like Hammon v. Indiana -- a statement describing an alleged crime made some time after the incident, by a person who was allegedly a victim injured during the crime, made at the scene to police who arrived in response to a 911 call and were able to protect the speaker at the time of the statement. If such a statement is admissible, then I believe we have defeated the purpose of the Confrontation Clause: We will have in effect created a system in which a person who observes a crime may create narrative evidence that will be used at trial to convict a person with no need ever to take an oath or face the accused or cross-examination -- all the person need do is make a statement to the police describing the incident shortly after it occurs.

As in Hammon, the statement be regarded as non-testimonial on the ground that it was not sufficiently formal. I’ve addressed this point enough times in enough places I’ll just make two quick points. First, formality as an independent requirement for characterizing a statement as testimonial makes no sense, because the very point of the confrontation right is to ensure that testimony is given under proper conditions, including the required formalities. If a statement was made in the reasonable anticipation that it would be used for prosecution, the absence of formalities does not mean that the statement is not testimonial; it just means that the statement was not given under acceptable conditions for testimony.

Finally, I want to point out that virtually all the arguments made on the state’s side proceed from the premise, usually made only implicitly, that the question whether a statement is deemed testimonial should be determined form the perspective of the questioner (assuming there is one). Again, this is a point that I have addressed many times (including in my amicus brief in this case). I think that perspective makes no sense at all, and Davis does not stand for it. This case could make a solid contribution to the development of the doctrine of the Confrontation Clause if it establishes that the proper way of determining whether a statement is testimonial is to look at the situation from the point of view of a reasonable person in the position of the declarant.

Cert grant on the surrogate witness issue

I just realize I didn't post the first part of this message a few hours ago, when I thought I did!

The Supreme Court granted cert today in Bullcoming v. New Mexico, No. 09-10876. This is likely to be a very significant follow-up to Melendez-Diaz, posing the issue of whether forensic lab results may be introduced through a surrogate witness. That is, given that the results must be proved through a live witness, may that witness be an analyst who has no first-hand knowledge about the matters as to which he is testifying?

Here are the following documents in Bullcoming: the cert petition, the state’s brief in opposition to the petition, and the reply brief in support of the petition.

And, while I'm at it, here is a decision of the state same court, issued the same day as Bullcoming, in a companion case, State v. Aragon, 225 P.3d 1280. In Bullcoming, the court holds that one analyst can testify to the facts reported by an absent analyst; in Aragon, the court holds that one analyst cannot pass on the absent analyst's opinions. I do not believe the distinction will hold.

Decision on remand in Briscoe

The Virginia Supreme Court today issued its decision in Briscoe on remand from the United States Supreme Court. You can read it by clicking here">. The court held that the former Virginia statutory scheme (under which the defendant had to call a lab analyst as his witness if he wanted to examine the analyst) was unconstitutional. This, of course, was the point that I sought to establish in bringing the petition for certiorari; Melendez-Diaz made the point clear, and now the Virginia Supreme Court has drawn the obvious conclusion.

The court held that the error was harmless in Briscoe’s case, but Cypress’s conviction was reversed. I expect his case will plead out.

State's reply brief in Bryant

The state has filed a reply brief in Michigan v. Bryant. Like its main brief, the reply is refreshingly short. You can read it by clicking here. Below is a summary of the three points made by the brief, and my thoughts on each.

First, the state argues that the perspective for judging whether a statement is testimonial should be an objective one. Nobody disputes that. But the state conflates the subjective-objective question with the entirely different (I will resist the temptation to call it orthogonal) question of the perspective from which the determination should be made. For various reasons that I have summarized in several places, including this blog and my amicus brief in Bryant, I believe it is important that the determination be made from the perspective of the speaker. The state equates a speaker-oriented determination with a subjective one. But that equation does not follow: The proper question, I believe, is what the anticipation would be of a reasonable person in the position of the speaker.

Note that to say that the determination is objective does not avoid the question of asking this question: On the basis of what body of information is the determination made? It makes no sense (again, I will not review the reasons here) for that body of information to be what was available at the time to the police interrogator, even assuming there is one. Rather, the body of information should be what was available at the time to the speaker. A subjective determination would ask: What was the speaker’s purpose (or anticipation) when he or she made the statement? An objective test asks a question like this: Would a reasonable person knowing the information available to the speaker at the time anticipate the statement would be used in investigating or prosecuting the crime?

As I see it, the only way the state could have even a hope of victory is if the Court were to adopt (or implicitly apply) an interrogator’s perspective – that is, basing the determination on the information available to the interrogator at the time of the questioning. Thus, I think this case – more than Crawford, Davis, Hammon, Melendez-Diaz, or Briscoe – may provide a vehicle for deciding the perspective question. But the Court need not decide that question; it could well decide that even from the officers’ perspective it was clear from the outset that the conversation was not designed to relieve an emergency but to assist in prosecution of a crime.

The state’s second main point in its reply is that the emergency doctrine of Davis is not limited to criminal events. But even assuming that is so, it should not help the state. The victim’s statements did not – and were not reasonably calculated to – assist treatment of his medical condition. They were clearly likely to be used to assist in prosecution of the crime (and were so intended).

Finally, the state engages in a debate with Bryant over the contours of the res gestae exception to the hearsay rule. The doctrine is a 19th century creation, long post-dating the Confrontation Clause. Over the course of that century – far too late to be of assistance to the state – the courts loosened up in admitting statements made some time after the incident. Indeed, the significance of this line of cases is that at the time of the Clause and for decades after – even after the broad and newly developing rule against hearsay began to shroud the principle underlying he confrontation right – courts did not admit statements describing past criminal activity, even though the interval was very short. The fact that by the time they did start doing so they tended to talk in terms of the rule against hearsay rather than of the confrontation right is of no assistance here to the state.

Bottom-side amicus briefs in Bryant

Yesterday was the due date for amicus briefs supporting the respondent (the defendant) in Michigan v. Bryant. I filed one, which you can read by clicking here, and the National Association of Criminal Defense Lawyers filed another, which you can read by clicking here. If I learn that there are others, I will post them as well.

Respondent's brief in Bryant

Here is the brief, filed yesterday, of respondent Bryant in Michigan v. Bryant. Amicus briefs supporting Bryant are due on the 23rd. I expect to file one.

Cert denied in Pendergrass (and reply brief)

As reported in a comment by an anonymous reader, the Supreme Court denied cert this morning in Pendergrass v. Indiana. I may have mroe to say on this later. For now, I'll simply say that the basic issue presented by the case -- who must testify as to the results of a forensic lab test -- is an important one that the Court will have to resolve sooner or later.

I never posted Pendergrass's reply brief in support of certiorari, but for completeness will do it now; you can see it by clicking here. Personally, I think the issue is well enough joined that the Court could have taken this case if it were disposed to resolve the matter now. It may be that both sides from Melendez-Diaz are a little wary given the addition of yet another new Justice.

State's BIO in Pendergrass

The state has filed its Brief in Opposition in Pendergrass v. Indiana. You can read it by clicking here.

Sooner or later, the Court is going to have to address the basic issue raised by this case -- whether a prosecutor may prove an event or condition (here, the conduct and results of a lab test) by presenting the testimony of a person who did not observe that event or condition.

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.