Preliminary thoughts on the Bryant decision

Here are some preliminary observations on the opinions in Michigan v. Bryant. First, a brief review of the facts.

Responding to a 911 call, police found Anthony Covington on the ground near a service station in Detroit, profusely bleeding from a gunshot wound. As each officer arrived, he asked Covington what happened. Covington said that a man named Rick – the accused, Bryant – had shot him through a door at Bryant’s home, about six blocks away and 25 minutes earlier; Covington had managed to drive himself to the spot where he was found. Covington died several hours later of his wounds. Bryant was eventually extradited from California and tried for murder. The first jury hung, and a second one convicted him. Ultimately, the Michigan Supreme Court held that admission of Covington’s statements violated the Confrontation Clause. The United States Supreme Court has now reversed that decision, in an opinion by Justice Sotomayor. Justice Thomas concurred in the result (on the ground, expected given his prior expressions, that the statements were not formal). Justices Scalia and Ginsburg wrote separate dissents.

Now, two over-arching thoughts:

(1) I believe the decision is a very unfortunate development for the Confrontation Clause. The approach that emerges is remarkably mushy, unjustified by any sound reasoning and virtually incoherent. It leaves courts ample room in many types of cases to characterize almost any type of statement as non-testimonial. It will be easily manipulable by governmental authorities and at times may distort their behavior.

(2) I believe this decision is in large part a result of the Supreme Court’s error in unduly restricting the scope of forfeiture doctrine in Giles v. California. In this case, there was substantial evidence, easily enough to justify a finding, that Bryant had killed Covington and therefore that he himself was at least the initial cause of his inability to cross-examine Covington. Given Covington’s condition, his death within hours, and Bryant’s flight, it does not appear that there was a reasonable opportunity to mitigate the problem by arranging a deposition. Accordingly, a court easily could have held that Bryant forfeited the confrontation right – had Giles not foreclosed the possibility by holding that even a defendant who murders a witness forfeits the right only if he commits the murder for the purpose of rendering the witness unavailable. The bottom-line result of the Michigan Supreme Court’s decision – that Covington’s statements were inadmissible – is singularly unappealing at a gut level, and I think it was inevitable that courts would compensate for the unavailability of forfeiture in cases like this by narrowing the confrontation right. See my post of June 29, 2008, Reflections on Giles, Part 2: Is Giles bad for defendants?

Some more particularized comments:

For the first time, the Court has purported to give a broad, general approach to determining what is testimonial. It takes the “primary purpose” language of Davis and expands on it. Now, “primary purpose” is not simply a test to choose between whether a statement is testimonial or instead made in response to an “ongoing emergency”. Rather, it appears, the accused now has the burden of establishing that the primary purpose of the conversation in which the witness’s statements were made was to “creat[e] an out-of-court substitute for trial testimony.” Determining primary purpose is, of course, a very tricky matter, as Justice Thomas emphasized in his dissent in Davis and repeats here. Indeed, the concept is very difficult to nail down; if a person makes a statement for the purpose of creating trial testimony and also for another purpose, how do we determine which one is the primary purpose? By which one she would be more willing to give up if she had to choose? But beyond that, let’s say that we are able to analyze the situation precisely and conclude that 48% of the person’s purpose was testimonial and 52% not (sounds silly, I know, but it’s not my idea to determine which is primary); why is that not testimonial? I’ve argued elsewhere, and won’t repeat the argument here, that the real question is not purpose but anticipation. Justice Scalia’s dissent adopts this view. He tips his hat to his language in Davis by saying that for a statement to be testimonial the speaker has to intend to make a solemn declaration, but the test that carries the bite for him is whether the speaker has “the understanding that it may be used to invoke the coercive machinery of the State against the accused.”

The more serious problem is that the Court adopts what it calls “a combined approach” in determining the perspective from which the question of whether the statement is testimonial should be determined. That is, it looks to the purpose of both the speaker and the interrogator (if there is one). Now, I don’t think there is any real objection to taking all circumstances into account in determining whether a statement is testimonial, and if there is a questioner the purpose for which the questioning is conducted is certainly a factor that might affect the understanding of the speaker. But that is a different matter from what the majority does, which is to make the test an indeterminate combination of what did the speaker intend and what did the questioner intend: A court is supposed to determine “the purpose that reasonable participants would have had.”

That the proper perspective is that of the speaker – the lack of a testimonial purpose on the part of a questioner should not make a statement non-testimonial if the speaker knows she is creating evidence, and a questioner’s hope to gather evidence does not make another person’s statement testimonial (though in some cases of trickery an estoppel should operate) – is another point that I have argued repeatedly, and I won’t go through the matter again here. (For those who are interested: The majority cites my amicus brief as making an argument that it rejects, and Justice Scalia cites one of my articles, Grappling with the Meaning of "Testimonial", 71 Brook. L. Rev. 251 (2005), in agreeing with the point.)

But note two problems with the majority’s test. First, because the Court properly adopts an objective test, it cannot ask what the actual participants intended. It has to put it in terms of reasonable participants. But because it has phrased the test in terms of purpose rather than understanding, it has to ask a baffling question: What purpose would reasonable participants have had? The problem is that purpose is a matter of desire, not simply understanding, and equally reasonable people might have different desires in a given situation. So I guess what a court has to do is posit a reasonable person in the position of a participant and, drawing on all the facts of the incident, take a stab at guessing what the primary purpose of most reasonable people in that situation would be. That’s pretty awkward.

More seriously, what on earth could the majority mean by the combined purpose of “the interrogation”? Justice Sotomayor says that simpler is not always better, and that the Court is “unwilling to sacrifice accuracy for simplicity.” But accuracy in determining what? It appears to me that the majority has adopted a standard that is not only the wrong one but is really empty. As Justice Scalia points out, there is a glaringly obvious problem that the majority never touches on – what if the speaker has one purpose and the questioner another? That of course is entirely plausible, especially in cases like this one in which the statements are made right after police officers come up to a scene: It may be that the officers have little idea what is going on, whether a crime has been committed or whether there is a grave threat to the public safety, and yet the speaker knows perfectly well that a crime has been committed, that there is no imminent threat to the public safety, and that what she is about to say will provide information useful in bringing a criminal to justice but will have little value other than that.

So in a circumstance like that, what is a court supposed to do, given the Bryant decision. The majority denies that it “intend[s] to give controlling weight to the ‘intentions of the police,'” and that is good. But look what they did in this case. They emphasized at length the uncertainties and potential dangers facing the officers as they arrived at the scene. I don’t think that even so they are able to make a plausible argument that their “primary purpose” was to resolve an ongoing emergency – the officers were doing a lot of evidence gathering and not a whole lot of public protection at that point – but this is their best shot. As for the speaker, Covington, all the Court does is emphasize his dire situation at the time and pronounce conclusorily that it “cannot say that a person in Covington’s situation would have had a primary purpose to establish or prove past events potentially relevant to later criminal prosecution.” Well, why not? Badly as Covington was hurt, he was coherent in speech and seems to have been thinking straight. He was giving information describing the background and commission of a serious firearms assault. Presumably he was strongly motivated to see that the person who had shot him was brought to justice. And what else could he have been attempting to accomplish? The majority does not even offer an alternative suggestion.

So one of my concerns is that police officers will quickly learn that they can get statements characterized as non-testimonial if they testify, in effect, “I came up to the scene and didn’t know what was happening. My principal concern was securing the public safety. What this person told me was very important for that purpose.” They will also have an incentive to gather as much information as possible before the situation is fully under control; thus, the decision in this case distorts their incentives in performing their policing function. And once they do control the situation, if they can no longer make a credible contention that they had some primary purpose other than evidence gathering, then they can pass the witness – so I may continue to call the person who makes a statement while understanding its likely future prosecutorial use – on to a social worker, whose "primary purpose," of course, will be therapeutic, notwithstanding the fact that in performing that function she repeatedly learns, and relays to juries, information that turns out to be useful in prosecuting crime.

Perhaps in emphasizing some of the problems in this decision I am being unduly pessimistic. Perhaps the Court’s emphasis on the context-dependence of the determination of whether a statement is testimonial will ultimately limit the impact of the decision. Perhaps, indeed, this decision will be understood over time to be a product of the unfortunate inability of the Court to apply forfeiture doctrine to this case. Perhaps the Court’s insistence that the speaker’s intent is one consideration will become more important over time, and perhaps the Court will recognize what a giant opening for manipulation and distortion it has left by making the purpose of the questioner, when there is one, a significant factor.

What is more, there are a few good points in the decision. Establishment of an objective test was not a surprise, but the clarification is useful. The Court explicitly rejects the notion of an absolute formality requirement, even though it gives formality considerable force. It continues to preserve the possibility that statements made to persons other than government officials might be considered testimonial in some circumstances.

So we’ll have to see over time. But this decision strikes me as a giant step backwards towards a morass like that of Ohio v. Roberts, which gave the courts considerable leeway to let almost any statement in. Indeed, I have not even begun to address the jarring suggestions, which read at their most dangerous seem to augur a return of Roberts, that a factor in determining the Confrontation Clause issue may be the reliability of the statement and that hearsay law may be a guidepost in that determination. More on that later.

Bryant reversed

I have been out of electronic contact most of the day; presumably many readers already know that the Supreme Court reversed the decision in Michigan v. Bryant. A very unfortunate result. The vote was 6-2, per Justice Sotomayor (a surprise to me); the basis of the decision was that the primary purpose of the statements was to resolve an ongoing emergency (also a surprise to me). Justices Scalia and Ginsburg wrote separate dissents; Justice Scalia said that the decision leaves Confrontation Clause doctrine in “a shambles”. I will write more after I have had a chance to read and absorb the opinions.

The Rae Carruth Case Six Years Later

Nearly six years ago, I wrote a long post, Forfeiture, the Prosecutorial Duty to Mitigate, and Rae Carruth. Carruth is the former NFL player who has been convicted of conspiring to kill his pregnant girlfriend, Cherica Adams; the prosecution's theory was that he stopped or slowed down his SUV in front of Adams's car while, by prearrangement, someone from another car pulled up alongside Adams and shot her. Adams survived for nearly a month. Immediately after the attack, she made a 911 call, describing the incident in considerable detail, including an assertion that Carruth had made a cell call shortly before leaving his house and that he had blocked her car. Over the next several hours, she made additional statements, including one at the scene and one at the hospital to a responding officer, and hand-wrote notes to a nurse at the hospital, describing the incident and preceding events. Some time after writing those notes – just how long I am not sure – she sank into a coma from which she did not recover.

Today, the U.S. Court of Appeals for the Sixth Circuit issued a decision affirming the denial of a petition for habeas made by Carruth (whose legal name is Wiggins). Notably, Carruth did not contest before the Sixth Circuit that the 911 call was admissible and the state did not contest that the subsequent statements were inadmissible under the Confrontation Clause; the only issue for the court, so far as the latter statements were concerned, was whether the error in admitting them was harmless, and the court held that it was.

The case therefore becomes something of a measure of the development of Confrontation Clause doctrine. Presumably Carruth assumed that the court would hold that the 911 call did not violate the Confrontation Clause because of the emergency doctrine of Davis v. Alaska, and presumably the state assumed that the court would hold the later statements to be testimonial, under the other part of Davis (the part governing Hammon v. Indiana) and that under Giles v. California it would not prevail on an argument that Carruth forfeited the confrontation right. Accepting these assumptions as accurate for present purposes, I think they show how the doctrine has gone wrong in a couple of respects.

True, Adams called 911 in dire circumstances, and in that sense the call was one for help (which the statements in the pending Bryant case were not, given that the police were already on the scene when the victim made them). But it is clear that much of what she had to say -- most notably, identifying Carruth and telling about his behavior before and after the shooting – had little or nothing to do with getting help and was instead a communication of how the grievous assault had been committed and who had played a central role in it. I believe it should be regarded as testimonial, and to the extent Davis persuades a court otherwise that is unfortunate.

The later statements clearly were testimonial. But were they subject to forfeiture? After Giles, presumably not, because, while there was ample evidence that Carruth conspired to kill Adams, there is no showing that he did so with the design of preventing her from testifying in any proceeding. As I've often said, on this blog and elsewhere, I think Giles was a very unfortunate development. In my view, whether forfeiture should be applied in this case should depend in large part on how long Adams remained able to communicate. I analyze the issue at some length in the prior post, though when I wrote that I did not know that Adams had become comatose some time before her death. Adams had no hesitation making accusatorial statements, and the police, among others, had no hesitation in soliciting them. It is conceivable – I cannot say it is certain – that there was a window during which it would have been practicable and not inhumane to hold a deposition. There are many examples of this being done, even with victims who eventually died, during the founding era; the Forbes case, discussed in the prior post, is one example.

Melendez-Diaz acquitted

As some readers already know, Luis Melendez-Diaz was acquitted yesterday on retrial of the case that made him famous within the circle of people that pay attention to developments related to the Confrontation Clause. Here is a report on the outcome. A chemist from the Massachusetts Department of Public Health did testify live as to the lab reports -- but I don't know whether this was the same chemist who performed the test, or whether his conclusions were challenged by the defense. One of Melendez-Diaz's lawyers said the case was one of "guilt by association," which seems to suggest that the principal defense was that the stuff found in the car did not belong to Melendez-Diaz.

Reply brief in Bullcoming

You can read the reply brief in Bullcoming, which was just filed, by clicking here.

"Pure Cold Case" Prosecutions & The Confrontation Clause: What Does The Future Hold?

Paul Vinegrad has asked me to post the following, under the above heading; it is too long to fit in this blog as a comment. I’m glad to do so, and offer my comments after Paul’s post.

Prof. Friedman, could you provide an analysis of the following scenario and commentary on my suggested formulation:

An NYPD DNA expert (X) writes an unsworn report. In the report, X states that on January 1, 2011 she responded to a crime scene. There she observed a naked female, face down, dead with a cigarette butt on her back. She collected the cigarette butt and brought it back the the NYPD lab. She processed the cigarette butt, following the lab's standardized procedures for processing evidence for DNA, and extracted a tiny amount of saliva. She used the latest available scientific techniques and equipment. Her testing procedures resulted in raw data – graphs, charts, etc. (i.e., a DNA profile). She used her expertise to interpret the DNA profile. And reached the opinion that the DNA profile was from a male Caucasian. The tiny test sample was consumed during the testing process. X then entered the DNA profile into a nationwide DNA database.

30 years later, X died in a car accident. As of that date, NYPD had not yet identified a particular suspect, i.e., they didn't have "reasonable suspicion" to detain anyone, or "probable cause" to arrest anyone, there were no "hits" from the database.

10 years later, an NYPD DNA expert (Y) was notified that there was a "hit." And the defendant (Mr. Z) was identified as the suspect. Y obtained a blood sample from Z. He then determined Z's DNA profile. In Y's opinion, Z's DNA profile "matched" the DNA profile of the saliva, i.e., in Y's opinion there was a statistical match probability of 99.9%.

At trial, would the CC prevent the prosecution from introducing the following evidence (assume that there are no other constitutional or evidentiary hurdles to admissibility):

(1) The raw data establishing the DNA profile of the saliva?;

(2) Y's expert opinion testimony (based upon a review of X's report – the substance of which is not disclosed to the jury – and his own expertise) that (A) the DNA profile of the saliva "matches" Z's DNA profile; (B) the DNA profile of the saliva was accurate/reliable because X was qualified and followed all proper procedures?; and

(3) X's entire report setting forth her expert opinion that the DNA profile of the saliva was that of a male Caucasian?

For what is worth, I believe that X was not a CC "witness," and, therefore, all of the above evidence would overcome a CC objection. I believe that at least four justices in Bullcoming (and, perhaps, in Bryant) will redefine CC "witnesses" in a manner consistent with the following formulation:

Persons (who have personal knowledge of the crime allegedly committed by the defendant) who make out-of-court statements (i.e., an assertion of fact by a human being) -- whether testimonial or nontestimonial (under any of the three formulations in Crawford) -- and whether sworn or unsworn, are not CC "witnesses" unless each of the following requirements are met: (1) a government official (or their agent) responsible for the investigation and prosecution of crime, (2) by some affirmative action (i.e., questioning, "interrogation," etc.), was involved in the production of the particular statement, (3) at a time that an "adversarial relationship" existed between the government official (or their agent) and a particular person (i.e., at the time the statement was produced, the government had "reasonable suspicion" to detain (or "probable cause" to arrest) a particular person for criminal activity, and (4) viewed objectively, from the perspective of a competent adult in the position of the declarant, the declarant knew that they were providing a statement against someone.

The third element of this test replaces the "primary purpose"/"ongoing emergency" formulation set forth in Davis. Under the "adversarial relationship" element, once "reasonable suspicion" to detain (or "probable cause" to arrest) exist, it will be conclusively presumed that the government's "primary purpose" was to create evidence for possible use in a future criminal trial. Before the government has "reasonable suspicion" to detain a particular person, they have no motivation whatsoever to manipulate or manufacture evidence against that person by means of coercion, trickery or otherwise. However, once the "reasonable suspicion" threshold has been crossed (a determination that courts have routinely been making for Fourth Amendment purposes since Terry was decided) the police have a motive to start to build their case against the suspect. With that motive comes the distinct possibility that the reliability of the resulting evidence, and the truth-seeking adversarial process the CC is designed to protect, will be compromised.

The formulation that I set forth is entirely consistent with all of the Court's CC cases, before and after Crawford, including Melendez-Diaz as the "analyst" in that case didn't have any personal knowledge regarding the defendant's crime.

While the Framers didn't have to consider the constitutional ramifications of "pure cold case" prosecutions involving unavailable expert DNA analysts, the formulation that I have set forth is a "reasonable estimate" – as "reasonable" as any other estimate given the absence of any direct historical evidence – of how they would have treated these cases, at least under the CC.

If Giles's forfeiture doctrine would have been broader then, at least in "pure cold case" murder prosecutions, the Court would not be faced with the constitutional question that I raise. In Bullcoming (indeed, in Bryant) the Court has the opportunity to revisit the scope of the term "witnesses" in the CC. It is evident the framing-era historical record does not provide a clear cut answer. Any solid historical evidence that does exist lends itself to more than one "reasonable" interpretation of the original meaning of this text. Thus, policy considerations which are consistent with the truth-seeking purpose of the CC come into play. Four justices in Melendez-Diaz have voiced their dissatisfaction with the "testimonial" approach set forth in Crawford. It appears as though Justices Sotomayor (in Bryant and Bullcoming) and Kagan (in Bullcoming) might be the swing votes and might be instrumental in moving CC jurisprudence in a new direction that, in the absence of clear historical guidance, focuses more heavily on the practical, real life, impact of the constitutional rule on the lives of all Americans, not only the accused.

Criticisms, critiques and alternative formulations to the one I set forth above are welcome.

I will continue to avoid predictions, but I do think that Paul’s formulation would severely impair the confrontation right. It seems to be one more attempt by prosecutors (here a former one) to devise rules that would under cut down on the right and, to a substantial extent, nullify Crawford. (Having said that, I do continue to believe that the decision in Giles was most unfortunate.) I really wish all that mental energy went into seeing how those states that have routinely violated the confrontation right could efficiently bring themselves into line with states that have a good compliance record.

I’ll also say as a prefatory matter that yes, sometimes in long-delayed cases prosecutions are lost because by the time the prosecution is brought a crucial witness who has not been subjected to cross-examination is no longer available. This is a cost of our system that we have been tolerating for 500 years or so.

Paul has put forward before the idea that a statement is not testimonial unless a government official is involved in producing it. I think this is a non-starter, for reasons I’ve indicated before. It conflicts with historical practice; it’s important to understand that the confrontation right long predates the institutions of public prosecutors and police forces. The Court has already made it clear that volunteered statements, not made in response to interrogation, can be testimonial. If Paul’s suggestion were taken, there would be an army of private statement-takers who would enable witnesses to avoid confronting the accused.

Paul now suggests that for a statement to be testimonial there has to be an identifiable suspect before the statement is made. (I’m not sure whether in his view the suspect at the time of the statement has to be the ultimate accused.) I’m not sure where he gets that – so far as I know there is no historical basis for it. If adopted, this idea would distort police behavior; it would encourage police to avoid focusing on a suspect – and being in a position in which they could at least somewhat credibly contend later that they had not focused on a suspect – for as long as possible so that they can gather incriminating evidence. And the consequences of this idea would be stunning. Paul seems to acknowledge that, for example, a witness describing a crime scene would not be covered by the confrontation right. But more than that – nobody who made any statement in the 40 years between the crime and the time that the cold hit was made would be considered a witness against the accused for Confrontation Clause purposes – even if the statement was made to the authorities in the full hope and expectation that eventually it would be used as evidence at trial against the person the authorities identified as the killer. (This would include the victim if she made a statement describing the crime and giving a general description of the accused.) As a matter of principle, there is no justification for decimating the Clause in this way. The optimal rule is actually pretty simple. A person is a witness for purposes of the Clause if a reasonable person in her situation would realize that her statement would likely be used in investigating and prosecuting a crime. And if her testimonial statement is introduced against an accused, that makes her witness against the accused for purposes of the Clause.

What can the state do to minimize the danger of losing lab evidence if the there is a substantial chance that the case will not be tried for many years? Preserve some of the sample for retesting; Paul’s hypothetical is becoming increasingly unrealistic with improved DNA methods. If the case is important, have a second observer, as some jurisdictions routinely do for autopsies. Sometimes videotaping the testing might help. An extreme response – one of dubious constitutionality, but one with precedent and preferable to cutting the Clause down so close to its core – would be to appoint counsel shortly after the test for the as-yet unidentified suspect to depose the analyst; sometimes, notwithstanding the lack of identifying information at the outset, the interest of the ultimate accused is clear from the start.

Two more bottom-side amicus briefs in Bullcoming

In addition to the brief of 33 states and the District of Columbia, which I earlier posted, two other bottom-side amicus briefs were filed in Bullcoming. You can read the brief of the National District Attorneys Association and other organizations by clicking here, and the brief of the New Mexico Department of Health Scientific Laboratory Division by clicking here.

There is also one loud silence -- for the first time in the Crawford line, the United States Solicitor General did not file in support of the state.

Michigan – a state that does it right.

Last month, shortly after I posted results of the study of Michigan trial transcripts done by students under my supervision, Mark Dwyer, the long-time and very capable Chief of the Appeals Bureau in the District Attorney's Office and a regular reader of this blog, asked:

If your reports let you answer, I think it would be interesting to know in how many of the DNA cases the witness or witnesses who testified were present at every stage of the DNA processing. I suspect that this would be a rare circumstance. Have you a view on whether one lab witness "familiar" with the testing will suffice, if he or she was not present at every stage?

I responded:

An important question. For now, I'm going to stick with the comments I made in footnote 9 of the amicus brief I just posted. I hope to have more to say next week.

So far as what I think should suffice, I will continue at least for now to stick with the comments in my brief. But I can add more about the Michigan practice because I have spent some time with John Collins, director of the Michigan State Police Forensic Science Division. (I met with him shortly after Mark posed his question, which is why I hoped to supplement my answer before this, but I haven’t gotten around to doing it until now.) I am delighted to say that, though he is a Michigan State guy, John strikes me as a very capable, dedicated, and thoughtful public official, and he clearly believes that his labs are able to comply with constitutional requirements without having to bear an undue burden.

So, in answer to Mark’s question, no, ordinarily there would not be one person who observed every phase of DNA testing. But ordinarily, according to John (who graciously consented to allowing me to report on our conversation), there are no more than three lab technicians who perform work on a given sample. So the prospect of having to present a nearly endless chain of witnesses to introduce the results of one DNA test is really a strawman for the Michigan state lab, given the degree of vertical integration that it uses to conduct these tests. If in a given case all three analysts were required to testify live, John says they would do so without question. If in all cases all three were required to testify, it would indeed create a heavy burden on the lab as currently funded. But this doesn’t happen. Recall that the data in my amicus brief show that on average even in DNA cases that go to trial only 1.25 lab witnesses testify. For all the fears expressed by the Melendez-Diaz dissenters, the reality is that even for a complex test like DNA matters have settled down so that the number of witnesses who have to testify is quite reasonable.

It also bears emphasis that the reason why as many live witnesses testify as do is attributable at least in large part to the demands of the prosecution rather than the defense. That is, often the prosecution wants its technical witnesses to testify live, to make a vivid impression. (To put it bluntly: When prosecutors want lab witnesses to testify live, they do so, and no controversy arises; when defendants want lab witnesses to testify live but the prosecutor doesn’t, or can’t produce the witness, the prosecutor (in states unlike Michigan that before Melendez-Diaz did not follow proper procedures) complains about how burdensome the production is.) One piece of information I learned from John strengthens this point: Michigan has developed facilities for lab technicians to testify, on consent of the parties, by remote video. John is obviously interested in fostering this practice. He reports that it is the prosecutor rather than the defense that most often is unwilling to allow this cost-saving convenience.

John did express concern on one point: Too often, he said, defense counsel refuses to stipulate to presentation of a lab report until the witness appears ready to testify; then, counsel, (1) recognizing that the prosecution is able to present the witness live and (2) not really wanting live testimony, stipulates to admissibility of the report. I don’t believe John has any data on how often this happens, and it clearly is not a debilitating problem. But it does seem to me that the problem could be cured by a simple statutory fix: If the defense declines a pre-trial request to stipulate to admissibility of the report (or, in those states having a notice-and-demand statute, makes a demand), it must assert that it does not intend to stipulate to admissibility of the report if the witness appears at trial ready to testify. There are some statutes that require the defense to assert that it is making the demand in good faith or that it intends to cross-examine. The first of these strikes me as too vague and the second as too demanding; perhaps the defense wants to see what the direct testimony is, expose the witness to the trier of fact, and only then decide whether to cross-examine or not. But a statute that says in effect that if the defense demands confrontation it must really want that the witness testify live and not merely that the prosecution be put to the test of bringing the witness to court seems entirely reasonable to me. And I think it would greatly reduce this problem, however significant or insignificant it might be: A defense lawyer will not want to have to explain very often why it belatedly decided to stipulate to admissibility of the report after declining to before. And I suppose if this isn’t good enough a state could adopt an even stronger statute, providing that if the defense declines a timely request to stipulate (or makes a timely demand), and the witness appears at trial prepared to testify live, the court must call the witness to give live testimony.

Machines and human witnesses

Paul Vinegrad has posed a question to me as a comment to an ealrier post. It’s sufficiently interesting that I’ll answer it here. Paul’s question:

Prof. Friedman, your thoughts on the following hypothetical would be illuminating:

Cop arrests suspect for DUI. Cop takes suspect's blood sample to government run lab. Cop watches as analyst places blood sample in gas chromatograph. Gas chromatograph prints out result of .21 BAC. Cop takes print out and leaves.

At trial, Cop describes this sequence of events. Cop identifies print out. Print out is marked as an exhibit and introduced into evidence to prove defendant's BAC was .21. Cop does not offer any opinion on accuracy/reliability of print out.

Did any human "witness" make a "statement" (testimonial or otherwise) that defendant's BAC was .21?

My answer is that, with one caveat discussed below, there is no human witness that the BAC is .21. What we have is a witness to a process that generated the identified piece of paper.

If instead of this test, it were a simple litmus paper test, and the witness identifies a particular piece of red litmus paper as the one that was dipped in a particular solution, and says it is now the color that it was after it was dipped in, I don’t think there’s yet been an assertion by a human witness that the solution was acidic. One can infer that proposition by understanding the processes that led to the red color.

Now of course the case Paul presents is different in that humans presumably created and calibrated the machine. But presumably that all happened before the particular testing. Even if one could discern a human assertion there, it’s harder to discern an assertion about the particular sample, and I think Melendez-Diaz suggests pretty strongly, for better or worse, that an assertion at this point wouldn’t be considered testimonial.

The caveat is that it is theoretically possible that somebody purposely set the machine so that it would report a BAC of .21. If so, I’d say that’s an assertion, made by a human through a machine – just as one might use a machine to broadcast his voice. But I think the burden would be on the defendant to produce evidence of this kind of manipulation.

The most difficult question here is one of relevance, or probative value: Is there enough of a basis for the trier of fact to conclude that because the piece of paper says .21 that in fact the blood alcohol content of the sample tested was .21? Compare this to a witness who says that when a robbery occurred the digital clock on the top floor of the bank said it was 1:45. In a case like that, I don’t think we’d demand proof as a precondition to admissibility that the clock was accurate, at least if the evidence is significant even without pinpoint accuracy; the jury could probably infer that the clock was likely reasonably accurate or it would’ve been corrected. (Though in my town there is a prominent digital clock, right where cars pull off a main road into one of the malls, that has been slow by about four minutes for many years). Of course, the prosecution might choose to supply such proof on its own initiative, and the defense may challenge the accuracy of the clock. But in this case, assuming the cop isn’t familiar with the machine from other encounters, is there enough of a basis for the trier of fact to infer that the machine is reasonably accurate? I don’t know. Certainly the prosecution would be better off presenting proof of accuracy. But I don’t think failure to do so is a confrontation problem.

States' amicus brief in Bullcoming

Thirty-three states and the District of Columbia have filed an amicus brief in Bullcoming. You can read it by clicking here. And here are some comments by me.

The brief is well-written. (Mike Chamberlain of the California Attorney General's office took the lead in writing it.) But in large part it is one more installment of the states' continuing effort to show that the consequences of fully adhering to the confrontation right would be intolerable. For that reason, it is particularly striking to me that the only times the state of Michigan is mentioned are to indicate that Michigan is one of the signing amici. The brief makes no attempt to address the data I have presented on this blog and discussed in my amicus brief showing that, though Michigan does adhere to the right in respects material to this case, no intolerable burden has resulted.

One might therefore ask a question that Justice Alito asked me at the Briscoe argument – "If this is not a burden on these . . . States plus the District of Columbia, why are they bothering to make this argument? Just for amusement?" I think the three-part answer I gave then still holds. First, a certain amount of solidarity encourages states like Michigan, which do not have a strong interest vested in the outcome of this case because they already comply with the rule demanded by the petitioner, to join with other states. Second, of course there is some additional expense in complying with the right, and the states would rather not be compelled to incur it. And third, they probably recognize that in some cases producing witnesses whom they would rather not produce will lead to evidence favorable to the defense.

Here are some comments on individual points in the states' amicus brief.

On p. 13, the brief says, "When scientific evidence is presented as an independent opinion formed by a qualified expert witness . . . that opinion is the evidence and that expert is the witness for purposes of the Confrontation Clause."" Obviously, the expert opinion is evidence – but so too is the factual information on which the opinion is based. And a statement reporting such information, made in anticipation that it will be used in support of prosecution, is testimonial.

On p. 14, the brief says: "Empirical data or observations underlying a conclusion . . . are distinctly non-testimonial, whether or not transcribed into a report." Data and observations are not testimonial. But a report of them is, if made in anticipation of prosecutorial use. The idea a report of pure information is less likely to be testimonial than is an opinion is very curious. What does an ordinary lay witness report? The information (data) that she has observed. It might be as simple as, "The light was red." We want pure data from lay witnesses, to the extent possible. That does not make their statements non-testimonial. The idea that factual assertions in the lab context are somehow beyond the concern of the Confrontation Clause appears to reflect a Roberts-style assessment of the reliability of the evidence.

On p. 16, the brief says that the data that underlie an opinion "will be meaningless to a layperson without the expert’s explanatory conclusion." True enough, often. But then it adds that the data "thus should not be considered 'testimonial.'” Taking into account once again that data are not testimonial, but a report of them can be, the conclusion does not follow. The brief offers an analogy to cases holding that the Bruton rule doesn't apply to an out-of-court statement that is not “incriminating on its face,” but becomes incriminating “only when linked with evidence introduced later at trial.” But these are not cases about what statements may be admitted against an accused; the point of Bruton is that the statement in question can be admitted against one defendant but not against another, and sot he issue is whether, or in what circumstances, the statement may be admitted in a joint trial and a limiting instruction will be a sufficient safeguard.

On p. 17, the brief says that raw data are just “premises for a conclusion” – OK – and that “[t]he conclusion invariably draws upon still other premises to become ‘evidence.’” That’s just playing with words. In all sorts of evidentiary contexts a conclusion depends on multiple evidentiary premises. Of course, the data are the case-specific pieces of information that make it possible to reach an opinion.

On p. 18, the brief says that “instrument-generated data are not witnesses. An instrument is not a person and cannot bear testimony.” True but irrelevant. Just as the data are not themselves testimonial, an instrument is not a witness. But it takes a witness to say what the machine did and how it came to do that. More than that – in Bullcoming the state presented a statement by the absent analyst saying those things – what test he performed, how he did it, and what the results were. That was a testimonial statement.

On p. 21, the brief tries to equate case-specific data with “the academic body of scientific knowledge upon which expert witnesses also rely for their opinion evidence.” It points out that “[s]cientific evidence is the product of collective and cumulative knowledge from an amalgam of different sources” and that an expert may offer opinions not based on first-hand observation. But assertions of scientific knowledge are not ordinarily testimonial. An assertion by a forensic laboratory technician about the alcohol content of a blood sample referred by the police for testing are very different. Similarly, on p. 22 the brief points out that in using a statistic as to how rare a given DNA trait is an analyst “must rely on many out-of-court statements of other persons . . . .” But those statements aren’t testimonial.

On p. 22 n.5, following Justice Kennedy in Melendez-Diaz, the brief says that it is not always easy to determine who “the analyst” is. As I pointed out in my amicus brief, I think this is the wrong question. Here, there was a statement introduced against the accused. If that statement was testimonial in nature – as I believe it was – then the author is a witness against the accused as to whom the confrontation right applies. For this reason, I think Bullcoming is a relatively simple case.

Beginning on p. 23, the brief discusses Fed. R. Evid. 703. It may well be that certain applications of that Rule are unconstitutional. That would not be amazing. This is not a long settled rule; rather, it is a creation of the late 20th century. But the Court doesn’t have to reach such questions here. The prosecution introduced a testimonial statement (the state court concedes it is testimonial) and the accused never had an opportunity for cross. Easy case.


Beginning on p. 26, the brief discusses “well-developed rules of evidence . . . designed to facilitate reliable scientific testimony.” This can’t add anything to the other arguments: If the statement is testimonial, Crawford makes very clear that – however useful other protections may be – there is no constitutional substitute for an opportunity for confrontation.

Justin McShane on the state's Bullcoming brief

Justin McShane of Harrisburg, PA, has attempted to comment on the State's brief, but each comment is limited to about 4000 characters, and he had more to say than that, so I'll post his comments here. I hope to add my own comments tomorrow, but meanwhile here is what Justin has to say:

Disclosure: I was one of the amici that filed a brief in support of Bullcoming with NACDL/NCDD.

Here is my analysis of the Respondent’s brief:

1. They spend in an inordinate amount of time trying to explain how GC EtOH determination is non-testimonial. (This is an argument that at least a majority (if not all) of the sitting justices at the time of M-D rejected in the case of GC-MS. For example, the least favorite fan of M-D in J. Breyer even states that such analysis is testimonial, he just believes that the application of the Confrontation Clause is situational— that lab reports are sufficiently reliable— and if the Confrontation Clause does not yield to “practical realities,” then the system may be over-taxed.)

1.1 They try to rationalize that this method of analytical measurement and testing was not made for the primary purpose of litigation in criminal court. (Why else was it analyzed?)

1.2 Failing that they try to say somehow that if it is unsworn and not in an affidavit that somehow it being “less formal” that the right to Confrontation based upon its contained assertions is not guaranteed. (Perhaps this meant to appeal to Thomas’s opinion of concurrence in M-D.)

1.3 If that fails, then they urge the Court to roll back to 1986 in Inadi (and really back to Roberts in 1980) in favor of the subjective “sufficient reliability” test and abandon the Davis rule (which they may do any way in Bryant), in favor instead of a notion that the applicable test should be whether or not it was generated in substitution of live testimony, then it would be testimonial (which begs the question that how does the particular facts in Bullcoming dictate a result of it being anything other than testimonial even if we now use this rationale which they urge to be adopted?)

1.4 But why stop to 1986 or even 1980, they next argue. Let’s go all the way back to the bail statute of 1554 and argue that Confrontation only applies to pre-trial ex pate judicial examinations of a witness in lieu of the witness’s appearance at trial. Confrontation doesn’t apply at trial at all. (Maybe trying to appeal to Scalia’s originalism, but forgetting he put together Crawford, Davis, M-D, and held the majority together with Briscoe)

1.5 Failing that that somehow the mere fact that the analysts are “public officials” and the computer is “non-adversarial,” and the mistaken belief that the analysis requires no interpretation whatsoever, then Confrontation is excused.

1.6 Failing that (perhaps attempting to seize upon the Scalia’s and Thomas’s perceived desire to narrow the Exclusionary Rule in modern 4th Amendment analysis), they argue that the right to Confrontation should be seen as a prophylactic rule (which is really amazing to me, because a classic definition of a prophylactic rule is one that gives more protection than such right might abstractly seem to require on its face, in order to safeguard that constitutional right or improve detection of violations of that right). Clearly, it is not prophylactic even as applied in the case of M-D or even Briscoe.

2. It is not until page 52 of the 59 page brief that we get to anything that remotely addresses the question presented and certified by the SCOTUS which is “Whether the Confrontation Clause permits the prosecution to introduce *****testimonial statements***** of a non testifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.” Note that contained within the certified question itself from the SCOTUS that the SCOTUS itself even states that it is a “testimonial statement.” In sum, they argue:

2.1 Retesting (by the same lab and probably the same analyst) is the same as cross-examination (which is really admirably ignorant of the process). In fact, they assert that retesting (by the same lab and probably the same analyst) is actually better and more effective than Confrontation of the particular witness, meaning the actual analyst who did the testing.

2.2 The sky will fall and evil doers will run amuck. Bullcoming, if decided in accordance with Crawford and M-D, will be an extinction level event just like the solar flare in the movie “Knowing.” (I am being facetious, but you argue the absurd with the absurd, I suppose)

2.3 Any old analyst is just as good as the particular analyst who performed the test even if that surrogate has no idea what actually happened in the testing itself.

2.4 It was all harmless error because let's face it he was drunk. If they finally fail, they ask that it be remanded for the state court to determine whether or not it was all harmless beyond a reasonable doubt given these facts.

That's my take on it.

[As an aside, I really appreciate the blog and your efforts to bring Confrontation and other important and timely issues to the forefront.]

Justin J. McShane
www.TheTruthAboutForensicScience.com
www.TheMcShaneFirm.com
www.PADUIBlog.com

State's brief in Bullcoming

The State has filed its brief in Bullcoming v. New Mexico, and you can read it by clicking here. I expect to offer some comments on it later.

A cert petition on the scope of unavailability

Along with local counsel in Maryland, I filed a cert petition this week in Benitez v. Maryland, concerning how unavailability should be determined for purposes of the Confrontation Clause. You can see the petition by clicking here. You can read the decision that it seeks to review (by the Maryland Court of Special Appeals), by clicking here.

Top-side amicus briefs in Bullcoming

Top-side amicus briefs – that is, the ones in support of the petitioner – were filed yesterday in Bullcoming v. New Mexico. Here they all are.

To see the brief filed by five evidence professors, under the lead of Jennifer Mnookin, click here.

To see the brief of 26 defender organizations, led by the Public Defender Service for the District of Columbia, click here.

To see the brief of the National Association of Criminal Defense Lawyers, the National College for DUI Defense, and the New Mexico Criminal Defense Lawyers Association, click here.

To see the brief of the Innocence Network, click here.

And to see the brief that I filed, click here.

Is there a multi-witness problem with respect to forensic lab tests?

While litigating Briscoe v. Virginia, I conducted – through a research assistant, Andrew Mackie-Mason, now a student at the University of Chicago – a study of transcripts of Michigan drug trials. Michigan adheres to constitutional procedures with respect to forensic lab results; it does not allow prosecutors to prove such results, over the objection of the accused, by introducing the lab report without presenting the testimony, subject to confrontation, of the author. The principal aim of that study was to find out, given this condition, how often a lab witness actually had to appear at trial. The results – reported in my main brief in Briscoe – showed that in the great majority of cases no lab witness appeared. In some cases, the state presented no evidence of lab results; more frequently, the state presented lab results by introducing a written report, the prosecution not wanting to bring the author of the report in as a live witness and the accused consenting to admissibility of the report. The study also demonstrated that when a lab witness does testify at trial, the defense nearly always cross-examines.

In the pending case of Bullcoming v. New Mexico, No. 09-150, the state presented a forensic lab report and also live testimony of a witness from the lab – but the witness did not perform the test and had no personal knowledge of the conduct of it. Like the petitioner in Bullcoming (represented by Jeff Fisher), I believe this procedure was unconstitutional. Anticipating that, as they have done in Melendez-Diaz and Briscoe, many states will contend that adhering to constitutional procedures would be prohibitively expensive, I have, through a group of student research assistants, conducted a more extensive study of Michigan trials. (Let me give due credit right off: The students who did the work are Wencong Fa, Tasha Francis, Justin Gillett, Regan Nunez, Matthew Parelman (who assembled and organized the data), Kimberly Parks, Luke Rachlin, Joe Reiter, Liza Roe, Alex Su, Sean Stiff, and Anna Walker.) This study was primarily intended to determine, in a state that recognizes that forensic laboratory witnesses are not exempt from the accused's right to be confronted with a witness who made a statement admitted against him, whether there was a significant multi-witness problem. That is, is a chain of witnesses from the lab routinely necessary to prove the results of a forensic lab test? The answer is resoundingly negative.

As in the prior study, we used transcripts provided by the State Appellate Defenders’ Office (“SADO”) – my gratitude to Jonathan Sacks, Deputy Director of the Detroit office of SADO, and to other members of the SADO staff, for making this possible. SADO, which is appointed in a random selection of approximately 25% of indigent trial appeals from every county in the state, maintains electronic copies of trial transcripts from its cases. In this study, the students examined all the trial transcripts to which they were able to get access in the Detroit office in three categories: trials involving drug charges from February 14, 2000 to July 15, 2010; trials involving charges of operating under the influence of liquor (OUIL) from February 3, 2003 to April 20, 2010; and trials involving rape charges with penetration (first- and third- degree criminal sexual conduct) spanning from September 15, 1997 to November 25, 2010. I chose drug cases because they generate more presentations of forensic laboratory tests than any other kind. I chose OUIL cases (which we have referred to more informally as DUI) because Bullcoming itself is a case of this type and because forensic lab results are commonly presented in them. And I chose rape cases involving penetration because they are probably the type of case in which DNA tests – a particularly complex form of lab testing – are most frequently presented.

The detailed results of the study are presented on a spreadsheet that you can examine by clicking here. Here is a summary of the results.

The students examined a total of 154 drug cases. In 116 of these, the prosecution presented lab results presented at trial. But in only 59 of these cases did lab analyst actually testify at trial. In 49 of those cases, only one lab witness testified at trial, and never did more than one lab witness testify at trial with respect to a single test. In nine trials, two lab witnesses testified to two separate tests, and in one trial four lab witnesses testified to four separate tests. So all in all, this makes 71 lab witnesses in 154 trials, or about .46 per trial.

Of the 55 DUI trials examined, 41 included the presentation of lab results at trial. In 26 of these cases, one or more lab analysts testified live. In four cases, two witnesses testified live at trial, and there were never more than two. In only one of these four cases did the two witnesses testify with respect to a single test. (In another case, not included among those four, three analysts, in addition to the one who testified live at trial, testified via video-conference. Together, the four witnesses in that case testified to two tests.) In all, 30 witnesses testified live at these trials, for an average of about .55 per trial. I believe there is a ready explanation for why this number is somewhat higher than in drug cases. Very few DUI cases go to trial. Given the relative simplicity of these cases, when one does go to trial there is a rather high probability that it is because the defense believes that for some reason the lab evidence is problematic.

Of the 104 rape cases examined, 25 included DNA lab results presented at trial. These are, of course, particularly serious prosecutions, and DNA testing is more complex than the other types studied. Therefore, it is not surprising that, as compared to the other two classes of cases, analysts testify live at a higher percentage of the trials at which lab results are presented and that it is more common that more than one lab witness will testify at trial with respect to a given test. (Usually when this happens, they are testifying to different phases, one to screening for DNA and the other to profiling; given that the ultimate forensic result is one result (the identification of the DNA) – in contrast to the identification of two separate substances or two different tests of the same condition – it is appropriate for present purposes to consider this one test.) Of the 25 cases, 21 trials included live testimony by lab witnesses – one witness in 12 cases, two witnesses in eight cases, and three witnesses in one case. That is a total of 31 live witnesses in the 104 trials, or about .30 witnesses per trial; if we restrict our attention to the 25 cases in which DNA results were presented, the average is 1.24 witnesses per trial.

The Michigan appellate courts have been very good in insisting that a lab report cannot be introduced, over the objection of the accused, through the testimony of a surrogate witness who had no personal knowledge of the matters reported, and I understand from discussions with SADO lawyers that only rarely do Michigan prosecutors violate this rule. To double-check, I asked the students to look at the appellate opinions in the cases they examined to see whether a violation of the confrontation right was claimed. (Given the way SADO's briefs are filed, it was far easier finding the opinions rather than the briefs themselves.) In some of the newer cases, the court of appeals has not yet ruled (indicated by "Not found" in the last column on the spreadsheet), but in well over 200 of them it has, and in only one of those, People v. Frey, 2009 WL 2244521 (Mich. App.), appeal denied, 775 N.W.2d 788 (Mich. 2009) (marked in red on the spreadsheet), did the court discuss a claimed Confrontation Clause violation. (That court held there was no plain error when the analyst who performed part of a DNA test did not testify at trial – but the analyst who did testify at trial was present while the test was performed.) So it appears that only very rarely has there been what even the excellent, aggressive SADO lawyers believe is plausibly a confrontation violation.

I do not want to over-claim for this study. To make it feasible in a limited amount of time, I have relied on a large group of students, and my instructions developed somewhat as we learned more. I am sure, therefore, there is some variability in the way the cases have been reported. (Some, for example, affirmatively noted when lab results were admitted by stipulation, and some did not.) I suppose some small inaccuracies are inevitable. But I think the basic results are very strong, and would not be materially altered by discovering small glitches: In Michigan, the defense often consents to the presentation of lab results without the need for live testimony. In drug and DUI trials, even when a lab witness testifies at trial, there is virtually never more than one such witness per test, and when DNA results are presented through live testimony there is virtually always either one or two witnesses.

As in the prior study, what we cannot tell from this data is how often live witnesses are presented because that is the preference of the prosecution; for all that appears from the data, it could be that virtually always when a live lab witness testifies it is because the prosecution chooses to bring the witness in.

Petitioner's Brief and Joint Appendix in Bullcoming

Jeff Fisher, for the Petitioner, has filed the opening brief on the merits in Bullcoming v. New Mexico, the case involving a surrogate witness to a lab test. You can read it by clicking here. And you can see the Joint Appendix by clicking here. Amicus briefs supporting the Petitioner are due on Tuesday, December 7.

Retaliatory killing and forfeiture

A couple of people have pointed out to me the decision of the Sixth Circuit yesterday in United States v. Hendrickson. There are numerous interesting features of the case, but I'll focus on just one: The defendant was charged with killing two people in retaliation for providing information against him in a prior case. In trying to gain admission of the victims' statements in this case, the Government apparently did not even make a serious attempt to contend that forfeiture doctrine does not apply -- because the killings could not have been designed to prevent testimony in that prior case. I suppose that's right as a strict matter of reading the Giles case, and perhaps that's the conclusion that the Supreme Court would come to if it were to look at this issue. But to me, it's just one more case highlighting the misfortune of Giles. The insult to the integrity of the judicial system -- on which Giles, unfortunately in my view, places great weight -- does not seem significantly less when a person kills in retaliation for testimony than when he kills to prevent it.

Audio recording in Bryant

I just learned from Scotusblog that the Supreme Court is now making audio recordings of arguments available the week of argument. You can hear the argument in Bryant by clicking here.

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.