Cert petition in a burden-shifting case

In several posts, I have discussed, and railed against, statutes that shift to the accused the burden of producing a prosecution witness, typically the author of a lab report. Yesterday, I filed a cert petition raising this issue, and seeking 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, in Briscoe and Cypress v. Virginia, by clicking here.

Failure to answer questions on cross

In United States v. Owens, 484 U.S. 554 (1988), the Court – per Justice Scalia, who also wrote Crawford – held that the Confrontation Clause permitted introduction of a prior accusation made by the victim, Foster, even though Foster did not remember the incident itself or most relevant events since then. I have long thought that Owens was wrong in stating that the accused had the benefits of cross-examination by showing that Foster had a “bad memory.” Foster’s memory was bad because his head was bashed in during the assault being tried; the fact that he could not remember the incident at the time of trial said rather little about his ability to remember at the time of the prior statement, when he purported to remember. It certainly did not provide an adequate substitute for a full cross-examination, which might have probed his opportunity to observe who hit him and any reasons he may have had for speculating that the assailant was Owens. I believe the result in Owens – admitting the statement – can be justified on a forfeiture theory, but only if the state prevails on the issue now before the Supreme Court in Giles – that is, only if the accused may forfeit the confrontation right by serious misconduct that predictably renders the witness unavailable to testify even though that effect was not a purpose of the misconduct. But taking Owens on its own terms, how far does it go? Foster did at least remember making the prior identification. But suppose the witness does little more than sit on the witness stand and take the oath. Would that be enough, given the dictum in Crawford that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements”? 541 U.S. at 59 n.9. (I think that’s wrong; see my article Prior Statements of a Witness: A Nettlesome Corner of the Hearsay Thicket, 1995 Sup. Ct. Rev. 277 – but let’s put that aside for now, too.) What constitutes “appear[ing] for cross-examination at trial”?

Blog reader Sylvia Ornstein, a public defender in New Jersey, has brought to my attention the pending case of State v. Nyhammer, 396 N.J. Super. 72, 932 A.2d 33 (A.D. 2007), which she won in the Appellate Division and is now on review by the state supreme court. The defendant is accused of sexual abuse of a child, A.N., who made a videotaped statement to investigators for the prosecutor describing an incident of abuse. According to the court,

At trial, A.N., then age eleven, testified. Despite many attempts by the prosecutor, she was non-responsive to many questions. She was unable to testify that defendant touched her inappropriately, despite leading questions, although she did write his name on the blackboard. The transcript of her testimony discloses many “no response” notations instead of answers to questions. When the prosecutor used anatomically correct dolls, asking A.N. to indicate where she had been touched or what part of a boy's body she had seen, A.N. made no response. Further, A.N. was unresponsive to the following questions: “has [defendant] touched you anywhere?” and “can you show us what they touched you with on your private area?”

On cross-examination, defense counsel could not elicit recollections from A.N. on questions going to the heart of the charges. She did not describe on direct or cross-examination the acts described in her videotaped statement. Neither did she corroborate her accusation that defendant engaged in sexual activity from the videotaped statement.

Referring to Owens, the court said:

A.N.'s complete inability to present current beliefs about any of the material facts, or to testify about her prior statements, is distinguishable from a situation where a trial witness for the prosecution simply has a bad memory.

Thus, admission of the statement was error.

I think this is the right conclusion. This was a failure, or inability, to testify, not simple bad memory. And I don’t think the proper result would change if the child said, “I don’t remember” instead of declining to respond altogether. If cross was adequate in this case, then I don’t see how it can ever be deemed inadequate so long as the witness is able to go to the witness stand and take the oath. But if that is all the witness is able to do, how can one reasonably say the accused has gotten the benefits of cross-examination? All the accused has been able to show is that at this moment, in these circumstances, the witness is no better able to answer questions than is a corpse.

I'd be curious to know whether readers are familiar with other cases presenting similar facts.

Transcript of Giles argument

The transcript of the Giles argument is available through SCOTUSblog -- actually, it was avialable yestgerday -- and you may see it by clicking here.

Further thoughts on the Giles argument, from David Salmons

David Salmons of Bingham McCutchen LLP, lead counsel on the DV LEAP amicus brief in Giles, hasalso taken up my invitation to post thoughts on the argument. here they are, without editing by me.

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I too attended the argument yesterday in Giles. The Court spent considerable time on the question of whether the common law dying declaration cases preclude California's application of the forfeiture by wrongdoing doctrine in the Giles case. It seems to me the most persuasive reason for why they do not is because the common law treated dying declarations as a special category of evidence, and subjected statements made after a potentially fatal wound had been suffered to particularly exacting standards of reliability. If a purported dying declaration did not satisfy those standards, it was excluded -- not because the admission would violate the confrontation right, but because the statement was insufficiently reliable given the special and dramatic nature of dying declarations and the risks such statements could overly influence the jury. See DV LEAP Amicus Br. at 17. Because dying declarations were a distinct category of evidence with their own rules for admissibility, the common law cases involving statements that do not satisfy the standards for admission as dying declaration do no go on to examine the evidence under the forfeiture doctrine. But that fact tells us nothing about the application of the forfeiture doctrine to cases that do not involve dying declarations. The dying declaration cases simply did not involve the forfeiture by wrongdoing rule at issue in Giles.

But, importantly, while the dying declaration cases are distinguishable, they are also consistent with the forfeiture doctrine adopted by California. The best example of this is McDaniel v. State, 1847 WL 5865 (Miss. Err. & App. 1847) -- an early American case. After holding that the standards for a dying declaration were satisfied, the Court rejected the defendant's claim that admission of the statement would nonetheless violate his confrontation right, expressly relying on the forfeiture by wrongdoing principle for why confrontation was not violated. McDaniel therefore supports the view that the dying declaration exception incorporates and is consistent with California's view that the forfeiture-by-wrongdoing doctrine satisfies confrontation concerns even outside the traditional witness-tampering context, even though the dying declaration exception also includes additional reliability limitations above and beyond the confrontation right that are not at issue here.

Reflections on the historical discussion at the Giles argument

I attended the argument in Giles v. California yesterday. The question, for those who have not been following closely, is whether an accused forfeits the confrontation right by murdering a witness, even though he did not do so for the purpose of rendering her unavailable as a witness. I think the answer is clearly affirmative – but now we will have to wait to see what the Court does. I present below a first set of my reflections on the argument. I will follow up tomorrow with some other reactions. I will also post links to the transcript and to the oral recording when they become available.

Giles’ counsel (Marilyn Burkhardt) gained some traction with an historical argument that was emphasized especially in the amicus brief of the National Association of Criminal Defense Lawyers – that if forfeiture was as broad at the time of the framing of the Sixth Amendment as California contends, there would have been no need for a dying declaration that applied only when the victim believed death was imminent. Don DeNicola, for the state, attempted to respond that forfeiture addressed the confrontation concern, and there was a separate hearsay obstacle addressed by the dying declaration exception. But in response to questioning, he pretty much admitted that this was an anachronistic view, because there was no sharp distinction then between a body of confrontation law and one of hearsay law.

One possible response, of course, is to play down the importance of framing era history. Justice Breyer suggested this approach – to the predictable opposition of Justice Scalia (who mistakenly said that Justice Breyer dissented in Crawford). Justice Breyer suggested various respects in which the law of testimony has changed since the framing era, and wondered whether these were binding today. A problem pointed out by Justice Scalia is that these rules – all rules of incompetency, if I heard right – didn’t have much to do with the confrontation right. Nevertheless, it will be interesting to see to what extent the Court feels it is free to decide the case on some basis other than asking what a 1791 court would do in similar circumstances. My own view is that Crawford gained great power by showing that its fundamental conception of the confrontation right was consistent with practice not only at the framing era but for many years before and even after – but when we get down to more detailed issues that the text of the Confrontation Clause does not address the search for historical guidance becomes much less significant.

Having said that, I believe that Giles’ historical argument can be met effectively on its own terms. I was not surprised that the state did not raise what I believe to be the best answer to that historical argument (not coincidentally, the answer I presented in my amicus brief), because that answer involves recognition that the state has an obligation, if it wishes to invoke forfeiture doctrine, to do what it reasonably can to preserve the confrontation right. I’ll summarize my view briefly here.

Suppose in the framing era a defendant cast a fatal blow but the victim lingered for some time in a communicative state. If the authorities took a deposition of the victim, standard practice was to conduct the examination in the presence of the accused – and if the accused was not present, the deposition could not be admitted against the accused, even though the victim later died and so was obviously unavailable to testify at trial. But if the victim was aware of impending death when she made the statement, then absence of the accused was excused. Now of course the rationale usually given for the impending death cases was that the imminence of death was a guarantee of reliability akin to an oath. But the results reflect these principles:

1. Even though a victim may be dying, the authorities must, subject to proposition 2 immediately below, do what they reasonably can to preserve the confrontation right.

2. If the victim is aware that death is imminent, then the obligation to preserve the confrontation right does not apply.

And the most sensible rationale for this pair of principles is that the accused forfeits the confrontation right by murdering the witness, but only to the extent that the right cannot be reasonably preserved – and the point at which the victim is aware of the imminence of death marks the point at which, at least in the framing era, it was no longer deemed feasible and humane to examine the witness subject to confrontation.

In Crawford, Justice Scalia crafted a doctrine that adhered to the results of most of the precedents even though not their rationales; even to a strict originalist, it should not be terribly upsetting to do the same with respect to framing-era cases.

Justice Scalia asked Mr. DeNicola whether he had even one framing-era case in which a court had held the confrontation right forfeited in the absence of a demonstrated purpose to render the witness unavailable. Mr. DeNicola gave one important response – there are no cases clearly holding the other way, and the principle guiding forfeiture is broad enough to apply even in the absence of such a purpose. But I think he also could have given another, more satisfying response: “Yes, there are many such cases in which the accused murdered the victim, who made a statement shortly before dying, in circumstances that did not feasibly and humanely allow for confrontation. They are called dying declaration cases, and the rationale then given was that the statements were reliable, but the more persuasive rationale, the one that fits better with Crawford, is is that these were really instances of forfeiture.”

Thoughts from Joan Meier on the Giles argument

Giles v. California was argued today. I attended, but I've been traveling most of the time since, and it won't be til later tonight or tomorrow that I'll be able to post my reflections on the argument. Meanwhile, I invited Joan Meier, of George Washington Law School and DV LEAP, to offer her thoughts. They are presented below, without editing by me. I'll be happy to post reactions from anybody else who was at the argument, on any side of the issue.

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Today's oral argument in Giles - concerning whether a defendant forfeits his confrontation right by killing the witness for reasons other than to silence her testimony - provided an interesting and frustrating glimpse into the Court's wrestling with the implications of originalism for its confrontation jurisprudence. Several points emerged, for this writer:

1. History does not answer the question presented in this case. Neither side can cite any Framing-era case which addressed the question raised here - of whether a defendant forfeits his right to confrontation under the "forfeiture by wrongdoing" doctrine, when the wrongdoing did not involve intentional witness-tampering. The State does, however, have one case from the mid-18th-century which affirmatively applies forfeiture in such a context (which Petitioner repeatedly fails to acknowledge). Smeade

Petitioner's argument that the fact that the only forfeiture cases in the Framing-era concerned witness-tampering means that those are the only cases we can apply it to today, grossly over-reads history. Merely because the Framing-era courts did not face this problem, and therefore there is no caselaw on it, cannot mean that we, who do face this problem, can do nothing about it.

Petitioner claims incorrectly that the common law courts required specific intent. There is not only no such requirement in the common law forfeiture cases, several of them actually find witness-tampering on facts that barely indicate a causal link to the defendant, let alone a specific intent. But the more important point - on which we can agree - is that framing-era courts seem to have only applied forfeiture in witness-tampering contexts. The question is - what does the absence of other cases (positive or negative) mean? If it was so clear that forfeiture could not apply outside the witness-tampering context, surely there would be a case, or two or three, saying so. In this writer's view, the complete absence of such caselaw indicates something quite different: That framing-era courts simply did not face this problem.

How/why would this be? For three reasons. First, domestic violence was not dealt with as a crime in the Framing-era's legal system. There would thus not be any police reports or comparable reports, of battering prior to domestic homicide. When a wife was murdered, authorities may have suspected the husband, but they would neither have had evidence of prior wife-beating, (certainly not statements to police), nor would they have been likely to have connected the wife-beating to the murder. Even in this country, the connection between wife-beating and murder was not understood until after the OJ Simpson case. At that time, I had conversations with colleagues - who knew me as a domestic violence lawyer - about the Simpson case. They could not understand why this case was of importance to my work on domestic violence. The unspoken and widespread assumption was that domestic violence is about hitting. Murder was different. We may have a better understanding now, but it was not so long ago, that we lacked it.

Returning to the the framing-era, the triviality with which wife-beating was perceived is aptly captured by John Adams' blythe response to his wife's impassioned plea to include some protection for wives in his "new code of laws": "I cannot but laugh... Depend upon it, we know better than to repeal our masculine systems... [we must avoid] the despotism of the petticoat." It is inconceivable that in that culture, courts or prosecutors would have seen a logical or legal link between wife- beating and murder. One was trivial and laughable - the other a serious crime.

A second reason why framing-era courts would not have faced the question of past hearsay presented in this case, is that they also did not face any other types of cases in which a history of criminal behavior might precede a homicide. Those cases are gang cases, drug cases, and mafia cases. Do any of these appear to have historical resonance?

Third, even assaults and threats between men were minimally prosecuted in Framing-era courts. Assault and battery was "for the most part treated as a civil matter between individuals..." Ruth Bloch, The American Revoslution, Wife Beating, and the Emergent Value of Privacy, Early American Studies, Vol. 5, No. 2, Fall 200, pp. 235-236.

In short, framing-era courts did not regularly prosecute assaults or threats, did not have reports of assaults or threats in the legal system, and would not have logically connected past assaults to a murder. They therefore had no occasion to consider whether a df should forfeit his right to confront the witness when he commits prior criminal wrongdoing which causes the witness not to appear. The Petitioner's (and Scalia's) assumption to the contrary simply misconstrues and over- simplifies history in order to draw inferences that are not supportable by the historical evidence.

2. Finally, lacking direct cases, if we wanted to surmise (or "infer," as the Court has suggested) what the Framer's intent might have been on a question like this one, there are at least two reasons to suspect that Framing-era courts would have applied forfeiture in a case like this, had it arisen (if they operated in an evidentiary world like ours, where, unlike theirs, much hearsay is admissible).

(1) The dying declaration cases, as the State's lawyer argued, are actually indicative of the fact that confrontation was forfeited in cases where the df had killed the witness - if the witness' statements met the dying declaration standards. Since dying declarations of other witnesses were not admissible - presumably, because the df's confrontation rights precluded it - it is clear that the admission of dying declarations in cases where the df killed the witness, represents an implicit recognition that confrontation is forfeited in that context.

(2) The children's rape cases - in which the courts routinely admitted children's hearsay before they could be sworn - and even after they began to be sworn, until at least 1788, continued to admit children's hearsay, for "necessity" and fairness, because no other evidence could prove the crime, which was committed behind closed doors, in secret, against a non- testifying victim - are strong support for inferring that Framing-era courts would have been sympathetic to the need to admit a murdered victim's past statements - IF they existed in a world where hearsay was frequently admissible, unlike their own.

J. Scalia, like the Petitioner, seems to believe that prosecutors and courts would have fallen back on forfeiture by wrongdoing in those dying declaration cases, had it been understood as the broad doctrine the State now argues for. Hence, they argue, the dying declaration doctrine would have been totally subsumed by forfeiture and would have been unnecessary. But this is another instance of mistakenly projecting modern norms and practices onto an earlier era. In those common law courts, virtually no hearsay ever came in. Only dying declarations, a narrowly cabined category, were admitted, and only as against the killer. Dying declarations were their own little legal box - because they were seen as unduly powerful and prejudicial - therefore, if a statement did not meet the strict standard, it did not come in. Forfeiture could not supply an independent basis for admitting something that failed to meet that category. Credit for this argument - which he can state far better - goes to David Salmons, the pro bono lawyer on the DV LEAP brief.

3. It seems to me that this case is emblematic of the perils and pitfalls of superficial originalism. In addition to the mistaken assumptions discussed above that fuel the "strict" view of what history "requires" here, some deep fault lines in the new jurisprudence are emerging. Crawford said that evidence standards and constitutional (aka confrontation) standards must be treated as distinct. Crawford also said that we must emulate history, with respect to confrontation standards. But framing-era courts treated confrontation and evidence concerns as merged. The implications of this are undoubtedly variable from case to case, and hard to spin out - and ultimately, in the eye of the beholder. There simply is no definitive, objective, nonarguable "meaning" that can be drawn from an ambiguous history. (Hence we spend untold hours speculating about what the Framers would have thought about something they did not think about.) Originalism of this sort, then, becomes merely a mask for values and policy goals, while disclaiming any such values and policies. I prefer a more honest discussion of policy and constitutional values.

A preview of Giles

The ABA's Preview of United States Supreme Court Cases asked me to do a write-up of Giles, and you can see it by clicking here. Under the Preview's format, the title of the piece is supposed to be a question of 14-18 words, and I got just under the wire with Does an Accused Forfeit the Confrontation Right by Murdering a Witness, Absent a Purpose to Render Her Unavailable?

Written opinion in Jensen on the "dying declaration" point

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

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

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

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

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

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

Reply brief in Giles filed (updated April 12)

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

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

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

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

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

Bottom-side briefs in Giles

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

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

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

Illinois and 36 other states, by clicking here;

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

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

Happy reading!

State's brief in Giles

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

Cert granted in Melendez-Diaz

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

“If anything happens to me . . .”

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

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

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

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

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

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

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

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

Shifting the Burden, Take 3

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

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

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

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

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

NACDL brief in Giles

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

Supreme Court decides that states may apply Crawford retroactively

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

Petitioner's brief in Giles filed

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

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

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

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

More cert petitions

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

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

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

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

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

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

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

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

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

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

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