Thinking past Clark: Make that Due Process demand now! (And what to demand.)

Let’s assume that the Supreme Court holds in Ohio v. Clark that there was no Confrontation Clause violation when the trial court admitted evidence of three-year-old L.P.’s out-of-court statement, even though L.P. not only did not testify at trial but was held incompetent to do so.  In light of the argument yesterday, I think no one will say that assumption is unrealistic.  But the argument also indicated that there may be a Due Process problem with introducing evidence of this sort without the accused having any remedy at all.  Let's also assume for the sake of argument that the Court doesn't use Clark itself as the vehicle to clarify what role the Due Process Clause might play in this realm.

So my suggestion for defense lawyers with clients accused of child abuse, especially of very young children – or more generally, in cases in which it appears the statement of a young child may be significant evidence: Starting right now, make a Due Process demand.  And don’t wait until trial or immediately before trial.  Make it as soon as you know that the child has made a statement that the prosecution is likely going to want to introduce at trial, even if charges have not been brought.  You might prevail.  At least you will have preserved the issue, and in the strongest possible light.

Let’s suppose a case just like Clark arises.  The plausible Due Process contention is not that L.P.’s statement is so unreliable that it would violate Due Process to admit it.   Lots of evidence that is readily admitted is unreliable – including eyewitness testimony!  Reliability is not a useful threshold for the admissibility of evidence.  Triers of fact are supposed to consider all sorts of evidence, some of which may be very unreliable, and make a finding based on the totality of all that evidence.  L.P.’s statement is clearly not reliable, but neither is it so worthless and prejudicial that admitting it is in itself a Due Process violation.

Readers of this blog will not be surprised to know that I think the best argument is to claim the procedural rights outlined in the amicus brief that Steve Ceci and I submitted and the law review essay on which it is based.  Defendants should argue, in essence:

It would be fundamentally unfair, and a violation of the Due Process Clause of the Fourteenth [or Fifth, in a federal prosecution] Amendment [and of the similar clause of the state constitution] if the child’s statement were offered against my client at trial without us having any right to examine the child at all.  Adverse examination at trial, the usual remedy with respect to adults, is [fill in:  “impossible,” if a court has held, as in Clark, or clearly would hold that the child is incompetent to be a trial witness; “not a plausible or satisfactory alternative,” otherwise].  Accordingly, we must have another remedy, as we would in case of a nonhuman source of evidence – that is, to have a qualified expert of our choosing examine the source of the evidence.  In this case, that expert would be a psychologist who is qualified by training and experience to conduct forensic interviews.  The aim of the interview would be to assess the child’s truth-telling inclination and ability, both in general and with respect to the matter asserted in this case – and in particular how it may have come about that the child made the assertion even though it was not true.  It is important that this interview happen quickly, to avoid the effects further suggestion and of corruption and deterioration of memory.  I recognize that the interview must be conducted according to a protocol agreed on with the prosecutor or prescribed by the court.  [Our essay suggests standards that such a protocol might include.]

I think it is important to make this demand as soon as possible because one of the advantages of this procedure is that the interview can be held long before trial, shortly after the child makes the initial statement.  Accordingly, if the demand is made early but denied, the accused will be in the best possible position to argue that the denial was prejudicial.  I would therefore make the demand even if no formal prosecution has begun:  Even assuming governing criminal procedure rules don’t have a readily available mechanism for getting a court-ordered interview at that time, the accused can make the demand of the prosecutor or of the police, who are in a position at the very least to try to secure the presence of the child for the interview.

I think it’s important that the interviewer be well qualified and of the defense’s choosing, that the defense ought to be able to review the case with the expert before the interview and discuss possible lines and methods of inquiry, and that the interview be videotaped.  Our essay suggests other standards as well.  I don’t think that the defendant ought to have a right to demand during the interview that the interviewer ask certain questions – this is not cross-examination – but of course that is one issue among many that would ultimately have to be decided.  The big-ticket issue is whether the defendant has a right to the interview at all.  I do believe fundamental fairness requires an affirmative answer.

If enough defendants make a demand of this sort, some of them will be granted and some will be denied.  Ultimately, the question of whether, in at least some circumstances, the accused has a right to such an interview will reach and be decided by the Supreme Court.

The Clark argument

Update, March 3:  Here is a link to the transcript.

I attended the argument in Ohio v. Clark today.  I thought the case was well argued on all sides (including by Mathew Meyer for the State; he was put on the case, as I understand it, only seven days ago).  Here are a few impressions.

The State got nowhere with its argument that there was no confrontation violation because the preschool teacher was not an agent of the state.  Justice Scalia said it was "clearly not true" that a statement could not be testimonial unless made to an agent of the state. Meyer responded that Crawford implies that the recipient of the statement must be a government agent, but he did not press the point.  It was never raised again.

Justice Scalia also said that the question was one of solemnity, and he asked, apparently rhetorically, how could this child ever have testimonial intent.  Later Justice Kagan said something like, "We can all agree that a 3-year-old child doesn't have testimonial intent."  Jeff Fisher, for Clark, made the argument as well as it could be made that the child may have understood punishment.  (In fact, I don't think that L.P. could understand that his words to a preschool teacher might wind up in punishment of Dee.)  But I think that no one on the Court indicated a view that the presumed intent or state of mind of the child would lead to considering L.P.'s statement testimonial.

Some of the justices clearly thought the case -- or at least cases of this sort -- do not end with the question of whether the statement is a confrontation violation.  Justice Kennedy first raised the question of whether there was a due process violation.  Justice Kagan asked at one point "is there another inquiry?"  I'm not certain, but she may have been suggesting that a due process inquiry was appropriate.  towards the end of the argument, Justice Breyer, saying that this case presented a"a tragedy either way," said explicitly that it was "tailor-made for the Due Process Clause."  And shortly after that Justice Sotomayor said something to the effect of, "Are you raising the right challenge?  Is this really the Confrontation Clause?"  One particularly interesting aspect of the argument, as suggested by these comments and others, was that although none of the justices seemed ready to say this was a confrontation violation neither was any of them saying, "There's no problem here; just admit this evidence for what it's worth."

Fisher indicated that in his view there was a good deal of flexibility in his view of what the Confrontation Clause required here. He said we start with Maryland v. Craig, and he indicated that he did not think it was necessary that the questioning be actually conducted by a lawyer.    I think Fisher was trying to make the softened-cross that he advocates look a lot like the forensic interview that Steve Ceci and I have advocated. In a post last night, I compared the two approaches.  Among the advantages I see to the quasi-witness approach is that it avoids distorting the Confrontation Clause, in two respects, really -- no need to stretch the Clause to reach statements by a 3-year-old, and no need to diminish the impact of the Clause when it does apply.  The justices' comments today indicated that they also see the virtue of applying a due process standard in this realm.

Justice Kagan posed a hypo that was very similar to the one I presented in a post a couple of weeks ago: Imagine similar facts but L.P. were 13 and the teacher told him of an obligation to report.  (I used an 18-year-old without the explicit statement.)  She thought the statement would be clearly testimonial, Meyer indicated that it might be, and nobody indicated a contrary view.  Later, Justice Alito noted how different that hypothetical was from the actual case.

Finally, some of the justices indicated a good deal of discomfort with the "primary purpose" test, in part because of the difficulty of separating out purposes.  It was by no means clear that this is the case that they will choose to use to clean that up.

I'll have more to say about the argument later, but on the whole I was heartened; I think the aspects on which I'm reporting here suggest that, whatever the outcome of this case, the Court may move doctrine in a productive direction.

Comparing the Quasi-Witness and Craig Approaches

I have previously posted the amicus brief that Steve Ceci and I have submitted in Clark and an essay about to be published in the University of Chicago Law Review.  Both present what we call a quasi-witness approach in dealing with statements by very young children.  Under this approach, the accused does not have a right to cross-examine the child at trial, but does have a right to have the child examined out of court by a qualified expert pursuant to a court-approved protocol.  Under the Supreme Court’s decision in Maryland v. Craig, child witnesses who appear, on the basis of an individualized showing, to be likely to suffer trauma as the result of confronting the accused may be examined out of the courtroom, with only the attorneys present.  So there are some similarities in practical effect between our approach and that of Craig: Both allow for some form of examination out of court rather than in court.  But the approaches are very different both theoretically and practically.  In this post, I will argue that our approach is clearly superior on both scores.

1.  It’s useful to note at the outset that the majority opinion in Craig, a 5-4 decision, was written by Justice O’Connor, one of the two members of the Court who did not sign onto Justice Scalia’s majority opinion in Crawford v. Washington, and it generated a bitter dissent by Justice Scalia.  Not surprisingly, it is the dissent in Craig, not the majority opinion, that bears a closer resemblance to the majority opinion in Crawford.  Justice O’Connor’s Craig opinion, as a product of the pre-Crawford regime of Ohio v. Roberts, is filled with balancing language; it explicitly balances the right of confrontation against other values, most notably the protection of children, and it concludes that “face-to-face confrontation” – what Justice Scalia says is merely “confrontation” – is sometimes dispensable.  Naturally, this approach makes Justice Scalia apoplectic.  And in Crawford he wrote for the Court in establishing a view of the Confrontation Clause that is very much in keeping with the views he expressed in his Craig dissent: The Clause establishes a procedure for giving testimony, and it operates categorically, not by weighing costs and benefits case by case. 

The Supreme Court had turned down opportunities to decide whether Craig survives Crawford, so they have coexisted for a decade.  And they do answer different questions: Crawford says when a person should be considered to be witnessing for purposes of the Confrontation Clause, so that the confrontation right attaches, and Craig addresses the procedures that may be used to satisfy that right with respect to certain children.  Nevertheless, a system that requires the continued viability Craig in the Crawford era is theoretically uncomfortable at best.  This is especially true because what Craig takes away is the historical heart of the confrontation right – the right to be “face to face” with the witness.

By contrast, our approach fits the categorical nature of Crawford perfectly.  The confrontation right gives the accused a categorical right to be confronted with adverse witnesses, subject only to the qualifications that it may be waived and forfeited and to a possible sui generis exception, as Crawford termed it, for dying declarations (which I think ought to be considered instances of forfeiture, but that’s another battle).  So the big question is who the adverse witnesses are.  The Court has made clear since Crawford that only by making a testimonial statement does one act as a witness, not by making any out-of-court statement that may later be introduced at trial.  Similarly, we are contending that some very young children are simply outside the category of witnesses.  The Confrontation Clause simply does not apply to them.

2.  I think that if Craig persists, it could expand.  If the state has a compelling interest in protecting children from trauma, and that is sufficient to relieve them from having to testify in court, then one might ask what other witnesses likely to suffer from trauma may claim Craig-like procedures – and what considerations other than trauma might justify such procedures.  The quasi-witness approach, I believe, is much more tightly confined.  Beyond a set of very young children, one could argue that it should apply to severely impaired adults.  But I think the basic idea of a person lacking the cognitive skills to be a witness is applicable to very few adults, and (unlike children) they do not tend to provide evidence for trial very often.  The Supreme Court might also hold that, because it prefers setting objective tests, it makes sense applying the quasi-witness approach to children – below a given age, virtually all children lack a given set of cognitive abilities – but not to impaired adults, because each case would have to be assessed on its own.

3.  The confrontation-as-softened-by-Craig approach – what I’ll call the prevailing approach – offers help to the accused only if in the given case the particular statement is determined to be testimonial.  Courts plainly resist reaching that conclusion with respect to statements of very young children, and it is easy to see why.  If a court decides that the particular statement is not testimonial, then the accused has no rights at all under the prevailing approach to examine the child.  (That is especially true in a case like Clark, in which the child was deemed to be incompetent to be a trial witness.  Even if the child is deemed competent to be a trial witness, the opportunity to call her to the stand is usually of little avail to the defense.)  State hearsay law, of course, may keep the statement out, but hearsay law is a sieve.  That is especially true with respect to statements of young children.  Courts are especially inclined to let their statements in, and many jurisdictions have adopted “tender years” exceptions.

Under our approach, by contrast, if the child is deemed to lack the capacity to be a witness, the statement may be admitted but the accused right to examine her (out of court, through a qualified interviewer, under a prescribed protocol) without reservation; there is no need to ask questions such as whether the statement would be deemed testimonial if it has been made by an older person.  This is much simpler.

4.  Craig only applies if the trial court determines that the child will likely suffer trauma from having to confront the accused.  (Trauma from having to testify in open court is not enough.)  Otherwise, if the confrontation right attaches the child must come in and testify in open court or the child’s statement cannot be used.  There is no such limitation on the quasi-witness approach.  If the child is below a prescribed threshold – such as a given age – then the quasi-witness model applies, and the right to examine the child out of court automatically attaches. 

5.  Under a Craig approach, if the accused has any right with respect to the child, it is a right to cross-examination – which means, at least in the model envisioned by Craig itself, that the examination is conducted by a lawyer, and there are two lawyers in the room.  That’s not good for truth-determination – cross-examination of young children is generally not useful, and lawyers tend not to have well developed skills for questioning them – and it’s bad for the child.  Perhaps one could hold that confrontation demands less – not only does it not require that the accused have an opportunity to be “face to face” with the witness, but it does not require that he have the right to have the one who asks questions on his behalf be a lawyer – but then I worry even more about sapping substance from the confrontation right. 

Under the quasi-witness model, by contrast, the out-of-court examination would be designed to maximize usefulness and minimize trauma.  Only one person – a qualified interviewer operating under a court-approved protocol – would be in the room with her.  The surroundings and the entire process could be designed in a way to make the child as comfortable as possible and to generate as useful an interview as possible.  The interviewer could use whatever techniques appear appropriate for making the interview productive as well as humane.

6.  Under the prevailing approach, even if the child is compelled to testify, whether in the courtroom or under some alternative procedure, it likely will not do the accused much good.  A cross-examiner is unlikely to get much out of the child.  (The common logic of cross– “You just testified to X. But Y is true, right?  And they can’t both be true, right?” – rarely gets off the ground young children.)  Even if the child fails to confirm the substance of the prior statement, it does not much matter, because, given that the prosecution has called the child as a witness, prevailing confrontation law allows the prosecution to introduce that statement.  And if the child fails to answer questions on cross or direct, the jury is unlikely to infer that this undercuts the credibility of the child’s account; it will almost certainly appear that the child is just scared or bewildered or, long after the fact, forgetful. 

Under the quasi-witness model, by contrast, the accused has the benefit of an expert of his choosing examining the child in an attempt to determine what limitations there are on the probative value of the child’s statement.  It may still be that the child will completely clam up in that setting, of course – but it is far less likely than in a lawyer-dominated cross-examination setting.  And even if the child does clam up on the subject of the incident at issue, the examination will put the expert in a better position to evaluate and report to the jury on the child’s limitations and the significance of the statement.

7.  Ultimately, trying to treat very young children as witnesses is a matter of a bad fit, like trying to jam a square peg into a round hole.  When Sylvia Crawford spoke to the police in the station-house, she was witnessing; if that statement were to be allowed as proof, then we would have system in which witnesses could testify by talking to the police in the station-house.  Similarly with Amy Hammon speaking to the cops in her living room, or the lab analysts writing their reports in Melendez-Diaz and Bullcoming.  But poor bewildered little L.P. was not acting as a witness, and he did not have the capacity to.  Trying to jam him into the witness category, and provide rights that are appropriate to his age, will almost certainly fail on both ends – not yield a procedure that makes sense for three-year-olds and distort the procedure for older people.  If we recognize that very young children are not just smaller versions of adults, but categorically different, and that though they can observe and report they lack the capacities that are essential for one to be a witness who should be subject to confrontation, we can then design a system that makes sense for them – and leave the confrontation right undistorted.

Responses to the Nessons

[Slightly edited, Feb. 24, 2015]

Charlie and Fern Nesson have been energetically promoting their view of the Confrontation Clause, on this blog and in other forums.  I briefly responded some time ago to some of their contentions (see comments to the posting of November 25, 2014, Top side briefs and joint appendix in Ohio v. Clark; the Nessons' amicus brief, by the way, was mistakenly identified as a bottom-side brief and styled as one in favor of the respondent, but it is clearly a top-side brief in favor of the petitioner State). I promised more comments later, and here they are.  Given the volume of the Nessons' writings in the last few weeks, I’m sure I could fill up a great deal of time and space replying to further commentary by them, but I intend this to be my last shot on the issue.  Silence does not suggest assent!

The Nesssons’ basic theory is that the Confrontation Clause should be read as a requirement that
the prosecution present a sufficient case – that is, enough to survive a motion for judgment of acquittal –  without relying on hearsay.  Once it does that, then under their theory the Clause does not constrain the introduction of further evidence, even of testimonial statements by witnesses who have not confronted the accused.  I think the theory has no basis in the language of the Clause, and on cursory inspection none in its history, either.  It would yield bad both results on both sides, allowing statements to be admitted when they shouldn’t be and excluding them when they should be admitted.

1.  As an introductory matter, I’ll respond to this question by the Nessons:  "Do you not recognize that twentieth century confrontation doctrine has been a mess?"

Of course it was a mess in the twentieth century.  I suppose, though, the Nessons mean to bring in the twenty-first century as well.  There my answer is more nuanced.  I think Crawford v. Washington got it right for the most part; Melendez-Diaz v. Massachusetts got it exactly right; Davis v. Washington began to muddle things up by speaking of primary purpose; Giles v. California made a bad mistake in not giving fuller force to forfeiture doctrine; Michigan v. Bryant further muddled things in various ways; and Justice Thomas’s insistence on a narrow formality test created confusion in Williams v. Illinois.  So overall I’m disappointed with the way matters have developed since Crawford; see my recent piece, Come Back to the Boat, Justice Breyer!   But Crawford is not the problem.  I think the muddle was created in large part by 200 years of lack of attention to the confrontation principle, with a focus instead on the oddities of hearsay law.  I suppose we shouldn’t be surprised that matters didn’t get set aright instantly with Crawford.

By the way, the Nessons claim coherence as one of the virtues of their approach.  I’m not sure that’s right – note their treatment of conspirator statements, discussed below – but at best coherence comes at a steep price, including, as I’ll show below, a lot of intolerable results (both pro-prosecution and pro-defense).  But there’s nothing incoherent about a testimonial approach, if properly developed.  Its essence can be stated simply while standing on one leg:

A testimonial statement (essentially, one made in reasonable anticipation of litigation use) may not be introduced against an accused unless the accused has an opportunity to be confronted by the witness who made the statement, and that opportunity must occur at trial if reasonably possible.  The accused may, however, forfeit the right by engaging in serious intentional misconduct that foreseeably renders confrontation impractical.

That’s mighty coherent, which is not to say that it would produce no close cases.

2.  I actually agree with the Nessons (and with Raymond LaMagna, a message from whom they have posted) that originally the principal value claimed for confrontation was the fact of bringing the witnesses face-to-face with the accused, not cross-examination.  (Wigmore, on whom the Nessons rely, belittled the face-to-face idea).  This is not surprising because the right to counsel developed late in felony cases.  But I think this fact is less important than might at first appear. Sir Thomas Smith’s description of a trial in the middle of the 16th century describes an “altercation” between accuser and accused, so the accused certainly did have the opportunity to address the accuser in a challenging, adversarial way.  And in Dial-In Testimony, 150 U.Pa. L. Rev. 1171, 1205 & n.125 (2002), Bridget McCormack and I showed that by the middle of the 17th century it was accepted in treason cases that the accused, even though not represented by counsel, would have an opportunity to pose questions to the prosecution witnesses.  In any event, there is simply nothing incompatible between the testimonial approach and the emphasis on bringing the witnesses face-to-face.  Indeed, the essence of the theory is that witnesses must testify face-to-face and not in other ways, such as by speaking privately to government officials as under the old Continental systems.

When I made this point in a prior comment, the Nessons responded: “Yes, and how can you say this and yet not recognize the Clause as a production rule?”  My reply: Sure, you can call the Clause a production rule if you want, in the sense that it says, “Prosecutor, if you want to present testimony from this witness, you have to produce the witness in court.”  It does not say, “If you present a barely sufficient case in court, then you can add onto it all the out-of-court testimony you want.” 

3.  LaMagna’s message says, as others have, that the distinction between testimonial and nontestimonial hearsay is arbitrary.  I think those who make this argument are thrown off by terminology.  The confrontation right is about witnesses.  That, of course, is the key term used by the Confrontation Clause; it does not refer to hearsay.  I think lots of history, much of it summarized in the Dial-In article, makes clear that the Confrontation Clause was meant to bring witnesses to trial.  The confrontation right was established, as I have said many times before, long before anything resembling the modern law of hearsay was.  (The confrontation right may be seen quite clearly in ancient times, as in the reference in the Book of Acts, 25:16, to insistence on witnesses being brought face-to-face; hearsay law didn’t develop in anything close to its modern form until about 1800.)  It’s no surprise, then, that the Clause spoke in terms of witnesses and not in terms of hearsay.  Now, who are witnesses?  They’re people who testify (in many languages, "witness" and "testify" have the same root) – and the Clause insists that they do so face-to-face with the accused rather than behind closed doors.  They’re not people who make causal statements going about their daily business.  That’s the basic distinction that Crawford drew, and it’s not at all arbitrary; if the Court had spoken in terms of "witness-y" statements, it might have been accused of butchering the English language, but I don't think anybody would have said that it was drawing an arbitrary distinction.  The term “testimonial hearsay” is a modern-day coinage, an anachronistic term that is meant to capture the idea of what happens when a person effectively acts as a witness without coming to trial.

4.  I said that if production of a minimally adequate case is what the confrontation right meant, it would have become apparent long ago.  The Nessons responded: “It was. Raleigh and Kirby are good authority for that. How do you dispute our reading of those cases?”

In reply, I’ll first amplify on my point.  If the confrontation right meant what the Nessons say it does, cases over the centuries would have been argued far differently.  When a prosecutor offered a testimonial statement made out of court, there would have been debate over whether the prosecution had presented a minimally adequate case at trial to prove the proposition in question, and if so, the out-of-court statement would have been admitted.  There would have been, for example, considerable litigation over just what the prosecution had to prove by other evidence.   Would it really be enough that the prosecution presented enough to withstand a motion for judgment of acquittal, and once that standard was satisfied the prosecution could present all the out-of-court statements (testimonial or not) that it wanted?  Or would it be necessary for admission of an out-of-court statement that the prosecution had proven every single material proposition contained in the statement – and if so had it done that in the particular case?  I just don’t think you see any of this at all in the cases.

I’ve already responded to the reading of Raleigh.  So briefly: Sure, Raleigh was able to argue, in effect, “Cobham’s testimony is no good, and without that you’ve got an inadequate case against me.”  But just as a matter of simple logic that doesn’t suggest that he was conceding – or that the historical revulsion to his treatment amounts to a concession – that if a barely adequate case were presented against him through other evidence then it would be just fine to present Cobham’s testimony without confrontation.

I think the response to the Kirby argument is similar.  There, an element of the crime – that stamps were stolen – was proven by the confession, made in another case, of another party to the transaction, and the Supreme Court held this was improper.  There’s nothing in the case suggesting that if there had been sufficient proper proof of the theft to get to the jury then it would be fine to introduce the confession as well.

5.  I also said that if production of a minimally adequate case was what the confrontation right was about, the Confrontation Clause wouldn't have been worded as it was.  The Nessons responded: “The wording of the clause says that the prosecution must confront the defendant with witnesses, not the other way around. Do you just pretend this isn't so?”

Actually, not only do I not pretend it isn’t so, I (successfully) litigated a Supreme Court case, Briscoe v. Virginia, to ensure that the point, which had been established in Melendez-Diaz, remained firmly established.  I’m always careful to say that the Clause gives the accused the right “to be confronted with” the witnesses against him, not “to confront” the witnesses against him.

But note that it’s “the witnesses against him” – not just some of the witnesses against him.  There is no suggestion in the language of the Clause, none whatsoever, that if the prosecution presents a minimally adequate case then other prosecution witnesses do not have to confront the accused.

The Confrontation Clause mimicked the language used in some of the early state constitutions.  Other early state constitutions used the formula that was more familiar – from, among other sources, treason statutes, saying that the witnesses had to be brought “face to face” with the accused.  Bridget McCormack and I quoted several of these in Dial-In Testimony, 150 U.Pa. L. Rev. at 1207 nn. 134, 135.  All of them used the definite article.  None contained any suggestion that production of a sufficient case might excuse production of other witnesses whose testimony the prosecution wished to use.  And note a Massachusetts statute of 1647, quoted id. at 1206, providing that “in all capital cases all witnesses shall be present wheresoever they dwell” (emphasis added).  If one wanted to write a provision requiring merely that sufficient proof of all elements of a crime be presented by live testimony, none of these formulations would have been appropriate.

6.  The Nessons rely heavily on a passage from a 1904 article by Wigmore, repeated verbatim in § 1364 of his treatise, in which Wigmore says that in the late 17th century there was “still a doctrine, clearly recognized, that a hearsay statement may be used as confirmatory or corroboratory of other testimony.”  They do not quote the sentence that immediately follows this passage, both in the article and in the treatise:

This limited doctrine as to using [a hearsay statement] in corroboration survived for a long time in a still more limited shape, i.e., in the rule that a witness’ own prior consistent statements could be used in corroboration of his testimony on the stand, and the latter was probably accepted as late as the end of the 1700s.

So even taken at face value, Wigmore contends at most that there had been, well before the time of the Confrontation Clause, a doctrine generally allowing hearsay (he does not distinguish between testimonial and non-testimonial statements) as corroboration of other testimony.  Wigmore does not appear to say that the hearsay could be used to corroborate circumstantial evidence; he seems to be speaking only of corroboration of testimony.  Nor does he suggest that if the prosecution proved a sufficient case for the matter to be submitted to the jury, there would be no constraint on the use of hearsay.  In any event, he acknowledges that the doctrine he describes withered away decades before the Confrontation Clause.  The remnant was a doctrine – entirely consistent with the testimonial approach – that if the declarant testifies at trial consistently with the prior statement, the statement is admissible as corroboration.  (Crawford actually goes further, and in my view too far, in suggesting that there is no confrontation problem in admitting a prior testimonial statement if the maker of the statement testifies at trial, even if inconsistently with the prior statement.)  And in fact, Knox’s Trial, 7 Howell’s St. Tr. 763, 790 (1679), the first of the four cases that Wigmore cites for the broader doctrine, involves only the narrower situation of a witness’s former statement.  The other cases are far less significant, even with respect to the earlier period and even with respect to the supposed doctrine described by Wigmore, than he contended.  They provide no support at all for the proposition that, even in this earlier period, out-of-court testimonial statements were acceptable so long as they corroborated admissible evidence.  To show involves going deep into the weeds; here is a link to a sort-of extended footnote on this point.

7.  I said previously, "The Nessons are just plain wrong in contending that Crawford continues to confound confrontation and hearsay."  They responded by pointing to my recent article, The Mold That Shapes Hearsay Law.  They claim that the thesis of that piece “makes Crawford nothing more than a constitutional back-up hearsay rule . . . to ‘plug the holes’ [not a phrase I used, by the way] left when the hearsay exceptions let testimonial hearsay slip by.”  This rendition distorts my article beyond recognition.  I argued (among other points) that the confrontation principle – the idea that a party has a right to demand that adverse witnesses testify face-to-face – shaped hearsay law, so that to a surprising degree the bounds of the various exemptions conform to that principle.  But over time, as the confrontation principle became obscured, the degree of this conformity loosened up.  This in no sense makes the confrontation principle a constitutional backup to the hearsay rule.  On the contrary, I believe the confrontation right existed long before the hearsay rule; it exists under the European Convention on Human rights, so it governs in jurisdictions where nothing resembling the hearsay rule applies; and if, as I hope, the hearsay rule as we know it is eliminated, the right will still exist. (I have an article soon to come out in DePaul Law Review, titled Jack Weinstein and the Missing Pieces of the Hearsay Puzzle, discussing this.)

The Nessons’ argument on this score is particularly perplexing to me because their own theory of confrontation is so heavily dependent on a definition of hearsay.  Here is a passage from their amicus brief in Clark:

Confrontation cases fall into two categories. In one category are the cases in which the non-hearsay and circumstantial evidence against the defendant is sufficient to convict. In this category, hearsay may corroborate the prosecution’s case but is not essential to it. This means that, even without the hearsay, the prosecution would survive a motion for dismissal at the close of the prosecution’s case.

    The second category consists of cases in which there is a hole in the prosecution’s proof that it tries to fill with hearsay. Without the hearsay, the prosecution’s case is legally insufficient. In this category, the hearsay, if admitted in evidence, is not merely corroborative of an otherwise sufficient case, but rather is essential to it. The admission of hearsay in such a case as a substitute for live testimony should violate the Confrontation Clause.

8.  As I understand the Nessons’ theory, its restrictive aspect – that an element of the prosecution’s case cannot be proved by hearsay alone – applies whether or not a statement falls within a traditional exception (and whether or not it is testimonial in nature).  Some impractical results, representing remarkable and unjustified changes from long-prevailing practices, would follow.

Others have already commented on two illustrations.  Roger Park raised the case of business records.  The Nessons shrugged aside the particular illustration presented by Roger on the basis that it involved a jurisdictional issue.  But of course that is not always the case.  It is often part of a prosecutor’s case to prove that a given transaction occurred at a particular time, and perhaps at a particular price.  For centuries, the shopbook rule has made clear that this may be done by bringing in records that can be shown to have been prepared as part of a business routine, rather than in contemplation of litigation.  Under the testimonial approach, by contrast, these statements are easily handled: Statements that are not made in contemplation of litigation are not testimonial (contrast most lab reports), and the Confrontation Clause has nothing to do with them.

The other, raised by Alex Whiting, involves conspirator statements.  The Nessons shrug this aside, too, saying that a statement made during the course of and in furtherance of a conspiracy of which the accused is a part is deemed to be a statement of the accused.  Well, that’s what the prevailing hearsay law says, but one of the virtues of the testimonial approach is that it frees us from having to spout such fictions.  Of course if A and B are both members of a conspiracy and B makes a statement that may be deemed to advance the conspiracy’s goals, that statement is not truly A’s statement.  The fictitious quality of a rule deeming such a statement to be one made by A is augmented by courts’ willingness to perceive very far flung conspiracies and to be creative in imagining how given statements may have advanced the aims of the conspiracy.  I should emphasize that I am not suggesting that conspirators’ statements should be inadmissible.  On the contrary, I think they should be, and the courts’ tendency to stretch the hearsay exemption for them is perfectly understandable.  Though these statements are often dubious, often they are very probative evidence.  The reason they should be admitted against an accused is not that they are in any meaningful sense a statement of the accused but that they are not testimonial in nature; they are statements made in the ordinary course of daily (dirty) business.

A third case is dying declarations.  These have been admitted for three centuries or so, and I don’t think any theory that put a flat ban on them would be happily tolerated.  They often provide critical information not corroborated by any other evidence.  As I understand it, the Nesssons’ theory would bar prosecution based on a dying declaration.   Perhaps they would concede to reality, at the price of undermining coherence, by creating an exception to their theory.  (Crawford, similarly, suggested that dying declarations may be a sui generis exception to the treatment of testimonial statements.  I have argued repeatedly that these cases would be better handled by applying forfeiture doctrine to them.  It would require a significant alteration of the holding in Giles v. California to achieve this result; this is one reason among several to hope for such an alteration.)

                                                                   * * *

The time I've spent responding to the Nessons reflects my longstanding connections to both of them and my personal regard for the.  But I suppose I've conveyed that I don't think much of their theory.

Thoughts on Clark: If L.P. were grown up

    Here are some thoughts on the Clark case prompted by reading the reply brief.

    For those who are not yet familiar with the facts of the case:  L.P., a boy not yet 3½, came to preschool with marks on his face suggestive of physical abuse.  Ultimately, when asked by a school administrator, he said something to the effect that “Dee” – Clark, his mother’s boyfriend – had caused the injuries.  L.P. was deemed in competent to testify at trial, but the trial court admitted evidence of his statement identifying Clark.  The Ohio Supreme Court held that this violated the Confrontation Clause.

    In this post I will address issues that I hope the Supreme Court doesn’t reach in Clark.  These are issues that have nothing to do with the fact that the declarant, L.P., was a very young child.

    So let’s suppose that L.P., instead of being just three years old and in preschool, was, say, 18 and in high school, and that everything else was the same in the actual case.  Then I think L.P.’s statement to a school administrator, identifying Dee as the source of his injury, should clearly be considered testimonial.  Note several points along the way to this conclusion.

    First, the proper perspective for determining whether the statement is testimonial is from the vantage point of a reasonable person in the position of the declarant.  I think this is always true.  I don’t think there’s any incompatibility between this position and the position taken by the Supreme Court in Michigan v. Bryant, that the perspectives of both the declarant and the interrogator (assuming there was one) should govern:  Ultimately, it is the declarant’s perspective that matters, but the apparent purpose of the questioner is a key determinant of what the declarant understands the likely consequences of the statement to be.   By the way, note the irony that usually, as in Bryant, it is the defendant who wants the Court to emphasize the declarant’s perspective (because at the outset the declarant understands better than does the questioner that what the declarant is about to say has significance for prosecution), but in the context of a child’s statement, as in the actual Clark case, it’s the prosecutor who wants to emphasize that perspective (because, while the questioner may understand the significance for prosecution of what the child says, the child is clueless).  See p. 8 of the reply brief.

    Second, in the hypothetical setting of the 18-year-old, I think the statement would fall within the “primary purpose” test.  Looming over everything would be the realization, on the part of L.P. as well as of the administrator, that L.P. was making an accusation of a serious crime to a person who would likely pass the accusation on to the police.  The State’s suggestion, p. 18 pf the reply brief, that the statement’s “primary purpose” is not prosecutorial because it was informal should be rejected on grounds already indicated in Davis v. Washington – what maybe considered the informal manner in which the statement was solicited and made does not alter the reality that it was made with the understanding of the significant legal consequences that it might cause.  And the State’s argument, also on p. 18 of the reply brief, that the statement was not testimonial because the primary purpose was a protective one should also be rejected, if for no other reason that the principal way in which the victim would likely be protected would be through the adjudicative system.

    Beyond that, though, I wish the Court would stop talking about purpose and instead talk about reasonable anticipation.  For one thing, I think it is incoherent, or at least nearly so, to speak about the primary purpose of a reasonable person in the position of the declarant.  The reasonable person is not the particular declarant but a hypothetical person in the same situation.  How can one say what the primary purpose of such a person would be in making a statement?  One can imagine different reasonable people being primarily motivated by different purposes to make a given statement.  Furthermore, it is often difficult at best to determine which of several purposes may have primarily motivated a given person.  And most significantly, I don’t think purpose is what determines the testimonial quality of a statement; anticipation is.  If the declarant knows that by making a statement he is creating evidence that will be used in prosecution, than he is testifying, whether he is pleased by that result or not.  I elaborated on this point years ago in an article titled Grappling with the Meaning of "Testimonial", 71 Brooklyn L. Rev. 241, 251-53 (2005).  Clearly an 18-year-old talking to a school administrator about a physical assault committed on him would anticipate the likelihood that the statement would be passed on and be used by the criminal justice system.  If there is any doubt about that now, there wouldn’t be if administrators could testify at trial about such statements without constitutional constraint, because such uses would soon become common knowledge (not only through actual trials but through TV shows and other popular media).

    Third, much of the reply brief reads as if the State is assuming that only statements made in response to interrogations can be testimonial.  But that is not true, and the Supreme Court has made this clear.  Davis, footnote 1.

    Even within the set of statements made in response to interrogation, the State appears to be trying to confine the category of testimonial statements to those made to the police.  See p. 8 of the reply brief.  There is no basis for such a limitation.  Indeed, testimonial statements should not be limited to statements made to governmental agents. The question throughout – a coherent one that usually will yield clear answers, though naturally there will be close and debatable cases – is whether a reasonable person in the position of the declarant would anticipate prosecutorial use.  (The result in Davis, that the very stressed statements made at the beginning of the 911 call there were not testimonial, can be fit within this framework by viewing the matter from the vantage point that the declarant actually occupied, speaking in the heat of the moment, rather than as if she considered the probable use of her statement after the fact, reflecting calmly while sitting in an armchair.  I argued this in Crawford, Davis, and Way Beyond, 15 J. L. & Policy 553, 562-63 (2007).)

    Limiting the category of testimonial statements to those made to police officers makes no sense at all, and would be an obvious invitation to abuse.  Bear in mind that there were no police forces or prosecutors in the modern sense in the centuries leading up to the Confrontation Clause.  Clearly the right existed in Biblical times.  If we were to return to a time when all of government but some adjudicative system were eliminated, the argument in favor of a right to have adverse witnesses brought face to face would remain undiminished.  And if the set of testimonial statements were limited to those made to some defined category of government employees, then prosecutors would have an incentive to gather evidence through agents not fitting within that category.

    But beyond that, if only statements to government agents could be considered testimonial (as the State seems to assume, in its first Question Presented and elsewhere), then a whole cottage industry would grow up of private evidence takers – that is, people who would offer to take (presumably on videotape) statements by victims and other observers and then relay them to court, without the makers of the statements ever having to take an oath or face the accused or the jury or be subjected to cross-examination.  I have raised this prospect many times.  I am not sure anybody has ever argued in response that this prospect is not realistic, or that it would be a tolerable result.   Indeed, it seems to me that the result would be inevitable, and that it would essentially turn the confrontation right into a matter of choice by the declarant.

    The key here, as always, is to understand the systemic consequences of any rule that is chosen.  A rule that statements to private people are not testimonial allows a system in which one can talk to a private person in the full knowledge (and even with the sole purpose) that the statement will be used in prosecution.  How is that not testifying?  And how can that possibly be acceptable?  Any attempt to salvage a government-audience-only rule by attaching to it an exception for bad-faith attempts at evasion (comparable to the evasion rule suggested by Justice Thomas in Davis, 547 U.S. at 838, 840, as a safety valve for the very rigorous formality test on which he insists) would be inadequate, unless bad faith were interpreted so loosely as to make the rule meaningless.

    Fourth, in determining the reasonable expectations of the speaker, all the circumstances are relevant – and that includes the content of the statement itself.  The State is just plain wrong when it says, p. 5 of the reply brief, that the accusatorial nature of the statement is irrelevant to whether the statement is testimonial.  True, a statement does not have to be accusatory to be testimonial.  If, for example, a speaker says to a known police officer investigating a notorious murder (readers of a certain age will recognize the reference), “I saw my neighbor drive quickly to his house, park the car at an odd angle, rush into his house, rush out a few minutes later, and drive quickly away,” there is nothing accusatory about the statement.  But it certainly should be considered testimonial in the circumstances; the speaker understood that she was providing information of use to the prosecutorial system, and if the substance of her statement is presented at trial without her coming to court she has been able to testify by talking to a police officer out of court.  That does not suggest, however, that the accusatory nature of a statement has no bearing on whether it is testimonial.  A statement that is accusatory may be objectively likely to be used for prosecutorial purposes even though made in circumstances in which a non-accusatory statement would not be likely to be used for such purposes.  Suppose someone comes home after a weekend away and twenty minutes later calls a non-emergency police line.   A statement, “There’s a cat trapped in a tree” should not be considered testimonial. A statement, “My house has been burgled.  Here’s what is missing . . . .” should be.  Similarly, a statement by our posited 18-year-old to a school administrator,“I don’t like my English teacher and would like to switch” is not testimonial; a statement, “Dee punched me repeatedly,” is testimonial.

    I think it would be unfortunate if the Court decides any of these issues in the context of the Clark case.  The inclination to admit the statement by the real (three-year-old) L.P. is understandably very strong, especially given the trial court’s ruling that he was not competent to be a trial witness – and perhaps also given a desire not to compel children in a position like his to be trial witnesses.  If the Court believes that the only way to allow admission of his statement without him being a trial witness is to hold his statement to be nontestimonial, and that the only way to do that is by a generally applicable ruling that narrows the category of testimonial statements, then the general standards for statements being deemed testimonial will be drawn too narrowly.  (I think this is closely analagous to what happened in Michigan v. Bryant.  The impulse to admit the statements there -- in which a shooting victim identified his assailant several hours before dying -- should have been addressed as a matter of forfeiture.  But the decision in Giles v. California had foreclosed this result, and the Bryant court compensated by adopting an unduly narrow conception of what is testimonial.)  I am hoping that in Clark the Court decides issues bearing only on statements by young children.  Of course, I think the best way to resolve the case is in accordance with the theory laid out in the amicus brief I did with Steve Ceci and the essay from which it was drawn.  I hope to post more comments later on child-specific issues.

   A few stray points:  (1) The State says in the reply brief, p. 6, that the aim of the Confrontaiton clause was to prevent ex parte examinations.  That is wrong, or at least subject to misunderstanding.  The Clause was not meant to constrain investigative behavior.  There is nothing wrong with the authorities examining a witness behind closed doors.  The confrontation right means that such an examination can't be used at trial in lieu of live testimony.

   (2) The Raleigh case involved what all acknowledge to be a violation of the confrontation right, use against Raleigh of the out-of-court testimonial statement by Lord Cobham.  It also involved testimony by one Dyer to a casual-seeming statement by an unknown Portuguese gentleman to the effect that Raleigh was in a conspiracy with Cobham.  The State contends, p. 8 of the reply brief, that Dyer's testimony did not create a confrontation problem.   Subject to some qualification, I agree.  I have recently stated my reasons in The Mold That Shapes Hearsay Analysis, 66 Fl. L. Rev. 433, 459-62 (2014).

   (3) The State is also right, of course, that unreliability shouldn’t trigger Confrontation Clause analysis.  P. 11 of the reply brief. Sometimes, though, those who argue for applicability of the confrontation right in a given case feel the need to point out that the statement involved is not particularly reliable; doing so responds to the concern that if the Court believes the statement is very reliable it will have a strong impulse to hold it admissible, and perhaps to approach skeptically any theory of the Clause that would exclude it.

Duhs v. Capra: Judge weinstein weighs in on statements by children

Several readers have pointed out to me Judge Weinstein's decision last week in Duhs v. Capra.  I've been meaning to post a link, and here it is.  At 93, Judge Weinstein can still write faster than I can read.

Like Ohio v. Clark, this is a physical-abuse case involving a statement by a three-year-old who did not testify at trial.  Judge Weinstein -- on habeas, no less -- holds that the statement was testimonial and that its admission violated the Confrontation Clause.  He acknowledges that the child would not realize that his statement to a doctor might be used in a later legal proceeding, but he says that the child could realize that the statement would lead to his father's punishment.

I think Judge Weinstein is too hasty in that latter conclusion, and for all the length of the opinion, he provides no empirical support for it.  I wish that he had considered the approach presented by Steve Ceci and me in our amicus brief in Clark and in our forthcoming piece in the Chicago Law Review, which I have posted on this blog.  I certainly agree with Judge Weinstein that statements to doctors, teachers, and social worker can be testimonial.  But I don't think a three-year-old talking out of court to a doctor is capable of being a witness for Confrontaiton Clause purposes; he is, however, a significant source of evidence, and the accused should have a right of examining him out of court through a qualified expert.

If we put aside our theory for argument's sake, I think it's an interesting question whether a statement should be considered testimonial if made by a child who doesn't understand the legal system at all but does understand that his statement might cause the person whom he addresses to punish the person whose conduct he describes.

In the Duhs case, unlike Clark, the trial court held the child competent to testify at trial.  Judge Weinstein emphasizes the difference, presumably to try to shield his decision from reversal after Clark is decided.  He also emphasized that the audience was a medical professional rather than a school official.  I'm not sure htat makes much difference.

Reply brief in Clark

Ohio filed its reply brief in the Clark case yesterday.  It will be argued on March 2.

I hope to be posting some additional commentary on the case  at some point next week.

Bottom-side amicus briefs in Ohio v. Clark

[Updated Jan. 27, 2015, 8:40 am]

Here are the other bottom-side amicus briefs in Clark:

First, the brief of the Innocence Network.

Second, a brief of the Amicus Project of Southwestern Law School and affiliated parties.  (I had not previously provided the link for this one; sorry.)

Third, a brief of the Arizona Attorneys for Criminal Justice and defense lawyers associations from Connecticut and Iowa.

Fourth, a brief of the Family Defense Center and other organizations.

Fifth, a brief of the National Association of Criminal Defense Lawyers.

And just to present them all in one place, here again is a link to the brief  I put in with Steve Ceci.

Friedman and Ceci amicus brief in Clark

The bottom-side amicus briefs in Clark were due today.  I'm hoping to post them all by tomorrow, but for now I can post the one that I did with Steve Ceci.  You can read it here.

Update (Jan. 16, 20115):  When I posted this yesterday, I said that I had learned that one of the links in the brief, to a thesis by Amelia Hritz, didn't work.  But I've since tried it and it came right up.  In any event, click here and you should have no trouble getting it.  Sorry for any inconvenience.

Respondent's brief in Ohio v. Clark

Here is the brief of the respondent Clark in Ohio v. Clark.  Briefs of amici in support of respondent are due the 14th.

A mini-symposium: The tenth anniversary of Crawford

This year marks the tenth anniversary of Crawford v. Washington.  To mark the occasion, First Impressions, the online publication of the Michigan Law Review, has published a mini-symposium, with longer essays by George Fisher of Stanford and Deborah Tuerkheimer of Northwestern, shorter essays by Jeff Fisher of Stanford and me, and a response by Jeff and me, mainly to George's piece.  You can read the whole batch of them, with an introduction by the editors, here.  My thanks to the editors for doing this and to the other authors for participating!

Top side briefs and joint appendix in Ohio v. Clark

Here are links to the top-side briefs and the joint appendix in Ohio v. Clark.

First, the main brief of the petitioner, the State of Ohio.

Next, the joint appendix.

And now the amici:

The United States

Domestic Violence Legal Empowerment & Appeals Project (DV LEAP)

Fern L. Nesson and Charles R. Nesson (my old Evidence teacher and his wife, a childhood friend and neighbor, and boy, do we disagree!)

The Ohio Prosecuting Attorney's Association and the National Children's Alliance

New Mexico and the National District Attorney's Association

The American Professional Society on the Abuse of Children

The Criminal Justice Legal Foundation

Child Justice, Inc.

The National Education Association, the American Federation of Teachers, the National School Boards Association, and the Ohio School Boards Association

The State of Washington, plus 41 other states (I think I counted right!) and the District of Columbia.  New Mexico signed onto this one as well, so it's on two of the briefs.

The Child Quasi Witness

Update, March 4, 2015:  The essay to which this post refers is now about to go to the printer; I have been assured by the Chicago Law Review that there will be no further changes.  (I have been told that before, but this time I think it's really true.  There were a few very small changes from the version I posted on February 12, and the page numbers are two lower than in the versions I posted then and later in February; apart from that, the only change from the late-February version is that I corrected an oversight and thanked Sean Stiff for his very valuable research assistance on this project.)  You may find this final pre-publication version here.  The citation to the piece will be Richard D. Friedman and Stephen J. Ceci, The Child Quasi Witness, 82 U. Chi. L. Rev. 89 (2015).  (A hyphen disappeared from the title during the editorial process.)  The passage to which we referred on p. 27 of our amicus brief in Clark is now on pp. 106-108.  I expect final publication within a couple of weeks.  RF

__________

As it happens, Steve Ceci, a noted developmental psychologist at Cornell, and I have drafted an article, to be published in a few months in the University of Chicago Law Review, that uses the Clark case as a touchstone for presenting our basic idea of how to treat statements by very young children that would be testimonial if made by an adult.  You can read the draft as it stands -- we have not yet updated it to take into account the grant of cert on Clark, and there are still a couple of technical glitches that have to be corrected -- here.

One basic point of this essay is that some very young children are so developmentally immature that they should be considered incapable of being witnesses for purposes of the Confrontation Clause.  (At this stage, we are more concerned with establishing this proposition than with defining precisely the set of children that it covers.) Acting as a witness requires understanding of the consequences of one's statements and the gravity of those consequences, and at least some very young children are incapable of this understanding.

On the other hand, such a child is a source of evidence, and potentially very useful evidence.  But the way in which we expect to allow an adversary to challenge testimony -- by cross-examination in open court -- is inappropriate and inadequate when the child is incapable of being a witness at trial.  (And note that the child in Clark was declared incompetent to be a trial witness.)  Instead, the courts should treat the child as they do a non-human source of evidence:  The accused should have a right to examine the child out of court.  This would not be cross-examination by an attorney, but rather examination by a qualified expert (presumably a psychologist), under prescribed guidelines, aimed at assessing the evidentiary quality of the child's statement.

We believe this treatment -- treating the child not as a witness but as a source of evidence as to whom the accused has a right to out-of-court examination -- is the proper one as a matter of principle.  We also think that it  has very significant practical advantages over treating the child as we do an adult, and determining either that the statement is testimonial or that it is not.

    -- There is no loss of valuable evidence, which is crucial for the prosecution.

    -- The accused has a valuable right of examination.  In contrast, if the child is treated in the same way we treat adults, then (a)  if the statement is deemed non-testimonial, the accused has no right of examination at all, and (b) if the statement is deemed testimonial, he can cross-examine the child in court, but cross-examination of young children is a notoriously poor procedure.

   -- The child is spared the trauma of having to testify in open court.  Instead, he or she has an informal conversation with one person in a comfortable room.

And so we think this procedure provides a win-win-win solution.

I anticipate that we will be submitting an amicus brief presenting these views. In Clark the case is simplified somewhat by the fact that the trial court declared the child incompetent to be a trial witness.  Cross-examination in court was therefore impossible.  But if the child's statement is nevertheless introduced, it means that by virtue of the court's own order the accused has no means of examining the source of evidence that may be crucial in convicting him.  The Supreme Court could go far in the direction of implementing our views by holding simply that if the trial court holds that the child is not competent as a child witness it must provide some adequate form of out-of-court examination.  

State Action and the Confrontation Clause

Regular contributor Paul Vinegrad, in comments to my previous posting, has been arguing that there’s no state action for purposes of the Confrontation Clause, as made applicable to the states by the Fourteenth Amendment, unless a state agent had something to do with the creation of the statement.   I want to respond here to two points made by Paul, both of which I regard as highly creative, which in this context means that they are clever but really have no relationship to reality.

First, Colorado v. Connelly, 479 U.S. 157 (1986), has nothing to say about the Confrontation Clause.  There, the Colorado Supreme Court held that admission of a confession initiated by the defendant while in an impaired mental state violated the Due Process Clause, despite no impropriety on the part of any agent of the state.  The US Supreme Court reversed.  Justice Rehnquist’s opinion for the Court included this passage, which I gather is what Paul has in mind:

Our “involuntary confession” jurisprudence is entirely consistent with the settled law requiring some sort of “state action” to support a claim of violation of the Due Process Clause of the Fourteenth Amendment. The Colorado trial court, of course, found that the police committed no wrongful acts, and that finding has been neither challenged by respondent nor disturbed by the Supreme Court of Colorado. The latter court, however, concluded that sufficient state action was present by virtue of the admission of the confession into evidence in a court of the State. 702 P.2d, at 728–729.

The difficulty with the approach of the Supreme Court of Colorado is that it fails to recognize the essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other. The flaw in respondent's constitutional argument is that it would expand our previous line of “voluntariness” cases into a far-ranging requirement that courts must divine a defendant's  motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision.

The essence of the holding is that an involuntary coercion, in the meaning of the Due Process Clause, is one that an agent of the state coerced, not one that merely results from the irrational condition of the defendant.  That’s really a substantive holding.  The Court never says, “There was no state action.”  I think its discussion makes it clear that what it is really saying is that there was no action by the state of the sort that makes a confession involuntary for constitutional purposes.

But the wrong with respect to an involuntary confession consists largely in the coercive out-of-court conduct by the state that secures the confession.  The Confrontation Clause is altogether different.  I’ll emphasize a point made many times before: The Confrontation Clause imposes no constraints on investigative activity by the police or other agents of the state; the police should  interview witnesses out of the presence of the accused and with everybody fully anticipating prosecution.  What the Confrontation Clause prohibits is the use at trial – which is of course under the auspices of the state – of a testimonial statement to help convict the accused without offering the accused the right to be confronted with the witness who made the statement.  That’s pure state action.

Second, Paul claims historical pedigree for his theory, by citing the Raleigh case.  The Raleigh case and other state trials are highly atypical of prosecutions of the pre-Revolutionary era.  Most crime was privately prosecuted.  There was nothing comparable to a modern police force.  And yet the confrontation right was well established in ordinary private prosecutions; for example, if the prosecutor (a private party) did not appear, the case was routinely dropped, not pursued by having someone else testify to what the prosecutor had observed.  Indeed, Raleigh, in claiming the right, emphasized that if it had been a mundane case – “for two marks” – he would have had an unquestioned right to be confronted with his accusers.  A robbery victim, for example, could not have made a statement to a friend about the robbery, in contemplation that the friend rather than the victim would testify at trial.

Supreme Court grants cert in a confrontation Clause case involving a child

The Supreme Court granted certiorari today in Ohio v. Clark, a case involving a statement by a three-year-old child.  As it happens, Steve Ceci and I have used this case as the touchstone for discussion in an article soon to be published in the University of Chicago Law Review, The Child Quasi-Witness.  I'll have more to say later about the case! 

Two new lab report cases from New Jersey

The New Jersey Supreme Court issued a couple of decisions earlier this week on lab reports.  They're worth comment, in part because they show the state of affairs in this still contentious area.

In one, State v. Michaels, a lab supervisor wrote a report based on blood tests performed by other analysts in the lab; he had not observed the performance of the tests.  The supervisor testified at trial; the others did not.  Over one dissent, the court held that there was no confrontation violation, though it acknowledged that the lab report was testimonial.  The majority emphasized that the results of the test were machine generated, that the testifying witness was familiar with the lab's procedures and the particular test at issue in this case, that he had supervisory authority over the performance of the test, and that he had given his own interpretation of the results.
 
The fact that the supervisor gave his own interpretation to the data really shouldn't matter (and I think five justices in Williams v. Illinois indicated that it shouldn't).  There are data and then there is analysis, and those are entirely separate.  The fact that the witness who provides the analysis testifies subject to cross-examination provides no relief from a confrontation problem created by a testimonial statement as to the data. And even though the tests were performed by machine, it does appear that a couple of humans made statements on which the testifying analyst relied (though the opinions are not entirely clear on this point, I don't believe).

The witness's supervisory authority and familiarity with the lab procedures also shouldn't really matter.  It doesn't distinguish this case from Bullcoming, and it does nothing to relieve the problem that the data were provided by others.

There is also a conceptual problem or misunderstanding in the majority opinion, it appears to me, indicated by the court's use at one point of the phrase "testimonial fact."  Facts are not testimonial -- statements are.  There is no plausible contention that anybody who handled the materials or observed the tests must testify.  The only real contention is that anyone who made a testimonial statement that is in some way presented to the trier of fact must testify.  (And it appears that there were at most one or two of those.)  I say "in some way presented" because formal admission of the statement is not necessary to create a confrontation problem.  If, for example, the testifying witness makes clear that he is relying on information provided by others, that is sufficient presentation to put the confrontation right in play, assuming the transmittal of that information was in a testimonial statement.

Having said all that, though, I think the result might have been justifiable given Williams -- which I continue to regard as a very unfortunate decision.   Understandably, the majority threw up its hands in trying to draw anything from Williams, but it does stand for something.   There is only a confrontation problem if the statements on which the testifying analyst relied were testimonial.  I think they should be -- they're statements made in the context of a blood test to determine whether a person was under the influence of drugs, and I think they were clearly made in anticipation of prosecutorial use.  But Justice Thomas presumably would regard those statements -- in contrast to the final report -- as non-testimonial because the analysts did not make them in a formal, certified report.  The plurality plainly would prefer to call those statements non-testimonial -- these are the Melendez-Diaz dissenters, after all -- but I'm not sure that their Williams opinion stands for the proposition that they are not testimonial:  These were statements directed at a targeted individual who was suspected of having committed a crime.  But in any event, the plurality would have concluded that there was no
confrontation problem with respect to these statements, on the basis -- properly rejected by five justices in Williams -- that the statements were not used for the truth because they underlay the opinion of the testifying expert.  In other words, I suppose the rationales of five justices in Williams support the bottom-line conclusion that there was no confrontation violation here.  

The other New Jersey case from this week, State v. Roach, was a prosecution for rape and associated crimes.  One analyst did a DNA test on a swab taken from the victim and wrote a report that included  a male profile.  Some time later suspicion fell on Roach, and a second analyst who had taken over the case when the first moved out of state did a DNA test on a buccal swab taken from him.  At trial, the second analyst testified that the two profiles matched.  This -- apart from the fact that the accused lived near the victim -- was essentially the only evidence of identity.  The prosecution made no attempt to bring the first analyst in.  Roach received a 40-year sentence.  The supreme court majority held that there was no confrontation problem.

A few points.  First, here, it does not appear that Williams could have done the majority any good:  As I understand it, the DNA reports here were certified, so that means that Justice Thomas would have lined up with the other four justices who were in the majority in Melendez-Diaz and Bullcoming.  In fact, the rationales of five justices from Williams clearly support the conclusion that there was a violation here; that's not a holding, though, because four of the five dissented from the result in Williams.  The case is in many respects similar to Williams -- DNA analyst who analyzed the sample taken from the suspect testifies, analyst who analyzed the crime scene sample does not -- but if this had been the one the US Supreme Court had heard presumably the result would have been the other way.

Second, a point emphasized by Justice Alito in Williams holds true here as well:  It would have been an extraordinary coincidence for analysis of the crime scene sample to happen to turn up the profile of a man who lived near the victim unless his DNA was in the sample and analyzed accurately by the lab.  But I think that if this were to be he basis for introducing the evidence without someone from that lab testifying live in court, it would have to be without relying on the proficiency of the lab.  The argument would be that, however bad that lab might be, the only way they could have generated those numbers was if they accurately analyzed a DNA sample from Roach.

Third, the supposed reliance in Michaels on the testifying witness's supervisory authority appears from this case to be rather hollow.  Here we had a non-supervisor tesitfying about a testimonial statement made by another analyst from the same lab, and the majority does not appear to have been particularly disturbed.

Fourth, for all the cries we keep hearing about the necessity of having multiple analysts working on DNA it appears from the state supreme court decision and also from the appellate division opinion that the one analyst who was in charge of the file at the time did all the procedures necessary for the DNA test.  Bravo!  It appears that the New Jersey State Police Forensic Lab -- which was the one involved in this case but not in Michaels -- had integrated vertically, having one analyst work on a case A to Z, and I surmise that they did so for the very purpose of minimizing who would have to testify.  If any readers have any further information on this, I'd be glad to know -- but from what I can tell, New Jersey has shown that this can be done.  If this kind of vertical integration is somewhat less efficient than an assembly line procedure, I think the response still has to be that if a state wants to   comply with the Confrontation Clause without multiple lab witnesses having to testify, then it should adjust its procedures, not that the demands of the Clause should be adjusted to conform to what some crime labs do.

Finally, bear in mind that the defendant got a 40-year sentence, that the DNA evidence is what proved identity, and that one of the two critical witnesses who made a testimonial statement used by the prosecution to prove that identity did not testify subject to confrontation because she had moved from New Jersey to Wisconsin.  There's not much doubt that if the state knew it had to bring the witness in from Wisconsin in order to secure a conviction, it would have found it well worthwhile to do so.  I really don't think it's too much to insist that the state bring such a witness in when it wants to put someone away for decades.

Cert denials

The Supreme Court denied cert this morning in Turner, No. 13-127, Brewington, No. 13-504, James, No. 13-632,  Ortiz-Zape, No. 13-633, Galloway, No. 13-761, Yohe, No. 13-885, and Edwards, No. 13-8618.  Some of the case I had earlier listed are still pending, and two Derr, No. 16-637, and Cooper, No. 13-644, are listed for the conference of June 5, but I'd be surprised if the Court would deny outright in all these cases today and then grant in one of those.  I could be wrong; I haven't looked carefully enough at the cases to see if the remaining cases are sufficiently dissimilar to to all of today's to make it plausible that the Court would deny outright in these and then grant in one of those a couple of weeks later.  But for now I'm guessing that, for whatever reason, the Court does not want to revisit just yet the various questions related to how the Confrontation Clause applies to forensic reports. 

The Nostalgia for Reliability Testing

Professor Ben Trachtenberg of the University of Missouri Law School and I recently had an exchange on Confrontation Clause matters published in the University of Florida Law Review.  Here are links to his original article, to my responsive essay, and to his reply.  I’m not going to ask the Law Review for the opportunity to do a surreply.  But I’ll offer a few comments here.

Prof. Trachtenberg’s pieces reflect nostalgia for the “good-old days” of the pre-Crawford era, when reliability testing under Ohio v. Roberts prevailed.  He certainly is right that some of the members of the Supreme Court have indicated that they would like to return to this era.  I think it’s clear – and the majority opinion in Crawford itself makes it clear – that reliability testing did a pretty rotten job of protecting the confrontation right.  Indeed, the fact that the Washington courts came out the other way in Crawford, in what should have been an absurdly easy case, indicates how weak the right was.

One reason, perhaps the principal one, why reliability testing was so limp is that it is indeterminate to the point of incoherence.  What does reliability mean?  It is notable that, for all the extolling of reliability testing by Prof. Trachtenberg and others, they rarely if ever define reliability; I haven’t found any attempt to define the term by Prof. Trachtenberg in this exchange.  I pointed this out in my essay, but his reply did not take me up on the invitation.  I do think a coherent definition of reliability can be framed – but it demonstrates the impossibility of making reliability a useful test.

In my essay, I wrote: “Evidence is reliable proof of a given proposition if and only if, given the evidence, it is highly improbable that the proposition is false.”  The trouble is that virtually no evidence is reliable under this standard.  The live testimony of a live witness with personal knowledge of the subject of the testimony is the epitome of acceptable testimony that, under any theory of the Confrontation Clause of which I am aware, does not pose any problem under the Clause – and yet eyewitness testimony is notoriously unreliable. It seems to me that candor requires us to recognize that trials are full of items of evidence that, taken individually, may not be reliable indicators of the proposition for which they are offered.  Cumulatively, though, they may create compelling proof.

Prof. Trachtenberg and I appear to agree (and with many others) that conspirator statements are unreliable.   So far as Crawford doctrine and I are concerned, that is irrelevant to any Confrontation Clause decision.  But where does this leave Prof. Trachtenberg?  He contends that necessity is the real justification for admitting such statements.  In my essay, I expressed the belief that this contention exposes a weakness of his approach; it is a remarkably weak right that is overcome by the government's need to gain convictions of a crime that is difficult to prove.  In his reply, Prof. Trachtenberg says that in discussing necessity he is only "describing reality, not announcing . . . approval."  But I don't believe that solves his problem.  Does he believe conspirator statements should be barred by the Confrontation Clause or not?  If he believes they should be, then he is adopting a view of the Clause that would not only cause a radical change to traditional law but that has no historical bearings and that, I believe, would not gain the adherence of a single Supreme Court Justice.  And if he believes these statements should not be barred by the Clause, given how unreliable they are, on what plausible basis?  I am still left wondering.

So I think that when judges and commentators speak of reliable evidence, what they may really have in mind is evidence that probably (let's put aside the question of just how probably) will lead to accurate fact-finding.  After all, accuracy is good, and if we put aside systemic and procedural concerns anything that leads to accurate fact-finding is good and anything that leads away from it is bad.

But a big problem, of course, is that it is pretty much impossible to pick out the evidence that will hurt fact-finding.  This is especially true given that there is no real basis for confidence that jurors are unable to discount for the weaknesses of hearsay; empirical evidence suggests that they're pretty good at it, and may even over-discount.  Hearsay, after all, has real probative value, and excluding it denies the jurors potentially useful evidence.

The bigger problem is the qualification I just stated – that we put aside systemic and procedural concerns.  But those are really what the Confrontation Clause is all about.  That's certainly what the language of the Clause suggests – it gives the accused the right "to be confronted with the witnesses against him," which sure sounds like a procedural right with respect to witnesses and not a right to exclude evidence that lacks certain substantive qualities. 

And this procedural concern is clearly what the confrontation right has been about historically.  Prof.  Trachtenberg vigorously assails the merits of taking an originalist view of the Clause.  But the value of history in this area is not limited to determining what the meaning of the Framers would have been understood to be in 1791, and it's not limited to persuading those who put preeminence on that meaning.  (Note that while Crawford itself is quite an originalist opinion, as one would expect given that it was written by Justice Scalia, the majority that joined it included some Justices of very non-originalist orientation, and that has been true as well of Davis v. Washington, Melendez-Diaz v. Massachusetts, and Bullcoming .v New Mexico.)  What the history shows is that for hundreds of years protecting the conditions of testimony under which witnesses against an accused testify – ensuring thath tey do so face to face with the accused, and subject to cross-examination – has been a central aspect of the common-law system of criminal adjudication.

I have found that this is still a principle that resonates with people.  Does anybody doubt that prosecution witnesses should be required (absent forfeiture of the right) to testify face-to-face with the accused?  Or, looking at the matter from the other direction, does anybody think that a prosecution witness should be able to testify by talking to police officers in a closed room in the station-house, or in the witness's living room?  And isn't it clear that if Crawford and Hammon v. Indiana had come out the other way, then we would have a system in which witnesses would be able to testify in precisely those ways?  It was, after all, entirely clear to all participants in those conversations that the witnesses were creating evidence for possible use in prosecution.

In arguing Hammon, I proposed a per se test that would have yielded a different result in its companion case, Davis v. Washington – that a statement made to a known police officer accusing another person of a crime be deemed testimonial.  That was not meant to be a comprehensive definition of  the term "testimonial," as one might think from reading Prof. Trachtenberg's reply, but rather the delineation of a particular type of statement that should be categorically deemed testimonial, a subset of the broader set of testimonial statements.  I do think it's unfortunate that the Court didn't adopt that test; I think if it had some of the muddle that has since arisen would have been avoided (and more of the muddle would have been avoided if the Court had come out the other way in Giles v. California, for if there it had adopted a robust conception of forfeiture doctrine it almos tcertainly would have avoided the very unfortunate reuslt in Michigan v. Bryant.)  But I don't think that test was essential to sound confrontation doctrine.  I think the ultimate test of whether a statement is testimonial should be whether, assuming admissibility, a reasonable person in the declarant's position at the time of the statement would have anticipated likely litigation use of it.  (It doesn't seem to me that it's really difficult to define "testimonial," as Prof., Trachtenberg says, or at least to come up with a serviceable definition; I just don't think the Supreme Court has clealry signed on to the best definition, though in Melendez-Diaz it seemed on the verge of doing so.)  And under one view, not the one that I would have adopted but nonetheless a coherent one, the first part of the 911 conversation is Davis might be deemed to fall outside this, because one might say that in the heat of the moment the complainant would not have been anticipating likely evidentiary use.  (Pretty quickly, though, it became clear that this was what she was doing.  Note that at the end of the call the 911 operator said that the police would go find Davis and then come talk to the complainant – not that hey would come right away to protect her.)

Prof. Trachtenberg suggests that Davis would have "walk[ed]" if the Supreme Court had come out the other way in his case.  I don't know what would have happened in that case, but I think it's important to emphasize that excluding statements of the type involved in Davis does not mean as a general matter that the accused cannot be convicted.  The prosecution might work harder to secure the live (or deposition) testimony of the complainant; it might demonstrate that her unavailability was the result of wrongdoing causing forfeiture of the confrontation right; and it might, as it ordinarily does in a murder case, prove guilt without relying on a statement by the victim.

Nothing today

The Supreme Court did not act today on the Confrontation Clause cases it had listed for last week's conference.  I wonder if it's still waiting for all the papers in another case.  In any event they will presumably be relisted for another conference soon -- the term is almost over!