Crawford, quite properly, gives prosecutors incentive to take the testimony of witnesses before trial, under oath and subject to confrontation, in case the witness is unavailable at the time of trial. It appears to me that prosecutors should do so far more often than they do now and that procedural rules making it difficult to hold such a pretrial examination should be amended. But pretrial examinations inevitably raise the question of whether the opportunity for cross-examination was adequate. One problem is whether counsel had adequate time to prepare. Another, to some extent the other side of the same coin, is whether the earlier opportunity should be deemed inadequate because some information that might have been used in cross and that is available at trial was not available at the time of the earlier proceeding.
In People v. Jurado, 2006 WL 870936, a capital case decided yesterday, the California Supreme Court weighed in. There, the prosecution had taken the "conditional examination" – basically, as I understand it, a deposition held for purposes of preserving testimony – of a key witness, who became unavailable by the time of trial. The prosecution offered the prior examination over the objection that the opportunity for cross was inadequate because the witness had subsequently made an important statement that would have been valuable in cross-examination. The state supreme court rejected this argument, pronouncing flatly, "Absent wrongful failure to timely disclose by the prosecution, a defendant's subsequent discovery of material that might have proved useful in cross-examination is not grounds for excluding otherwise admissible prior testimony at trial."
This issue is a difficult one, posing the question of what is the baseline against which to measure adequacy of the opportunity for cross. On the one hand, it appears that if the trial been held at the time of the prior examination there would have been no basis to contend that the opportunity for cross was inadequate; furthermore, later-arising evidence, such as a new statement by the witness, would not likely require a new trial. On the other hand, if the witness had testified at trial – which is when we expect most witnesses to testify – then the defense would have had the benefit of cross-examining on the basis of the later statement. It may be that the accused could still impeach the witness effectively, even without the witness being present for cross, but it is doubtful that this would eliminate altogether the differential between earlier and later cross.
I am inclined to think that the later time – the time of the trial – is the more appropriate baseline, and that the court should consider how serious is the lost opportunity to cross-examine on the basis of the later-received evidence. This would leave matters rather indeterminate in this area, but that might be better than the broad decision by the California Supreme Court.
Friday, April 07, 2006
Tuesday, April 04, 2006
Transcripts of Arguments in Davis and Hammon
The transcripts of the arguments in Davis and Hammon are now available. You can get the Davis transcript by clicking here, and the Hammon transcript by clicking here. I'm sure every stammer of mine reported in the transcript is accurate, but there are two words reported inaccurately in the Hammon transcript that I will note here, for whatever it might be worth. On p. 3, line 12, in my very first sentence, it has me using hte word "similar" when I said "simple". And on p. 61, line 18, right in the middle of my peroration it has "abated" when I said "evaded".
Thursday, March 23, 2006
Report on the Hammon and Davis arguments
Davis and Hammon were argued on Monday, and now we wait for the decisions.
Robert H. Jackson once wrote, “[A]s Solicitor General, I made three arguments in every case. First came the one I had planned – as I thought, logical, coherent, complete. Second was the one actually presented – interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night…” Advocacy Before the Supreme Court: Suggestions for Effective Case Presentations, 37 A.B.A. J. 801, 803 (1951). I think the main difference between Justice Jackson and me is that my too-late thoughts wake me up early in the morning rather than keeping me up late at night.
When the transcripts of the arguments become available, I will post them on the blog. Meanwhile, readers can find accounts in the press, and I offer below the observations recorded that night, at my request, by my 13-year-old daughter, who sat through the full arguments in both cases, two hours in all.
Hammon v. Indiana case
Supreme Court of USA
March 20, 2006
Rebecca’s Supreme Court Decoration Notes
Ceiling Notes
• 25 red boxes on ceiling.
• 4 flowers in each box (flowers weren’t always in the same pattern)
• 100 total flowers in red boxes
• 84 little white boxes on ceiling
• 40 long white flowers in 20 blue boxes on ceiling
• Blue squares w/ flowers in each of 4 corners
• 6 lights in blue boxes on ceiling
• 30 little blue boxes with white flowers (not counting corners or lights) in total
Other Notes
• In mural above justices, there were 30 people total
• Facing towards front of court room on left, the mural has only 15 people in total
• 24 pillars total
Robert H. Jackson once wrote, “[A]s Solicitor General, I made three arguments in every case. First came the one I had planned – as I thought, logical, coherent, complete. Second was the one actually presented – interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night…” Advocacy Before the Supreme Court: Suggestions for Effective Case Presentations, 37 A.B.A. J. 801, 803 (1951). I think the main difference between Justice Jackson and me is that my too-late thoughts wake me up early in the morning rather than keeping me up late at night.
When the transcripts of the arguments become available, I will post them on the blog. Meanwhile, readers can find accounts in the press, and I offer below the observations recorded that night, at my request, by my 13-year-old daughter, who sat through the full arguments in both cases, two hours in all.
Hammon v. Indiana case
Supreme Court of USA
March 20, 2006
Rebecca’s Supreme Court Decoration Notes
Ceiling Notes
• 25 red boxes on ceiling.
• 4 flowers in each box (flowers weren’t always in the same pattern)
• 100 total flowers in red boxes
• 84 little white boxes on ceiling
• 40 long white flowers in 20 blue boxes on ceiling
• Blue squares w/ flowers in each of 4 corners
• 6 lights in blue boxes on ceiling
• 30 little blue boxes with white flowers (not counting corners or lights) in total
Other Notes
• In mural above justices, there were 30 people total
• Facing towards front of court room on left, the mural has only 15 people in total
• 24 pillars total
Thursday, March 09, 2006
Reply Briefs in Davis and Hammon
Yesterday was the second anniversary of Crawford, and to celebrate I filed my reply brief in Hammon, which you can get by clicking here. Jeff Fisher filed his reply brief in Davis last week, and you can get it by clicking here.
The cases are now set for argument on Monday, March 20.
The cases are now set for argument on Monday, March 20.
Friday, February 10, 2006
A Personal Confrontation Bibliography
Areader has asked for a listing of my writings on confrontaiton. Here are citations. I will try to add in links in the near future.
Is Barking Up the Wrong Tree Assertive Conduct? and other contributions to an electronic symposium published in 16 Mississippi Coll. L. Rev. 1 (1995).
Prior Statements of a Witness: A Nettlesome Corner of the Hearsay Thicket, 1995 Sup. Ct. Rev. 277.
Confrontation Rights of Criminal Defendants, J. F. Nijboer & J. M. Reijntjes, Proceedings of the First World Conference on New Trends in Criminal Investigation and Evidence, 533-41 (1997).
Confrontation and the Definition of Chutzpa, 31 Israel L. Rev. 506 (1997).
Anchors and Flotsam, Book Review of Mirjan Damaška, Evidence Law Adrift, 107 Yale L. J. 1921 (1998).
Confrontation: The Search for Basic Principles, 86 Georgetown L.J. 1011 (1998).
Truth and Its Rivals in the Law of Hearsay and Confrontation, 49 Hastings L.J. 545 (1998).
Thoughts from Across the Water on Hearsay and Confrontation, Oct. 1998 Crim. L. Rev. 687.
Lilly v. Virginia: A Chance to Reconceptualize the Confrontation Right, AALS Section on Evidence Newsletter (Spring 1999), at 5.
Confrontation Confronted (with Margaret A. Berger and Steven R. Shapiro), an adaptation of the amicus curiae brief submitted to the U.S. Supreme Court on behalf of the American Civil Liberties Union in Lilly v. Virginia (No. 98-5881), 42.3 Law Quadrangle Notes 90 (Fall/Winter 1999).
The Suggestibility of Children: Scientific Research and Legal Implications (with Stephen J. Ceci), 86 Cornell L. Rev. 1 ( 2000)
Lilly v. Virginia: Glimmers of Hope for the Confrontation Clause?, International Commentary on Evidence http://www.law.qub.ac.uk/ice (July 10, 2000)
"E" is for Eclectic: Multiple Perspectives on Evidence, 87 University of Virginia L. Rev. 2029 (2001).
The Conundrum of Children, Confrontation, and Hearsay, 65 Law and Contemporary Problems 243 (2002).
Dial-In Testimony (with Bridget McCormack), 150 University of Pennsylvania L. Rev. 1171 (2002).
No Link: the Jury and the Origins of Confrontation Right and the Hearsay Rule, in John W. Cairns and Grant McLeod (eds.), The Dearest Birth Right of the People of England: The Jury in the History of the Common Law, 93, Hart Publishing Ltd. (2002).
Remote Testimony, 35 Michigan J. of Law Reform 695 (2002).
Crawford v. Washington, AALS Section on Evidence Newsletter (Fall 2003), at 2.
Confrontation as a Hot Topic: The Virtues of Going Back to Square One, 21 Quinnipiac L. Rev. 753 (2003).
‘Face to face’: Rediscovering the right to confront prosecution witnesses, 8 Int’l J. Ev. & Proof 1 (2003).
Minimizing the Jury Over-Valuation Concern, 2003 Mich. St. DCL L. Rev. 967.
Adjusting to Crawford: High Court Decision Restores Confrontation Clause Protection, 19 Crim. J. No. 2, p. 4 (2004).
The Crawford Transformation, Section on Evidence Newsletter (Spring/Summer 2004), at 2.
The Confrontation Clause Re-Rooted and Transformed, 2003-2004 Cato Supreme Court Review 439 (2004).
Crawford Surprises: Mostly Unpleasant, 20 Crim. J. No. 2, p. 36 (2005 (symposium issue).
Grappling with the Meaning of “Testimonial”, 71 Brooklyn L. Rev. 241 (2005).
Is Barking Up the Wrong Tree Assertive Conduct? and other contributions to an electronic symposium published in 16 Mississippi Coll. L. Rev. 1 (1995).
Prior Statements of a Witness: A Nettlesome Corner of the Hearsay Thicket, 1995 Sup. Ct. Rev. 277.
Confrontation Rights of Criminal Defendants, J. F. Nijboer & J. M. Reijntjes, Proceedings of the First World Conference on New Trends in Criminal Investigation and Evidence, 533-41 (1997).
Confrontation and the Definition of Chutzpa, 31 Israel L. Rev. 506 (1997).
Anchors and Flotsam, Book Review of Mirjan Damaška, Evidence Law Adrift, 107 Yale L. J. 1921 (1998).
Confrontation: The Search for Basic Principles, 86 Georgetown L.J. 1011 (1998).
Truth and Its Rivals in the Law of Hearsay and Confrontation, 49 Hastings L.J. 545 (1998).
Thoughts from Across the Water on Hearsay and Confrontation, Oct. 1998 Crim. L. Rev. 687.
Lilly v. Virginia: A Chance to Reconceptualize the Confrontation Right, AALS Section on Evidence Newsletter (Spring 1999), at 5.
Confrontation Confronted (with Margaret A. Berger and Steven R. Shapiro), an adaptation of the amicus curiae brief submitted to the U.S. Supreme Court on behalf of the American Civil Liberties Union in Lilly v. Virginia (No. 98-5881), 42.3 Law Quadrangle Notes 90 (Fall/Winter 1999).
The Suggestibility of Children: Scientific Research and Legal Implications (with Stephen J. Ceci), 86 Cornell L. Rev. 1 ( 2000)
Lilly v. Virginia: Glimmers of Hope for the Confrontation Clause?, International Commentary on Evidence http://www.law.qub.ac.uk/ice (July 10, 2000)
"E" is for Eclectic: Multiple Perspectives on Evidence, 87 University of Virginia L. Rev. 2029 (2001).
The Conundrum of Children, Confrontation, and Hearsay, 65 Law and Contemporary Problems 243 (2002).
Dial-In Testimony (with Bridget McCormack), 150 University of Pennsylvania L. Rev. 1171 (2002).
No Link: the Jury and the Origins of Confrontation Right and the Hearsay Rule, in John W. Cairns and Grant McLeod (eds.), The Dearest Birth Right of the People of England: The Jury in the History of the Common Law, 93, Hart Publishing Ltd. (2002).
Remote Testimony, 35 Michigan J. of Law Reform 695 (2002).
Crawford v. Washington, AALS Section on Evidence Newsletter (Fall 2003), at 2.
Confrontation as a Hot Topic: The Virtues of Going Back to Square One, 21 Quinnipiac L. Rev. 753 (2003).
‘Face to face’: Rediscovering the right to confront prosecution witnesses, 8 Int’l J. Ev. & Proof 1 (2003).
Minimizing the Jury Over-Valuation Concern, 2003 Mich. St. DCL L. Rev. 967.
Adjusting to Crawford: High Court Decision Restores Confrontation Clause Protection, 19 Crim. J. No. 2, p. 4 (2004).
The Crawford Transformation, Section on Evidence Newsletter (Spring/Summer 2004), at 2.
The Confrontation Clause Re-Rooted and Transformed, 2003-2004 Cato Supreme Court Review 439 (2004).
Crawford Surprises: Mostly Unpleasant, 20 Crim. J. No. 2, p. 36 (2005 (symposium issue).
Grappling with the Meaning of “Testimonial”, 71 Brooklyn L. Rev. 241 (2005).
Wednesday, February 08, 2006
State-side briefs in Davis and Hammon
The state-side briefs in Davis and Hammon were filed on Thursday, February 2. To look at PDF copies of each brief, click below.
1. Brief of the respondent State of Washington, in Davis v. Washington.
2. Brief of the respondent State of Indiana, in Hammon v. Indiana.
3. Amicus brief of the United States, in Davis.
4. Amicus brief of the United States, in Hammon.
5. Amicus brief of 27 states, in both cases.
6. Amicus brief of Cook County, Illinois, in both cases.
7. Amicus brief of Wayne County, Michigan, in Hammon.
8. Amicus brief of the National District Attorneys Association, in both cases.
9. Amicus brief of the National Network to End Domestic Violence and 56 other organizaitons (and one individual) devoted to remedying and addressing domestic violence, in both cases.
10. Amicus brief of the National Association of Counsel for Children, in both cases.
Reply briefs are due March 9.
1. Brief of the respondent State of Washington, in Davis v. Washington.
2. Brief of the respondent State of Indiana, in Hammon v. Indiana.
3. Amicus brief of the United States, in Davis.
4. Amicus brief of the United States, in Hammon.
5. Amicus brief of 27 states, in both cases.
6. Amicus brief of Cook County, Illinois, in both cases.
7. Amicus brief of Wayne County, Michigan, in Hammon.
8. Amicus brief of the National District Attorneys Association, in both cases.
9. Amicus brief of the National Network to End Domestic Violence and 56 other organizaitons (and one individual) devoted to remedying and addressing domestic violence, in both cases.
10. Amicus brief of the National Association of Counsel for Children, in both cases.
Reply briefs are due March 9.
Wednesday, February 01, 2006
Crawford and Bruton -- any relation?
I've gotten a couple of inquiries tonight -- and some others before -- about the relation of Crawford to Bruton. It seems to me that the two cases address issues along different dimensions. The question addressed by Crawford is when introduction of an out-of-court statement would violate the accused's confrontation rights. The Bruton problem, at least in its classic form, arises when there are co-defendants and introduction of a confession by one defendant would violate the confrontation rights of the other defendant but not those of the declarant. Bruton, in other words, assumes the answers to the substantive confrontation questions -- OK against one defendant, a violation against the other -- and then addresses the question of how to resolve that situation. Thus, it seems to me that Crawford and Bruton have very little to do with one another, except that Bruton problems are more likely to arise under Crawford than under the prior regime, because confrontation problems are recognized more often.
I am not particularly confident on this because I don't know a lot about Bruton. I'd welcome comments from anybody who has any insights or information to offer on this question. Please identify yourself!
I am not particularly confident on this because I don't know a lot about Bruton. I'd welcome comments from anybody who has any insights or information to offer on this question. Please identify yourself!
Wednesday, January 25, 2006
The Not-for-the-Truth End Run
The recent decisions of the Second Circuit in Martha Stewart’s case, United States v. Stewart, 2006 WL 27583, and of the First Circuit in United States v. Walter, 2006 WL 51398, may portend a disturbing new trend – to evade the confrontation right simply by holding that the statement in question was admitted for some proposition other than the truth of what it asserted. There is no doubt that, even though a statement is testimonial in nature, it may, in an appropriate case, be admitted for some proposition other than the truth of what it asserts without raising a Confrontation Clause issue; Crawford holds this explicitly, 541 U.S. 36 at 59 n. 9, reaffirming Tennessee v. Street, 479 US 409. But these recent cases highlight the dangers created by this doctrine.
In Stewart and Walter, from what I gather from an exchange of messages with defense counsel (and I would be glad to lear any information bearing on the point), the not-for-the-truth theories were, at least for the most part, not the ones on which the statements were actually admitted; rather, they appear to have been creations of the appellate courts. This is not an acceptable result. If, in responding to a post-conviction motion or appeal raising a confrontation issue, the prosecution wants to claim the not-for-the-truth end run, then it seems to me the court must first make sure that in fact the statement was not offered for the truth. It seems that something like this set of conditions should be rpescribed: (1) Assuming the defense made a confrontation objection, the prosecution must have asserted the alternative theory of admission. (2) The trial judge must have offered to give a limiting instruction. (3) The prosecution must have argued to the jury, if at all, on the basis of the alternative theory and not on the basis that the facts are as asserted in the statement because that is what the statement asserts. (4) Unless some other, non-testimonial statement by the declarant is also admitted, the prosecution must not have tried to support the declarant’s credibility. Only if these conditions are satisfied should the court conclude that the statement was genuinely admitted for a purpose other than the truth of what it asserted. I doubt that these conditions were satisfied in either Stewart or Walter.
Even if these conditions are satisfied, that does not end the problem. In some settings at least, it is relatively easy for the prosecution, or for a court eager to aid the prosecution, to come up with some material proposition other than the truth of the matter asserted that the statement helps prove. The court can then do an end run around the Confrontation Clause, ruling that the statement is admissible on this alternative basis rather than for the truth of the matter asserted. But if the statement is powerful enough, the jury will in all likelihood consider it for the truth of what it asserts, notwithstanding an instruction. Indeed, the prosecution may have devised that alternative theory in hopes that the jury would do precisely that. Say witness W makes a statement to a police officer accusing defendant D of a crime – and if you think any other conditions are necessary for the statement to be characterized as testimonial (I don’t) assume those conditions as well. So then the prosecution says, "Oh no, we’re not offering this on the ground that because W made the statement it makes those facts more probably true. Perish the thought. We’re just offering it to dispel any concerns the jury might have that D was arrested as a result of police animus." And then assume the prosecution adheres rigidly to that constraint in argument. This strikes me as a transparent evasion of the confrontation right. The value of the evidence to prove the proposition for which it is supposedly offered is minimal, but it will be very tempting for the jury to consider the statement for its truth, the instruction notwithstanding.
The problem has particular bite because, in general, there are not constitutional restraints preventing the use of evidence to prove a given proposition on the grounds that the need for proving the proposition is minimal. Given the Street rule, therefore, the path seems open to courts and prosecutors to devise alternative propositions for which a statement may be offered. But because in this setting such an alternative path to admissibility may be an end run around a constitutional right, it seems to me the Constitution must come into play. At a minimum, when a prosecutor offers a testimonial statement on grounds other than the truth of the matter asserted, the Confrontation Clause should be deemed to require that the court ask the following questions: (1) Is it likely that, even with an instruction, the jury would use the statement for the truth of what it asserts? (2) Is admission of the statement necessary on some alternative basis to correct a misimpression that otherwise would be left by the accused? (See my prior post on "Opening the Door".) (3) Does the prosecution genuinely have some other substantial need for the statement on the alternative ground of admission, taking into account other alternatives (and a stipulation, if the defense offers one)? What to do with the answers to those questions may be a rather complex problem. As an initial crack, I would say that the statement may be admitted only if (A) the answer to (2) is yes, or (B) the answer to (1) is no and the answer to (3) is yes.
I don’t claim any confidence that this is an optimal result, and I would be curious what other solutions readers have to offer. I am pessimistic for a couple of reasons. The use of prior bad acts by prosecutors supposedly to prove propositions other than the propensity of the accused to commit the crime – knowledge, motive, etc., etc. – indicates that many courts will tend to be receptive to prosecutors’ arguments that they really need to introduce evidence on some alternative ground (even though the forbidden ground is what will do them the most good). And the post-Crawford history suggests that many courts will tend to bend doctrine in whatever way seems available to secure the admissibility of evidence, notwithstanding an assertion of the confrontation right. I do believe that where crisp rules and clear-cut procedures can be enunciated they may confine the courts. That should make the aspect of the problem represented by Stewart and Walter reasonably tractable. But this other aspect of the problem – what to do if the prosecution adheres to the form of offering the statement on a ground other than the truth of the matter asserted – is harder to solve.
I have, by the way, previously commented on the not-for-the-truth end run in a particular context, when the statement is offered supposedly in support of an expert opinion. Most recently, I did so in a post commenting on the decision of the New York Court of Appeals in People v. Goldstein, a much more satisfactory opinion in this realm than either Stewart or Walter.
In Stewart and Walter, from what I gather from an exchange of messages with defense counsel (and I would be glad to lear any information bearing on the point), the not-for-the-truth theories were, at least for the most part, not the ones on which the statements were actually admitted; rather, they appear to have been creations of the appellate courts. This is not an acceptable result. If, in responding to a post-conviction motion or appeal raising a confrontation issue, the prosecution wants to claim the not-for-the-truth end run, then it seems to me the court must first make sure that in fact the statement was not offered for the truth. It seems that something like this set of conditions should be rpescribed: (1) Assuming the defense made a confrontation objection, the prosecution must have asserted the alternative theory of admission. (2) The trial judge must have offered to give a limiting instruction. (3) The prosecution must have argued to the jury, if at all, on the basis of the alternative theory and not on the basis that the facts are as asserted in the statement because that is what the statement asserts. (4) Unless some other, non-testimonial statement by the declarant is also admitted, the prosecution must not have tried to support the declarant’s credibility. Only if these conditions are satisfied should the court conclude that the statement was genuinely admitted for a purpose other than the truth of what it asserted. I doubt that these conditions were satisfied in either Stewart or Walter.
Even if these conditions are satisfied, that does not end the problem. In some settings at least, it is relatively easy for the prosecution, or for a court eager to aid the prosecution, to come up with some material proposition other than the truth of the matter asserted that the statement helps prove. The court can then do an end run around the Confrontation Clause, ruling that the statement is admissible on this alternative basis rather than for the truth of the matter asserted. But if the statement is powerful enough, the jury will in all likelihood consider it for the truth of what it asserts, notwithstanding an instruction. Indeed, the prosecution may have devised that alternative theory in hopes that the jury would do precisely that. Say witness W makes a statement to a police officer accusing defendant D of a crime – and if you think any other conditions are necessary for the statement to be characterized as testimonial (I don’t) assume those conditions as well. So then the prosecution says, "Oh no, we’re not offering this on the ground that because W made the statement it makes those facts more probably true. Perish the thought. We’re just offering it to dispel any concerns the jury might have that D was arrested as a result of police animus." And then assume the prosecution adheres rigidly to that constraint in argument. This strikes me as a transparent evasion of the confrontation right. The value of the evidence to prove the proposition for which it is supposedly offered is minimal, but it will be very tempting for the jury to consider the statement for its truth, the instruction notwithstanding.
The problem has particular bite because, in general, there are not constitutional restraints preventing the use of evidence to prove a given proposition on the grounds that the need for proving the proposition is minimal. Given the Street rule, therefore, the path seems open to courts and prosecutors to devise alternative propositions for which a statement may be offered. But because in this setting such an alternative path to admissibility may be an end run around a constitutional right, it seems to me the Constitution must come into play. At a minimum, when a prosecutor offers a testimonial statement on grounds other than the truth of the matter asserted, the Confrontation Clause should be deemed to require that the court ask the following questions: (1) Is it likely that, even with an instruction, the jury would use the statement for the truth of what it asserts? (2) Is admission of the statement necessary on some alternative basis to correct a misimpression that otherwise would be left by the accused? (See my prior post on "Opening the Door".) (3) Does the prosecution genuinely have some other substantial need for the statement on the alternative ground of admission, taking into account other alternatives (and a stipulation, if the defense offers one)? What to do with the answers to those questions may be a rather complex problem. As an initial crack, I would say that the statement may be admitted only if (A) the answer to (2) is yes, or (B) the answer to (1) is no and the answer to (3) is yes.
I don’t claim any confidence that this is an optimal result, and I would be curious what other solutions readers have to offer. I am pessimistic for a couple of reasons. The use of prior bad acts by prosecutors supposedly to prove propositions other than the propensity of the accused to commit the crime – knowledge, motive, etc., etc. – indicates that many courts will tend to be receptive to prosecutors’ arguments that they really need to introduce evidence on some alternative ground (even though the forbidden ground is what will do them the most good). And the post-Crawford history suggests that many courts will tend to bend doctrine in whatever way seems available to secure the admissibility of evidence, notwithstanding an assertion of the confrontation right. I do believe that where crisp rules and clear-cut procedures can be enunciated they may confine the courts. That should make the aspect of the problem represented by Stewart and Walter reasonably tractable. But this other aspect of the problem – what to do if the prosecution adheres to the form of offering the statement on a ground other than the truth of the matter asserted – is harder to solve.
I have, by the way, previously commented on the not-for-the-truth end run in a particular context, when the statement is offered supposedly in support of an expert opinion. Most recently, I did so in a post commenting on the decision of the New York Court of Appeals in People v. Goldstein, a much more satisfactory opinion in this realm than either Stewart or Walter.
Monday, January 23, 2006
Arguments set for March 20 in Davis and Hammon
The Supreme Court has scheduled arguments in Davis v. Washington and Hammon v. Indiana for March 20 -- Davis first and Hammon immediately after.
By the way, my brief in Hammon is now posted on the blog in PDF form. Sorry for any inconvenience to those who couldn't open theother version.
By the way, my brief in Hammon is now posted on the blog in PDF form. Sorry for any inconvenience to those who couldn't open theother version.
Saturday, December 24, 2005
R. v. Brasier -- a classic case from 1779
I have been commenting on very recent cases, but here is R v. Brasier, 1 Leach 199, 168 E.R. 202, a case from 1779 that has been much cited over the years. It bears on the treatment not only of fresh accusations but also of statements made by children and of accusations made to private care-givers. The report is as it stands in the English Reports, later annotations and all.
______________________
(An infant witness under seven years of age, if apprized of the nature of an oath, must be sworn; for no testimony is legal except it be giyen upon oath.)
[S.C. 1 East, P.C. 443; Bull. N. P. 293, Edit. 1790. Referred to, R. v. Guttridge, 1840, 9 C. & P. 471; R. v. Paul, 1890, 25 Q.B.D 202; R. v. Lillyman, [1896] 2 Q.B. 167.]
This was a case reserved for the opinion of the Twelve Judges, by Mr. Justice Buller, at the Spring Assizes for Reading, in the year 1779, on the trial of an indictment [1-Leach-200] for an assault with intent to commit a rape on the body of Mary Harris, an infant under seven years of age.
The case against the prisoner was proved by the mother of the child, and by another woman who lodged with her, to whom the child, immediately on her coming home, told all the circumstances of the injury which had been done to her: and there was no fact or circumstance to confirm the information which the child had given, except that the prisoner lodged at the very place which she had described, and that she had received some hurt, and that she, on seeing him the next day, had declared that he was the man; but she was not sworn or produced as a witness on the trial.
The prisoner was convicted; but the judgment was respited, on a doubt, created by a marginal note to a case in Dyer's Reports (Dyer, 303, b, in marg; 1 Hale, 302, 634; 2 Hale, 279; 11 Mod. 228; 1 Atkins, 29; Foster, 70; 2 Hawk. 612; Gilb. L. E. 144); for these notes having been made by Lord Chief-Justice Treby, are considered of great weight and authority; and it was submitted to the Twelve Judges, Whether this evidence was sufficient in point of law?
The Judges assembled at Serjeants'-Inn Hall 29 April 1779, were unanimously of opinion, That no testimony whatever can be legally received except upon oath; and that an infant, though under the age of seven years, may be sworn in a criminal prosecution, provided such infant appears, on strict examination by the Court, to possess a sufficient knowledge of the nature and consequences of an oath (see White's case, post, 430, Old Bailey October Session, 1786), for there is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court; but if they are found incompetent to take an oath their testimony cannot be received. The Judges determined, therefore, that the evidence of the information which the infant had, given to her mother and the other witness, ought not to have been received. The prisoner received a pardon (see the case of Rex v Travers, 2 Strange, 700).
______________________
(An infant witness under seven years of age, if apprized of the nature of an oath, must be sworn; for no testimony is legal except it be giyen upon oath.)
[S.C. 1 East, P.C. 443; Bull. N. P. 293, Edit. 1790. Referred to, R. v. Guttridge, 1840, 9 C. & P. 471; R. v. Paul, 1890, 25 Q.B.D 202; R. v. Lillyman, [1896] 2 Q.B. 167.]
This was a case reserved for the opinion of the Twelve Judges, by Mr. Justice Buller, at the Spring Assizes for Reading, in the year 1779, on the trial of an indictment [1-Leach-200] for an assault with intent to commit a rape on the body of Mary Harris, an infant under seven years of age.
The case against the prisoner was proved by the mother of the child, and by another woman who lodged with her, to whom the child, immediately on her coming home, told all the circumstances of the injury which had been done to her: and there was no fact or circumstance to confirm the information which the child had given, except that the prisoner lodged at the very place which she had described, and that she had received some hurt, and that she, on seeing him the next day, had declared that he was the man; but she was not sworn or produced as a witness on the trial.
The prisoner was convicted; but the judgment was respited, on a doubt, created by a marginal note to a case in Dyer's Reports (Dyer, 303, b, in marg; 1 Hale, 302, 634; 2 Hale, 279; 11 Mod. 228; 1 Atkins, 29; Foster, 70; 2 Hawk. 612; Gilb. L. E. 144); for these notes having been made by Lord Chief-Justice Treby, are considered of great weight and authority; and it was submitted to the Twelve Judges, Whether this evidence was sufficient in point of law?
The Judges assembled at Serjeants'-Inn Hall 29 April 1779, were unanimously of opinion, That no testimony whatever can be legally received except upon oath; and that an infant, though under the age of seven years, may be sworn in a criminal prosecution, provided such infant appears, on strict examination by the Court, to possess a sufficient knowledge of the nature and consequences of an oath (see White's case, post, 430, Old Bailey October Session, 1786), for there is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court; but if they are found incompetent to take an oath their testimony cannot be received. The Judges determined, therefore, that the evidence of the information which the infant had, given to her mother and the other witness, ought not to have been received. The prisoner received a pardon (see the case of Rex v Travers, 2 Strange, 700).
United States v. Hadley: Not My Views on Fresh Accusations!
I must resist the temptation to comment here on every interesting Crawford case that comes down, and while Hammon and Davis are pending I will particularly refrain in general from commenting on cases presenting the type of issue raised there, the applicability of the Confrontation Clause to fresh accusations. But because the opinion of Hon. Gerald E. Rosen, a district judge sitting by designation on the Sixth Circuit, in United States v. Hadley specifically cites my work and contends that the result he reaches (the issue is not addressed by the other members of the panel) is "fully consistent" with my post-Crawford writings, I will say this: Judge Rosen's opinion does not at all reflect my views, and I do not think it reflects my writings, either. He cites my article, The Confrontation Clause Re-Rooted and Transformed, 2004 Supreme Court Review 439, 459-60 (available from Westlaw here or for purchase from the Cato Institute by clicking here). It is, frankly, hard for me to understand how one could read the pages he cites, or the carryover to the next page, and reach the conclusion about my views that he does. To whatever extent the confusion may be attributable to lack of clarity on my part, I hope it will be relieved by my brief in Hammon.
The Expertise End Run and People v. Goldstein
The New York Court of Appeals, the highest court in the state, issued a brave opinion on Deember 20 in People v. Goldstein, a notorious case in which the defendant pushed a woman he did not know to her death in front of an approaching subway train. Goldstein raised a defense of insanity, and in response the state presented the testimony of a forensic psychiatrist, Angela Hegarty, who testified that in her opinion Goldstein was sane at the time. Hegarty relied in substantial part on statements made to her by others, and the trial court admitted these statements.
The Court of Appeals, per Judge Robert Smith, held that New York evidence law did not prevent admission of Hegarty's opinion, notwithstanding the fact that it was based in part on out-of-court statements. Pointing to the 2000 amendment to Fed. R. Evid. 703, the court reserved an issue not presented by the parties, whether New York evidence law required exclusuion of the statements themselves. All this was preliminary, because the court held that the Confrontation Clause required exclusion of those statements.
The court first rejected the argument that the statements should be deemed to have been offered not for the truth of what they asserted but only in support of Hegarty's opinion. The court pointed out that the statements provided no support for that opinion unless they were true. In this context (not entirely clear how broad a context the court meant), the court said, the distinction between offering a statement for its truth and offering it to support an expert's opinion is "not meaningful." The court thus rejected the path of least resistance, down which others have gone in accepting the distinction; see my prior posting on the subject. The court is clearly correct that in this case the distinction is an empty one. And perhaps there should indeed be a per se rule that when the statement supoprts the esxpert's opinion only if true then the statement should be deemed to be offered for the truth for Confrontation Clause purposes. Add one more to the list of Crawford-related issues the Supreme Court will have to resolve.
The court also held, without apparent difficulty, that the statement was testimonial. Hegarty was hired by the state to testify for the People, and the court infers that the interviewees should reasonably have understood that she was involved in trial preparation and that their statements were likely to be used prosecutorially. The court properly and quickly rejected arguments that the statement could not be testimonial becausei t was informal and because Hegarty was not a government official.
The only issue the court seemed to find problematic was the question of harmless error. the cour tc oncluded that the error was not harmless, and reversed the conviction. This issue, and only this one, led to the only dissent, by a single judge, Susan Phillips Read.
Leaving aside the harmless error portion, which I have not examined carefully and on which I have no view, the majority opinion is solid, persuasive, and terse; the last point is worth emphasis, even apart from style, because it treats isues that should not be difficult in a clear and straightforward way. And yet it is sensitive to the human cost of sending the matter back for another trial. I would like to ascribe the quality of the opinion to the fact that I worked for Judge Smith in practice a quarter century ago, but I don't see anything in the opinion to support this hypothesis.
The Court of Appeals, per Judge Robert Smith, held that New York evidence law did not prevent admission of Hegarty's opinion, notwithstanding the fact that it was based in part on out-of-court statements. Pointing to the 2000 amendment to Fed. R. Evid. 703, the court reserved an issue not presented by the parties, whether New York evidence law required exclusuion of the statements themselves. All this was preliminary, because the court held that the Confrontation Clause required exclusion of those statements.
The court first rejected the argument that the statements should be deemed to have been offered not for the truth of what they asserted but only in support of Hegarty's opinion. The court pointed out that the statements provided no support for that opinion unless they were true. In this context (not entirely clear how broad a context the court meant), the court said, the distinction between offering a statement for its truth and offering it to support an expert's opinion is "not meaningful." The court thus rejected the path of least resistance, down which others have gone in accepting the distinction; see my prior posting on the subject. The court is clearly correct that in this case the distinction is an empty one. And perhaps there should indeed be a per se rule that when the statement supoprts the esxpert's opinion only if true then the statement should be deemed to be offered for the truth for Confrontation Clause purposes. Add one more to the list of Crawford-related issues the Supreme Court will have to resolve.
The court also held, without apparent difficulty, that the statement was testimonial. Hegarty was hired by the state to testify for the People, and the court infers that the interviewees should reasonably have understood that she was involved in trial preparation and that their statements were likely to be used prosecutorially. The court properly and quickly rejected arguments that the statement could not be testimonial becausei t was informal and because Hegarty was not a government official.
The only issue the court seemed to find problematic was the question of harmless error. the cour tc oncluded that the error was not harmless, and reversed the conviction. This issue, and only this one, led to the only dissent, by a single judge, Susan Phillips Read.
Leaving aside the harmless error portion, which I have not examined carefully and on which I have no view, the majority opinion is solid, persuasive, and terse; the last point is worth emphasis, even apart from style, because it treats isues that should not be difficult in a clear and straightforward way. And yet it is sensitive to the human cost of sending the matter back for another trial. I would like to ascribe the quality of the opinion to the fact that I worked for Judge Smith in practice a quarter century ago, but I don't see anything in the opinion to support this hypothesis.
Petitioner-side briefs filed in Hammon and Davis
The briefs for the petitioners and supporting amici in Hammon v. Indiana and Davis v. Washington were filed on December 22. You can see the brief I filed for the petitioner in Hammon by clicking here . For the petitioner's brief in Davis, filed by Jeff Fisher, click here. For the amicus brief filed in both cases by the American Civil Liberties Union and its Indiana and Washington affiliates, click here. For the amicus brief in Hammon of the National Association of Criminal Defense Lawyers and the Public Defender Service for the District of Columbia, click here, and for the amicus brief filed in Davis by the same two organizations and also the Washington Association of Criminal Defense Lawyers, click here.
Monday, October 31, 2005
Cert granted in Davis and Hammon
The Supreme Court today granted certiorari in both Davis v. Washington, No. 05-5224, and Hammon v. Indiana, No. 05-5705. Davis primarily involves accusatory statements made in a 911 call, while Hammon involves accusatory statements made to a responding officer. In each case the state supreme court held that the statements at issue were not testimonial, and in each case I believe this was erroneous. Jeff Fisher, who won Crawford, represents Davis, and I represent Hammon. The arguments will be in tandem, probably in March. The cases give the Supreme Court a chance to ensure that Crawford will be properly applied throughout the nation. Given my involvement in one of the cases, I will be abstemious in comments on the blog. But in case anybody is in doubt, I'm pretty excited.
Wednesday, October 26, 2005
Waiting for the Supreme Court; National Law Journal article on pending cert petitions
The Supreme Court will have the cert petitions in Hammon v. Indiana and Davis v. Washington before it at its conference on Friday; my understanding is that it will probably announce its decisions whether to take the cases on Monday. Meanwhile, here is a link to a helpful article in the National Law Journal discussing these two cases and the split among jurisdictions in treating fresh accusations made to governmental agents.
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1129898335844
If you are not a subscriber to the Journal, you can take a free 30-day subscription!
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1129898335844
If you are not a subscriber to the Journal, you can take a free 30-day subscription!
Wednesday, September 21, 2005
Hammon: papered and ready for Conference
I have previously posted my petition for certiorari in Hammon v. Indiana
Monday, September 19, 2005
Supreme Court developments
I have previously reported on pending cert petitions in two cases, Davis v. Washington and Hammon v. Indiana, but htere is another one ahead of them on the docket, Ferguson v. West Virginia. This is a murder case, involving statements by the decedent months before his death in which he expressed his fear of the accused. The state did not initially respond to Ferguson's petition for certiorari, but the Court called for a response, so it has fileda brief in opposition, to which Ferguson has filed a reply.
Meanwhile, the Court has called for a reesponse in Davis. And in Hammon, the state filed a brief in opposition without waiting for a call from the Court. I hope to have it, and the reply that I am now preparing, on the blog soon.
Meanwhile, the Court has called for a reesponse in Davis. And in Hammon, the state filed a brief in opposition without waiting for a call from the Court. I hope to have it, and the reply that I am now preparing, on the blog soon.
Fixed website for Fisher outline
Jeff Fisher has prepared, and updates from time to time, an outline of post-Crawford developments that many readers have found very useful. He now has it at a fixed website, which you can get to at any time by clicking here.
Wednesday, September 14, 2005
Fresh accusations -- interesting developments, useful in part
The conflict in the lower courts with respect to fresh accusations has been deepened by two recent decisions.
I have been holding off reporting on Commonwealth v. Gonsalves, 445 Mass. 1, 2005 WL 2046000 (Aug. 29, 2005) because I have wanted to write a long post on it but have not yet had time, so I will report on it briefly. This was a domestic violence case involving statements made at the scene. With only one justice not joining the majority opinion, the court held that “questioning by law enforcement agents, whether police, prosecutors, or others acting directly on their behalf, other than to secure a volatile scene or to establish the need for or provide medical care, is interrogation in the colloquial sense,” and was therefore per se testimonial within the meaning of Crawford. Moreover, the court said explicitly, “This includes ‘investigatory interrogation,’ such as preliminary fact gathering and assessment whether a crime has taken place.” If the statement is not made in response to interrogation – in particular, if it is made in response to “questioning by law enforcement agents to secure a volatile scene or establish the need for or provide medical care,” that does not mean that it is not testimonial; that just means that there must be a case-by-case inquiry as to “whether a reasonable person in the declarant's position would anticipate the statement's being used against the accused in investigating and prosecuting the crime.” Thus, the court deals rather neatly with Crawford’s references to interrogation, but without treating interrogation as a prerequisite for a statement being deemed testimonial; the ultimate test, the one adopted previously by the Sixth Circuit among others, is the correct one. The court remanded for further findings, but indicated strongly that a statement made by the complainant to responding officers was probably per se testimonial and that a statement made by her to her mother was probably not testimonial. The first of these conclusions is clearly correct. I think the second one is much more questionable, and I wish the court had paid more attention to the question. The matter of private accusations made by the victim of a crime to a confidante is, in my view, a very troubling one; such confidantes do sometimes pass the complaint on to the authorities (as happened in this case, though apparently someone else reported the disturbance). In general, though, I think Gonsalves is a very helpful development.
Just today, the United States Court of Appeals for the Third Circuit issued United States v. Hinton. This involved two statements, one a 911 call and the other a statement by the complainant made in a squad car identifying the accused. The court adopted the Sixth Circuit approach, which is good news, and held that the statement made in the squad car was testimonial, which is also good news; the court was not distracted by the fact that this statement was made informally and not in response to interrogation. (But no good news for Mr. Hinton; the court held that admission of this statement was harmless error.) The court also held that the 911 call – in which the complainant said that an unknown assailant, whom he described, had brandished a gun and had warned him not to return to the area – was not testimonial. In this aspect of the case, the court’s analysis was quite cursory. Having (properly) applied a test based on the reasonable anticipation of someone in the complainant’s position to the statement made in the squad car, the court said that this formulation was “less helpful” in the context of the 911 call, and then pointed out that the purpose of the call was to seek police assistance. Certainly that was at least one purpose, and perhaps the dominant purpose, but if the question is one of anticipation rather than of purpose, then at least arguably the statement was testimonial; perhaps the case is less strong, though, than others in which the assailant is identified.
I have been holding off reporting on Commonwealth v. Gonsalves, 445 Mass. 1, 2005 WL 2046000 (Aug. 29, 2005) because I have wanted to write a long post on it but have not yet had time, so I will report on it briefly. This was a domestic violence case involving statements made at the scene. With only one justice not joining the majority opinion, the court held that “questioning by law enforcement agents, whether police, prosecutors, or others acting directly on their behalf, other than to secure a volatile scene or to establish the need for or provide medical care, is interrogation in the colloquial sense,” and was therefore per se testimonial within the meaning of Crawford. Moreover, the court said explicitly, “This includes ‘investigatory interrogation,’ such as preliminary fact gathering and assessment whether a crime has taken place.” If the statement is not made in response to interrogation – in particular, if it is made in response to “questioning by law enforcement agents to secure a volatile scene or establish the need for or provide medical care,” that does not mean that it is not testimonial; that just means that there must be a case-by-case inquiry as to “whether a reasonable person in the declarant's position would anticipate the statement's being used against the accused in investigating and prosecuting the crime.” Thus, the court deals rather neatly with Crawford’s references to interrogation, but without treating interrogation as a prerequisite for a statement being deemed testimonial; the ultimate test, the one adopted previously by the Sixth Circuit among others, is the correct one. The court remanded for further findings, but indicated strongly that a statement made by the complainant to responding officers was probably per se testimonial and that a statement made by her to her mother was probably not testimonial. The first of these conclusions is clearly correct. I think the second one is much more questionable, and I wish the court had paid more attention to the question. The matter of private accusations made by the victim of a crime to a confidante is, in my view, a very troubling one; such confidantes do sometimes pass the complaint on to the authorities (as happened in this case, though apparently someone else reported the disturbance). In general, though, I think Gonsalves is a very helpful development.
Just today, the United States Court of Appeals for the Third Circuit issued United States v. Hinton. This involved two statements, one a 911 call and the other a statement by the complainant made in a squad car identifying the accused. The court adopted the Sixth Circuit approach, which is good news, and held that the statement made in the squad car was testimonial, which is also good news; the court was not distracted by the fact that this statement was made informally and not in response to interrogation. (But no good news for Mr. Hinton; the court held that admission of this statement was harmless error.) The court also held that the 911 call – in which the complainant said that an unknown assailant, whom he described, had brandished a gun and had warned him not to return to the area – was not testimonial. In this aspect of the case, the court’s analysis was quite cursory. Having (properly) applied a test based on the reasonable anticipation of someone in the complainant’s position to the statement made in the squad car, the court said that this formulation was “less helpful” in the context of the 911 call, and then pointed out that the purpose of the call was to seek police assistance. Certainly that was at least one purpose, and perhaps the dominant purpose, but if the question is one of anticipation rather than of purpose, then at least arguably the statement was testimonial; perhaps the case is less strong, though, than others in which the assailant is identified.
Friday, August 19, 2005
NACDL-PDSDC Amicus in Davis
Here is a link to the amicus brief of the National Association of Criminal Defense Lawyers and the Public Defender Service for the District of Columbia in support of the petition for certiorari in Davis v. Washington. The brief also urges the Court to grant the petition in Hammon v. Indiana, but I expect these organizations will file a separate brief in that case.
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