Ineffective assistance and adequacy of a prior opportunity for cross

A reader's question raises an interesting issue on which I haven't given much thought: If a witness testifies subject to cross against an accused at a first trial, which ultimately is thrown out, but then is unavailable at the time of the retrial, in what circumstances (if any) can the accused keep the testimony from the first trial out on the ground that the lawyer there did an inadequate job on cross? If I am wrong in what I say below, I hope readers will correct me, but here is the answer I glean from reading United States v. Owens, 448 U.S. 554 n.1, Ohio v. Roberts, 448 U.S. 56, 73 n.1, and Mancusi v. Stubbs, 408 U.S. 204 -- yes, all pre-Crawford cases, but no reason to believe that Crawford overruled any of them on this point:

(1) If a court has not determined on the basis of other conduct that the first counsel was inadequate, the court will not ermine that the accused had an inadequate opportunity to cross on the basis that counsel did a poor job in cross.

(2) If there is an independently-based determination that counsel was inadequate,

(a) that does not automatically mean that the accused had an inadequate opportunity to cross-examine this witness, but

(b) it does mean that the court should examine counsel's actual performance with respect to the witness in question, and if that performance does not meet some minimum level of sufficiency then the prior opportunity should not be deemed adequate for Confrontation clause purposes.

Does that sound right?

Detroit Police Crime Lab closed because of high error rate

My student Brenna Speiser has called to my attention a report by the Detroit Free Press, on freep.com, with this dramatic lead:

The Detroit Police crime lab is so riddled with errors that officials
ordered an immediate shut down today, saying that the local criminal justice
system could be at risk.

The closure results from an audit by the state police indicating a 10% error rate in ballistics evidence. The firearms unit had previosuly been closed, but today the entire lab -- which also handles fingerprint, DNA, and drug evidence -- was closed.

Among the officials announcing the closure was Kym Worthy, the Wayne County prosecutor, who is quoted as saying:

If we have even one person in prison on evidence that was improperly done,
that’s a huge problem. As prosecutors we completely rely on the findings
of police crime lab experts every day in court and we present this information
to juries. And when there are failures of this magnitude, there is a complete
betrayal of trust.

Quite right. But what makes this especially intriguing -- and, I must confess, chortle-inducing -- is that Worthy is a signatory to the prosecutors' amicus brief filed earlier this month in Melendez-Diaz (and previously posted on this blog), contending that an intolerable burden will be cast on the criminal justice system if live testimony by lab analysts is routinely required in drug cases.

But I'm happy to assume that Worthy deserves substantial credit for not attempting to delay the decision to close the lab until the Supreme Court decides Melendez-Diaz.

Respondent-side amicus briefs in Melendez-Diaz

Two amicus briefs supporting hte Commonwealth have been filed in Melendez-Diaz. You can read the brief of the United States by clicking here, and the brief of the National District Attorneys Association and several prosecutors by clicking here.

A legislative response to Giles?

My student Ted Whalen has called to my attention a bill pending in Illinois, which you can read by clicking here, that seems designed to take advantage of the leeway left by Giles (though I suspect it was drafted before the Supreme Court's decision in Giles and was in fact drafted in response to the Illinois Supreme Court's decision in People v. Stechly.

Respondent's brief in Melendez-Diaz

Here is the brief on the merits of the Commonwealth, as respondent, in Melendez-Diaz v. Massachusetts. I expect I will post some comments on it within a few days.

Reply brief in support of cert in Briscoe

Here, rather belatedly, is the reply brief I filed last month in support of certiorari in Briscoe v. Virginia, challenging Virginia's burden-shifting statute. If the Court decides in Melendez-Diaz (as I bleieve it should) that forensic lab reports are testimonial, then the issue posed by this petition will be presented.

Brief in Opposition in Briscoe

The Commonwealth has filed its Brief in Opposition in Briscoe and Cypress v. Virginia, the case in which I filed a petition challenging Virginia's statute shifting to the accused the burden of producing as a live witness the author of a certificate of forensic laboratory results. You can read it by clicking here. I expect to file a reply brief shortly.

No confrontation issue if the statement isn’t even offered.

That seems obvious enough, but the point arose in an interesting context in United States v. Tucker (8th Cir. Jul. 17, 2008). Tucker assisted her boyfriend Robson in a get-away from a bank robbery, and the critical issue was whether when she did so she knew that he had robbed the bank. So, as the 8th Circuit indicated, evidence that Tucker knew that Robson had committed other bank robberies was admissible to show her state of mind on this occasion, and it was also admissible to impeach the credibility of her testimony that she didn’t know Robson had robbed the bank. In cross-examining Tucker, the prosecutor asked whether on three specified prior occasions Robson had robbed a bank and either he had told Tucker about it shortly afterwards or she had helped him get away. Tucker denied each. No evidence of the other robberies was admitted.

If the prosecutor had no good-faith basis for asking questions of this sort, they would be highly prejudicial and improper. But if she did, then they were fair game – even if she had no other admissible evidence of the other robberies, she was entitled to hope that Tucker would tell the truth (as the prosecutor believed the truth is or may be, based on the information that gave her the good faith belief), and that would give her the evidence she wanted. And in this case, she did have a good-faith basis – a statement Robson had made to the FBI. The statement was clearly testimonial, and couldn’t be admitted against Tucker, given that she had not had a chance to cross-examine him. It wasn’t offered, and the jury never even learned of its existence, though they might well have inferred that the prosecutor was basing her questions on something of the sort. But the statement could, without violating the Confrontation Clause, form the good-faith basis for the prosecutor to ask her questions, and that is what the 8th Circuit properly held.

Reflections on Giles, Part 4: The Alito and Thomas opinions

Justice Thomas wrote a brief concurrence in Giles expressing the view that the statement at issue – made by the victim to a responding officer after an alleged assault – was not testimonial in nature. He regarded it as indistinguishable from the statement made to a responding officer in Hammon v. Indiana. I believe he is right that they are materially indistinguishable; of course, I think that the statement in Hammon was clearly testimonial. But given that he dissented from the decision in Hammon, Justice Thomas’s declaration in Giles is hardly surprising.

More intriguing is the separate concurrence by Justice Alito. He says that, “like Justice Thomas,” he is “not convinced” that the statement is testimonial. (Well, if he were entirely like Justice Thomas in this respect, he would be convinced that it was not testimonial.) He expresses sympathy with the dissent’s “displeasure” with the result in this case, but “suggest[]s that the real problem concerns the scope of the confrontation right”; he says it is “not at all clear” that Ms. Avie’s statement is the equivalent of a statement by a witness. Although he is less than definite, Justice Alito sure sounds as if he does not believe this statement is testimonial. But what is notable here is that Justice Alito, like all the justices except for Justice Thomas, joined the majority in Hammon. I suspected from the start that the decision in Davis v. Washington (which included Hammon) was a compromise, from Chief Justice Roberts’s first term, when the Court seemed to be trying hard to achieve consensus (and when Justice Alito was very junior). Justice Alito’s opinion in Giles lends weight to that supposition; it seems likely that he did not like the result in Hammon but went along because other justices who might have been disposed to treat the 911 call in Davis as testimonial were willing to give up that result as part of the overall resolution.

My colleague Chris Whitman, a far more experienced and knowledgeable observer of the Court than I, has raised another issue. She asks whether, given their views, Justices Thomas and Alito should have voted to affirm. I have asked her to write up her thoughts, and she has graciously agreed. Here they are:

Why are Justices Alito and Thomas concurring rather than dissenting? They see no constitutional infirmity in the decision below:

If the statements admitted are not testimonial, as they believe, there is no reason not to affirm the decision.

Alito and Thomas say that the question of whether the statements were testimonial was not the subject of the cert grant. Yet Justices Brennan and Marshall in capital cases repeatedly voted on the basis of their general death penalty views even where cert was granted on a more narrow issue, and Souter (with others) does the same thing in Eleventh Amendment cases. Perhaps the answer is that Alito and Thomas have decided to accept the majority approach to whether a statement is testimonial as a matter of stare decisis, but their opinions in Giles address the issue and certainly sound as if they are not conceding the point.

Under the circumstances of Giles, the result is not so troubling. Here, a criminal
defendant gets a remand even though a majority of the Justices see no constitutional flaw in his conviction. But could there be a case in which the facts are reversed? What if five Justices see a flaw in the trial below, but two of them vote to affirm the conviction on the grounds that the issue critical to them was not the subject of the cert grant? Would we leave a prisoner in jail although five Justices have expressed the view in his case that there was constitutional error below?

I’m not sure she’s right, but I would be glad to know of any readers’ thoughts – in comments either posted here or sent by e-mail to rdfrdman@umich.edu.

Reflection on Giles, Part 3: What Does It Mean?

The accused has intentionally engaged in serious wrongful conduct that has in fact caused the victim to be unavailable as a witness at trial. What state of mind on the part of the accused with respect to that unavailability will support a finding of forfeiture under Giles? There is some ambiguity about that.

Jsutice Scalia’s opinion, which for the most speaks for a majority of the Court, refers repeatedly to the defendant’s “intent.” As Justice Breyer emphasizes, there is a soft meaning of the term intent – one is deemed to intend the expected consequences of his conduct. If that is what Justice Scalia meant, then there might not be much of a dispute at all, because one expected consequence of Giles’ fatal assault would be that Avie would not be able to testify. Even on this assumption, though, there may be some ambiguity. In arguing that Davis v. Washington is consistent with what I believe to be the proper approach to determining what is testimonial – one based on the reasonable expectation of the declarant – I have noted the difference between “armchair” and “heat of the moment” expectation. In each, we consider the declarant dealing with the same information, but we assume different contexts; I think Davis is consistent with the view that the expectation of a reasonable declarant should be judged as of the moment when she actually spoke, not as if she were considering the situation later from the comfort of an armchair. The same dichotomy might apply to a reasonable-expectation test of forfeiture, though I think that if it did there would be a stronger argument for applying the armchair test – the accused ought to bear the burden of difficulties that would be obvious to him if he carefully considered the likely consequences of his wrongful conduct. If one applied the armchair view of a reasonable-expectation test, that would essentially cause forfeiture doctrine to come out where the state (and I) thought it should.

But, despite his use of “intent,” Justice Scalia does not appear to be thinking of any reasonable-expectation test. He appears rather clearly to mean that forfeiture applies only to conduct that was motivated (at least in part, and how much is another question) by the desire to render the witness unavailable. Thus, for example, in Part II.A of his opinion, emphasizing a limited meaning of the term “procurement,” he writes, “The terms used to define the scope of the forfeiture rule suggest that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying.” Slip op. at 5. On pp. 7 and 14 of the opinion, similarly, in speaking historically he uses “designed” language, and on p. 6 he speaks of the historical materials indicating “a purpose-based definition.” And on p. 13, referring to Fed. R. Evid. 804(b)(6), he endorses Mueller and Kirkpatrick’s comment that courts insist that “the defendant [have] in mind the particular purpose of making the witness unavailable.”

So we seem to have a purpose-based test. But there are a couple of sources of ambiguity – one passage in Justice Scalia’s opinion and one in Justice Souter’s concurrence. Justice Scalia writes:

Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution – rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.

Slip op. at 23. Clearly Justice Scalia means to cover the situation in which H, knowing that W will likely testify against him on a charge arising out of a prior incident, murders W so that W will not be able to testify. That is close to a core case of forfeiture, falling within the narrowest plausible definition, but with one twist. The twist is that in the core case the witness's testimonial statement was made in connection with the present case, and the accused murders the witness to prevent testimony in that present case. In the case envisioned by Justice Scalia. the testimonial statement was made with reference to a crime other than the murder charged in the indictment, and the defendant committed the murder to prevent the victim from testifying in that prior case. In other words, the court is willing to allow forfeiture of the confrontation right within a given case if the accused's purpose was to prevent testimony, even if the accused anticipated that testimony being used in another case; if the accused's purpose was only to end a life that he had come to regard as an annoyance, that will not cause forfeiture.

Justice Scalia also means to include abusive conduct “designed” to prevent W from making testimonial statements to authorities – though how this design would be proved in the absence of explicit threats is unclear. Is it enough to present general evidence of the patterns and psychology of abusers, supporting the proposition that in beating W, H was not merely expressing his anger and desire to control her, but also attempting to intimidate her from seeking outside help, including help from the authorities? That seems to be quite an inferential leap.

And, what does Justice Scalia mean by saying that murder may “express[] the intent to isolate the victim” and prevent her from testifying? Murder is not generally an expressive act, so the choice of verb seems odd. Does he mean to cover more than the easy case (in terms of theory even if not of proof) in which the murder was the means by which H effectuated the desire to prevent W from testifying? Does he mean that the murder might reveal that the intent of the prior abuse was to intimidate the witness from testifying – and if so, what does that matter?

Justice Breyer says hopefully that in this passage the majority creates "a kind of presumption that will transform purpose into knowledge-based intent – at least where domestic violence is at issue." Slip op. at 25. Justice Scalia denies that the test he enunciates is one requiring nothing more than "knowledge-based intent," and he is right. But Justice Breyer seems to be making a prediction, and perhaps he is right as well. For example, in a case like Giles itself, perhaps the state will be able to persuade the courts that Giles knew that Avie had made the prior statement to police, so that it should be inferred that killing Avie was designed, at least in part, to prevent her from testifying at a trial.

The interpretive intrigue is greatly compounded by the fact that, even though they joined the key parts of the Scalia opinion, Justice Souter, with Justice Ginsburg concurring, articulates a different standard, with which the three dissenters contingently agree – the contingency being the actual meaning of the standard. Justice Souter says that "the element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process." Slip op. at 2-3. Justice Breyer believes this language "in effect presumes 'purpose' based on no more than a history of domestic violence," and on that understanding agrees with it, or is at least satisfied that it gets to the right result. So it could be that we have five justices agreeing on the proposition that if a domestic abuse complainant is intimidated from testifying, and the prosecutor can show that she and the accused were in a "classic abusive relationship," that is sufficient for forfeiture. Well, that isn't pretty – for reasons stated in the second installment of these reflections, I worry about the theoretical problems with this approach – but it will get a lot of the job done. As Justice Breyer indicates, it seems to wash purpose largely out of the picture; it certainly does not demand that purpose to render the complainant unavailable be the accused's dominant purpose in engaging in abuse.

Justice Souter, again with the qualified endorsement of the dissenters, also includes this potentially significant statement as part of the passage quoted above:

If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger.

Slip op. at 3. True enough. But in the murder case, the instant before the fatal blow (or perhaps even after it) the complainant was presumably willing to testify, notwithstanding a history of abuse; the last piece of information we generally have is that she did make a testimonial statement (the one at issue) to the authorities. (Contrast the intimidation case, in which the last thing we know is that the complainant is not willing to testify.) So it was the single act of fatal violence that prevented her from testifying at trial, not a history of isolation-causing abuse. Perhaps Justice Souter's logic is something like, "If he engaged previously in the type of abuse that tends to cause isolation, then murder should be considered also as motivated at least in part by a desire to prevent the victim from getting help from authorities." I assume many courts will take advantage of this language to admit statements in Giles-like situations. The logic seems shaky to me, but the results will often be good ones – though I remain concerned about the absence of a mitigation doctrine.

Reflections on Giles, Part 2: Is Giles bad for defendants?

On its surface, Giles appears to be a major victory for defendants. I am not sure that will prove to be right over the long run.

1. The Giles test – however it develops – may turn out to be rather easily satisfied.

We’ll have to see over time how the lower courts, and ultimately the Supreme Court, reconcile the various key passages in the majority opinion and in Justice Souter’s concurrence, which reflects the views of two justices crucial for the majority. But I believe that most courts are (as they should be) strongly inclined to admit statements made by a witness who was precluded form testifying in court by the defendant’s own wrongful conduct. (Indeed, most courts are inclined to admit testimonial statements by unavailable witnesses even when that condition, which should justify admissibility, is not present.) So my guess is that a lot of courts will go through a hearing, in which they receive extensive evidence on the nature of domestic violence (including child abuse), emphasizing control by the man over the woman and a desire to isolate her, and then conclude that the best inference is that the accused did indeed act with the purpose to render the witness unavailable. Non-lethal domestic violence that intimidates the witness is the most common context in which the accused might commit serious intentional misconduct that has the predictable consequence of rendering the witness unavailable even though the misconduct was not clearly and primarily directed towards that end. In other words, in the most common context in which the Giles issue will arise, it may be that the Giles test will usually not benefit defendants, but only make for a more extensive process.

2. Giles will encourage a narrow view of what is testimonial.

To the extent that courts do not deem themselves able to find that the Giles test for forfeiture is satisfied, they will have a large temptation to find other ways to secure admissibility of statements made by witnesses who have been rendered unavailable by serious misconduct of the accused. Probably the chief way in which this will happen is that they will give an unduly construction to the term “testimonial” – a construction that will apply beyond the situation in which the accused should arguably be held to have forfeited the confrontation right. We may already see the beginning of this effect in Giles itself. The majority, making the point that its rule has less impact than might be supposed, points out (correctly) that the rule matters only with respect to testimonial statements – and then it casually tosses off a dictum that statements to treating physicians are not testimonial. Whoa!! That’s a significant issue, one very much in dispute. I don’t think the fact that the audience of a statement is a physician who is treating the declarant should be enough in itself to cause the statement to be characterized as non-testimonial. It may be, for example, that the declarant and the physician know full well that the physician is under a legal and professional obligation to pass on to the authorities any accusation of serious crime that the declarant makes. If such statements are deemed non-testimonial, then we have created a system by which a witness can self-consciously create narrative evidence for trial by speaking to a physician who has some therapeutic purpose in meeting with her. The Court’s dictum on this point should not settle the matter, but it does suggest how an unduly narrow view of forfeiture might contribute to an unduly narrow view of “testimonial” – which may be a consequence of far greater importance.

3. Giles will encourage overly broad applications of the dying declaration exception.

Another means of evading Giles will be to stretch the dying declaration exception beyond its appropriate bounds. We have already seen this, in the Jensen case, discussed in a prior post. This case has reached some notoriety – Julie Jensen, afraid that her husband Mark might poison her, left a note indicating that if she should die unexpectedly suspicion should be cast on Mark. The trial judge, explicitly anticipating the outcome in Giles, held the note to be a dying declaration. I believe this is a rather outlandish application of the dying declaration doctrine – Julie did not believe herself on the verge of death when she wrote the note – but it may become typical under Giles.

4. Creation of a doctrine of mitigation will be much more difficult under Giles.

An important means of limiting forfeiture doctrine would be adoption of a strong doctrine of mitigation – that is, a set of rules governing steps that the state must take in given circumstances to preserve the confrontation right of the accused to the extent reasonably possible notwithstanding the accused’s wrongful conduct. For example, if the wrongful conduct is murdering the witness, who while dying made a testimonial statement, then mitigation doctrine would require the state, as a precondition to invoking forfeiture doctrine, to offer the accused an opportunity to take the witness’s deposition, so long as there was a practical, humane opportunity to do so. If the wrongful conduct is intimidation, a mitigation requirement might require the state to make certain efforts to ascertain the extent to which confrontation might be preserved; for example, the state might be required to bring the witness to chambers to explore whether she might be willing to testify there, subject to cross-examination by counsel. Procedural rules of this sort would, I believe, be less easily avoided than substantive standards that a judge could manipulate around; if the procedural requirement is applicable, courts will just have to satisfy it.

Giles makes it considerably more difficult to achieve a strong mitigation doctrine. Had the Court adopted the historical theory of forfeiture that I have presented, in which dying declaration cases are seen as a manifestation of forfeiture doctrine confined by a mitigation requirement, then necessarily the Court would have made at least the start of adopting such a requirement. But Giles provides no momentum for creation of such a requirement. That does not mean the Court will not adopt one – I still think it should – but now it will be a much harder sell.

5. Giles takes away a basis for challenging Owens.

One unfortunate aspect of modern Confrontation Clause doctrine is the rule of United States v. Owens, that the Clause is satisfied so long as the witness who made the statement testifies at trial, even if the witness does not remember the underlying facts. In this situation, the ability of the accused to cross-examine the witness is seriously undermined, a factor that the Owens Court did not recognize. Owens itself could be explained on the basis of forfeiture, if there were no purpose requirement attached to forfeiture doctrine; the reason the witness there could not remember the underlying facts was that the accused had bashed his head in. But I do not believe the Giles standard could be satisfied in the Owens situation; there is no indication that the accused bashed the witness’s head in for the purpose of rendering the witness unavailable to testify at trial; it was the bashing itself for which Owens was tried.

6. Giles undermines the general theory of the Confrontation Clause.

In my immediately prior post, I pointed out that, if Giles had come out the other way, it would be possible to enunciate a theory of the Confrontation Clause under which there are no exceptions to it. Forfeiture, like waiver, is not really an exception to the right, but a factor causing estoppel against exercise of the right. Under Giles, though, the Clause is clearly subject not only to forfeiture but also to an exception for dying declarations – statements by a murder victim explaining the cause of apparently imminent death. And what is the justification for that exception? The Court states none other than that the exception existed at the time of the Framing. The rationale traditionally given for the exception is principally a reliability one – that the prospect of imminent death guarantees trustworthiness of the statement. But one of the essential propositions of Crawford was that reliability of a testimonial statement, or a category of statements, is not a ground for admitting it absent an opportunity for cross-examination. The Court has therefore complicated and undermined the general theory of the Clause, and that will likely make it less robust – because more complicated, less easily understood, and less rational – in the long run.

Reflections on Giles, Part 1: History, Dying Declarations, and Forfeiture

As readers of this blog will recognize, I am obviously very disappointed by the result in Giles. It has unfortunate consequences for the theory of the Confrontation Clause. It will complicate litigation. And it will lead to some bad results – though to what extent it will do so is unclear, depending on how some language in the Scalia and Souter opinions is applied.

It’s going to take me a while to write out all my comments, so I will post them in pieces.

Justice Scalia’s opinion, which except for one section is an opinion for the Court, is overwhelmingly historical. For the most part, it adopts the argument put forward in the amicus brief of the National Association of Criminal Defense Lawyers, written by his former clerk Robert Kry. The basic argument is this: At the time of the Framing, there were two separate doctrines, one for dying declarations and one for forfeiture. (1) The dying declaration exception does not apply because the statement in question was not made while death was, or appeared to be, imminent. (2) (a) The language used to describe the forfeiture doctrine suggests it was limited to situations in which the defendant took actions designed to prevent the witness from testifying, (b) No cases applied the doctrine absent that condition. (c) There were many murder cases in which that condition was not satisfied, and the statement was not admitted unless it satisfied the dying declaration exception. (d) Until relatively recently forfeiture doctrine was not applied absent that condition.

I have offered, in my amicus brief and in a prior posting on this blog, an argument that I believe completely and adequately responds to this line of reasoning. The state did not endorse it, presumably because it did not like the long-term implications. Justice Scalia never addressed the argument. Briefly, the argument is this:

The dying declaration exception should be regarded as a manifestation of forfeiture doctrine, limited by the principle that the state cannot invoke forfeiture doctrine if it has not taken advantage of reasonable opportunities to preserve the confrontation right in whole or in part. When a lingering murder victim made an accusatory statement, it was standard practice to bring the accused to the victim, and take the victim’s testimony, under oath and in the presence of the accused. If the testimony of such a victim was taken without the presence of the accused, it would not be admitted. But if the victim was, and appeared to be, on death’s door, then the testimony of the victim could be admitted even though the accused was not present. So the results of these cases are in accord with the following principles:

(1) The accused forfeits the confrontation right with respect to testimonial statements by the victim by murdering her.

(2) Notwithstanding (1), if the state can reasonably arrange for testimony by the victim subject to confrontation, but it does not do so, then it cannot invoke forfeiture doctrine.

(3) If death is, or appears to be, imminent, then it is no longer reasonably practical and humane to provide for testimony subject to confrontation, and so the absence of confrontation is excused.

I don’t believe a single one of the old cases cited in the course of briefing and arguing Giles is inconsistent with this set of principles. In a case in which the victim makes the statement at issue after the fatal blow, but the accused has had no opportunity for confrontation, then principle (2) would prevent admission of the statement unless the circumstances satisfying principle (3) are present. But Giles fits a different mold. In cases like Giles, the victim makes a testimonial statement against the accused before the crime being charged, and then is murdered; in Giles, there was no opportunity after the fatal blow to arrange for confrontation. Cases fitting that mold apparently didn’t arise in the Framing era – none of the litigants or amici cited such a case. The reason is simple. Domestic violence short of death generally wasn’t prosecuted. A victim of domestic violence who was not likely to die as a result of the wounds already suffered had no occasion to make a testimonial statement of the type that Brenda Avie, Giles’s victim, did. There is really no basis for saying that if such cases did arise, the courts would have excluded the evidence on the basis of the defendant’s argument that he had no chance to be confronted with the witness. The principles I have enunciated suggest that courts would have admitted the evidence. Certainly there was no settled practice of exclusion.

Note the appealing structure of Confrontation Clause doctrine that can emerge from the principles that I have enunciated: The accused forfeits the confrontation right if he commits serious misconduct that can be reasonably expected to, and does, cause the unavailability of the witness. But the accused should not be deemed to have caused that unavailability to the extent that the state could, by reasonable measures, preserve confrontation notwithstanding the accused’s wrongdoing. Putting aside waiver and forfeiture – not really exceptions to the right, but rather qualifications on its exercise, ones that apply to other Sixth Amendment rights as well – there are no exceptions to the confrontation right.

Now compare the structure that apparently emerges given the result in Giles: The accused forfeits the confrontation right if he engages in conduct that is designed to, and does, render the witness unavailable. But if the accused engages in serious intentional misconduct without a purpose to render the witness unavailable, the facts that the misconduct did in fact make her unavailable, and that this was entirely predictable, do not lead to forfeiture. Apart from forfeiture doctrine, there is an exception to the confrontation right for declarations made in the anticipation of imminent death. The reason this exception is recognized – without any basis for it in the text of the Confrontation Clause – is that it was extant at the time the Sixth Amendment was adopted. (The Court offers no other reason.) The fact that the principal reason given for it at that time – that such statements are highly reliable because of the imminence of death – conflicts squarely with the essence of Crawford is of no apparent concern.

This strikes me as originalism gone way overboard. As I have said, my argument accounts for the results of all the cases. It varies from the language and stated rationale of the old cases. But to say that the modern doctrine of the Confrontation Clause is bound – with respect to forfeiture, a doctrine that has a basis outside the text of the Clause (because it has no basis in the text) – by the language and stated rationale of 18th century cases, precluding a more sensible doctrine consistent with the results of those cases, seems to me to be taking originalism at least a step too far. Put another way: Crawford did to prior doctrine exactly what I am saying the Court should have done to the old cases – articulate a different and far more satisfactory rationale that is consistent with at least most of the results.

Giles vacated and remanded

The Supreme Court decided Giles v. California today. You can see the opinion by clicking here. Giles won; the decision is vacated and remanded, and the forfeiture theory does not apply. I have not had time yet to read the opinion, and so can't say much more (except that I think this is a veyr unfortunate result), but I will add more later, probably later in the day.

Top-side amicus briefs in Melendez-Diaz (updated, June 24, pm)

Yesterday was the deadline for amicus briefs in support of the petitioner in Melendez-Diaz v. Massachusetts, No. 07-591, the case raising the issue of whether forensic laboratory reports are testimonial within the meaning of the Confrontation Clause. I have filed a brief, which you can see by clicking here. For the brief of several other law professors, click here. For the brief of the National Innocence Network, click here. And for the brief of the National Association of Criminal Defense Lawyers, the National Association of Federal Defenders, and the National College for DUI Defense, click here. My understanding is that these are no other amicus briefs filed in support of the petitioner.

Petitioner's brief in Melendez-Diaz

While we wait for the Supreme Court to decide Giles, Melendez-Diaz v. Massachusetts, the case that will decide whether forensic lab reports are testimonial, is moving ahead. To see the petitioner's main brief on the merits, filed this past Monday, click here. Jeff Fisher is lead counsel for the petitioner. Amicus briefs supporting the petitioner are due next Monday, June 23. I expect to file one; I believe these statements are clearly testimonial.

Cert petition in a burden-shifting case

In several posts, I have discussed, and railed against, statutes that shift to the accused the burden of producing a prosecution witness, typically the author of a lab report. Yesterday, I filed a cert petition raising this issue, and seeking review of the decision of the Supreme Court of Virginia in Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d 113 (2008). You can read the petition, in Briscoe and Cypress v. Virginia, by clicking here.

Failure to answer questions on cross

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

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

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

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

Referring to Owens, the court said:

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

Thus, admission of the statement was error.

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

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

Transcript of Giles argument

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

Further thoughts on the Giles argument, from David Salmons

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

_________

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

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

Reflections on the historical discussion at the Giles argument

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

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

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

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

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

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

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

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

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

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