Petitioner's brief and Joint Appendix in Williams

The petitioner has filed his brief and the Joint Appendix in Williams v. Illinois. You can read the brief by clicking here and the Joint Appendix by clicking here.

Melendez-Diaz held not retroactive, in Melendez-Diaz case

Here's an irony of sorts. The Massachusetts Supreme Judicial Court has held the rule of Melendez-Diaz not to be retroactive -- and it did so in Commonwealth v. Melendez-Diaz, 2011 WL 3000275 -- yes, involving a prior conviction of the same Luis Melendez-Diaz.

Initial thoughts on Williams

In Williams, the state presented the testimony of a DNA expert that in her opinion, based on a Cellmark report on DNA found in a crime scene sample and on a report by the Illinois State Police on DNA found in a swab taken from the accused, that the accused was the source of the DNA found in the crime scene sample. No one from Cellmark testified at trial.

1. The Cellmark report was testimonial. As I understand it, this was a report on a crime scene sample referred to Cellmark by the Illinois State Police. I don’t think that there is much doubt that the primary purpose of the report, however one might analyze it, was to create evidence for use in prosecution. (That is more rigorous than the test I think ought to be applied, but that’s another issue.)

I think it’s important to bear in mind that the other issues raised by Williams come into play only if the underlying statement is testimonial. That may be obvious, but it is worth emphasizing for a couple of reasons. First, this fact should relieve much of the concern about costs, financial and in terms of lost evidence. No confrontation problem arises unless the report is made in anticipation of evidentiary use. For example, if a lab tech does a blood test without the anticipation of evidentiary use, it will not be testimonial, and there is no confrontation issue. Second, if the statement is testimonial, then that means that the statement was made in anticipation of evidentiary use – and in fact under current law it would mean that it was made with the primary purpose of creating evidence for use in prosecution. That, I believe, should raise alarm bells for a court considering creation of a doctrine that would allow use of the statement without the live testimony of a competent witness.

2. The statement was not formally admitted, but a crucial part of the substance was made known to the jury. The prosecutor asked Sandra Lambatos, the in-court witness, “Was there a computer match generated of the male DNA profile [reported by Cellmark] found in semen from the vaginal swabs of [the victim] to a male DNA profile [reported by another analyst in the state police lab] that had been identified as having originated from Sandy Williams?” She answered in the affirmative. The prosecutor then asked whether she had compared the two profiles. She said she had. He asked what the frequency of such a match would be if someone other than Williams were the source, and she answered with very low numbers. Finally, the prosecutor asked, “In your expert opinion, can you call this a match to Sandy Williams?” and she responded simply, “Yes.”

Formal admission of an out-of-court statement is not necessary to invoke the Confrontation Clause. When a statement is a writing, it is of course often admitted as an exhibit. When it is unrecorded, then no tangible exhibit of it can be offered. We necessarily rely on another witness's account of the statement -- but the Clause may be brought into play without that account being purportedly verbatim. It should be enough if the prosecution is effectively asking the jury to infer that the in-court witness is communicating some or all of the substance of an out-of-court testimonial statement, and that this substance is true. See my recent post, When is a statement presented for purposes of the Confrontation Clause?

In considering application of this principle to this case, note first that the existence of the statement was made clear to the jury. In other words, this is not a case in which an expert assembles information from one or more sources and then draws an inference based on that information without disclosing what it is or what its sources are. (I don’t believe that if that were so it would per se render the Confrontation Clause inapplicable; it still might that the jury would likely infer that the expert’s opinion was based on a statement to a certain effect, and even if not there would be a concern that the expert’s opinion is being used to repackage the information contained in an undisclosed testimonial statement. But, whatever the ramifications may be of that situation, the Court need not address them in the Williams case.) The testimony explicitly referred to the Cellmark report. Furthermore, it was clear what the substance of the statement was: It indicated that the vaginal swab taken from the crime scene reflected the same DNA profile as the swab taken from Williams. It is as if an in-court witness reports, “Somebody at the scene described the person she saw commit the crime, and the description closely matched Williams.” So far as the Confrontation Clause is concerned, the report was presented to the jury.

3. The argument that the statement was in any event presented to the jury not for the truth of a matter that it asserted but rather in support of the expert’s opinion seems willfully wrong-headed to me in this context. In prior posts on this blog, including one discussing the fine opinion in People v. Goldstein, 6 N.Y.3d 119, 843 N.E.2d 727, 810 N.Y.S.2d 100 (by a former boss of mine, Judge Robert Smith), I have emphasized the simple point that if a statement supports the expert’s opinion only if it is true then it is a sham to say that it is being presented to support the opinion but not for its truth; see also The Not-for-the-Truth End Run. And in Williams, the application of this principle is perfectly clear: If the profile revealed by the vaginal swab was not what the Cellmark report said it was, then that report provided no support whatsoever for the expert’s opinion.

4. This analysis should not be affected by concluding that the expert’s opinion conveyed additional information not contained in the original report – an argument not available to the prosecution in Bullcoming, where the in-court witness did nothing more than transmit the information reported by the absent analyst. The question is not whether the in-court witness’s testimony had added value, but whether the out-of-court report was presented for its truth. This is simply an ordinary instance of a prosecution case depending on multiple links in a chain – and each link must comply with the Confrontation Clause. We wouldn’t, for example, tolerate a witness testifying that a given sample contained cocaine without the prosecution also presenting proper evidence tying the sample to the case. This is no different. If the expert’s opinion does indeed convey additional information, that is something more that the prosecution has to prove; it does not ease the burden on the prosecution.

Indeed, the “expert value added” theory would be an invitation to manipulation by the prosecution and its witnesses. That is, the prosecution would have an incentive to manufacture needs for its in-court witnesses to add value over the other information presented to the jury.

For example, suppose a lab analyst reports results from which a qualified chemist could easily infer the presence of cocaine – but that the report does not include this bottom line. If the “expert value added” theory governed, a chemist could, so far as the Confrontation Clause is concerned, testify at trial against an accused, “In my opinion, cocaine was present in that sample.” (As discussed below, evidence law in most jurisdictions would require the expert to satisfy the court that the information on which she based her opinion was “of a type reasonably relied upon by experts” in her field, but that is a standard easily met.) The lab analyst, who by hypothesis knew that her report was intended for prosecutorial use, would not have to come to court, and the report would not even have to be introduced or otherwise presented to the jury.

5. Fed. R. Evid. 703, copied by most of the states (now including Illinois), provides:

If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data [on which a testifying expert bases an opinion] need not be admissible in evidence in order for the opinion or inference to be admitted.

A 2000 amendment to the Federal Rule adds:

Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

A few points. This Rule does not purport to state a constitutional principle. Nor does it state an evidentiary principle of long standing; it was developed and adopted in the third quarter of the 20th century. There is no constitutional problem with the Rule so long as the information provided to the expert is not a testimonial statement. But if the expert does base an opinion on a testimonial statement, then I think there are potential constitutional problems.

First, if the statement is presented to the jury for the truth of what it asserts – and I have argued above that in Williams these conditions were met for purposes of the Confrontation Clause – then there is a violation of the Clause, assuming the author of the statement (or someone else who can endorse its substance from first-hand knowledge) does not testify at trial. The last sentence of Fed. R. Evid. 703, if it were applicable, would relieve the statement of objection to admissibility under ordinary evidentiary rules, but of course it cannot provide relief from a constitutional objection – and note that it is based on a set of considerations, a weighing of probative value and prejudice, having nothing to do with the Clause. This sentence as adopted, as I recall, because courts were in conflict about how to handle the situation in which an expert was allowed to offer an opinion based in part on a statement otherwise inadmissible and the proponent sought to use the opinion as a lever to gain admissibility of the statement. Some courts, I believe, without quite recognizing the nature of the Confrontation Clause problem – this was before Crawford – nevertheless had a sense that in at least some cases there was something fishy about letting an otherwise inadmissible statement in on the basis that it supported the expert’s opinion. But the rulemakers couldn’t articulate the circumstances in which this created a problem – the answer, I think, is that it’s a problem when the statement is testimonial – and so they responded http://www.blogger.com/img/blank.gifwith a rather clumsy compromise, simply putting some extra weight on the prejudice side of the scale prescribed by Fed. R. Evid. 403.

Now, what if the out of court statement is testimonial but it is not presented to the jury? Is there a Confrontation Clause problem with allowing the expert to give an opinion based in part on the undisclosed statement, as Fed. R. Evid. 703 purports to allow? That, as I have said, is a question not presented in Williams, and there is no need for the Supreme Court to resolve it in deciding Williams. But a couple of comments. First, even if the statement is not explicitly disclosed to the jury, it may be that enough is disclosed that the jury will likely infer the substance of the statement. Second, even apart from that, I think there may be a substantial Confrontation Clause problem. Recall, that by hypothesis, the statement made to the expert is testimonial. The expert therefore may essentially be repackaging information provided by an out-of-court witness who does not come to court. Again, an example would be a chemist who offers an “opinion” in court that a substance was cocaine, based on a lab report giving information that strongly implies that conclusion to chemists.

In short, I worry that if the Supreme Court holds for the state in Williams, it will invite subterfuges and manipulations that will substantially impair the confrontation right.

Papers in Williams v. Illinois

It's going to be a little while before I offer comments directly on Williams. But meanwhile, here are the petition for certiorari, the state's brief in opposition, the reply by Williams, and the crucial testimony of Sandra Lambatos.

Another cert grant: Williams v. Illinois

It appears that the next case in the Melendez-Diaz line will come very quickly. The Supreme Court granted cert today in Williams v. Illinois, No. 10-8505, seeking review of People v. Williams, 939 N.E.2d 268 (Ill. 2010). The case presents the issue of what I have called the "not for the truth" end-run in the context of expert evidence: The Illinois Supreme Court held that the absent analyst's report was introduced not for the truth of what it asserted but rather "to show the underlying facts and data [the in-court witness] used before rendering an expert opinion in this case." I will write something more substantive on this later.

Thoughts on Bullcoming

Here are some early reactions to the decision in Bullcoming.

1. For the first time in a substantive Confrontation Clause opinion in the Crawford era (I’m not counting Whorton v. Bockting, on retroactivity), Justice Scalia didn’t write. In fact, as the senior justice in the majority, he assigned the opinion to Justice Ginsburg. I don’t know to what extent he felt he had to because he already had an opinion from the sitting. And she had none. But the assignment may reflect his understanding that continued development of the Confrontation Clause requires that it not be perceived as a one-man show.

2. Justice Kagan, although having signed an amicus brief for the Government in Melendez-Diaz, declines to join the four dissenters from that case. That is very good news.

3. Justice Ginsburg treated the case as the simple one that it was: The state introduced a report signed by one analyst (Caylor) without presenting the live testimony of that analyst or of any other witness who could testify at first hand to the matters asserted in the report. Thus, said Justice Ginsburg, “when the State elected to introduce Caylor’s certification, Caylor became a witness Bullcoming had the right to confront. Our precedent cannot sensibly be read any other way.” And for good measure, she cited a passage from Justice Kennedy’s dissent in Melendez-Diaz, saying that the Court’s holding meant that the “analyst who must testify is the person who signed the certificate.”

4. Justice Ginsburg also properly rejects the theory that there was no Confrontation Clause violation because Caylor was a “mere scrivener.” That theory was inapplicable on its facts: Caylor reported what he did as well as what the machine indicated. More fundamentally, as Justice Ginsburg points out, witnesses often report simple factual observations – the color of a traffic light, the number above a door, the speed shown by a radar gun. She asks whether an officer other than the observer could report the observations in court, so long as that second officer could report about any technology used and the department’s standard procedures. “As our precedent makes plain,” she answers, “the answer is emphatically ‘No.’” And again she is able to use a statement from Justice Kennedy’s Melendez-Diaz dissent: (“The Court made clear in Davis that it will not permit the testimonial statement of one witness to enter into evidence through the in-court testimony of a second.”).

5. As for the state’s contention that the report was not testimonial, Justice Ginsburg noted that the state supreme court had recognized that “Melendez-Diaz left no room for that argument,” and she correctly characterized this conclusion as “inescapable.” This portion of the opinion says that the formalities attending the report “are more than adequate” to characterize it as testimonial. That should not be read as requiring formality for a statement to be deemed testimonial, and footnote 3 of Justice Sotomayor’s concurrence, with the aid of language from her opinion for the Court in Michigan v. Bryant, makes this clear. But Justice Ginsburg treats the matter delicately, presumably because formality was (unfortunately) essential for Justice Thomas’s vote. It is not clear to me why Justice Thomas did not join footnote 6 of the majority opinion, but it is possible that he read it as encapsulating a test without a formality requirement for whether a statement is testimonial.

6. It is also somewhat mysterious why Justices Thomas, Sotomayor, and Kagan declined to join Part IV of Justice Ginsburg’s opinion (leaving Justice Scalia as the only member of the Court to join Justice Ginsburg's opinion in full; this split appears to be between those who are and those who are not opera fans, but I am not sure of the reason). This section addressed the question of the practical burden that the decision might impose on the states. It repeated what the Court had said in Melendez-Diaz, that this burden does not alter the constitutional rule; it cast doubt on the extent of the burden created, and it suggested some ways – including retesting and notice-and-demand statutes – that might limit the burden. Perhaps the three justices thought that most of this Part was unnecessary for decision and so should not have been included.

4. Justice Sotomayor clears up some of the uncertainty that arose from the reliability language in her Bryant opinion – at least to the extent of making clear that the language should not be accorded very much impact. Justice Kennedy’s dissent says that in Bryant the Court ruled that reliability is “an essential part of the constitutional inquiry” under the Confrontation Clause. Justice Sotomayor says in her concurrence that, “[c]ontrary to the dissent’s characterization, Bryant deemed reliability, as reflected in the hearsay rules, to be ‘relevant,’ not ‘essential.’” It’s not entirely clear what that sentence means (Justice Kennedy had said that reliability was an essential part of the inquiry, which is different from saying that reliability (or its negation) is essential to a determination that a statement is not (or is) testimonial), but the next sentence asserts a basic distinction underlying Crawford: “The rules of evidence, not the Confrontation Clause, are designed primarily to police reliability; the purpose of the Confrontation Clause is to determine whether statements are testimonial and therefore require confrontation.” I suspected that the reliability language in Bryant was inserted at the instance of Justice Kennedy, and Justice Sotomayor’s treatment of it here seems to support that supposition; I’m hoping that Justice Sotomayor does not speak of reliability in the Confrontation Clause context again.

Justice Sotomayor does clearly mean something by her reference to hearsay rules. She repeats language from Bryant that in determining primary purpose for deciding whether a statement is testimonial under the Confrontation Clause hearsay rules will be relevant. But the language is capable of being understood as saying no more than that some hearsay rules carve out categories of statements that are not intended primarily for litigation and so are not testimonial. To a large extent, I agree. I believe many of the hearsay rules have grown up conforming to confrontation principles – that is, statements made with litigation in mind have tended to be excluded, and others have tended to be admitted. But this description of reality should not be taken as prescription – that is, simply because a statement fits within a hearsay exception as that exception has come to be construed does not mean that it is not testimonial. Melendez-Diaz should have made this clear.

7. Just who is it that must testify subject to confrontation under the Court’s holding? At one point, the Court says that it is “the analyst who made the certification,” but a couple of sentences before the Court says the question is whether a report containing a certification may be introduced “through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.” I think actually the “observe” part is, or should be critical (recognizing that one who performs a test necessarily observes (through one or more of the senses) performance of the test. First, observation is sufficient: Analyst B could properly testify, “I observed everything Analyst A did, and her report is an accurate rendition of what I observed.” (I do think that in a case of this sort, the defense would be entitled to an instruction that the jury should not put any weight on the credibility of Analyst A.) That is particularly important in autopsy cases, in which it is standard procedure in some jurisdictions (and probably ought to be standard in all) to have a second medical examiner in the room. Second, I believe observation is necessary. It should not satisfy the Confrontation Clause, for example, if A performs a test, writes up a report but leaves it unsigned, and then passes it on to B, who did not observe the test but who signs the report and then testifies in court to its contents. In other words, I believe the Confrontation Claus necessarily incorporates a personal knowledge requirement.

8. Justice Sotomayor includes a section indicating the limited nature of the holding. She points out that the report had no purpose other than use in litigation, and indicates that it would be a different matter if the report was necessary to provide medical treatment. I think this example (which the Court has touched on before) indicates one of the problems with the “primary purpose” test: Some reports made in the clear anticipation of evidentiary use can also be justified on medical grounds, and it may be easy for the reporter and the prosecution to persuade a court that the primary purpose was medical.

Justice Sotomayor also points out that this is not a case in which the in-court witness “was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.” The good news there is that she appears to recognize that if the underlying report is admitted into evidence and it appears to support the opinion of the in-court witness only to the extent it is true, then the author of the report should be deemed to be a witness subject to confrontation; saying that the report is being used only to support the opinion of the witness in court cannot be used as a talisman to avoid a confrontation problem. But what if the underlying report is not introduced into evidence? Justice Sotomayor points to Fed. R. Evid. 703 as supporting the proposition that an expert may base an opinion on facts or data not themselves admissible into evidence if they are of a type reasonably relied upon by experts in the field. But it must be remembered that Rule 703 is not a rule of historically long standing; it is a creation of the late 20th century, adopted with no sensitivity to the confrontation right. A concern is that the in-court witness’s testimony may be another way of packaging and transmitting to the jury the testimonial statement made by the out-of-court witness. This strikes me as a difficult issue, and we should not assume that Rule 703 states a principle of constitutional law. But I suspect that one of the next attempts to evade the impact of Melendez-Diaz will be to have the in-court witness express an opinion that has somewhat more content than the written report, and then argue that the report was merely one input that led the in-court witness to reach her opinion.

Finally, Justice Sotomayor suggests the possibility that a state could, “assuming an adequate chain of custody foundation,” present the printout from a machine. Maybe so, but the authentication would be difficult without a live witness. The person typing in, say, the suspect’s name may be making a testimonial assertion that the sample about to be tested is that of the suspect. So the printout is not completely “raw.”

9. Obviously, I don’t think much of Justice Kennedy’s dissent. I think Justice Ginsburg is right that the dissenters are objecting more to Crawford and Melendez-Diaz than they are to the application in this case. He insists, as noted above, that reliability is “an essential part” of the inquiry under the Confrontation Clause, which clearly flies in the face of Crawford – I don’t think he could reasonably contend that reliability makes a statement non-testimonial. Indeed, he explicitly uses the “indicia of reliability” standard that was the hallmark of Ohio v. Roberts. And he says quite explicitly that what he perceives as “trouble fashioning a clear vision” of Crawford’s meaning is “symptomatic of a rule not amenable to sensible application.” (Of course, one of the opinions that he cites as showing a range of interpretations is the majority opinion in Bryant; eliminate that one, and a good deal of confusion would disappear.) We should bear in mind that Crawford was a transformative decision and it is only seven years old; it is not all that surprising and not at all disturbing that the law remains unsettled. Justice Kennedy makes no attempt, so far as I can tell, to argue that the certificate here was not testimonial (he lost that battle in Melendez-Diaz) and the weight of his opinion seems to be to show that insisting on the testimony of the only analyst who observed the test is a “hollow formality” not worthwhile because (a) it will not produce much useful information; (b) the costs of requiring that analyst to testify live are oppressive; and (c) surrogate testimony is a pretty good substitute. As in Melendez-Diaz, the majority’s response to each of these is, in effect, “Irrelevant, and not true in any event.”

In a passage that I believe expresses what has been a particular concern of Justice Breyer, the dissent says, “In cases like Melendez-Diaz and this one, the Court has tied the Confrontation clause to 18th century hearsay rules unleavened by principles tending to make those rules more sensible.” That’s an odd statement, given that a major point of Crawford was to divorce confrontation law from the rules against hearsay. I think a more accurate statement would be this: During the two centuries following adoption of the Confrontation Clause, courts lost sight of the confrontation right, relying instead on an increasingly amorphous hearsay rule to do the work that an independently articulated confrontation right should have done. Accordingly, in the 20th century, some jurisdictions made the judgment, which seems pragmatically sensible only if one gives no independent weight to the right, that a prosecutor could present the results of a forensic lab test without producing a live witness who had observed performance of the test. But if one recognizes that the right is independent of whatever hearsay rules a jurisdiction might adopt, and that it is a rule governing the procedures by which prosecution witnesses give testimony, insisting that (absent stipulation) testimony be given live in the presence of the accused, then the results in Melendez-Diaz and Bullcoming become quite obvious.

I thought the majority opinion in Melendez-Diaz was a great one, and that the dissent by four justices showed a disturbing lack of understanding of what the confrontation right is all about. I have much the same feeling about Bullcoming. Right result, properly reasoned, but one vote away from an abyss – avoided only because the statement was a formal one, so that Justice Thomas’s vote was not lost. And with the dissent’s endorsement of using reliability – and even the old “indicia of reliability” formulation – as a test for applying the confrontation right, and its suggestion that Crawford can’t be made to work, the divide seems even starker than before.

Bullcoming reversed

The Supreme Court has reversed the decision in Bullcoming, 5-4 per Justice Ginsburg. Right result, too close. That's all I know as of now. I have to speak about the case, and others, in 90 minutes to the state solicitors general, and then I'll be traveling; it may be awhile til I have substantive comments.

When is a statement presented for purposes of the Confrontation Clause?

I had virtually completed the post below when Bullcoming was decided, and then I had to put it aside for a while. As it happens, the two issues discussed here are both involved in Williams v. Illinois. I hope to write later on Williams, but for now I'll post this without further reference to that case.

In 2008, I wrote a post titled No confrontation issue if the statement isn’t even offered. I believe my analysis of the case discussed there was correct, but the title was overstated. Prosecutors occasionally try to evade the Confrontation Clause by offering, rather than the actual words of a statement, evidence from which the substance of the statement can be inferred. This attempt should not be countenanced. So we have what actually can be a tricky problem, determining when a statement is sufficiently presented to invoke the Confrontation Clause.

Courts are sometimes but not always alert to the problem, which sometimes is tied to another problem that I have labeled the "not-for-truth end run".

Jeff Fisher has brought to my attention a particularly crude prosecutorial attempt at evasion, one that fooled a district judge but was corrected by the First Circuit. United States v. Meises, 2011 WL 1817855 (1st Cir. May 13, 2011).

After being arrested, one Rubis gave an interview to DEA agents. The prosecutor recognized that statements made by Rubis during this interview were testimonial, and so decided not to offer the “actual statements”. Instead, the prosecutor established through one of the agents that Rubis had agreed to cooperate, and that he was interviewed alone. This exchange followed:

Q: After this interview, did the targets of your investigation at this point change?

A: Yes, sir.

Q: Okay. After this interview, what did you decide to do with Defendant [Reyes–Guerrero]?

The agent then testified that Reyes-Guerrero and Meises were processed and taken to a federal detention facility.

(As an aside, the only objection made at trial explicitly referred only to the hearsay rule, and the district judge held that the statement was admissible because it was by a co-conspirator. This is incorrect as a matter of hearsay law, as the First Circuit noted, because Rubis had already been arrested. It also does not address the Confrontation Clause issue, which the First Circuit held was adequately raised by the hearsay objection.)

On the merits, the First Circuit held “that a reasonable jury could only have understood [the testifying agent] to have communicated that Rubis had identified appellants as participants in the drug deal. It makes no difference that the government took care not to introduce Rubis's ‘actual statements.’

And, the court added, “any other conclusion would permit the government to evade the limitations of the Sixth Amendment and the Rules of Evidence by weaving an unavailable declarant's statements into another witness's testimony by implication.”

I think the First Circuit got it basically right, though I would put the governing standard somewhat differently. I think the key point is not quite whether “a reasonable jury could only have understood” that the in-court witness was communicating the substance of an out-ofhttp://www.blogger.com/img/blank.gif-court statement; the evidence might be ambiguous and still create a confrontation problem. I think I might instead pose this question:

Is the prosecution, in offering the evidence on a given ground, effectively asking the jury to, or is there an excessive risk that the jury will

(a) infer that the in-court witness is effectively communicating some or all of the substance of an out-of-court testimonial statement, and

(b) use that statement as proof of the truth of an assertion it makes?

See Ocampo v.http://www.blogger.com/img/blank.gif Vail, 2011 WL 2275798 (9th Cir. June 9, 2011) (concluding that before Crawford it was clearly established that "testimony from which one could determine the critical content of the out-of-court statement was sufficient to trigger Confrontation Clause concerns" and that Crawford did not alter this result; finding a violation in part on the basis of an in-court witness's statement that "did convey some critical substance" of the out-of-court testimonial statement); State v. Swaney, 787 N.W.2d 541 (Minn. 2010)(trial court "violates the Confrontation Clause when it admits testimony that inescapably implies a nontestifying witness's testimonial hearsay statement").

In Meises, I think the answer is affirmative. Apparently, the prosecution offered the testimony on the ground that it explained the subsequent conduct of the officers. But how would it do that? The most natural, if not the only, plausible inference is that Rubis made a statement suggesting guilt on the part of the defendants, and that the officers believed it. Why does that matter? The most likely use that the jury will make of the evidence is to conclude that the officers got it right, and had good reason to arrest the defendants.

And this is where the "not for truth" end run comes in. The prosecution says that it was only offering the evidence to explain the conduct of the police. The First Circuit properly rejected this argument, elaborating on “the limitations on so-called background or context evidence” in a footnote that included this passage:

We take it to be common ground that the government may not have an agent testify, “X told us that the defendant was involved in the crime.” Quoting X's out-of-court accusation remains impermissible if the agent's testimony is changed to say, “We began to investigate the defendant because X told us that the defendant was involved in the crime,” and the government seeks to justify it by arguing that X's out-of-court statement was offered not for its truth but only to explain why the agent focused on (or arrested) the defendant. Nor does the result change if, instead of quoting the out-of-court statement, the government communicates its content to the jury by implication.

The simple fact is that in a case of this sort the jury doesn't need to know why the police arrested the defendants -- apart from knowing the evidence properly presented to them. But there is a very real danger that the jury will conclude that the out-of-court speaker made a truthful accusation to the police. And so the First Circuit properly decided that whatever valid probative value the evidence might have had was outweighed by the prejudicial danger of the evidence. That sounds like a discretionary ruling under Fed. R. Evid. 403 or a state counterpart. But it goes beyond that. Because the probative value for setting context is so minimal, and because there is a substantial probability that the jury will use the evidence to infer that a testimonial statement was made and is true, thus greatly aiding the prosecution, in this context the balance indicates that in effect the prosecution has presented a testimonial statement for the truth of an assertion it made. And so this is a judgment used to determine whether the Confrontation Clause is invoked -- it is not merely a discretionary matter of weighing on which an appellate court should defer to a trial court.

My comments here are of a piece with the standard I tentatively offered in a 2007 post, Conflict deepens on expert evidence, on the general question of judging when a testimonial statement supposedly not offered for the truth raises a Confrontation Clause problem:

It seems that a court . . . must first ask whether the testimonial http://www.blogger.com/img/blank.gifstatement has substantial value in proving the proposition for which it is supposedly offered without respect to whether the statement is true or not. If the answer is negative . . . then that proposition does not offer a basis for admitting the statement. If the answer is affirmative, then the court must assess whether that value warrants the risk that the jury will, notwithstanding an instruction to the contrary, use the statement to prove the trhttp://www.blogger.com/img/blank.gifuth of what it asserts.

As for that 2008 case, United States v. Tucker, 533 F.3d 711 (8th Cir. Jul. 17, 2008), here for ease of reference is what I wrote about ti then:

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.

So clearly in Tucker the prosecutor did to ask the jury to infer the truth of a statement that could not itself be admitted; the logic of the offer did not require that. There may have been some risk that the jury would infer such a statement, but (a) the jury would not necessarily know what basis of information the prosecutor had for asking the question, and (b)the risk of such an inference is made much more tolerable by the fact that the defendant opened the door to impeachment by denying a proposition that the prosecution had good reason to believe was true. So neither aspect of the test I have suggested was violated.

An illustration of the dangers of the New Mexico rule in Bullcoming

Hon. Dib Waldrip, a Texas trial court judge, active student of the Confrontation Clause, and reader of this blog, has told me about a recent case that illustrates the value of having the analyst who performed a lab test testify at trial – or, put another way, a danger that will not be prevented unless Bullcoming is reversed. He has given me permission to report on it here.

The defendant was charged with possession with intent to distribute a quantity of methamphetamine of 4 grams or more but less than 200 grams. In Texas, this is a first-degree felony with a punishment range of 5 to 99 years or life and a fine up to $10,000.00.

The official lab report, signed by the analyst who performed the actual test, reflected the presence in the tested substance of methamphetamine with an aggregate weight of 4.51 grams. The analyst testified at trial. Using his personal notes to refresh his memory, he testified that the aggregate weight of the methamphetamine was 1.51 grams. The prosecutor then asked the analyst to review the lab report. After a pause the analyst testified that report was in error and that his notes reflected the correct amount. (Apparently, a clerk prepared the report from the notes of the analyst and made the error.)

Soon after, the prosecutor moved to dismiss. The judge granted the motion, with thanks to the analyst for his integrity. But it appears that earlier, before a different judge, a co-defendant had entered a plea based on the erroneous report.

Mistakes like this might not happen every day, but by now we have heard enough evidence of lab errors that we should not think that they are extraordinarily rare. It has always seemed to me that, before sending a person to prison, perhaps for many years, it is not too much to ask that a someone with personal knowledge of the facts recited in a report that is critical to conviction come to court to testify in person about it.

Cert petition on the audience question

An interesting and very capable petition for certiorari was filed this week in Racz v. California, 2011 WL 1689305. The petition seeks review of an unpublished decision of the California Court of Appeal in a "statements from the grave" case. Racz was convicted of murdering his wife, who disappeared. Among the evidence introduced against him at trial was a series of statements made by his wife, shortly before her disappearance, to friends and family members describing him as violent and expressing fear of him.

The petition ably shows that there is a sharp conflict of authority on the question of whether a statement can be deemed testimonial even though it was not made to governmental authorities. Regular readers of this blog will know that I believe the answer to that question should be affirmative. This is an important issue that the Supreme Court should resolve soon; whether this case is a good vehicle for that purpose, I do not know.

Even assuming an affirmative answer to that question, one would have to go further to conclude that the statements here were testimonial, but I think it reasonable to conclude that they were; it appears that the wife probably made the statements fully anticipating the possibility that she would be murdered and that her statements would provide evidence against her husband.

Even assuming the statements are testimonial, in an ideal world I believe a court should consider whether the accused forfeited the confrontation right by murdering his wife. But Giles v. California appears to foreclose that possibility.

Further proof that the death of Crawford has been greatly exaggerated comes in the form of a recent decision of the United States Court of Appeals for the District of Columbia Circuit, United States v. Smith (D.C. Cir. Apr. 15, 2011), passed on to me by blog reader Stu Dedopoulos. Smith contended that the trial court had committed error by allowing the prosecution to prove a prior felony conviction – a predicate for a charge of felon-in possession-of-a-firearm – by introducing letters from a state court clerk, rather than a certified record or in-court testimony. A unanimous (and notably conservative) panel – Judges Sentelle writing, joined by Judges Ginsburg and Kavanaugh – agreed.

The decision breaks no new ground; the clerk’s letter was plainly testimonial under Melendez-Diaz. But it is notable nonetheless for adhering to a distinction drawn by that case. As the Smith decision points out, under Melendez-Diaz

[a] clerk is “permitted to certify to the correctness of a copy of a record kept in his office, but [has] no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.”

In other words, the prosecution should have produced a certified copy of the conviction record rather than a clerk’s letter – even though the letter bore the seal of the clerk’s court – describing what was in the records. That should be easy enough for prosecutors to do; I do not anticipate that this decision, if followed nationally, will create any significant administrative burden.

Though it’s not a relevant inquiry under the Confrontation Clause, one might still wonder whether this requirement achieves any significant gain in accuracy. Sure – to prove whether there was a conviction, or what it was for or what the punishment was, or when it was entered, the better evidence is the certified copy of the record itself rather than a second-hand account of it.

The tougher question is whether this distinction reflects any robust principle of confrontation law. The certificate of the conviction record itself appears to be a testimonial statement. It’s an assertion that the record is a genuine copy. And presumably it was made in anticipation of, and for purposes of, litigation. (I suppose that last point might be somewhat debatable, because perhaps court clerks get asked to do certified copies of conviction records for all sorts of purposes. But I’m guessing that when a federal prosecutor wants a copy of such a record for use in prosecuting a felon-in-possession charge the court clerk understands what’s happening.)

But clearly, as discussed in both the majority and dissenting opinions in Melendez-Diaz, there is a long history, going back before the framing of the Confrontation Clause, of certain copies of official records being admitted against criminal defendants. Certainly this rule had, and has, practical advantages: It meant, for example, that a clerk would not have to travel from Westminster to the provinces to prove the contents of an official record. But if all that is to be said for the rule is that it saves time, trouble, and inconvenience, that might leave us very uneasy; does that open the door to general balancing? The Melendez-Diaz cordoned off this rule on historical grounds, and I think that's fair enough. Beyond that, I suspect it reflects the long-standing stature of the royal seal; a rule of law effectively gave documents under seal the status of originals. A certified copy, I think, is a descendant of the less-accessible seal.

Of course, in older times a copy under seal was not an electronic reproduction of an image but rather a product of hand copying of communicative characters. If in Smith the clerk's letter had been a verbatim copy of the document, it would have been closer to the case of the old-fashioned seal.

I believe the role of the seal and its importance with respect to proof of the contends of official documents is an important subject for future research.

Statements made in the absence of interrogation

Bryant concerns statements made in response to police interrogation. It remains clear, however, that interrogation is not a requirement for a statement to be considered testimonial in nature.

So how is the question of whether a statement is testimonial to be made if the statement is not testimonial? The principal theoretical issue that divided the majority and the dissent in Bryant – from whose perspective should the determination of whether a statement is testimonial? – does not arise if there is no interrogation: The choice must be made from the perspective of the speaker.

Bryant does appear to expand on Davis v. Washington by creating a general principle that “primary purpose” is determinative in all circumstances of whether a statement is testimonial. As I have written before, I think it would be better to speak of understanding or anticipation than of purpose, especially given that the test is supposed to be an objective one. Moreover, if determining the primary purpose requires a weighing of objectives – “Of these two (or more) purposes served by making the statement, which one would have been more important to a reasonable declarant in the position of the actual declarant?” – it is, as Justice Thomas wrote in his partial dissent in Davis v. Washington, “not reliably discernible,” and the test becomes inevitably “an exercise in discretion.”

But note how Justice Scalia handles “primary purpose” in Bryant. It is important to bear in mind that he was the author of both Crawford and Davis. In Bryant, of course, he was in dissent, but he was writing on a question that the majority does not address – how to determine the primary purpose of the declarant given that his purpose alone is determinative in the particular case. Scalia, of course, addressed that question because in his view only the declarant’s purpose is ever determinative. The majority did not address that question because in its view the purpose of the interrogator, if there is one, is also important, and indeed in Bryant the majority paid much more attention to the interrogator's perspective. But in a case without an interrogator, the majority will have to consider the speaker's perspective more carefully.

Justice Scalia wrote:

For an out-of-court statement to qualify as testimonial, the declarant must intend the statement to be a solemn declaration rather than an unconsidered or offhand remark; and he must make the statement with the understanding that it may be used to invoke the coercive machinery of the State against the accused.

That’s a useful, serviceable standard. It avoids the problems highlighted by Justice Thomas. And I believe it is consistent with Bryant. Courts should apply it.

Due process confrontation rights

A California lawyer has written me raising an important issue on which I don't believe I've written. I'll only offer a few thoughts, because I'm sure others have thought more about this. The lawyer writes:

I am interested in any resources you know of which deal with the question of cross examination rights being denied in domestic violence, restraining order courts.

Here in California, we have courts hearing protective order applications in a "Jerry Springer" style, where in the majority of cases, one litigant, probably both, are not represented by counsel, and the judge takes a statement of accusation from the applicant, then asks the respondent about it, and goes back and forth until announcing a decision.

It seems this procedure, if it can even be called that, is commonplace in most California counties and probably around the country.

A common problem in all this is that, even if the accused person knows of questions which would greatly impeach the accuser, he is not asked if he has any questions, and often, as in the case of my appeal, if he asks the Court to ask questions, is simply blown off at the Court's whim, without any reason being given, unless of course he has an attorney.

In other words, the right to confrontation is often denied to the accused person. This is so even despite a California Supreme Court case, Elkins, which restates that litigants in family court, (where these order are issued under CA Family Code 6200) retain all procedural rights that other civil litigants have.

I am hoping you have knowledge of academics, judicial councils, state Bar associations, etc, who have expressed concern that basic due process rights, as I say confrontation being primary, are denied in these hearings.

Please let me know of anything that will help.

So, first off, the Confrontation Clause as such does not apply -- it only applies to criminal prosecutions. But in other contexts, a right of confrontation is incorporated in the right of due process. The key case is Morrissey v. Brewer, 408 U. S. 471 (1972), which involved revocation of parole. It seems to me that the situation posed by the reader – a hearing with significant consequences for the litigant, witnesses testifying from the stand, and the litigant not given an opportunity to pose any cross-examination – presents a strong case for holding that the due-process right to confrontation has been violated. The basic concept that if a witness testifies for one side the other side gets to cross-examine that witness is deeply established in Anglo-American jurisprudence.

The interesting problem, it seems to me, will arise if the state, in a non-criminal context, decides not to present a live witness because it is aware of the due-process confrontation right, and instead presents, say, a video-tape of a statement taken beforehand for use in the hearing. Effectively, the witness has been able to testify without coming to court; the idea that statements made out of court with litigation in mind may be deemed to be testimonial, and the focus of the confrontation right, lies at the heart of Crawford, and has force in this context as well. But presumably a narrower view of what should be considered testimonial, or a broader set of exceptions, or a looser sense of what the right means, or some combination of the three, must apply in this context than in the criminal context. If the approach the Supreme Court used in the Confrontation Clause context in Michigan v. Bryant had instead been applied in other contexts such as hearings for restraining orders or parole revocation, it wouldn't have been nearly so bad.

Doesn't the Confrontation Clause apply in Kansas?

Gee, I realize that some prosecutors are holding out hope that Melendez-Diaz will be confined or even overruled in Bullcoming, but it is the law, and I would have thought that by now word would have reached Kansas. But John Collins, director of the Michigan State Police Laboratory, has passed on this article from the Wichita Eagle, Bill lets forensic experts report in writing, skip testifying. Yoo hoo! You can't do that.

Linda Greenhouse on Scalia and Bryant

Linda Greenhouse of Yale Law School, and formerly the long-time Supreme Court correspondent of the New York Times, has written an interesting piece on Justice Scalia and Bryant. You can read it by clicking here.

Confrontation, the Journalist's Privilege, and Harmless Error

Focus on Crawford-related issues should not obscure the fact that many significant Confrontation Clause questions concern the scope of the accused’s right to cross-examine a witness who actually testifies at trial. Adam Liptak of the New York Times has alerted me to an interesting decision issued yesterday by the Second Circuit in United States v. Treacy.

Treacy is a former president of the company that operates the job-hunting website Monster.com. He was convicted of securities fraud, the theory being that he participated in the back-dating of stock options. One of the witnesses against him was a Wall Street Journal reporter, Charles Forelle, who was subpoenaed by the Government to testify to the proposition that Treacy had made statements attributed to him in an article co-written by Forelle. Probably because the Second Circuit accords a journalist a qualified privilege protecting him from the compelled disclosure of even non-confidential materials, the district judge, while denying Forelle’s motion to quash the subpoena, tightly circumscribed both direct and cross-examination. For example, the court prevented defense counsel from asking Forelle about a follow up e-mail that he had sent to the company’s public relations representative and that arguably supported the defense’s version of the conversation between Forelle and Treacy. The Second Circuit held that the limitations on cross- examination were improper. It declared that

once a trial court has determined that the Government has made the required showing to overcome the journalists privilege and compel a reporter’s direct testimony, the trial court may not, consistent with the Sixth Amendment’s Confrontation Clause, thereafter employ the privilege to restrict the defendant’s cross-examination of the reporter to a greater degree than it would restrict such cross-examination in a case where no privilege was at issue.

That seems correct, or at least close to correct, to me. The case to bear in mind is Davis v. Alaska, 415 U.S. 308 (1974). There, the state had a general rule preventing the disclosure of a juvenile adjudication, but the Supreme Court held that this rule must give way to the confrontation right where the young witness’s history of trouble with the law gave him a possible motivation to point the finger for a theft to the accused.

In Treacy, the jurisdiction has a rule limiting the ability of a party to call on a journalist for testimony. But once a court decides that the constraints of this rule may be overcome in the particular case on behalf of the prosecution, the accused must be allowed robust cross-examination. Perhaps at the margin, the policy behind the qualified privilege may guide the trial judge’s discretion in limiting cross-examination – this is why I am not certain that the Second Circuit is correct in saying that the privilege washes out altogether – but in this case the cross-examination seemed a natural follow-up to the direct and should have been allowed.

The Second Circuit held that the error was harmless. In assessing harmlessness of a Confrontation Clause violation, it is important that the court not speculate as to how effective cross-examination would have been if it were allowed. Delaware v. Van Arsdall, 475 U.S. 673 (1986). The simplest way to do this is to examine the case on the hypothetical assumption that the direct testimony had never been introduced. Ultimately, this is what the Second Circuit did, concluding (whether accurately or not I don’t know) that “it is highly unlikely that [the Government] would have been unable to secure a conviction in the absence of Forelle’s testimony.”

Child Observers and Bryant — a GVR

This morning, the Supreme Court GVRed — granted, vacated, and remanded — the case of Allshouse v. Pennsylvania, No. 09-1396, for reconsideration in light of last week's decision in Michigan v. Bryant. Allshouse involves statements by a four-year-old to a child protection agency worker investigating allegations of abuse. The petition, seeking review of Commonwealth v. Allshouse, 984 A.2d 847 (Pa. 2009)(unanimous court, one justice not participating; majority opinion, two justices concurring, and two concurring partially and in the result), was brought by Jeff Fisher; an amicus brief in support of it was filed by the National Association of Criminal Defense Lawyers. Interestingly, Pennsylvania acknowledged in its Brief in Opposition that the case was worthy of certiorari — so the very short reply brief in support of the petition argued that cert should be granted immediately rather than after the decision in Bryant. But not surprisingly, the Court held the case pending Bryant, and now it has signaled, wisely I think, that before stepping into the very difficult area of children's statements it wants to see how Bryant plays out in the lower courts.

A few reactions:

First, the GVR is one more indication that the impact of Bryant may be less dramatic than some observers have thought. If the Court thought it was obvious given Bryant that, as the Pennsylvania Supreme Court held, the statements were not testimonial, then it could simply have denied cert. Also, if it thought that Bullcoming might have any bearing on the outcome of this case — say, by narrowing the meaning of "testimonial" — it could have just held this case pending its decision in Bullcoming.

Second, statements by children are one of the few contexts in which taking a questioner's perspective into account makes it more likely that a court will deem the statement to be testimonial; the child presumably does not know the legal consequences of the statement, but the questioner certainly does.

Third, having said that, I suppose that the greater number of lower courts, and perhaps eventually the Supreme Court, will hold statements of this sort to be non-testimonial, on the grounds that the child did not anticipate prosecutorial use (it will be interesting to see whether the courts emphasize the speaker's perspective in this context more than the Supreme Corut did in Bryant!) and that the social worker was focused on therapeutic and protective goals rather than on gathering evidence — no matter how frequently the given social worker and her colleagues have just happened to find themselves testifying for prosecutors about statements made by children in similar situations. If I am right in this supposition, it demonstrates the manipulability and inadequacy of the Bryant approach.

Fourth, I am pleased to say that I have begun work on an article in this area with Steve Ceci, one of the world's leading developmental psychologists. I anticipate we will call it The Child Quasi-Witness. Here are the main points I hope we make:

1. Some very young children, even though capable of purposive communication, should not be deemed capable of being witnesses for purposes of the Confrontation Clause. Their statements, even though made in contexts that would lead to the statements being characterized as testimonial if they were made by an adult, should therefore be deemed beyond the scope of the Confrontation Clause. I hope to offer several perspectives on the standards courts might use in determining whether a child should be deemed capable of being a witness for Confrontation Clause purposes.

2. Even if a child is not capable of being a witness for Confrontation Clause purposes, her statements may have substantial probative value.

3. If a child is not capable of being a witness for Confrontation Clause purposes but a prosecutor offers her statement against an accused, then the accused should have a right — both as a matter of ordinary procedural law and as a matter of due process — to examine the child, as he would an inanimate object that is the source of crucial evidence against him. But this examination would not be by personal confrontation, under oath and subject to cross-examination in open court. Rather, it would be by a qualified expert — presumably a child psychologist — in a controlled environment.

4. This procedure is far better for truth determination than is cross-examination in open court of a very young child, and offers the accused a better opportunity to explore weaknesses in the child's account.

Defense counsel might consider making an argument along these lines as an alternative to an objection to a child's statements based on the Confrontation Clause; I think courts will find the relief called for by this argument much more appealing than a holing that the child must be subject to confrontation in open court.

Meanwhile, here is a set of old posts bearing on statements by children; some of these anticipate these arguments.


Children and forensic interviews, revisited, Jan. 7, 2008

Further developments and thoughts on child witnesses, Oct. 26, 2007


Child Witnesses on the Academic and Judicial Front, Sept. 7, 2007

An interesting sidelight on Crawford and Craig, June 26, 2006


R. v. Brasier — a classic case from 1779, Dec. 24, 2005

Maryland's Highest Court on "Tender Years" Statements, Feb. 7, 2005.

Paul Vinegrad on "Government Coercion & The Confrontation Clause: Getting To The Heart of The Matter"

Blog reader (and retired prosecutor) Paul Vinegrad has asked me to put the following post on the blog. I’m happy to do it, though as usual I disagree with just about everything Paul has to say, creative though it is. Paul’s post begins after the first row of x's and after the second row I present my own comments in response.

Any reader who has a confrontation-related message too long for the comments section of the blog is welcome to submit it to me; so long as it is appropriate for the blog, I I will post it.

x x x x x x

I take the position that only hearsay that is created by sufficiently coercive government conduct is barred by the Confrontation Clause if the accused has not had an opportunity to cross-examine the declarant.

The following hypothetical illuminates my argument:

Gang warfare is rampant in South Central LA. The Bloods are shooting at the Crips. And the Crips are returning fire. Innocent bystanders have been maimed and killed in the ensuing battle, struck by a hail of bullets fired from automatic weapons stuck out of car windows by unidentified perpetrators.

Mr. V and his family, unfortunately, have to live and work in this gang infested area.

One evening, Mr. V is exiting his business – a local grocery market – with his wife. Crip gang members are in the parking lot. A car pulls up. Everyone in the car is dressed in blue attire. One of the occupants sticks a Mac-10 automatic weapon out of the window and opens fire on the Crips. The car speeds off. Mr. V is struck by several rounds from the Mac-10. He sustains very painful, but not life-threatening, wounds to his legs and arms. Mr. V recognizes the shooter from the neighborhood as Psycho Dan.

Mr. V makes the following statements after being shot:

(1) Upon being struck he immediately blurts out "Psycho Dan why did you do this!" This statement is heard by a bystander;

(2) His wife runs to his side. She asks him if he is ok. He says "yes." She then asks him who shot him? He says "Psycho Dan. But don't tell anyone! He will kill our family if he finds out that I was a snitch!"; and

(3) Several beat cops who were in the area, heard the shots, and are aware of the ongoing gang war and its toll on innocent people caught in the cross-fire, arrive. They reasonably believe the shooting was part of the ongoing gang war. They approach Mr. V. They ask him "Who shot you?" Mr. V says "I can't tell you. They will kill my family. Please get the paramedics!" The cops tell Mr. V that he will live, his wounds are not life-threatening, whoever did this is very dangerous and may kill innocent women and children as he moves through the area trying to shoot rival gang members. They plead with Mr. V to help them protect the public from this menace. They plead with him to tell them "Who did this?" Mr. V says "I can't tell you. They will kill my family. Please get the paramedics!" One of the cops then tells Mr. V "If you don't tell us who did this, we won't call the paramedics" Mr. V, in excruciating pain, says "Psycho Dan. Please don't tell anyone that I told you! He will kill my family!"

The prosecutor calls Mr. V to testify at Psycho Dan's trial. Mr. V, because of fear that his family will be hurt, refuses to testify. He is held in contempt by the judge. The prosecution then seeks to introduce each of Mr. V's statements identifying Psycho Dan. The defense objects on Confrontation Clause grounds.

It is my opinion that the judge should rule as follows:

(1) The blurted out identification is not barred by the CC. It was, in the words of Bryant, "reflexive." It was not made with any particular "purpose," or even anticipation of subsequent use by the government to investigate or prosecute the perpetrator. It was, to use Prof. Friedman's example, analogous to a drug sniffing dog barking when it smelled cocaine. Most importantly, there was no conduct by any state actor that "created" this statement. Despite Justice Scalia's suggestion in Bryant, and during argument in Bullcoming, that the CC would be applicable to "blurted out" statements (and neither "interrogation," nor any questioning, is required), I believe the overwhelming majority of the Court will reject his position, at least with respect to unsworn statements. And, ultimately, will hold that, absent any conduct by state actors, unsworn hearsay is outside the scope of the CC.

(2) The identification made to his wife (a private citizen) in response to her pointed question – a question (when viewed objectively) that was unmistakably designed to identify the shooter – is also outside the scope of the CC. Unlike the blurted out statement, and viewed objectively, it is reasonable to conclude that this interaction between Mr. V and his wife, and the resulting statement, had some purpose. Clearly, the "primary purpose" of the question and the answer was to identify the shooter, and not to address any "emergency," i.e., threat to the victim or any other member of the public. However, once again, no state actor participated in the "creation" of this statement. Absent that element, the CC is inapplicable to this unsworn statement. The Court, as it has done in the context of the Fourth and Fifth Amendments, will ultimately hold that state action is required before the CC can apply. Just as state action is required for the Fifth Amendment's prohibition on "compelling" a person to be a "witness" against himself in a criminal trail to apply, I believe, ultimately, the Court will hold that the Sixth Amendment's CC incorporates the same requirement.

(3) The identification made to the cops is barred by the CC, despite the fact that, objectively viewed, the "primary purpose" of the "interrogation" was to address an "ongoing emergency" – a more real and pressing "ongoing emergency" than existed in Bryant. The CC applies to (and bars admission of) this statement because of the coercive conduct by the cops in extracting the words from the declarant's mouth. I believe that it is this element of coercion by state actors that is at the heart of the CC.

Coercion by the government was utilized against Cobham in the form of "interrogation," while in custody, and accused of being a co-conspirator. It was used, albeit to a lesser extent, against Sylvia Crawford as she was "interrogated" in custody at the police station after being advised of her Miranda rights. It was used, to an even lesser extent (but still present), by the government against Amy Hammon as the police "interrogated" her, one (or two)-on-one, face-to-face, in a confined location not open to the public, and after she initially stated that "nothing happened."

The government created coercive conditions in these situations placed varying degrees of pressure (in the words of Fifth Amendment jurisprudence, "compulsion") on the declarants to tell the government actors what they believed they wanted to hear. Whether it was that Raleigh was conspiring against the King, Mr. Crawford was lying when he asserted self-defense, or Mr. Hammon did in fact beat Amy, despite her initial denial. In each instance the government coercion created a motive for the declarant to fabricate a story in order to gain some perceived benefit. Cobham's shifting of blame to Raleigh and providing details of the alleged conspiracy would, from the reasonable perspective of someone in his position, inure to his benefit. The same is true in the case of Sylvia Crawford and Amy Hammon – viewed objectively, each could have felt it would be in their interest to tell the police what they believed the police wanted to hear (regardless of the veracity of their statement) in order to end any "pressure" that the police created and were exerting.

This element of state created coercion was not present in Davis where there was physical separation between the government and the declarant. It is hard to pressure someone on the telephone to say what you want when they can simply hang up. The lack of resemblance between Davis and Raleigh's Trial really has nothing to do with the presence of an "ongoing emergency" in the former and no such emergency in later case. (In this regard I agree with Justice Scalia that one can make a reasonable argument that the "emergency" in the case of Raleigh – the potential overthrow of the King – was just as real and significant, if not more so, than that in Bryant, yet the circumstances under which Cobham's accusatory statements were created by the Crown were the paradigmatic CC violation.) Rather, despite the presence or absence of an "emergency" (ongoing or otherwise), the critical factor for purpose of determining the applicability and scope of the CC is whether the statements were uttered in response to a government created coercive situation.

Sufficient coercion did not exist in Bryant, given the very limited nature of the questioning by the cops, the public setting, and the absence of any external "pressure" by the police to get Covington to speak, i.e., to tell them what a reasonable person in his position would believe they wanted to hear. Nor does any coercion remotely exist in Bullcoming, where the declarant is simply asked, via a written request, to test a sample of blood and report back what, if any, alcohol is present. The analyst Caylor in Bullcoming was under no "pressure" by anyone to have the gas chromatograph generate a particular result. As Justice Alito alluded to in the Bullcoming argument, analyst Caylor's livelihood and/or promotions did not depend upon the results of testing that he performed.

Government created coercion/pressure does, however, permeate the statement by Mr. V identifying Psycho Dan to the cops. The fact that the cops were confronted with a very real "ongoing emergency," of which Mr. V was acutely aware, is irrelevant to the determination of the CC's applicability.

Coercion – not allowing any hearsay that is tainted by the possibility of government pressure – is at the heart and soul of the CC. It is the presence or absence of that coercion (when viewed objectively) that determines whether the "resemblance test" (approvingly cited by 6 justices in Bryant) has or has not been met.

x x x x x x x x

There are several problems with the coercion test proposed by Paul.

Perhaps the most obvious one is that it would be extremely difficult to apply, and so highly subjective I think it would provide very little protection.

Second, it has absolutely no grounding historically. We have to bear in mind that the confrontation right long pre-exists the institutions of a police force or a public prosecutor; most prosecution until the late eighteenth century was by private persons. The confrontation right would have been virtually empty if it only applied to instances of coercion by public officials.

Third, there isn’t even a whisper of such a limitation in the text of the Confrontation Clause.

Fourth, such a rule would yield very odd results. A person who observes a crime could write an affidavit, perhaps with the assistance of a private NGO, and send it to a prosecutor, and the confrontation right would never come into play.

Fifth, the Supreme Court has already rejected such a rule. As the last point suggests, a coercion rule is a more restrictive version of a test limiting the confrontation right to interrogations, and the Court has explicitly said that the Confrontation Clause is not so limited.

So far as the state action requirement is concerned, it is satisfied by the fact that the state is trying and presumably convicting an accused in part on the basis of testimony that it introduces without offering the accused an adequate opportunity for confrontation.

Impressions of the Bullcoming argument

I attended Wednesday’s argument in Bullcoming v. New Mexico. Recall the facts in brief: The analyst who performed a test on Bullcoming’s blood was on unpaid leave at the time of trial. Instead of presenting his live testimony at trial, the state presented his report through a supervisor from the lab who had not observed performance of the test. Here are some impressions of the argument.

First, the reports of the death of the Confrontation Clause in light of Michigan v. Bryant appear to be greatly exaggerated. The New Mexico Attorney General, Gary King, cited Bryant in the very first sentence of his argument, and referred to it a couple of times later, though he actually tried to distance himself from the case by saying that the purpose test of Bryant did not apply absent an interrogation. No member of the Court seemed to be interested in any possible ramifications of Bryant for this case. Nor did any member of the Court suggest that the report ought to be admissible because it supported an expert opinion offered by the testifying supervisor, as countenanced by Fed. R. Evid. 703. Indeed, King emphasized the lack of human analysis in the report. Nor was there any suggestion that I picked up that any justices were considering overruling Melendez-Diaz.

Second, some of the justices continue to be troubled by the multiple-witness problem. This came up several times in various contexts. It is difficult to know whether they were persuaded by the fact that many states have long followed the rule that if a lab analyst’s report is admitted that analyst must testify in court, absent stipulation, and these states have not faced intolerable difficulties. But I think that enough empirical evidence has now been gathered demonstrating this point that it will be difficult for them to write an opinion predicting disaster if Bullcoming wins.

Third, much of the questioning focused on factual settings not quite like the one presented by the case. The nature of the questioning appeared to be an attempt to determine how states might cope efficiently with a ruling for Bullcoming. In the actual case, the prosecution introduced a report by the absent analyst, which is why this should be, as Jeff Fisher, arguing for Bullcoming, asserted at the outset, an easy case; an exchange between Jeff and Justice Alito clarified that the report asserted the identity of the sample tested, the lack of tampering, the procedures used, and the result. But what if the state had not introduced the report? Some of the justices were interested in the possibility that a witness could testify to a lab’s general procedures, from which the jury could infer that the procedures were followed in the case at hand. Jeff agreed that the Confrontation Clause would not pose an obstacle to doing that. But the problem would still remain of proving the results in the particular case. If, for example, one analyst enters the defendant’s name in a machine and the machine performs the test and spits out a report with the defendant’s name on it, there would still be a testimonial assertion by that analyst that this particular report is the result of a test performed on that defendant’s blood; I don’t believe a second analyst should be allowed to testify, in the absence of the first, that the practice of the lab is to enter accurately the name of the source of the blood in the machine and then perform the test.

But in any event, as I’ve said, that case is not the one before the Court, in which the prosecution clearly introduced a full report by the absent analyst. One possibility is that the Court will simply resolve the case before it, saying that this was a violation, and leave to future cases the development of the bounds of acceptable procedures.

Finally, Justice Kagan was essentially silent. She apparently began to ask one question but was interrupted and did not persist. So that makes any prediction even more speculative, and I won’t speculate.

Preliminary thoughts on the Bryant decision

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

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

Now, two over-arching thoughts:

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

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

Some more particularized comments:

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

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

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

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

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

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

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

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

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

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