Remote testimony and the coronavirus crisis

The coronavirus crisis has created increased interest in the subject of remote testimony – testimony in which the witness is not in the courtroom but rather testifies from a remote location, with the testimony electronically transmitted to the courtroom.  I hope courts will not use the crisis as an occasion for undermining the confrontation right, even temporarily – especially because, as I will explain, there is a rather simple solution in this setting.

I wrote at length some years ago about remote testimony in a law review article.  And, as it happens, in early March (while courts were still holding ordinary sessions) I participated, as amicus, in an argument on the subject in the Michigan Supreme Court in People v. Jemison.  You can see the main briefs of the parties, and my amicus brief, here.  (The video of the argument is available here.)  My amicus brief lays out my general views on the subject.

In sum, though Maryland v. Craig allowed remote testimony by children in cases of demonstrated trauma, Craig is in tension with Crawford, which was decided afterwards, and should not be extended, especially by lower courts.  The Supreme Court declined to transmit to Congress a proposed amendment to the Federal Rules of Criminal Procedure that would have allowed for remote testimony in some cases; Justice Scalia, writing in support of that decision, explained that “virtual confrontation” did not appear to satisfy the confrontation right.  I don’t believe there is any need to take an absolute stand that virtual confrontation will never be deemed acceptable for adult witnesses.  But at this point I don’t believe that we are close to having enough scientific knowledge to be confident that virtual confrontation is an adequate substitute for taking testimony the traditional way.  And if it is to be allowed, it should only be in cases of compelling need (Jemison does not come close), and only under a careful protocol that ensures satisfactory technical specifications and also proper procedures with respect to such matters as how much may be seen and who may be in the room with the witness.

Now, how about the current crisis?  Here, the impetus for remote testimony is not to protect the witness from trauma (as under Craig), or to save time and money, or that for some reason, such as a witness who is desperately ill or beyond the subpoena power, it appears difficult or unfeasible to bring the witness to the courtroom.  Rather, here the consideration is the necessity of keeping people a sufficient distance apart.  But to satisfy the confrontation right, it is not necessary that the witness be in a full courtroom.  All that is required is that the witness, the defendant, and defense counsel be in the same room when the witness testifies; presumably the prosecutor would want to be as well.  Perhaps a videographer would be as well, though that might not be necessary.  And it would not be necessary that the judge be in the room; a remote hookup should suffice, and in fact even that would not be absolutely essential.  It has long been established that when the witness cannot be brought to the courtroom, a deposition, at which the accused has had an opportunity for confrontation, is sufficient, and Crawford maintains this rule.  Getting the witness to the defendant, or the defendant and counsel to the witness, does involve some transportation, but most witnesses in criminal cases do not live far from defendants, and this should not be a major consideration, even under current conditions, though one could imagine that in an occasional case it might make sense to postpone the trial for a few months.

In most jurisdictions, depositions in a criminal case are relatively rare.  But this is an occasion on which they ought to be held routinely.

Laird Kirkpatrick on forensic reports

I previously posted an entry about Stuart v. Alabama and Justice Gorsuch's dissent from the denial of certiorari in that case.  Laird Kirkpatrick, who for decades has been one of the nation's outstanding Evidence scholars, has written a very fine analysis of that dissent and what it, and other auguries, suggest about the law governing the Confrontation Clause implications of forensic reports.  I'm attaching it here.  It has been published, without footnotes (and a slightly inaccurate bio; Laird has been teaching for a long time, but not at GW until the first decade of this century) in the University of Chicago Law Review Online.  He makes many excellent points.  I think his treatments of the "targeted individual" and formality tests are particularly telling.  And he gives reason to think that the Court may not be ready to turn its back on Crawford and Melendez-Diaz.

BIO and reply in support of petition in White v. Louisiana

I previously blogged about White v. Louisiana, in which a cert petition is pending.  You can find the documents here.  They now include the State's Brief in Opposition and the Reply Brief in support of the petition.  The case has gotten a good bit of attention.  We'll learn soon if the Court will take the case.  I think it should; the egregious result in this case is itself a demonstration that this area of confrontation law badly needs cleaning up.

Important DC Circuit opinion on unavailability

Yesterday, the U.S. Court of Appeals for the D.C. Circuit issued an opinion, in U.S. v. Burden, that may be important in determining unavailability of a witness.  I consulted informally with Burden’s counsel during the appeal, so I will be constrained in making comments until I am confident this issue is resolved in the case.  But briefly:

Burden was convicted of illegal export of defense articles.  A critical witness against him was Yindeear-Rom (Y-R).  Trial was twice postponed, in part to allow for translation of documents.  But the second postponement pushed the trial date until after Y-R was scheduled to be released from prison; he was to be deported after that.  So the Government moved to take his deposition to preserve his testimony.  The defense objected, at least largely on the basis that given the state of the documents it was unable to prepare for the deposition.  But the trial court allowed the deposition, and it took place over four days.  It was videotaped in court before the trial judge; Burden was present and counsel cross-examined on his behalf.  Y-R was then deported to Thailand.  According to the DC Circuit, there is no record that the Government made any efforts before deporting him to secure his presence at trial.  It did make efforts afterwards, but to no avail; Y-R had no interest in returning.  I gather the Government had no means (say, through a treaty provision) of compelling him to do so.  The Government sought to use the deposition at trial.  Burden objected, but the trial court allowed the use.

The D.C. Circuit treated the case as if the only issue was unavailability, citing Crawford, 541 U.S. at 57.  (Burden still had the argument that the opportunity for cross was inadequate, but the appellate court paid no attention to that.)  The court emphasized that in a situation like this, where the Government seeks to use prior testimony of a witness it contends is unavailable, it must demonstrate that it made as vigorous an attempt to secure the witness’s appearance at trial as it would have made had it not had the prior testimony to rely on.  The court declined to hold that there is a per se rule that if the Government deports the witness it cannot claim unavailability, but it said that in such a case the Government would have to make “greater exertions” to satisfy the standard of good faith and reasonable efforts. Here, before deportation, the Government “did not give Yindeear-Rom a subpoena, offer to permit and pay for him either to remain in the U.S. or to return here from Thailand, obtain his commitment to appear, confirm his contact information, or take any other measures.”  The court declined to say just what the Government should have done in this case.  But it held explicitly that “the duty to use reasonable means to procure a witness’s presence at trial includes the duty to use reasonable efforts to prevent a witness from becoming absent in the first place.” And here, though of course the Government had taken Y-R’s deposition, in light of the fact that the Government had made no efforts before deportation to secure his presence at trial, Y-R could not be considered unavailable.

Notably, the court did not inquire as to whether Burden was prejudiced, given the opportunity to cross-examine Y-R at deposition, by Y-R’s absence from the trial itself.  That may be because the Government conceded that if use of the deposition was error it was not harmless.  But, because assessment of prejudice in determining whether there was an error is not the same as assessment of harmlessness of an error, I am inclined to read the court’s opinion as effectively holding that, even given a videotaped deposition in the presence of the judge and with cross-examination, in the absence of any substantial efforts before deporting a witness to secure the witness’s attendance at trial, the witness should not be deemed unavailable, and the defense need not show prejudice.

Julien v. State, 2019 WL 2750591, a decision issued yesterday by the Texas Court of Appeals, First District, shows how vulnerable the law of confrontation is with respect to fresh accusations.  As in Hammon v. Indiana, this was a domestic violence case, involving a statement made in the house by the complainant a considerable time after the alleged incident to responding police officers; here it was three hours later because, unaccountably, that is how long it took to respond to repeated 911 calls.  The principal difference was that here the suspect had left the house by the time the officers arrived; in Hammon, he was kept at bay by one officer while another spoke with the complainant.

 

In supporting the conclusion that the purpose of the questioning was to relieve an ongoing emergency, the Julien court first noted that on arrival the officers asked what happened -- which is ironic given that in Davis-Hammon that question (as contrasted to "What is happening?") was considered an indicator that the response would be testimonial.  Of course, in this case, as in Hammon, the speaker was protected as she made the statement, and given that the allegation was of domestic violence there was no plausible fear that the suspect was off on a rampage against others.  But, the court said, the whereabouts of the suspect were not known.  Therefore:  "The primary purpose of the questioning was not to document a past crime, but instead to assess the situation, determine the location of the suspect, and ascertain whether the threat remained."

 

 I think everybody has to have understood that the complainant was giving the officers evidence that could be used in prosecuting Julien.  It should have been an easy case to call this testimonial.  The holding to the contrary just provides a glaring demonstrating of how completely malleable the "primary purpose" test is; if a court wants to wave the evidence in it can almost always mouth sufficient words to reach a conclusion that the primary purpose of the conversation (and usually the court will focus on the officers rather than on the speaker) was something other than the transmission of evidence.

 

Let's also not ignore the horrible incentives this decision creates.  Sure, officers, you can respond at leisure to a 911 call; we'll still be able to say that the conversation was meant to respond to an ongoing emergency.  Better to wait, in fact, because then the suspect will likely have left, and you can say you didn't know his whereabouts.

 

These cases should be decided from the point of view of a reasonable person in the position of the speaker, not from that of the investigator or some kind of mishmashed joint perspective.  And the question should be whether there was a reasonable expectation that the statement would be used in prosecution.  That was clearly so here.  The statement was testimonial -- and the confrontation right should have prevailed, unless Julien forfeited it, as by intimidating the speaker.

White v. Louisiana: a cert petition to watch

White v. Louisiana, No. 18-8862, may provide the Supreme Court with an opportunity to begin clarifying and repairing the doctrine governing prior statements of a witness who takes the stand at trial but who has insufficient memory to allow a genuine opportunity for cross.  The docket sheet for the case, including links to case documents, is here.

In White, a murder case, the only evidence implicating White was the (subsequently recanted) videotaped statement of one Coleman, made to police officers.  Coleman took the stand at trial, but because of an accident that had occurred since the time he made the statement, he could remember neither the statement nor the underlying events.  The trial court nevertheless held that this was sufficient.  White was convicted and sentenced to life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence.  The Louisiana Court of Appeals affirmed, and the Louisiana Supreme Court declined to take the case.

The cert petition is in form pro se, but my understanding is that it was written by a fellow prisoner who is an extremely capable lawyer; it is very effective.  The State waived the right to respond to the petition, but the Court has asked for a response, and it is due on August 13.   Meanwhile, the National Association of Criminal Defense Lawyers and I have each submitted amicus briefs in support of the petition, and Jeff Fisher has appeared for White as counsel of record.

My own feeling is that it cannot be the law that if a shell of a person is able to take the witness stand and take the oath, that constitutes an adequate opportunity for cross-examination, even if the witness has essentially no memory of the event or even of the statement.  This should have been an easy case, because Coleman suffered a catastrophic memory loss after the statement and before trial, and the fact that the Louisiana courts thought there was nevertheless no constitutional violation shows the need for Supreme Court intervention.  Ultimately,  I hope the Court recognizes that prior statements of a witness pose a problem if the witness has suffered such a memory loss since the time of the statement as to impair cross-examination significantly.  But the extreme nature of the facts in this case means that the Court need not make any grand pronouncements; it can take a small step in this case to begin to develop the law in this area along satisfactory lines.

A reminder that an excited utterance can be testimonial

People v. Allen, a decision handed down yesterday by a justice of the Supreme Court of New York (the trial court of general jurisdiction) for Queens County provides a useful reminder that a statement may be testimonial even though it fits within the malleable hearsay exception for excited utterances.

Allen is accused of weapons possession charges.  He allegedly robbed two men, Forbes and Warner, at gunpoint.  Shortly afterwards, three officers saw a gun being pointed out of Allen’s vehicle.  After a high-speed chase, ending conveniently enough outside a precinct station house, Allen was apprehended and handcuffed; one of the officers said that the threat he posed had been “neutralized.”  Forbes and Warner had joined in the chase, and Forbes, with considerable excitement, told the officers that Allen had robbed him.  Allen was initially charged with robbery, among other offenses, but Forbes stopped cooperating, and that charge was dropped; the prosecution proceeded on weapons charges.  The People sought to present the officer’s testimony of Forbes’s statement to prove the robbery on various non-propensity grounds.  (If the statement were admissible for its truth, then it presumably could have supported the robbery charge; perhaps the prosecution had some sense that this was not quite right.)

    The judge, Hon. Joseph A. Zayas, held that Forbes’s statements “land firmly on the testimonial side of the divide.”  He first swatted away, quite properly, an argument that the statements could not have been testimonial because they were unprompted; Davis v. Washington, 547 U.S. at 822 n.1, had already made clear that there’s no merit to that argument.  Moving beyond that, the justice noted that “ it would have been obvious to Forbes, even in his agitated state, that defendant was under arrest and the emergency he allegedly created by speeding through the streets of Astoria, armed with a gun, was over”; he made his statement to the officers “to make them aware of a crime defendant had committed a short time earlier.”  And the conclusion that the statements were testimonial was not undermined by the fact that the circumstances “lacked the formality and structure of, for example, a sit-down interview inside a station house”; the statements were “a weighty allegation leveled in a setting in which it was likely to be immediately acted upon.”

And finally, though the justice had little doubt that the statements would qualify as excited utterances for hearsay purposes, that did not answer the confrontation question.  The statements were still testimonial, because even in his excitement “it must have been obvious to Forbes — or at least it would have been obvious to a reasonable person in his position — that his accusatory statements would be used to further the investigation of the man who was standing before him, in front of a police station, handcuffed and surrounded by officers.” 

These points should all be obvious, and Justice Zayas had good authority for all of them, but not all judges are so clear-headed on these matters, so it was refreshing to see this opinion.

A belated assessment: People v. Sanchez

    I realize I never posted anything about the California Supreme Court’s 2016 decision in People v. Sanchez, 63 Cal.4th 665, 374 P.3d 320, 204 Cal.Rptr.3d 102 (Cal. 2016).  This case deals with the Confrontation Clause implications of expert testimony.  It is one of the most significant post-Crawford cases dealing with the Clause from the lower courts, and probably the most significant lower-court treatment of the mess resulting from Williams v. Illinois.

    Marcos Sanchez was tried on firearms charges and on gang-related charges.  A key witness against him was David Stow, a detective and gang expert.  Stow testified about gang culture in general and about the Delhi gang, the one involved in this case.  This evidence, based on his long familiarity with this gang among others, appears to have been unproblematic.

    The questioning then turned to Sanchez personally.  Stow relied on certain police documents.  Under California’s Street Terrorism Enforcement and Prevention Act, police give so-called STEP notices to individuals associating with known gang members.  The notice informs the recipient that he is associating with a known gang and therefore putting himself at increased legal peril.  The officer records the date and time of the notice and identifying information for the recipient and his associates.  The notice may also record statements made by recipients at the time.  Such statements may also be recorded by the officer, along with other information about the interaction, on field information or “FI” cards.  Stow testified that a STEP notice given to Sanchez in 2011 included a notation that Sanchez had “kicked it” – associated – with guys from Delhi for four years and had gotten “busted” with two Delhi members.  Based on this and other police records, Stow, who had never met Sanchez and was not present at the police contacts with him, gave his opinion that Sanchez was a member of the Delhi gang and that certain of his actions were intended to aid the gang.  Sanchez was convicted and appealed.  The intermediate appellate court reversed his conviction for active gang participation but otherwise affirmed.  The state supreme court then granted his petition for review.

    The court reviewed history with respect to the intersection of the rules on hearsay and on expert opinions.   Traditional law allowed an expert to give an opinion based on general knowledge of the field of expertise; the hearsay rule did not pose an obstacle to the expert’s reliance on out-of-court sources.  But, the court noted, “an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge.”  The court gave several examples.  For example, it would be a case-specific fact that 15 feet of skid marks were measured at an accident, or that a particular associate of the defendant had a diamond tattooed on his arm.   In time, the courts recognized exceptions to the general rule barring disclosure of, and reliance on, case-specific hearsay; the exceptions covered testimony about property valuation and medical diagnosis.  Courts recognized that experts in the these areas relied on other people’s observations as to case-specific facts in making their assessments in their ordinary practice, and the court adopted the practice.   Ultimately, the California Evidence Code, § 801, broadened this exception so that it swallowed the rule; this provision, a precursor to Fed. R. Evid. 703, prescribes that an expert may base an opinion on information made known to him or her, whether or not admissible, if it is of a type that may be reasonably relied on by experts in forming similar opinions.  Moreover § 802 generally allows the expert to state on direct examination the reasons for the opinion.  Under  this paradigm, there was no need to distinguish carefully between background information and case-specific facts.  Instead, California courts asked whether a jury could properly a limiting instruction (to use information otherwise inadmissible only for the purpose of assessing the opinion).  But, the court concludes, “this paradigm is no longer tenable because the expert’s testimony regarding the basis for an opinion must be considered for its truth by the jury.”

    The court notes that in Williams, in the Confrontation Clause context, the U.S. Supreme Court addressed the issue of whether “basis” testimony is offered for the truth of the matter asserted.  The court comes down squarely on the side of a majority of justices – Justice Thomas and the dissenters – on this issue: “When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert’s opinion, it cannot logically be asserted that the hearsay content is not offered for its truth.”

    Thus, the court resurrects the significance for hearsay purposes of whether the out-of-court statement is case-specific.  And it also gives that factor significance in determining whether there is a Confrontation Clause problem.  (Probably a statement relied on by an expert that is not case-specific would not be testimonial.)  So in this case:

    (1) The court holds that when Stow testified to case-specific facts based on out-of-court statements on which he had relied in forming his opinion, he was reciting hearsay.  True, but suppose the statement is case-specific but not testimonial (e.g., the results of a blood test), in which case, of course, it does not pose a Confrontation Clause problem.   Should the hearsay rule nevertheless exclude it?  Personally, I don’t think that has to be so; in this sense the decision may be more stringent than necessary as a matter of hearsay policy.  (I wonder also whether the police officer’s statements come within the exception for official records.  Note that Sanchez’s statements would be personal admissions.)

    (2) If such a case-specific statement is testimonial, then there is a Confrontation Clause violation unless the maker of the statement is unavailable and the defendant had a prior opportunity for cross or forfeited the right by wrongdoing.  Absolutely right.

    In this case, Stow relied in part on police reports compiled during investigation of completed crimes.  The court holds these testimonial, and rejects the Williams plurality’s “targeted individual”  test.  Good!

    The court also holds that the portion of the STEP notice retained by the police, which contained an officer’s recording of statements made by the defendant, was testimonial.  It was clear that this recording was made to be able to use the statements, and the notice that Sanchez was associating with gang members, for possible enhanced punishment in a later prosecution.  I think it’s an interesting issue whether this is correct even though the statement was made before the crime  with which Sanchez was charged had been committed.  Is this different from, say, a record of deportation, which most courts do not treat as testimonial when offered in a prosecution for illegal re-entry? Arguably, it is different.  The STEP notice indicates an ongoing association, and an anticipation that the recipient will be accused of a future crime.

    The court leaves undecided whether the FI card on which Stow relied was testimonial; whether it was produced in the course of an ongoing criminal investigation was not clear.

    Finally, the court decides that the error in allowing Stow to rely on the reports and the STEP notice was not harmless, because that accounted for the great majority of the evidence associating Sanchez with the Delhi gang.  Thus, it reversed the trial court’s findings supporting enhancements for street-gang association.

    This is an important, clear-eyed case.  It may be more restrictive than necessary with respect to non-testimonial hearsay, which of course does not invoke the Confrontation Clause.  But it emphatically recognizes that when an expert relies on the truth of a statement in reaching an opinion that statement is effectively being used for its truth.   And it also recognizes that the reports and STEP notices here were made for prosecutorial purposes; it does not try to evade the consequences of characterizing them as testimonial.

Objecting to hearsay, and forgetting about the Confrontation Clause

Before Crawford, it was not surprising that defense counsel sometimes failed to make Confrontation Clause objections; it wasn't clear what the Clause added to hearsay law.  But now counsel really should be more careful.  And yet some fail to do so.  A case decided yesterday by the California Court of Appeal, People v. McCormick,  underlines the point in an odd way. 

This was a robbery case.  Almost 12 weeks later, after a chance encounter, one of the victims, C.G., identified McCormick to a police officer.   C.G. did not testify at the preliminary hearing, and by the time of trial he had moved out of state.  Nevertheless, the officer testified to the identification made by C.G.  Defense counsel objected on hearsay grounds, but not on Confrontation Clause grounds. 

The court of appeal noted that the hearsay objection should have been sustained.  But oddly, the appeal was not on the basis of evidentiary error.  Rather, it appears to have been only on the ground of ineffective assistance of counsel; the lawyer also missed an obvious Miranda objection.

The court of appeal, quite properly, had no doubt that the identification statement was testimonial.  Perhaps leaning over backwards, the court held that "counsel may have made a reasonable tactical decision to forgo requiring the prosecutor to establish" that C.G. was legally unavailable.  But it asserted that the same could not be said with respect to a prior opportunity for cross-examination; plainly, there was none.  And counsel did object on hearsay grounds, so there was no plausible tactical reason not to object on Confrontation Clause grounds.  The performance was constitutionally deficient, and it was clearly prejudicial.

So it's the right result, and it should have been reachable on hearsay grounds.  But it's frustrating, 15 years after Crawford, to see defense counsel failing to be sufficiently sensitized to the Confrontation Clause to make an obvious objection.

A new and interesting case on the not-for-truth end run

Stu Dedopoulos, a blog reader who diligently keeps me informed, has told me about Orlando v. Nassau County District Attorney’s Office, an interesting Second Circuit case decided this week.  In a 2-1decision, the majority (Circuit Judge Droney, joined by Circuit Judge Jacobs), upheld a Confrontation Clause challenge on habeas.  I think this was probably the right decision, but it’s a tough case, and there’s a very fine dissent by District Judge Shea.  The case is a good illustration of the difficulties that arise when the prosecution tries to justify what appears at first glance to be a blatant Confrontation Clause violation by citing an arguably plausible not-for-the-truth basis of admissibility.  Evidence teachers might find that it’s good fodder for an exam question.

Mark Orlando was accused of paying Herva Jeannot to murder Bobby Calabrese, allegedly to avoid paying a $17,000 gambling debt.  The police, believing that Orlando and Jeannot had been together the night of the shooting (in Island Park, NY, a few miles from where I grew up), interviewed them separately.  Orlando at first said he and Jeannot had gone together to pay Calabrese, they did so, and then left, without incident.  After some hours, one of the detectives returned repeatedly, eventually telling Orlando that Jeannot had given what they felt were “truer versions” of the events, and that Jenanot had admitted shooting Calabrese but said that Orlando had paid him to do it.  At that point, Orlando, who had said he was afraid of Jeannot, gave another statement, to the effect that after he paid Calabrese Jeannot unexpectedly shot him and took the money.

Orlando and Jeannot were both charged with murder.  The trials were severed, quite properly given Jeannot's confession, which plainly could not be introduced against Orlando for the truth of what it asserted.  But at Orlando's trial, the prosecution, over objection, presented evidence of all of the encounters between Orlando and the police described above – Orlando's first statement, the later interchange between Orlando and the detective, including the detective's summary of and apparent endorsement of Jeannot's statement admitting to the shooting and implicating Orlando, and Orlando's second statement acknowledging being present at the time Jeannot shot Calabrese.  Orlando was convicted, lost on appeals in the New York system and before the district court on his habeas petition, but won in the court of appeals.

I think the majority was right to emphasize that Jeannot was effectively a witness against Orlando; his statement was plainly testimonial.  I think it's also clear that, despite a limiting instruction that the trial judge gave, it's virtually certain that the jury would consider Jeannot's statement for the truth of its assertion that Orlando paid for the killing.  And, as the majority points out, in this case the evidence included not only the substance of the accusatory confession but also an effective endorsement by the police, a factor not present in Bruton.

But the case is not quite like Bruton.  There, the statement was admissible against the confessor, Evans, not against his co-defendant, Bruton.  The Supreme Court held that a limiting instruction would be ineffective; severance was required.  Here, there already was severance.  But the argument is that the evidence was admissible against Orlando for some reason other than to prove the truth of what it asserted.  And it is clear under Tennessee v. Street, which was reaffirmed by Crawford, that a statement does not pose a Confrontation Clause problem when it is admitted to prove some proposition other than the truth of a matter it asserted.

So what was that other proposition?  I take it as given that the prosecution had good grounds to show that Orlando gave shifting exculpatory stories; a person is more likely to shift stories if he is guilty and is adjusting to new information than if he is innocent. The explanation given by Orlando in the police station, and by counsel at trial, is that he was afraid of Jeannot, and so unwilling to say that Jeannot had shot Calabrese until he heard that Jeannot had confessed to doing so.  (Orlando had no objection to the jury hearing that Jeannot had confessed to being the triggerman.)  The fact that Orlando had also heard that Jeannot accused Orlando of having paid for the murder, and that the police were disposed to believe Jeannot, might make this account less plausible; it might suggest that Orlando changed his story only under pressure of knowing he was being credibly accused, and that he came up with an account that was exculpatory but fit the evidence that he knew the police had in hand (proof that he had the debt to Calabrese, that he was with Jeannot the night of the murder, and that Jeannot had admitted being the triggerman).

I'm willing to assume that this is a valid basis for admission.  Nevertheless, it appears to me to be a bad case of the tail wagging the dog.  The harm to the prosecution of not allowing this contextualizing evidence is nowhere near as weighty as the virtual certainty that the jury will take Jeannot's statement as proof that Orlando paid for the killing.  So I think sometimes the Confrontation Clause demands a balancing of how significant the valid evidentiary use is as compared to the probability that the jury will use the out-of-court testimonial statement, notwithstanding a limiting instruction, as proof of what it asserts.  Here, I think the majority drew the balance correctly.  It was virtually certain that the evidence would result in a Confrontation Clause violation, on the issue at the core of the case.  And the evidence, while helpful to the prosecution on the basis on which it was offered, was by no means essential.

I think this last point is especially so because, as the majority suggests, there were lesser alternatives.  For example, I believe a good solution would have been to allow the detective to testify that he had told Orlando that Jeannot had confessed to pulling the trigger but that the police had reason to believe that Orlando may have paid for the killing.  (There was some other evidence besides Jeannot's statement suggesting this that was presented to the jury, starting with the existence of the gambling debt and Orlando's friendship with Jeannot; there was also the lack of an apparent motive on the part of Jeannot.)  That, it seems to me, would have given the prosecution essentially all it needed, but without recital of the substance of an out-of-court accusation.

Two related points make the type of problem exemplified by this case both interesting and difficult.  First, I believe we are looking for second-best solutions.  That is, the ideal solution would be that the prosecution gets everything to which it is entitled and the accused's conforntation right is fully protected, but that is not always possible.  (In this case, I think we can get close.)  Second, I believe we are in an area of balancing – probability of a Confrontation Clause violation against loss of evidence used for a valid purpose – and that makes me very uneasy.  Sure, balancing is appropriate in many areas of the law, certainly including evidentiary matters, but when the Confrontation Clause is at stake hard-edged rules are more likely to provide protection, and that is one of the advantages of Crawford as compared to the old regime of Ohio v. Roberts. (I do believe there are other areas of Confrontation Clause doctrine that demand balancing.  For example, determining unavailability is often a matter of degree, and I believe so also is the question of the extent of mitigating action the state should be required to take before it can successfully contend that the accused forfeited the confrontation right by misconduct.)  It's too easy in cases of this sort, especially on habeas, just to say the prosecution had a good enough reason to justify admission, and so I give the majority credit, especially in the face of a careful and perceptive dissent, for declining to take that path.

First word from Justice Gorsuch on the Confrontation Clause

The Supreme Court today denied certiorari in Stuart v. Alabama, No. 17-1676.  I believe there is good news and bad news here. 

Stuart was charged with vehicular homicide, by drunk driving.  The State introduced a blood test through the testimony of a supervisor in the lab who had nothing to do with preparation of the report -- and who, in fact, was not even employed at the lab at the time of the report.  (See the decision of the Alabama Court of Appeals, taken from the appendix to the cert petition, at 8a, and the petition itself,  at 5-6, 10.)  Gee, that sounds an awful lot like Bullcoming v. New Mexico. This of course was a point emphasized by the petition, which frankly asked for summary reversal.  The Alabama appellate court did little more than wave at Bullcoming; it relieved on a prior decision that seems to have treated Bullcoming as inconsequential in light of an Alabama Supreme Court decision that spoke of what the U.S. Supreme Court "held, in a plurality opinion," in Williams v. Illinois.  (Note that even Oyez speaks of Justice Alito's opinion for four justices as the "opinion of the Court.")

The U.S. Supreme Court denied cert today, and as usual offered no explanation.  But Justice Gorsuch, joined by Justice Sotomayor, dissented from the denial.  And the dissent is very clear -- he rejects the reasoning of the plurality opinion in Williams, at least on the question of whether the lab report was offered for the truth of what it asserted, and also the basis underlying Justice Thomas's vote for the majority in that case.  And he cites Justice Kagan's dissent favorably.

So the biggest piece of good news is that Justice Gorsuch appears to be a tiger on the Confrontation Clause, and so it appears, from the first evidence, that the passing of Justice Scalia's seat to him will not do the doctrine any harm.  And another piece of good news is that Justice Sotomayor felt called upon to join the dissent; on this part of Confrontation Clause doctrine, at least, it appears that she is now in the right corner.

But it's unfortunate that no other justices thought the case warranted action.  I think petitioner's counsel was right that there should have been a summary reversal, and though those are rare they do happen.  But I suppose we shouldn't make too much of the Court declining to reverse summarily.  And what about the failure of others to join in Justice Gorsuch's dissent, and the decision of the Court not to take up the case?  I assume Justice Ginsburg and Kagan remain on the same side with Justices Gorsuch and Sotomayor.  That could have been four for certiorari.  If one but not the other was in favor of cert, she might have had various reasons for not wanting to join a dissent from a cert denial.  But I worry that neither voted for cert because they were afraid that Justice Thomas would stand in this case where he did in Williams and Justice Kavanaugh would take Justice Kennedy's place with Justices Roberts, Alito, and Breyer.

Ultimately, I choose to look at the glass half full.   Justice Gorsuch appears to be on the right side, and we didn't know that before. Perhaps Justice Kavanaugh is on the wrong side, but here's no way of knowing for sure -- and if he is, the Court would be just where it was before on these issues, no worse.

Continuing confusion on lab tests

Stu Dedopoulos, who does a wonderful job of keeping me informed, has brought to my attention the decision of the supreme court of his home state of New Hampshire, issued today, in State v. Watson.  It provides a good opportunity to comment on the sad state of affairs regarding forensic lab tests.

Watson was charged with felony sale of a controlled drug resulting in death, so toxicology tests on the victim were critical to the prosecution.  In all autopsy cases, the state's Chief Medical Examiner sends specimens to a private lab based in Pennsylvania.  In this case, the lab was asked to test for over 200 substances.  How many different tests the lab actually performed is not clear from the court's opinion.  In any event, the prosecution presented one witness from the lab, Dr. Daniel Isenschmid, a toxicologist, who supervised the lab's report but apparently observed none of the testing.  He testified to the presence in the victim's blood of fentanyl, norfentanyl ( metabolic breakdown of fentanyl), and a breakdown of marijuana, and to the presence of marijuana and opiates in the victim's urine.  He also testified to the amounts of fentanyl and norfentanyl (21 and 2.2 nanograms, respectively), and given those he offered the opinion that the victim had ingested a large amount of fentanyl and that he died shortly after doing so.  The state supreme court ultimately upheld that Isenschmid's testimony did not violate the Confrontation Clause violation because "he testified to his own, independent conclusions."

Several points.  First, if the state had properly proved that there were 21 nanograms of fentanyl in the victim's blood and 2.2 nanograms of norfentanyl, there would be no problem under the Confrontation Clause with Isenschmid -- or any other qualified witness -- using that information to testify to an opinion regarding the cause and manner of death.  But Isenschmid did not know the facts on which his opinion was based, and the only proof of those came through testimonial statements by persons who did not testify.

Second, and relatedly, we really should be clear that it is nonsense to say that Isenschmid's testimony did not violate the Confrontation Clause because he offered "independent" conclusions.  His conclusion as to the manner and cause of death was based critically on information provided to him, such as that there were 21 nanograms of fentanyl in the victim's blood.  If he had just testified to factual propositions like that, based on testimonial statements made by other persons who did not appear at trial, I think the Confrontation Clause violation would have been clear.  That in addition to reporting those facts he offered an opinion based on them does not diminish the problem.

Third, to be precise, the problem is not that Isenschmid did not perform any of the tests.  Rather, it's that his testimony relayed, and relied on, testimonial statements made by persons who did not testify subject to confrontation, and as to facts as to which Isenschmid could not testify.  If, for example, he had observed a test and had recorded its results, there would be no problem with his testifying at trial as to that.  (This is important in autopsy cases, where there may be an observing medical examiner.)

Fourth, given Isenschmid's testimony that 12 lab employees handled the samples, the court says that "[t]aken to its extreme," the defendant's implication is that all 12 would have had to be produced for Isenschmid to be able to testify.  I don't know what Watson argued, but this parade-of-witnesses horrible is a strawman.  (Mixed metaphor cheerfully acknowledged.)  It is not necessary to produce everyone who handled samples; it is only necessary to produce persons whose testimonial statements are being presented, explicitly or implicitly, to the trier of fact. 

Fifth, as a related matter, the prosecution does not have to present live witnesses testifying to a chain of custody with no breaks whatsoever.  The court accurately quotes Melendez-Diaz, 557 U.S. at 311 n.1, that “it is not the case . . . that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.”  Melendez-Diaz further said that gaps in the chain normally go to the weight rather than admissibility of evidence, and added:  "It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live."  I'd add that it could be that the break is so large that the court is obligated to conclude that there is insufficient proof that the sample tested is the material one, but that would be an unusual case.

Sixth, I don't think there's any problem with a witness like Isenschmid testifying, "This is what we ordinarily do. . . ." and letting the jury conclude from that testimony that the lab acted in that way in the particular case.  The problem comes when he testifies, "This is what we did here (because my colleague, understanding full well this was a forensic test, told me what she did) . . . ."

Seventh, the Confrontation Clause should shape lab organization, not the other way around.  In the US Army lab, according to the evidence in a case I handled a couple of years ago, one lab analyst handles the sample from intake all the way through to report, even for DNA tests.  Perhaps that is mildly less efficient, not taking into account the accused's confrontation rights.  That's not a good enough reason to decline to organize the lab in that way.  Note that in this case Watson was convicted of a felony that subjected him to a life term (I don't know what sentence the court actually imposed.)  If the lab that the state chooses to use chooses to have three different analysts perform one test each, and the testimonial report of each is critical to the prosecution, then all three should testify.  But that is a non-inevitable choice that the lab makes.

Ultimately, I think it is the supposed multi-witness problem that scares courts in this area.  I think defense lawyers have to make carefully thought-out arguments as to what evidence the prosecution might need in the particular case, and who must therefore testify.  And they should not take the organization of a particular lab as a given.

Autopsy reports -- still waiting for clarification

Last May, I posted a discussion concerning the treatment of autopsy reports under the Confrontation Clause.  The principal issue is when, or whether, such reports should be considered testimonial.  A secondary issue, which arises in other contexts, is whether, assuming a report is testimonial, the prosecution can present secondary evidence concerning the contents of the report on the ground that it supports the opinion of an expert testifying live at trial.

I think the answers should be clear:  An autopsy report should clearly be considered testimonial when it concludes that the probable cause of death is homicide or otherwise provides evidence that a reasonable person in the position of the person writing the report would realize would likely be used in prosecution.  And if a report is testimonial, the Confrontation Clause is not satisfied by having an in-court witness rely on the report  for her opinion, whether or not that opinion is characterized as "independent," if the report only supports the opinion on the premise that the report is truthful.

But unfortunately there remains a great deal of confusion on these issues in the lower courts.  Some get them right, and others do not.  The Supreme Court indicated some interest in the problem last fall when it asked for a brief in opposition to the petition for certiorari (in which Jeff Fisher participated) in Garlick v. New York, but in the end it denied the petition.  Here are the petition (together with the motion for leave to proceed in forma pauperis) and the reply brief in support of the petition.

Meanwhile, Cody Reaves, who has since graduated from the University of Michigan Law School, did an independent study under my supervision on the Confrontation Clause issues related to the use of autopsy reports.  I believe his memo is a very useful resource for anyone doing research in this area, so I am posting it here.  It is Cody's work, not mine, and the conclusions are his; I certainly agree with some of his opinions, but not necessarily with all.

Another look at the Craig-Crawford disjuncture?

Crawford did not purport to disturb Maryland v. Craig, 497 U.S. 836 (1990), which allowed a prosecutor in some circumstances to present the testimony of a child by electronic transmission from a place outside the physical presence of the accused.  But Craig was based on the flexible approach to the Confrontation Clause of Ohio v. Roberts, 448 U.S. 56 (1980), which Crawford overturned.  It is not surprising that Justice Scalia, the author of Crawford, wrote a bitter dissent in Craig, a 5-4 case, and that Justice O'Connor, the author of Craig, was one of two members of the Court not to join the majority opinion in Crawford:  The two opinions reflect radically different views of the Confrontation Clause.  Up til now, the Supreme Court has declined to discuss what the standing of Craig is in light of Crawford.  It has certainly had opportunities.  For example, see here and here. Now Judge Jeffrey Sutton of the Sixth Circuit has written a concurrence in a decision, United States v. Cox, strongly suggesting that the Supreme Court ought to take the matter up.   We'll see what happens. The justices won't necessarily take up Judge Sutton's suggestion, but his is a voice to which they will likely pay attention.

Cox involves electronically transmitted testimony by a third-grader and a sixth-grader.  Other child witnesses evidently testified live at the trial.

Scotusblog piece on the effects of Melendez-Diaz

Scotusblog recently ran a piece by Andrew Hamm titled Looking back at predictions in Melendez-Diaz v. Massachusetts.  Here is a link. 

I think it's fair to say that this article bears out the conclusion that, despite the dire predictions made by Justice Kennedy of how devastating Melendez-Diaz would be to the criminal justice system, the actual effect has been rather modest.  There was, at least in some states, an initial period of adjustment, as one would expect.  And it may be that defendants' hands in plea bargaining have been strengthened slightly -- but that's not inappropriate, because if defendants' rights have been ignored and are then restored, their bargaining hands should be strengthened.  The Scotusblog article reports the findings of a Ph.D. dissertation by Catherine Bonventre concluding that the effects of Melendez-Diaz have been "none to minimal.  It also uses a study that I supervised, previously reported on this blog, indicating that even in DNA cases adhering to the confrontation right does not result in a parade of lab witnesses.

The Scotusblog article also summarizes the argument made by Sean Driscoll that the case of Annie Dookhan, who was cross-examined 150 times without her years of lab fraud being discovered shows the futility of cross in this context.  I certainly don't think it's a panacea, and it may be that a determined liar like Dookhan will often not be exposed on cross.  But I think the principal value of cross, or the possibility of it, in this context is that the practice of lab techs is likely to be considerably more careful if they know they may have to answer questions under oath about what they have done.

An issue to be resolved: The treatment of autopsy reports

This blog has remained dormant for some time, it part because I have been distracted by other work and in part because there haven't been all that many developments that I have thought are worth reporting on.  But I will try to begin posting again more frequently.

There is one set of issues in particular that I think is headed for resolution by the Supreme Court, the treatment of autopsy reports in murder cases, and I expect to be writing several posts on it.  There are two basic issues, one specific to autopsy reports and the other common to other types of forensic reports.

First is the question of whether, or when, an autopsy report is testimonial.  Let's bear in mind how this issue comes up.  Almost always, it is the prosecution in a murder case that wants to use the report without producing as a live witness the medical examiner who made the report.  And the report provides some information -- often the cause of death, and sometimes the time as well -- that is helpful to the prosecution.  Almost always it is clear that, at least as of the time the examiner wrote the report, he or she believed that the death was probably a homicide.  And that means that the examiner must have known that he or she was creating evidence for use in a criminal case.  In such a case, I think it is clear that the report (and especially the statements of use to the prosecution) is testimonial in nature.  If it were not, that is akin to saying to the medical examiner, "Write up your report, and send it in to the police and the prosecutor.  You know, and everyone else knows, that you are doing so with the anticipation that it will be used as evidence or the prosecution in a homicide case, but there will be no need for you to take an oath, or appear in court or before the accused, or be subjected to cross-examination."  That goes against the very core of the confrontation right, and it utterly lacks historical foundation.

Some courts have seen it this way.  Others, though, have regarded autopsy reports as non-testimonial, principally on the basis of the proposition that autopsies are frequently performed for public health purposes having nothing to do with prosecution.  That proposition is true but immaterial.  The question should not be resolved by taking a survey of such a large body of reports -- the question in any given case is whether this report is testimonial.  And even if one did think that the question should be resolved by looking at a category of cases, "autopsies" is too broad -- a more appropriate category would be "forensic autopsies" or "medico-legal autopsies", both of which are well-known in the field.  Even assuming we are to look at the "primary purpose" of the statement (I don't think that should be the test, and perhaps the autopsy case will finally cause the Supreme Court to abandon it), and even assuming that there can be only one "primary purpose" of a statement (an unresolved matter), the primary purpose of a forensic autopsy report is to provide information for the criminal justice system leading to the conviction of the perpetrator of a homicide.

It also should not matter whether the autopsy report is directed at a targeted individual -- five justices rejected that idea in Williams v. Illinois, and for reasons I have explained before and won't bother with now, they were right in doing so.

Nor does it matter that autopsy reports are sometimes performed in cold cases, and prosecution may not follow for some years to come.  It is not a general principle of law that when time passes the prosecution can be excused from presenting its witnesses, absent proof that the accused forfeited the confrontation right, and there is no reason to create such a principle with respect to medical examiners.  And indeed, in this context (unlike that of a crucial eyewitness) the state can protect itself to a great degree by ensuring (as is standard practice in at least some jurisdictions) that at least two people competent to testify about what happened in the autopsy are present (and preferably one of them rather young!).  The state could also protect itself to a great degree by taking a continuous film of the autopsy, including the patient's face.

Finally, it does not mater whether the medical examiner is independent of the police or prosecutor. We do not have a system in which the confrontation right applies only to witnesses who have an affiliation with the criminal justice system.

Second is the question of whether one expert witness can offer an "independent" opinion based on factual assertions made by another expert in a testimonial statement.  This issue is not peculiar to autopsy reports; it arises with respect to many types of forensic lab reports, and was present in Williams.  Five justices properly answered the question in the negative, but because of the unusual result in that case -- the four prevailing because Justice Thomas joined them on other grounds -- the matter is still in contention.  I've addressed this matter before, especially in discussing Williams, and may come back to it later, but won't say more here.

There is a case pending before the Pennsylvania Supreme Court, Commonwealth v. Brown, that presents both issues (although with respect to the second it may be that only state-law issues are involved).  The Superior Court opinion, 139 A.3d 208 (Pa. Super. Ct. 2016), held that the autopsy report was testimonial and introduction of it was a Confrontation Clause violation -- but that the error was harmless because another examiner testified to her "independent" opinion (even though that opinion was based in part on facts asserted in the autopsy report).  So the court got one right and one wrong.  Both parties have appealed.  Here is Brown's initial brief; here is the state's initial brief; here is Brown's second brief (reply brief on his appeal, and appellee's brief with respect to the state's appeal).  The state will presumably file a reply brief on its appeal.

More to come on this set of issues.

Third petition on surrogate experts

Tim Provis, counsel for the petitioner in Roalson v. Wisconsin, No. 15-6037, which presents an issue similar to Griep and Katso, has kindly provided me with copies of the papers on cert.  Here are links to the Petition, the State's Brief in Opposition, and the Reply Brief supporting the Petition.

New cert petitions on the "expert witness end-run"

At least two cert petitions are currently before the Supreme Court on the question of whether, or when, a prosecution may present the substance of an out-of-court testimonial statement through an in-court witness who bases an opinion in part on that statement.  One is Griep v. Wisconsin.  The State originally declined to file a brief in opposition to the petition, but the Court requested one.  Here are links to the petition, to the brief  in opposition, and to the reply brief.  The second petition, on which I am counsel of record, is Katso v. United States.   The Government has twice asked for extensions of the time to file a brief in opposition; its time now expires on January 4.  You can read the petition by clicking here. 

Audio of public radio show on Ohio v. Clark

Joan Meier, who commented last week on this blog, and I appeared on Friday on a Los Angeles public radio show, discussing Ohio v. Clark. If you're interested, you can listen to it by clicking here.  
By the way, Joan cited favorably a recent book by Ross Cheit,  The Witch Hunt Narrative: Politics, Psychology, and the Sexual Abuse of Children.  Here for comparison is a very different view of the book.

I have insufficient knowledge of the subject matter to engage usefully in a debate over the Cheit book.  I will say, though, that I have great faith in the scholarly fairness and integrity of Sam Gross, my colleague of over a quarter century, and of Steve Ceci, with whom I have partnered on a few projects over the last fifteen years and more.

Ohio v. Clark: Some Initial Thoughts

A few thoughts on the decision in Ohio v. Clark:

1.  The result is totally unsurprising, and I was not even surprised by the unanimity as to the result; it was difficult at argument to perceive that any justice thought the statement was testimonial. 

2.  I don’t think the statement should have been considered testimonial: I don’t think three-year-olds have the capacity to make testimonial statements.  (Steve Ceci and I asserted this position in our amicus brief and in the law review article on which we based it.)  And I wish the Court had left it at that.  On p. 9, the Court does emphasize the age of the victim, saying that statements by very young children “will rarely, if ever, implicate the Confrontation Clause,” because of their cognitive limitations.  All correct, I think.  Future cases are going to have to work out what the boundary is as to when a child is old enough that his or her statements may fall within the Clause.

3.  Justice Scalia objects to Justice Alito’s treatment of Crawford as being just “a different approach” from Roberts, not emphasizing that it was a total repudiation.  But the fact is that the majority opinion deals entirely within the Crawford framework.  That’s good news.

4. At argument, several justices seemed to have doubts about the “primary purpose” test, but now eight of them double-down on it.  Too bad.  It really isn’t a coherent test, because so often purposes are joint and it’s really not possible to tell which is primary.  Consider Justice Alito’s statement, p. 11, that the teachers “undoubtedly would have acted with the same purpose [to protect the child and remove him from harm’s way] whether or not they had a state-law duty to report abuse.”  Well, you could flip that and say that they “undoubtedly would have acted with the same purpose [to aid in law enforcement] whether or not they had a protective purpose in mind” – if, for a gruesome example, the child seemed clearly on the verge of death.  And the “primary purpose” test is easily manipulable; we can anticipate that many statements will be funneled to professionals other than law enforcement and the state will cite some purpose other than law enforcement as primary.  I think there’s really only going to be clarity and a solid basis when the Court uses a test based upon reasonable anticipation, from the point of view of the speaker.  But we seem to be a long way away from that. 

5.  The Court indicates that the “primary purpose” test is a necessary but not always sufficient condition for a statement to be excluded by the Confrontation Clause.  P. 7.  This is, I suppose, dictum, as Justice Scalia says.  It’s potentially dangerous, though.  If it’s limited to the one kind of case Justice Alito mentions – “out-of-court statements that would have been admissible in a criminal case at the time of the founding”  – I suppose it’s not so bad.  What kinds of statements are those?  The only ones mentioned so far are dying declarations, which Crawford says are sui generis.  (I think dying declarations should be treated under forfeiture doctrine, but that’s another matter.)  But if the “not always sufficient” language becomes the excuse for the Court to say that even though the primary purpose of a statement was to create evidence for law enforcement, it still isn’t going to be treated a testimonial because, well the Court doesn’t want to treat it as testimonial, that could be a destructive wedge.  I’m hoping not.

I'll add in here a response to a question asked by Paul Vinegrad -- what do I think about Justice Scalia's comment on the defendant's "burden" to get the benefit of the Confrontation Claue's exclusionary rule.  I think that Justice Scalia sometimes has a tendency to read majority opinions with which he disagrees in what he considers the worst possible light -- which can have unfortunate results for him if his comments tends to be self-fulfilling prophecies.  I hope this is not such an instance.  He says, p. 3, that under the majority opinion future defendants and "confrontation Clause majorities" have a "burden" to provide “evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding."  But gee, I think all the majority said was that neither Crawford nor its progeny "has mounted evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding."  I think all that means is that if it is shown -- presumably by the prosecution or its backers -- that a given type of evidence was regularly admitted at the founding, then the Confrontation Clause presumably was not intended to admit it.  Nothing so dramatic there, and nothing that Justice Scalia should find particularly distasteful.  If evidence was regularly admitted at the founding, it's a pretty good indication that it was not considered testimonial in nature.  And the only type of statement that both (a) is testimonial and (b) was regularly admitted against criminal defendants at the time of the founding -- at least the only type discussed so far by the courts -- is dying declarations.  So I think Justice Scalia should have saved his powder there.

6.  The Court declines to adopt a categorical rule excluding statements not made to law enforcement officers from the reach of the Confrontation Clause.   That’s good.  It says that such statements are “much less likely to be testimonial than statements to law enforcement officers.”  I suppose that’s right.  (Statements to known law enforcement officers describing a crime are highly likely to be testimonial.)  But although the Court says such statements could “conceivably raise confrontation concerns,” I think some almost certainly do.  If we took a case very similar to Clark but made the victim an 13-year-old, as in a hypothetical posed by Justice Kagan at argument, p. 12 (I had mentioned a 18-year-old in a prior post), I think the case would have looked very different.

7.  Justice Alito says, p. 11, “It is irrelevant that the teachers’ questions and their duty to report the matter had the natural tendency to result in Clark’s prosecution.”  For support, he cites Davis and Bryant, in which statements were not testimonial though made to the police.  But “irrelevant” in the sentence I just quoted has got to be too strong; he might better have said “not completely dispositive”.
8.  Following that passage is this curious one:

Thus, Clark is also wrong to suggest that admitting L.P.’s statement would be fundamentally unfair given that Ohio law does not allow incompetent children to testify.  In any Confrontation Clause case, the individual who provided the out-of-court statement is not available as an in-court witness, but the testimony is admissible under an exception to the hearsay rules and is probative of the defendant’s guilt.  The fact that the witness is unavailable because of a different rule of evidence does not change our analysis.

I find this passage very difficult to understand.  (Jeffrey Bellin has also expressed uncertainty on EvidenceProfBlog about the meaning of this passage. What does Justice Alito mean by “any Confrontation Clause case”?  It does not seem that it could mean any case in which there is a violation of the confrontation right, for two reasons: 

(a) It is not true that in all such cases the maker of the statement is not available as an in-court witness.  There was no proof, for example, that those who made the key statements in Hammon v. Indiana, Melendez-Diaz v. Massachusetts, or Bullcoming v. New Mexico were unavailable.  Indeed, availability of the maker of an out-of-court testimonial statement in itself means that the Confrontation Clause renders the statement inadmissible.   Could Justice Alito be using “not available as an in-court witness” to mean “not testifying in court”?  That would not only be a failure to use ordinary terminology properly, but it would not help make any point, given that in Clark the maker of the statement could not be made a witness.

(b) If there is a violation of the confrontation right, then it makes no sense to say “the testimony is admissible under an exception to the hearsay rules.”  (Does he mean “would have been admissible but for the Confrontation Clause”?  But then what does the passage prove?)  If there's a violation of the Confrontation Clause, it doesn't matter what the hearsay rules would otherwise say.

So does “any Confrontation Clause case” refer to a case in which the accused makes a seemingly plausible yet ultimately failed contention under the Clause?  Again, it’s not true that in all such cases the declarant is unavailable; the declarant may be available but ultimately the statement is determined to be non-testimonial

And what of the last sentence in this passage and its reference to "a different rule of evidence"?  I don't think Justice Alito means to suggest that in most cases the maker of the statement is unavailable by virtue of a rule of evidence; that's simply not so.  I suppose "different" is in distinction to the reference to a hearsay exception in the prior sentence.  So maybe the passage is intended to mean something like, "Often, when an accused makes a failed Confrontation Clause argument, the maker of the statement is unavailable and yet that does not stop the statement from coming in.  So it doesn't matter that here the cause of unavailability is a state rule."But there is a very significant difference between the situation in which the maker of the statement is unavailable by reason of circumstances beyond the state's control and that in which a rule created by the state renders the maker unavailable.

9.  The point that the state rendered the child incompetent to be a witness is particularly important because, given the result in Clark, states may have an incentive to declare  broader category of children as incompetent to be witnesses.  If statements made by those children are not testimonial, then the Confrontation Clause provides no constraint on use of their statements, and the state may be delighted not to call the child as a witness nor to allow the defendant to do so.

10.  Due process arguments are not resolved by the case, and I hope that defense lawyers now recognize that they are what is left to them.  Steve Ceci and I have argued that, given that the child is not capable of being a witness, if the statement is to be offered, the accused should have a right to have the child examined out of court by a qualified forensic interviewer.  I believe it is now particularly important that defense lawyers now claim this right.  (The "fundamentally unfair" language quoted above does not stand in the way; our argument is not that it is fundamentally unfair that the statement be admitted given that the child is not competent to be a witness.  Rather, we say that, if the statement is to be admitted, given that the child is not competent to be a witness, it is unfair not to allow the defense the chance to have an out-of-court examination of the child, the source of the evidence, through a qualified forensic interviewer.)

11.  It seems to me that Justice Thomas as actually loosened up a bit.  Instead of talking in terms of formality, he talks about indicia of solemnity.  That seems reasonable, if solemnity is understood to mean understanding the gravity of the consequences of the statement.  I would like to think that perhaps Justice Thomas has second thoughts about the extreme test of formality he applied in Williams v. Illinois.  Time will tell.