A good decision from the Fifth Circuit on the "why we acted the way we did" end run

I have written before -- most recently here -- about how too often a court allows a prosecutor to introduce a testimonial statements on the ground that it is not offered for the truth, when the prosecution has no real need to prove the proposition for which the evidence supposedly is offered. In particular, courts often allow prosecutors to use such statements to prove the reason for authorities’ conduct, especially why they investigated the accused.

This is a particularly difficult problem, because a testimonial statement can be introduced for a legitimate purpose that the prosecution has, other than to prove the statement’s truth, and one cannot say that explaining officials’ conduct is utterly immaterial.  So some degree of balancing tends to come in; if the prosecution’s need is flimsy, usually the court should recognize the very substantial probability that the jury will use the statement for its truth and so the statement should not be admitted.  But courts tend not to do a good job of balancing when the confrontation right is at stake; the temptation to admit probative evidence is often too great, and that is one reason the categorical rule of Crawford was necessary.

Some courts get it, though.   Eric Freedman, who has been keeping me informed for more than four decades, has called to my attention the fine opinion Judge Jerry Smith for a unanimous panel of the Fifth Circuit in United States v. Hamann, which is not only keenly aware of the problem but emphasizes a categorical rule that, if followed, would solve a good deal of it.

Hamann was charged with conspiracy to distribute meth.  An investigator, Stanley, testified to a statement by a confidential source to the effect that “Cali,” understood to be Hamann, was “moving multiple ounces” of meth and to also to statements by local law enforcement that an unknown declarant had said Hamann “was selling narcotics.”  Stanley also testified to details concerning a controlled purchase that was used to establish probable cause for a search warrant – but this testimony was second- or third-hand, because Stanley did not observe the transaction.  The panel had little difficulty that Stanley was thus able to testify to out-of-court testimonial statements.  The fact that he did not recount an “identifiable statement” concerning the controlled purchase did not matter, given that he described the purchase in detail despite not having observed it, making it inferrable what he purported to have been told.  All good.

The more serious question was whether the statements were used for the truth of what they asserted.  The panel noted that prosecutors often try to introduce evidence highly probative of guilt “[u]nder the guise of explaining why police began their investigation or conducted it a certain way.” But even if the evidence is relevant for this purpose, the panel said, quoting the court’s earlier decisions, the trial court must be “circumspect in its use”; the evidence would be deemed admitted for the truth of what it asserted if it “specifically links a defendant to the crime” or, put another way, “points directly at the defendant and his guilt.”  Thus, “[t]he government must advance a specific reason why it needs to provide inculpatory ‘context’ for its investigation.” The defendant might open the door by challenging the adequacy of the investigation, but “[o]therwise, there is no reason why it cannot begin its account by explaining that it got a search warrant or that ‘a tip prompted’ it to begin investigating a suspect.” 

Application of these principles here was straightforward.  Hamann had never contended that the investigation was inadequate.  And so the panel said, “We perceive no reason why the government could not have begun its case-in-chief by explaining that officers arrived at the motel to execute a search warrant and found Hamann and Davis together in the parking lot holding distributable amounts of meth.”  The prosecution’s “inculpatory prequel” was far from circumspect, and highly prejudicial.  Hamann hadn’t had an opportunity to cross-examine the confidential source or the non-testifying source (and neither was shown to be unavailable).  So there was a clear Confrontation Clause violation, which the panel concluded was not harmless.

The panel made clear that it was simply reaffirming principles it had often stated, but the vigor with which it stated them is notable; it said that “ the government has repeatedly failed to take the lesson” and it “remind[ed] prosecutors to take note” – it could and probably should have have included trial courts in these statements.  And the decision appears to state not only a stern and skeptical attitude but a very useful per se rule: If a testimonial statement specifically links an accused to a crime, and the accused does not challenge the adequacy of an investigation, then the statement may not be introduced on the basis that it explains the official conduct.  That does not solve the whole problem, but it does take care of a good large part of it.

An encouraging cert denial in an autopsy case

It's always a mistake to read too much into a denial of certiorari, but I find encouraging the Supreme Court's denial this morning in Lee v. Garlick.  This is a homicide case, and at trial the prosecution was allowed to introduce and rely on an autopsy report that indicated that stab wounds were the cause of death; that was crucial evidence, because it was clear that the accused, Garlick, had stabbed the victim and that another person had hit him repeatedly in the head.  But the report was introduced through a medical examiner who had played no role in the autopsy or in preparation of the report.  Garlick was convicted, the New York courts upheld the judgment, and the Supreme Court denied cert; in a prior post, I referred briefly to the case and posted the petition.  (That one included a link to a useful research memo by Cody Reaves, a recent Michigan Law alum, on the topic.  Among my other prior postings on autopsy reports is this one.) But Garlick sought federal habeas relief.  The district judge, acting over the recommendation of a magistrate judge (who thought the point was not sufficiently well established for habeas), granted the petition.  And a panel of the Second Circuit unanimously affirmed.  The decision basically says – correctly, in my view – that the New York courts have been clearly wrong in treating autopsy reports in murder cases as non-testimonial.  Michael Hutter of Albany Law School, who called my attention to this phase of the case, has pointed out to me that one of the judges on the panel, Richard Wesley, is a former judge of the New York Court of Appeals, though he had left that court before it began issuing decisions on this question.

It was this Second Circuit decision that the Supreme Court declined to review today.  Although I've thought for fifteen years or so that the Court ought to resolve definitively (and affirmatively!) the question of whether autopsy reports in homicide cases are testimonial (note my failed cert petition in Craig v. Ohio, I think it's probably better if the issue comes up cleanly, not enmeshed in the rigorous standards for granting habeas.

Beyond that, I think the cert denial is also good news because the Supreme Court evidently didn't turn a hair at a federal appellate decision holding that it is clearly established that autopsy reports are testimonial.  What is more, the decision was a forthright, boundary-pushing one, in the right direction.  The panel waved at the "primary purpose" test but did not rely at all on it; instead, it seems to have regarded the case, quite appropriately, as a simple, straightforward application of Melendez-Diaz v. Massachusetts, and the key sentence applies what I regard as the appropriate standard:  "The circumstances under which the autopsy report was created would lead any objective witness to 'believe that the [report] would be available for use at a later trial.'" And this is from the same court that years ago had issued an atrocious decision, after Crawford but before Melendez-Diaz, saying that autopsy reports should be admitted as business records; the Garlick court didn't even feel the need to cite that case.  So all in all, I think it's great that this decision stands.

By the way, it now appears that when the Supreme Court resolves this issue, and all other Confrontation Clause issues, it will be with Justice Breyer's successor.  For some years, he has been one of the Court's steadiest skeptics about Crawford.  Justice Kennedy was another.  I'm hoping that the changes in membership will lead to better, sturdier decisions.  And one of them should be a clear affirmation that when an autopsy report points to homicide as the cause of death, it's clearly testimonial, whatever other purposes it might serve.

The "why I acted the way I did" end-run

 Prosecutors often try to get in testimonial evidence from absent witnesses by arguing that it is not offered for the truth of what it asserts but explains why a testifying officer acted the way he or she did.  This points to one of the great vulnerabilities of the confrontation right:  A prosecutor has an incentive to come up with some ground on which the evidence is relevant, other than for its truth, and given the low bar of relevance it is not hard to do so.  The courts therefore have to be closely vigilant to ensure that the right is not eviscerated in this way, state categorical rules as to when an asserted ground of not-for-the-truth relevance does not support admissibility of the evidence.  One frequently used such ground is the supposed need of the investigating officer to explain why the officer acted in the way he or she did.  But in most cases, there really is no need for such an explanation.  Tell us what you did, officer, and what happened after that.  Presumably you detected criminal activity, and the jury will know all it needs to about why you acted the way you did.  If the defendant raises some doubts about why you acted in a given way, well that may be a different story.  But short of that, there's no need to get into it.  

Some courts have realized this.  The Mississippi Court of Appeals issued a decision yesterday, Lowe v. State, that collects some of the cases.  In Lowe, a confidential informant told the officer that she could buy drugs from the defendant and had done so in the past.  The officer testified at trial but the CI did not.  The trial court allowed the statements in to explain the officer's conduct.  The appellate court seems not to have had any difficulty with the prediction -- it should have -- but it recognized that the statement of past conduct was testimonial and there was no need for it; its admission was a violation of the Confrontation Clause, though the court held the error harmless.        

Hemphill v. New York: the right call

 

Apologies for being silent so long.

The Supreme Court decided Hemphill v. New York this week.  The Court held that the Confrontation Clause does not tolerate the admissibility of an out-of-court testimonial statement on the basis of a judicial determination that doing so is necessary to correct what the court deems to be a misleading contention by the defense.  On this point, the Court stood 8-0.  Justice Thomas dissented alone, and on other grounds; he believed that the defense had not properly preserved the issue.

Briefly, Hemphill was accused of murder, but there was substantial evidence that another man, Morris, had committed the crime.  Indeed, Morris had originally been charged with the murder, but then was allowed to plead guilty to a much lower-level weapons charge.  Hemphill’s attorney referred to the fact that police had found cartridges from a 9 mm. handgun, the type of weapon used in the killing, by Morris’s bedside.  The trial court then allowed the prosecution to prove that at his plea hearing Morris had said he brought another type of weapon, a .357 magnum revolver, to the scene of the crime; Morris was unavailable at the time of Hemphill’s trial and Hemphill had never had an opportunity to be confronted by him, but the court thought this was necessary to dispel a misleading inference created by Hemphill’s contention.  The intermediate appellate court and the Court of Appeals agreed, but the U.S. Supreme Court did not.

The case should have been regarded as an easy one on the merits, and the Court treated it as such.  Justice Sotomayor’s opinion for the Court declared:

For Confrontation Clause purposes, it was not for the judge to determine whether Hemphill’s theory that Morris was the shooter was unreliable, incredible or otherwise misleading in light of the State’s proffered, unconfronted plea evidence.  Nor, under the Clause, was it the judge’s role to decide that this evidence was reasonably necessary to correct that misleading impression.  Such inquiries are antithetical to the Confrontation Clause.

Exactly right.  On the whole, Hemphill is a welcome development, because of the result, because of the lack of any dissent on the confrontation point, and because it is an unqualified endorsement and application of Crawford.  In contrast, say, to Justice Sotomayor’s majority opinion in Michigan v. Bryant, there is nothing in her opinion for the Court here that suggests buyer’s remorse about Crawford. On the contrary, it speaks approvingly of “Crawford’s emphatic rejection of the reliability-based approach of Ohio v. Roberts,” and underlines the point by saying:

If Crawford stands for anything, it is that the history, text, and purpose of the Confrontation Clause bar judges from substituting their own determinations of reliability for the method the Constitution guarantees.

(I wish the Court would stop talking about reliability in this context; even cross-examined eyewitness testimony is not reliable.  Speaking of accuracy would be an improvement.  But oh well, old habits die hard.)

The Court made clear that it was not holding invalid the traditional rule of completeness as applied to portions of testimonial statements that would otherwise be inadmissible under the Confrontation Clause.  Rather, it reserved the issue.  In my view, such an application poses no problem under the Clause; it would be absurd if an accused were allowed to introduce the portion of a statement up to but not including “But . . . “ and then object to the latter part on the basis that he did not have an opportunity to be confronted by the maker of the statement.  Justice Alito, joined by Justice Kavanaugh, wrote a separate concurred to endorse this position, but they joined the majority opinion as well.

One aspect of the case is somewhere between rankling and troubling.    Although the statement at issue was made in a plea hearing, the State contended below that it was not testimonial because it did not “incriminate or point a finger at all against Mr. Hemphill.”  Before the Supreme Court, the State did not deny that the statement was testimonial, and in a footnote Justice Sotomayor wrote that the Court “expresses no view on the matter.”  Justice Alito’s concurrence makes clear in its first sentence that its conclusion that admission of the statement violated the Confrontation Clause is drawn “assuming Morris’s statement was testimonial.” So this point-a-finger idea is a clear reference to Justice Alito’s suggestion in Williams v. Illinois that a statement is not testimonial if it is not aimed at a “targeted individual.”  Though Justice Alito’s Williams opinion spoke for four justices and was on the prevailing side, that point was explicitly rejected by five justices, so I am disappointed to see that he is keeping it alive and that the Court evidently felt that to achieve virtual unanimity it was necessary to keep the point alive.  Apparently, Justice Alito wants to be able to contend in the future that if in a similar case Morris was sworn before a grand jury investigating the incident and asserted that he was at the scene with a .357 and not a 9 mm gun, that would not be testimonial, and neither would a sworn statement by another observer describing the scene of the incident and saying that the shooter appeared to take deliberate aim and was a young male wearing a blue sweater.  (By the way, I think the lab report was in fact targeted at a given individual – the person who had the DNA profile described; there is presumably only one person with that profile, but many, many young men may wear blue sweaters.)  I hope that if the issue is again presented, a majority of the Court will again slap the theory down.  It’s unfortunate that it still has breath.

But on the whole, Hemphill is good news.

Hemphill v. New York, pending Supreme Court case: Top-side briefs

It's been quite a while since I've posted anything on this blog, for no particular good reason.  I will try to pick up the pace.

For now, I'll note that top-side briefs have recently been filed in Hemphill v. New York, No. 20-637, on which the Supreme Court granted cert in April.  An easy way to get access to all the documents in the case is through the Supreme Court's docket sheet for the case, which you can find here.  The decisions below are part of the appendix to the petition for certiorari.  Petitioner's brief (Jeff Fisher as lead counsel) was filed June 22, and a bunch of top-side amicus briefs, including one by me, were filed June 29. 

Briefly, Hemphill was accused of murder.  He contended that another person, Morris, had fired the fatal shot, and highlighted evidence that police had found a 9-mm cartridge, the type used in the shooting, by Morris's bedside.  On the theory that this gave the jury a misleading impression, the trial court then allowed the prosecution to introduce a statement made by Morris at an allocution hearing in which Morris asserted that he had brought a .357-caliber handgun to the scene. Hemphill never had an opportunity to be confronted by Morris.  Hemphill was convicted and the New York courts affirmed.

I'm sure I'll have more to say later, but for now I'll just say this:  I believe Hemphill's confrontation rights were clearly violated.  If Hemphill had introduced part of a statement by Morris, then the prosecution could be allowed to introduce another part of the statement that in fairness should be considered alongside the first part.  But that does not represent the facts of the case. The doctrine emerging from New York is that if the trial court believes that the defense has made a misleading presentation of fact then the prosecution is relieved from the Confrontation Clause in presenting rebuttal evidence.  And that's just plain wrong. 

A significant decision on remote testimony

Yesterday, the Michigan Supreme Court issued its decision in People v. Jemison, a case that I have mentioned in a prior post and in which I appeared as amicus.  The opinion, by Chief Justice McCormack (a former colleague and co-author of mine) is excellent – and it was unanimous, with one justice not participating.

Briefly, Jemison was convicted of rape.  One of the witnesses against him was a DNA analyst, who was in Utah and testified, over objection, via Skype.  The court held that this violated both federal and state protections of the confrontation right.  Two aspects of the decision are particularly notable.  

First, the decision is clear, crisp, and categorical, appropriately so:  There was no doubt that there was testimony involved here – the only difference from in-court testimony was that this was by Skype – and so the confrontation right was invoked.  And an opportunity for face-to-face confrontation is an essential aspect of the confrontation right.  That wasn’t provided, so there was a violation.  Period.  It didn’t matter that the expert was a witness, nor that it would have been expensive to bring him to Michigan to testify.  (Indeed, the court notes the perverse incentive that would be created by allowing the state to choose an out-of-state expert and then plead cost to prevent face-to-face confrontation.)  The court doesn’t discuss the situation in which it might be unfeasible to create confrontation – which I think would only be where both the witness and the accused effectively can’t travel – but by implication that wouldn’t matter either; the prosecution and not the defense bears the risk of this rare occurrence.  And though the court considered the case during the pandemic crisis (it was argued March 5), there is no suggestion in the opinion that the greater appeal of remote testimony in such circumstances would alter the result.  (I previously posted on this issue; the confrontation right can be fully satisfied so long as the accused, counsel, and the witness are in the same room, so social distance can be maintained.)


Second, and also appropriately, the decision limits Maryland v. Craig to its particular setting – a witness who is both a child and an alleged, with a case-specific showing of the necessity of remote testimony – and casts doubt on its continuing validity in light of Crawford.  The court says that “Crawford did not specifically overrule Craig, but it took out its legs.”  That’s certainly accurate: The categorical, procedural approach of Crawford is entirely antithetical to the balancing, reliability-oriented approach that underlay Craig.  Indeed, the court goes further.  After quoting passages from Justice Scalia’s Craig dissent that certainly sound like precursors to his majority opinion in Crawford –  he said that “the Confrontation Clause does not guarantee reliable evidence” but rather “specific trial procedures that were thought to assure reliable evidence” and that the text “simply does not permit” interest-balancing – the Jemison court says that in Crawford “his dissent from Craig became the Court’s view.”  (In passing, the Court notes that even if Craig were applicable, the result would be the same; there was no case-specific necessity for remote testimony.)

The court remanded for a determination of harmless error.  But on the questions of principle transcending the facts of this case, the opinion was about as clear and as strong as one could hope.

To be clear, I don’t think it’s implausible that at some point the technology and our knowledge of the impact of remote confrontation will get to a point where we can say that remote confrontation is a satisfactory substitute for actual, face-to-face confrontation.  But we’re not there yet.

The dying, blinking witness

Chris Miller, an excellent former student of mine, has pointed out Woods v. Cook, a recent Sixth Circuit opinion of interest by Judge Sutton, who is sensitive to Confrontation Clause issues.  This was an “eye blink” case:  A shooting victim, Chandler, was grievously wounded, and was able to communicate only by blinking his eyes.  Five days after the shooting, in a police interview, Chandler identified Woods as the assailant; two days later, he suffered the first of a series of strokes, and he died ten days after the interview.  His eye-blink statement was admitted against him at a murder trial in Ohio court, he was convicted, and the Ohio courts affirmed the judgment.  He brought a federal habeas petition, which the district court denied, and now a Sixth Circuit panel has unanimously affirmed that judgment.

In the circumstances, it is not surprising that the Ohio courts deemed the identification to be within the dying-declaration exception to the hearsay rule.  Chandler did not die all that soon after the statement, but he was in bad shape, and as the exception is usually articulated (including in Fed. R. Evid. 804(b)(2), all it requires with respect to imminence is that the declarant believed death to be imminent.  So maybe Chandler believed his death to be imminent.

And what about the Confrontation Clause?  The federal courts were treating this case under the constrained standards of habeas, but that doesn’t seem to have made much difference to the federal judges.  Crawford and Giles v. California both indicated that there is a dying declaration exception to the confrontation right, which I think is unfortunate – I’ve written enough about this before, that these cases ought instead to be considered applications of forfeiture doctrine, but the cramped view of forfeiture adopted by Giles made that impossible.

But let’s put that issue aside.  My difficulty with the outcome in this case – and it was not one that could be appropriately considered in a federal habeas case -- is that there was ample opportunity to take Chandler’s deposition.  Does that sound grotesque?  Clearly, the police had no compunction against taking a statement from Chandler that was intended for prosecutorial purposes; the session was videotaped (so indicates the decision of the Ohio Court of Appeals) and the police showed him a photo of Woods.  So how about bringing in the defendant and counsel?  It could have been done.  And in the old days, the courts would have insisted on it.  Consider R. v. Forbes, 171 Eng. Rep. 354 (1814):  A dying victim was giving a statement, and the accused was brought before him partway through.  The court held that only the portion from that point on could be admitted.  To similar effect, consider R. v. Smith, 171 Eng. Rep. 357 (1817).  There, the dying victim (though he was not yet under apprehension of death) made a statement to two justices of the peace.  When it was almost over, the defendant was brought in, and the statement was read over to the victim, who assented to it.  The defendant ought to be present, said the court, but given that he was present when the victim assented to what he had previously said, and had an opportunity for cross-examination, that was good enough. 

In some cases, there is no time to arrange for a deposition.  But where there is, and the authorities are willing to take a testimonial statement from the victim, the right of confrontation, including cross-examination ought to be preserved.

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.