Another good decision in a fresh-accusation case

 There are, in my view, a lot of bad decisions involving fresh accusations, made shortly after the alleged crime, often to a 911 operator or a responding police officer.  I believe the "primary purpose" test insisted on by the Supreme Court muddies up this field and makes it too easy for trial courts to admit out-of-court statements that any reasonable observer would likely understand from the beginning were likely to be used as evidence in a prosecution.  Several months ago, I posted about a good decision by the Minnesota Court of Appeals.  And now there's another, State v. Johnson, issued by the Ohio Court of Appeals, 8th District.  But it's 2-1, and the fact that there was even an issue is one more demonstration of the weakness of the "primary purpose" test.

This is a domestic-violence case.  The complainant fled the house, went to her parents', and there made a 911 call that included the statements at issue.  The majority, in an opinion by Judge Eileen Gallagher, did the best it could within the confines of the "primary purpose" test and held the statement testimonial.  The dissenting judge, Sean Gallagher, thought the primary purpose of the complainant was to get police protection.

In my view, the majority was clearly right in deeming these statements testimonial.  Any reasonable person in the position of the complainant must have known that the statements would likely be used to arrest the accused and ultimately might be used in prosecuting him.  If they can be used without the complainant coming to testify, then we have a system in which a witness can find a safe place, make a 911 call, and make extensive statements that will be used to convict the person she accuses.  In what way is that not testifying against him?  

The primary-purpose test asks for an unmanageable inquiry into the psyche of the speaker, and as sometimes applied (as by the dissent here, in a well-written and perceptive but, I think, misguided opinion), relies on an untenable distinction between seeking police intervention for protection and creating testimony.  The sooner it is discarded, and replaced by a test that depends on the reasonable anticipation of a person in the position of the speaker, the better. 

Shields v. Kentucky: BIO, reply, and ready for conference

 I reported in an earlier post on the cert petition in Shields v. Kentucky. The Commonwealth has now filed its brief in opposition, and Shields has filed a reply.  The case materials have been distributed for the Court's conference of March 3.  So we should know whether the petition will be granted on Monday, March 6.

A useful opinion on statements not reported explicitly at trial

On the first of this month, the Michigan Court of Appeals issued a useful decision, People v. Washington, concerning the situation in which a prosecution witness does not explicitly report the content of an out-of-court testimonial statement but nevertheless conveys its substance.  A 2-1 majority of the panel properly held that such testimony violates the Confrontation Clause. (I didn't want to post on the case when it first came out, because I used it for a series of exam questions.)  And I'm glad to say that the brief for Washington was drafted by two students in the University of Michigan Law School's Criminal Appellate Advocacy clinic, Greg Momjian and Erica Arensman, under the supervision of Doug Baker; it was argued by Kierston Nunn.

The defendant, Washington, was convicted of possession or use of body armor by a person who had previously been convicted of a violent felony.  A toll-both operator on the Canadian side of the Blue Water Bridge, which connects Port Huron, Michigan, and Sarnia, Ontario, testified that she had seen a Ford pickup truck blow through her lane, following close on another car.  She immediately notified her supervisor, and several officers gave chase.    

Paul Stockwell, a supervisory officer with U.S. Customs and Border Protection, testified that on the American side of the bridge he met Matt Lavers, one of a crew of Canadian officers, and that they had Washington in a cruiser.  Neither Lavers nor any other member of the crew testified at trial.  Stockwell's testimony included this exchange:

[The Prosecutor]: At some point did Officer Lavers from the Canadian services hand you any other evidence?

Officer Stockwell: Yes, he did.

[The Prosecutor]: What did he hand you?

* * *

Officer Stockwell: A body armor.

* * *

[The Prosecutor]: Now, without saying anything about what was said, the only question I have for you is were there communications between you and Officer Lavers?

Officer Stockwell: There were.

[The Prosecutor]: Okay. And ․ based on those communications you took custody of [defendant]?

Officer Stockwell: Yes, we did.

[The Prosecutor]: And you took possession of the body armor that was turned over at the same time?

Officer Stockwell: Yes, sir.

The testimony took that form because, in response to an in limine motion to exclude evidence of the armor (a bulletproof vest) the trial court had ruled that Stockwell could testify as to what was turned over to him so long as he did not testify as to what was said.  Washington was convicted and appealed.  The court of appeals, in an opinion by Judge Elizabeth Gleicher (Judge Sima Patel concurring), reversed.

First, and most significantly, note that no statement by Lavers was actually introduced.  But, the majority pointed out, there would have been a clear violation of the Confrontation Clause had the prosecution asked Stockwell, "What did Officer Lavers tell you about the body armor?" And, the court noted, Stockwell's actual testimony "conveyed precisely the same information: that Washington had been wearing the body armor when caught by the Canadian authorities."

This has to be right, I think: What would otherwise be a Confrontation Clause violation cannot be excused by the fact that the in-court witness does not purport to report the actual statement made, if the effect of the testimony is to convey the substance of that statement to the trier of fact.  It seems plainly obvious that it cannot be that the Confrontation Clause is violated only when the in-court witness purports to be repeating the statement verbatim; if that were true, the Clause would be rendered a virtual nullity with respect to unrecorded oral statements, because the in-court witness would not usually remember the statement verbatim anyway.  And similarly it cannot be that the Clause can be evaded by asking the in-court witness, "Please summarize in your own words what [the absent witness] said."  Now in Washington, and in similar cases, the prosecution did not explicitly ask the in-court witness to communicate the substance of what the out-of-court witness said.  But in some circumstances, as in Washington, that is, as the majority said, precisely the effect of a series of questions that leads to an inference as to what was said.  Here, the prosecutor asked Stockwell whether Lavers made a statement and what Stockwell did as a result.  What could the jury infer in the circumstances but that Lavers said he had found Washington wearing the vest?  Indeed, if that were not the inference to be drawn then the case should never have gone to the jury, because there was not other evidence that would support the inference that Washington was found wearing the vest.

Judge Jane Markey, in dissent, argued that implied assertions are not hearsay and should not be deemed to create a confrontation problem.  It seems to me that this is a rather clear category error.  What are commonly called implied assertions (and perhaps should more accurately be called inferred assertions) are a type of conduct that is not intended to assert the proposition at issue but that indicates the actor's belief in the truth of that proposition.  So, most notably, in the famous case of Wright v. Tatham (H.L. 1838), letters written to the decedent Marsden assertedly indicated the writers' belief that Marsden was of sound mind, but none of the letters asserted that proposition.  The Wright majority deemed these to be hearsay, but under modern law, they would not be (see FRE 801(a) ("intended . . . as an assertion").  And there would not be a confrontation problem. (Notice that conduct of this sort is almost inevitably not testimonial; witnesses who testify intend to make assertions.)  But this is an altogether different matter from what is at stake in the Washington case and others like it:  In Wright-type cases, the out-of-court actor did not assert the proposition at issue, and the evidence of the actor's conduct is thought to imply his or her belief in the proposition.  In Washington-type cases, the out-of-court witness presumably did assert the proposition at issue ("Washington was wearing this vest"), and that fact is inferred from the evidence actually presented at court.  These are altogether different situations.

Judge Markey raised other issues, standard ones in confrontation cases, but I don't think either has merit, and both were rejected by the majority.  First, she contended that the evidence of Lavers's communication to Stockwell was not offered for the truth of the presumed assertion but rather only to explain why Stockwell took Washington into custody.  This is the "why the officer did that" end run that prosecutors often offer and on which I have commented before.  In most cases, including this one, there is no reason why the jury needs to know that.  And besides, as the majority pointed out, "Stockwell took Washington into custody because Washington was in possession of body armor." 

Second, Judge Markey contended that the presumed statement of Lavers was not testimonial because "the purpose of the communication was simply to provide Officer Stockwell with the information necessary for Officer Stockwell to formally take defendant into custody from Canadian authorities and proceed with the charging process under Michigan law."  But, as the majority said, "The 'explanation' for Stockwell's conduct is relevant only because it inculpated Washington." Under a proper view of what is testimonial – I am tempted to say under any reasonable view – if one officer passes on information to another on the understanding that the other will use the information in prosecution of a crime, and presumably will transmit the first officer's report of that information to the trier of fact, that conduct is testimonial.  If not, we have created a system in which a witness can testify by passing information to an officer, without even an intention that the witness will show up at trial.  That's a clear violation of the confrontation right.

Shields v. Kentucky: A cert petition to watch on preliminary-hearing testimony

Jonathan Ellis and Gregory DuBoff of the McGuire Woods firm have filed an excellent cert petition in Shields v. Kentucky, No. 22-450.  The question is whether, or in what circumstances, testimony of a prosecution witness at a preliminary hearing may be used at trial if the witness is then unavailable.  This is an issue on which the Supreme Court has not given any guidance since Crawford, and the petition ably shows that the lower courts are in clear dispute.

Shields was charged with murdering his uncle, and the prosecution presented the testimony of Shields's elderly aunt, the decedent's widow, at the preliminary hearing.  It did so without advance notice, or any indication that it was seeking to preserve the aunt's testimony for trial, and without making disclosures of exculpatory evidence that would have been required by trial.  Cross-examination was perfunctory.  The Commonwealth never attempted to take a deposition. The aunt died before the time scheduled for trial.  Shields entered a conditional plea of guilty, allowing him to appeal the trial court's ruling that the preliminary-hearing testimony was admissible.  The Kentucky Supreme Court affirmed.

My own view is that preliminary-hearing testimony of a prosecution witness who has become unavailable by the time of trial should be allowed if and only if certain conditions (apart from the obvious ones that the accused has a right to be present, to be represented by counsel, and to have the witness testify under oath) are satisfied.  The purposes of a preliminary hearing and of trial, and defense counsel's goals, are very different -- it is usually, as it was here, a foregone conclusion that the defendant would be bound over for trial.  Accordingly, preliminary-hearing testimony cannot be a substitute for trial testimony unless (1) the prosecution has given the accused notice that it intends to use the testimony, if necessary, for preservation; (2) the notice is given in sufficient time to allow adequate preparation; (3) the prosecution has made relevant disclosures that would be required by the time of trial, at least those that would be constitutionally required; and (4) there were no limitations beyond those that would apply at trial.  In addition, I think that probably, if the accused is able to show that developments subsequent to the preliminary hearing would have opened up significant lines of cross-examination, that would justify a holding that the earlier testimony is not adequate.

I've expressed these views in an amicus brief in support of the petition.  You can find the papers filed so far in the case -- including the petition, my amicus brief, and two other amicus briefs filed in support of the petition, by clicking here.

Samia v. United States: Cert granted in a Bruton-type case

 Earlier this month, the Supreme Court granted cert in Samia v. United States, in which it may resolve one of the issues left open by Bruton v. United States, 391 U.S. 123 (1968), Richardson v. Marsh, 481 U.S. 200 (1987), and Gray v. Maryland, 523 U.S. 185 (1998).

Samia was tried along with two other defendants for murder for hire and related crimes.  One of the co-defendants had made a confession that named Samia.  The court instructed the jury not to consider it against Samia, but under Bruton, that alone would not have been sufficient.  Nor, under Gray, would it have sufficed if the confession had been redacted with Samia's name replaced by some indication such as "[name deleted]."  But under Richardson, if it had been redacted to remove all references to Samia, that would have been acceptable.  Samia's case falls between Gray and Richardson; the trial court allowed redactions so that the confession as reported to the jury included references in forms such "somebody else" and "the other person he was with." Given other evidence in the case, it could be readily inferred that the references were to Samia.

I'm going to guess that the cert grant suggests that the Supreme Court will come down on Samia's side.  We should know before the end of the term.

A good decision in a fresh-accusation case

I use the term fresh accusations to cover statements made shortly after an event asserting that someone committed a crime.  Often, though not inevitably, they are made to a police officer or 911 operator.  They are especially common in domestic-violence cases.  I believe that Davis v. Washington left the law in this area in a very unsatisfactory state.  If a court resolves that the statement was made primarily to resolve an "ongoing emergency," then it will call the statement non-testimonial.  And courts will very often seize on any facts that allow them to characterize a statement as having been made in response to an emergency.  

So State v. Tapper, a unanimous decision by the Minnesota Court of Appeals, is a welcome development in this respect, though it should be utterly unsurprising.  This was a domestic-violence case, and the statements in question were made to a responding officer after a 911 call.  But the court recognized that this particular incident had ended and that the complainant was not in immediate danger; she was outside her apartment with the officer and her ex-husband, the alleged assailant, was apparently asleep inside.  Her children were inside and she said that she would not leave them, but she did not "express fear for their safety or indicate they [had] been harmed by Tapper in the past."  She had suffered injuries – she was covered with blood and reported that her head was "messed up," but most of the conversation concerned what Tapper had done on the incident in question an on prior ones.  She was sniffling at the beginning of the conversation, wiping her eyes and nose and breathing rapidly, but soon she was able to speak calmly, and she answered the officer's questions coherently.  Some courts might have used these factors – the presence of the kids in the apartment with the alleged assailant, the complainant's injuries, and her demeanor at the beginning of the conversation – to justify a conclusion that the statement wasn't testimonial.  But it clearly was, and the Minnesota appellate court, like the trial court, recognized this.  Too bad it designated the decision as non-precedential!   

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.