Smith v. Arizona -- top-side briefs filed

Petitioner filed his brief in Smith v. Arizona last week, and today a bunch of amici, most in support of Petitioner, filed theirs.  You can get to them all by going to the Supreme Court's docket sheet.  Among the briefs are one by the United States, in support of neither party, disputing some of Petitioner's arguments  but contending that the case should be remanded, are rather unusual position for the U.S. in a criminal case.  Among those in support of the Petitioner are one on behalf of the National Association of Criminal Defense Lawyers, with Jeff Fisher on the brief, and (to the surprise of nobody who has been reading this blog) one by me, on behalf of myself.  I hope to offer further comments on the U.S.'s brief over the next few weeks.  The State's brief is due December 13, the remaining amicus briefs December 20, and argument will be January 10.  Stay tuned.

Smith v. Arizona -- cert grant in a case that might clear up the Williams mess

 Yesterday, the Supreme Court granted certiorari in Smith v. Arizona, No. 22-899, a case that might help provide some clarity much needed since the Court's decision in Williams v. Illinois.  Here are some preliminary thoughts.

Williams involved a DNA report in a cold-hit case.  Five justices concluded that the report was not testimonial, but no rationale leading to that proposition gained the support of a majority.  Four of those five justices also concluded that the prosecution did not use the report for the truth of a matter asserted in it.  The primary reason that they cited in favor of that conclusion was that the prosecution used the report in support of the opinion offered by an expert who testified at trial; this, they believed, was not using it for the truth of what it asserted.  Although five justices rejected this analysis, some courts have adhered to it -- and one of those is the Arizona Court of Appeals in the Smith case.  Smith was tried on various drug charges.  A forensic analyst from a state lab testified to what the substances were, but the factual predicates of his testimony were drawn from the report of another analyst, who (for reasons apparently not explained) no longer worked for the lab.  Not a problem, thought the court; the testifying analyst was giving his "independent opinion" and the report was only used in support of this opinion.

I have written several times previously on this blog about the theory that presenting (whether by formal admission or otherwise) a lab report in support of an expert's opinion is not presenting it for the truth.  If the report supports the opinion only if it is true, then, as I have said, I think it is a sham to say it is not being presented for the truth.  This is what I have called the expertise end run, one example of the not-for-the-truth end run.  I thought it should have been disposed of nearly 18 years ago once the New York Court of Appeals issued its very fine opinion in People v. Goldstein. (Among my other posts on the topic are this one and this one.) Smith provides an opportunity to put the issue finally to rest.

By the way, the report in Smith was not formally introduced into evidence.  In the context of a case like this, in which the substance of the report is clearly conveyed to the jury and is a predicate for the testifying expert's opinion, that should not matter.  See especially this post and also this one

Another issue raised by the Smith petition is that the Arizona court said, as the four justices did in Williams, that if the accused wanted to examine the absent analyst he could have called the analyst himself.  That idea should have been completely disposed of by Melendez-Diaz v. Massachusetts, which proclaimed that "the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court." The two are not close to equivalent; for a full elaboration of this argument, see my brief for the petitioners in Briscoe v. Virginia. It appears the dissenters in Melendez-Diaz took another shot at the issue by granting certiorari in Briscoe , but the Court slapped that attempt down by remanding the case for reconsideration in light of Melendez-Diaz.  We can hope this issue as well will finally be resolved, though I'm not sure how the Court can be much clearer than it already has been.

Samia v. United States: The Supreme Court cuts back on Bruton

The Supreme Court today decided Samia v. United States, and in doing so cut back substantially on the rule of Bruton v. United States (1968) and essentially nullified Gray v. Maryland (1998) a Bruton follow-on.  A premise underlying all these cases is that a confession of one defendant cannot be introduced against another defendant.  That has been clear since the Case of Thomas Tong, 84 Eng. Rep. 1061 (1662), though before Crawford some courts tended to forget it.  In Bruton two defendants were tried jointly, the confession was introduced, and the trial court instructed the jury not to use it against the non-confessing defendant.  That was not good enough, said the Supreme Court; though usually we assume that a jury will follow instructions, in a case such as this that is too dangerous an assumption to make.  Thus, if the confession is to be introduced against the defendant who made it, the other defendant must have a different trier of fact -- perhaps, though not inevitably, at a separate trial.  Gray was similar to Bruton but instead of the confession being read unaltered the word "deleted" was inserted.  Not good enough, said the Court, given that the jury would easily understand the reference.  Samia is similar except that the confession was recounted by referring to an "other person" rather than identifying Samia by name.  The Court, in a 6-3 decision per Justice Thomas, held that this was acceptable.

Justice Thomas's opinion spent a great deal of space demonstrating that, during an earlier historical period courts found it perfectly acceptable to rely on limiting instructions when a confession was admissible against one defendant but not another.   Justice Barrett, concurring in part and concurring int he judgment, did not join this part of the opinion; she pointed out that Justice Thomas's sources did not reach back to the framing era, and they did not, at least not explicitly, consider constitutional considerations.  Justice Thomas spent much less energy attempting to distinguish Gray.  Justice Kagan, joined by Justices Sotomayor and Jackson in dissent, found the attempted distinctions inexplicable and unprincipled. She also pointed out that there was now no need for the majority to overrule Bruton because the prosecution could always replace the name of the non-confessing defendant with words such as "a woman" and avoid the problem.

Justice Jackson also dissented separately.  She pointed out that the majority skipped over the fact of a Confrontation Clause violation and treated Bruton improperly as an exception to a general rule rather than as an ordinary implementation of the law of the Confrontation Clause.  I think she may be overstating hte difference of opinion.  Although Justice Thomas's opinion is less clear on the point than it might have been, I believe that it takes as a premise that if the confession had been introduced against Samia, a non-confessing defendant, without a limiting instruction, there would have been a Confrontation Clause violation.  So the issue is one of remedy.  The majority here thinks that the limiting instruction – which does in effect render the evidence inadmissible against the non-confessing defendant – suffices.  The minority disagrees.  I do not take anything in the majority opinion as suggesting that a statement presents a confrontation problem only if it identifies the defendant against whom it is offered.  I would not be surprised if some prosecutors try to make the opinion say something like that, but it doesn't.

Cert denied in Shields. What should counsel do at preliminary hearing?

    This morning, the Supreme Court denied certiorari in Shields v. Kentucky, No. 22-450, on which I have previously posted, here and here.  As usual, the Court did not give any explanation; there were no dissents from the denial.

    In Shields, the prosecution presented an elderly witness at preliminary hearing, without giving notice to the defense, making the discovery that would be required before trial, or indicating that it was presenting her in the thought of preserving her testimony in case she became unavailable by the time of trial.  As it happened, she did indeed die before the scheduled trial date, and the issue was whether the prosecution should therefore be able to present her testimony form the hearing.  The Kentucky Supreme Court said yes, and the U.S. Supreme Court has now declined to review that ruling.

    The Court may have believed that this case was a bad vehicle for considering the issue of whether, or when, a preliminary hearing gives an adequate opportunity for confrontation; the evidence against the defendant, though not without some difficulties, was very strong.  But it could well be that the Court is simply disinclined for now to consider the issue.

    The uncertainty puts defense counsel in a difficult position.  Ordinarily, counsel is not expected to cross-examine aggressively at a preliminary hearing, because usually it is a foregone conclusion that the accused will be bound over for trial, and in some states cross addressed to credibility issues is not even permitted.  But if counsel holds back at the hearing and the witness becomes unavailable before trial, the courts might hold that the hearing gave an adequate opportunity for cross and the testimony from there is admissible.

    I believe, therefore, that defense counsel should make it a regular practice to present the conundrum to the court:

        (a) If counsel is prepared to conduct a full cross, she can ask the court whether it will allow that, noting that if it is allowed she will have to do so or risk being held later to have had her opportunity if the witness becomes unavailable before trial.  Most often, I believe, the court will say that the full cross is not allowed; neither the court, nor the prosecution, nor the defense is likely to want to have cross conducted then.   

    If, however, the prosecution wishes the hearing to serve a preservation function, in case the witness becomes unavailable before trial, then it would have to so indicate to the court, and then the defendant should be given a full opportunity for cross.  In my amicus brief in support of the petition in Shields, I laid out conditions that I think ought to be required if preliminary-hearing testimony is to satisfy the confrontation right.  One of them is that the prosecution should indicate that it wants the hearing testimony to serve a preservation function.  What I am suggesting here would essentially require the prosecution to make that declaration if it wants the testimony to serve that function. 

        (b) If counsel has been given inadequate opportunity to prepare for cross -- inadequate time, inadequate opportunity to consult with the accused, incomplete discovery -- she should so state on the record, and ask the court either to confirm that or to postpone the hearing so that she will have an adequate opportunity.  Once again, in most cases neither the court nor the prosecution is likely to want to complicate matters, but if the prosecution wants to maintain the preservation function it will have to so indicate.

    I'd be very grateful to learn of readers' responses to these suggestions, and of the experience any counsel have in this situation.

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.