Sunday, November 12, 2006

Pending Crawford Issues

I’ve been asked to lay out some significant unresolved issues related to Crawford. Here is a list. It can’t hope to be exhaustive, of course.

(1) What is the basic standard for determining whether a statement is testimonial?

(2) What constitutes an “ongoing emergency” under Davis?

(3) To what extent should statements by government agents, including autopsy and laboratory reports, be considered testimonial?

(4) To what extent may statements other than to law enforcement personnel – to other government agents and to private persons – be characterized as testimonial?

(5) To what extent may the state attempt to constrain exercises of the confrontation right intended only to impose costs on the prosecution?

(6) To what extent, if any, may the state impose on the accused the burden of securing an opportunity for confrontation?

(7) What standards govern the adequacy of a pretrial opportunity for cross-examination?

(8) If the accused has not been identified, or has been identified and not arrested, may the prosecution preserve the testimony of a witness?

(9) To what extent, if any, should the age, maturity, and mental condition of a declarant be considered in determining whether she can be a witness for purposes of the Confrontation Clause and whether particular statements by her are testimonial?

(10) To what extent does the Confrontation Clause apply to the sentencing phase of a capital case, and to what extent is there a right – based perhaps in the Due Process Clause – to confront declarants whose statements are testimonial in nature and are introduced against the accused in criminal proceedings other than the trial?

(11) What standards and procedures should govern forfeiture of confrontation rights? Among the many important questions on this topic are the following:

(a) Must the conduct that allegedly rendered the witness unavailable to testify subject to confrontation have been motivated in significant part by the desire to achieve that result

(b) May the conduct that allegedly rendered the witness unavailable to testify subject to confrontation have been the same conduct with which the accused is charged?

(c) May the challenged statement itself be used in demonstrating forfeiture?

(d) What is the standard of persuasion in demonstrating that the accused forfeited the confrontation right?

(e) To what extent is the prosecution foreclosed from claiming forfeiture because it failed to mitigate the problem? In particular,

(i) If the witness is dead, when is the prosecution foreclosed from claiming forfeiture if it did not arrange for a deposition?

(ii) If the prosecution is contending that the witness is intimidated, what procedures must the government go through to assure that as much of the confrontation right as possible has been preserved? For example, to what extent must it exert coercion against the witness, and must it attempt to secure cross-examination without the witness’s testimony?

Friday, November 10, 2006

Manipulation of the "Objective Witness" Standard

I’m not making any predictions about what will happen in Columbus, Ohio, on November 18, but here’s a prediction I will make: The Michigan Supreme Court will not soon issue a Crawford opinion as absurd as the one issued this week (over a nice dissent) by a 4-3 majority of the Ohio Supreme Court in State v. Stahl, 855 N.E.2d 834, 2006-Ohio-5482. Stahl is an example of a court reciting the optimal standard for what is testimonial – and then flagrantly manipulating that standard. It shows how important it is that the United States Supreme Court start setting some categorical rules.

Stahl was accused of an oral rape. The complainant, Amy Mazurek, made a detailed statement shortly after the incident to a police officer, who took her to a Developing Options for Violent Emergencies ("DOVE") unit, specializing in health-care services for victims of sexual assault and domestic disturbances, at a local hospital. Mazurek signed a consent form that read:

I voluntarily consent to this forensic examination and collection of evidence. I have received a detailed description of the steps of the process and understand that I may withdraw my consent to any or all parts of this examination at any time. I authorize the release of evidence, information (including protected health information), clothing, colposcope photos, and photography documentation of injuries to a law enforcement agency for use only in the investigation and prosecution of this crime. I understand that if release of the Sexual Assault Evidence Collection Kit is not authorized, the kit will be kept at the SANE [Sexual Assault Nurse Examiner] Unit for sixty days and then destroyed.

The police officer remained in the examination room throughout the entire exam, which was conducted by a nurse-practitioner, Jenifer Markowitz, who was coordinator for victim services of the unit. Markowitz took a statement from Mazurek, which included an identification of the assailant, and, according to the court,

also collected materials using an approved forensic evidence-collection kit (see Ohio Adm.Code 109:7-1-01), including nail scrapings, oral swabbings, and material retrieved with dental floss. Additionally, Markowitz used ultraviolet lighting to identify any bodily fluids still present. Markowitz also collected a napkin from Mazurek's coat pocket that Mazurek had used to wipe her face after the incident.

Markowitz never saw a doctor, and there is no indication in the court’s opinion that she ever received any treatment at the DOVE unit, apart from advice about the importance of follow-up care.

Fair-minded readers may believe that the statement in the DOVE unit was a classic example of a testimonial statement. But read on.

Tragically, Mazurek died several weeks later of an unrelated seizure disorder. So the trial was based on her statement to Markowitz. (At least the court recognized that the statement to the police officer could not be admitted!)

The court adopted the "objective witness" test for determining whether a statement is testimonial – which I think is correct – and with an elaboration that I also think is at least largely correct. The court said:

In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant's expectations.

I have argued that the declarant’s perspective is the proper one as a matter of principle; I also believe that a test based on that perspective is less manipulable than one based on a questioner’s perspective, because a professional questioner can so often articulate some reason other than law enforcement for asking the question (health, safety, community care). The elaboration that “the intent of a questioner is relevant only if it could affect a reasonable declarant's expectations” is, I think, the best way of making sense of a rather confusing aspect of the opinion in Davis v. Washington, which seems to waffle between declarant’s and questioner’s perspectives. (One qualification: If a law enforcement officer has an evidentiary intent but conceals it from a declarant who is not suspected of wrongdoing for the purpose of being able to use the statement, then the prosecution ought to be estopped form denying that the statement is testimonial.) But make no mistake – in this case, the court’s adoption of the declarant’s perspective and that elaboration served the purpose of avoiding the obvious conclusion that the statement was testimonial; as the court said, “there is little doubt” that Markowitz and the police officer “intended to use the DOVE unit examination results to further their investigation.”

Indeed, the court shrugged aside the overwhelming evidence that the examination was conducted for evidentiary purposes by asking, in effect, “How was the declarant to know?” Well, how about that consent form, which just about screams out that the “forensic exam” is, at least in large part, for evidentiary purposes? Oh, says the court, the declarant wouldn’t think that included statements; after all, she had made a statement to the cops already, which was clearly for forensic purposes, so this further statement couldn’t have been. (As if no witness is ever asked to make more than one statement to police officers.) So, with a cop in the room, the complainant understands that physical evidence collected from her – including from inside her body, is largely for forensic purposes, but the possibility of forensic use of what she says would never occur to her, because the medical purpose is so obviously paramount. Translation: The bad guy is going to get off here unless this statement is characterized as non-testimonial, so it will be.

If Stahl is good law, then the state has a simple way of virtually nullifying the Confrontation Clause in any case of a crime against the person: Bring the accuser to a hospital unit and have her make a statement to someone designated as a care-giver. There does not seem to be any reason why the unit cannot be in close proximity to the police station, or even in a separate part of the station. The creation or expansion of these units can be financed by transferring some police officers into them. There will be less need for police officers, because statements to them are not as useful for forensic purposes as statements to nurses. Of course, there will be some additional short-term costs for new uniforms, but that is much cheaper than bringing non-professional witnesses into court.

The death of Mazurek serves as a reminder that many confrontation problems could be avoided if the state would take depositions of witnesses to preserve their testimony. In this case, with (presumably) no advance warning that there was a substantial chance that Mazurek would not be available to testify at trial, the prosecution’s decision not to take a deposition may have been entirely reasonable. But it should be the prosecution, which has the burden of producing evidence and which wants to rely on the testimonial statement of this declarant, rather than the defendant, who has the right to remain passive and demand that adverse witnesses confront him, that should bear the risk that the declarant will in fact be unavailable to testify at trial.

Wednesday, November 01, 2006

Argument in the Retroactivity Case

The Court heard argument today in Whorton v. Bockting, posing the question of whether Crawford should be applied retroactively. For a report on the argument by Lyle Denniston from SCOTUSBLOG, under the title Commentary: Crawford grows in stature?, click here. When the transcript of the argument becomes available, I will post a link on this blog.

It sure does seem to me that if anything qualifies as a watershed decision Crawford does. And yet I worry about what the effect will be on the development of confrontation law if Crawford is held to apply retroactively. Where judges do not duck the issue, I am afraid they will be even more inclined than they are now to interpret the confrontation right narrowly, lest they open up some old convictions that would be difficult or impossible to retry. And bad law created in this way may last for a long time.