Friday, February 22, 2008

NACDL brief in Giles

The National Association of Criminal Defense Lawyers has filed an amicus brief on behalf of the petitioner in Giles, and you can see it by clicking here. I'll present my comments in the form of another amicus brief!

Thursday, February 21, 2008

Supreme Court decides that states may apply Crawford retroactively

Last year, in Whorton v. Bockting, the Supreme Court decided that Crawford does not apply retroactively as a matter of federal constitutional law. Yesterday, in Danforth v. Minnesota, 2008 WL 441059, the Court held that states are free to apply broader rules of retroactivity than the constitutionally mandated ones, and so may apply Crawford retroactively. I hope to comment soon on this decision and on Whorton, too. I don't think Danforth will have a major impact. At least in most circumstances in which a state court would be tempted to apply Crawford retroactively, it could reach the same result by giving retroactive application to confrontation rights under the state constitution.

Wednesday, February 20, 2008

Petitioner's brief in Giles filed

Here is the brief of the petitioner, the first brief on the merits before the Supreme Court in Giles v. California, No. 07-6053, reviewing People v. Giles, No. S129852, 40 Cal.4th 833, 152 P.3d 433 (Cal. 2007), the case presenting the issue of whether the accused can forfeit the confrontation right with respect to a witness by killing her, even if he did not do so for the purpose of rendering her unavailable as a witness. I will post amicus briefs as I receive them. The brief of respondent is due on March 19 and those of supporting amici on March 26.

Moving to a head on lab reports (updated Feb. 21)

Petitioner has filed his reply brief in support of the petition in Melendez-Diaz, the Massachusetts case on lab reports. You can see it by clicking here, and you can see the other papers filed in the case by looking at my prior post. This case, along withthe O'Maley and Geier cases, discussed in another post, is now scheduled for conference on March 14; we should know on the morning of St. Patrick's Day which, if any of them, the Court will take.

Meanwhile, the conflict continues to thicken. The New York Court of Appeals weighed in yesterday with a decision, People v. Rawlins, 2008 WL 423397, holding in one case that fingerprint reports were clearly testimonial (correct there), but in another that DNA reports were not (wrong there). Unlike some decisions admitting DNA reports, this one tries to make careful distinctions, but I don't think they hold up; I'll try to write about this later.

Tuesday, February 12, 2008

More cert petitions

I have previously written about the pending cert petition in Melendez-Diaz v. Massachusetts. Alert blog reader (I’m adapting a line from Dave Barry there) Richard Klibaner has called attention to a couple of other pending petitions that pose similar issues.

One is Geier v. California, No. 07-7770. You can read the petition by clicking here and the brief in opposition by clicking here. It appears this case has a big harmless error problem.

The other is O’Maley v. New Hampshire, No. 07-7577. You can read the petition by clicking here, the brief in opposition by clicking here, the reply brief in support of the petition by clicking here, and the amicus brief of the National College for DUI Defense in support of the petition by clicking here. O’Maley – in which the state supreme court relies heavily on the state decision in Geier – is somewhat different from Melendez-Diaz. In Melendez-Diaz, the state took advantage of a state statute allowing admission of a certificate of a lab test without any sponsoring witness. In O’Maley, the assistant lab director testified as to the defendant’s blood alcohol level. But the technician who drew the blood and prepared a report certifying that fact did not testify at trial, and neither did the analyst who tested the blood. The state supreme court held the initial certificate to be non-testimonial. But this certificate was a crucial link in proving the defendant’s guilt, because it was an essential part of the proof that the blood tested did in fact belong to the defendant. And the state supreme court also held the blood test results to be non-testimonial. In a technical sense that is right; the test results are the result of a process and of machinery, not a human statement. But the assistant director’s testimony had no value at all unless the analyst tested the proper sample and performed the test properly. So that testimony amounted to, “I have an opinion as to the defendant’s blood alcohol level, based on my assumption [supported by no evidence that will be presented] as to what the analyst did.” If the witness in court testified, “The analyst told me what blood he worked on and how he did the test,” I think the confrontation violation would be clear. It should be no less clear when the witness implicitly bases his “opinion” on an assumption as to what the analyst did.

The state supreme court’s decision was clearly based in large part on its perception that cross-examination would not be worth much, because the technician and the analyst would not remember the incident anyway. Three points in response: (1) I don't think Crawford leaves room for saying that confrontation is unnecessary because it wouldn't do any good. (2) If the state supreme court's position were adopted it would amount to giving the prosecution the benefit of a shell game of sorts: Crawford has adhered to the doctrine -- mistaken in my view -- that if the witness testifies in court the accused has no basis for a confrontation objection, even if the witness does not remember the substance of her prior statement, because the accused has gotten the benefit of cross-examination by showing the failure of memory. So prosecutors taking advantage of this part of Crawford and of the state decision in O'Maley would argue, "We don't have to bring the witnesses in if their memory would be so bad that cross would be useless. But if we did bring them in, the fact that their memory would be bad would make cross valuable for the accused. (3) The memory problem is real. A solution to it is to provide an early deposition. In fact, I think the Supreme Court ought to recognize that if the witness doesn't remember the subject matter of the prior statement then cross-examination is clearly impaired, so if the prosecution wants to preserve the testimony in the face of likely memory loss it ought to provide an opportunity for a deposition. But that's a battle for another day.

I think that O’Maley as well as Melendez-Diaz presents a cert-worthy situation. The basic approach of the O'Maley court has been taken by others as well, including the U.S. Court of Appeals for the Fourth Circuit in United States v. Washington, 498 F.3d 225 (4th Cir. 2007), from which a cert petition is also pending (though behind the schedule of the others, and presumably to be held if the petition in O'Maley is granted). The issues are sufficiently different, though obviously related, that it might be optimal for the Court to grant cert in both O'Maley and Melendez-Diaz. But if it is inclined to grant in only one case, Melendez-Diaz is probably the one to pick, because it is significantly simpler and more straightforward.

Tuesday, February 05, 2008

Having it both ways on the declarant's and questioner's perspectives

As my last posting suggested, when courts are considering whether to characterize as testimonial an accusation made to a police agent in a situation that can arguably be considered an "ongoing emergency," they have most often considered the matter from the perspective of the questioner. I have frequently argued, on this blog and elsewhere, that this is the wrong perspective. In this context, this perspective leads more readily than does the one I believe is proper – that of a reasonable person in the position of the declarant – to the conclusion that the statement is non-testimonial. That is in large part because the court can maintain that, before the declarant speaks, the questioner does not know the nature of the situation; in some cases, it is unclear to the questioner whether a crime has been committed and even if that is clear the questioner often will not know where the perpetrator is. The declarant, on the other hand, most likely knows that she is reporting a crime, and if there is not any imminent danger she will probably know that as well; thus, she is more likely to understand from the very start that she is providing information that will be used by the prosecutorial process.

Now compare the situation in which a confederate of the accused makes a statement to a confidential informant or a undercover police officer. In this context, the reasonable-declarant perspective – the one I believe is proper – leads readily to the conclusion that the statement is not testimonial: The declarant presumably has no idea that she is creating evidence for use in the prosecutorial process. But if one takes the questioner's perspective, the statement sure looks testimonial: The questioner is certainly aware that the conversation is generating evidence, and often that is her primary purpose for conducting the conversation. And guess what – in this context the courts are more likely to take the declarant's perspective. The rule seems to be that the prosecution wins. Cf. United States v. Von’s Grocery Co., 384 U.S. 270, 301 (1966) (Stewart, J., dissenting) (“The sole consistency that I can find is that in litigation under § 7, the Government always wins.”).

Consider the decision this past week in United States v. Udeozor, 2008 WL 271295 (4th Cir. Feb. 1, 2008). The defendant was charged with having committed various forms of abuse , in conspiracy with her husband, against a 14-year-old girl brought over from Africa. The husband disappeared before trial, but the prosecution introduced tapes of telephone conversations that the victim held with him. Even on the assumption, apparently well founded, that the girl made the calls at the behest of the Government, the court concluded that the husband's statements were non-testimonial:
Mr. Udeozor's statements are not testimonial because, objectively viewed, no reasonable person in Mr. Udeozor's position would have expected his statements to be used later at trial. Mr. Udeozor certainly did not expect that his statements would be used prosecutorially; in fact, he expected just the opposite. As discussed above [in concluding that the statements fell within the hearsay exception for declarations against interest], Mr. Udeozor made numerous statements to the victim that were contrary to his own penal interests, including admissions that he had hit the victim, had engaged in sexual intercourse with her, and had smuggled her into the United States illegally. Moreover, he made the victim promise that she would keep their conversation between the two of them. These statements would not have been made by a reasonable person who believed his statements would be used in a later criminal prosecution. * * * Because Mr. Udeozor plainly did not think he was giving any sort of testimony when making his statements to the victim during the recorded telephone calls, the admission of these two taped conversations into evidence did not violate Dr. Udeozor's rights under the Confrontation Clause.
Correct result, and, so far as quoted above, at least largely the correct analysis. So has the Fourth Circuit, which had previously minimized the significance of the declarant's perspective, been converted? Nope. The court says, "
The intent of the police officers or investigators is relevant to the determination of whether a statement is 'testimonial' only if it is first the case that a person in the position of the declarant reasonably would have expected that his statements would be used prosecutorially." In other words, that the declarant reasonably expected his statement to be used in connection with a prosecution "is necessary – but sometimes not sufficient" for the statement to be deemed testimonial. There really is no justification for this conjunctive test, in which a statement would be testimonial only if both speaker and questioner anticipate from that start that will be used in prosecution; it strikes me as an artificial construct designed simply to limit the category of statements deemed testimonial.