Thursday, March 29, 2012

Petition for certiorari on procedure for child testimony

I'm sorry for the delay, but I am posting now a petition for certiorari that I filed on March 8, in Rose v. Michigan, raising issues concerning the procedures for children's testimony. In this case, the child was allowed to testify at trial from behind a screen that quite obviously blocked her view of the accused. The Michigan court of appeals held this procedure permissible. People v. Rose, 808 N.W.2d 301 (2010). The state supreme court granted review and heard argument, but eventually decided not to rule on the merits; Justice Marilyn Kelly dissented from that decision. People v. Rose, 805 N.W.2d 827 (2011).


There is a clear conflict of state courts as to whether the procedure is unconstitutionally prejudicial. The petition raises this issue and also the broader question of whether Maryland v. Craig should be overruled.

You can see the petition here and the appendix (which includes the opinions in both the court of appeals and the state supreme court) here.

The state has asked for and received an extension until May 14 of its time to file a Brief in Opposition.

29 comments:

Susan Bird said...

Thank You.

pv said...

Prof. Friedman,

Welcome back! It has been a while.

I believe that CCTV has a greater potential to undermine the presumption of innocence than the screen used in this case, or a screen in general. At least with a screen the witness is in the same room as the defendant. Her presence at a remote location completely removed from the defendant's physical presence has a greater likelihood of establishing (in the eyes of a reasonable juror) that the witness is so scared of the defendant (because of what he has done to her) that she can't even be in the same room as him.

With respect to overruling Craig: I think the Court's use of the totality-of-the-circumstances balancing test in Bryant (to determine a declarant's "primary purpose" and, in turn, if hearsay is "testimonial") goes a long way in undermining Crawford's seemingly categorical rule. And makes it more likely that a majority of the justices would leave Craig's "balancing" approach intact, especially given the fact that, as you point out, the Court is now only addressing the "nature" of the confrontation right -- a right that, Bryant points out, is subject to "balancing."

Regards,

PV

Anonymous said...

Confrontation is important for a reason that I think has been overlooked viz. it goes to the heart of the witness's ability to testify truthfully

The root meaning of the word "consciousness" is "to be mutually aware". Psychologically speaking, a person is much more likely to lie when they are behind a barrier or in another room precisely because they are not mutually aware. The fact that a witness might experience less pain testifying behind a barrier cuts both ways. One one hand it could reduce the pain of revictimization yet at the same time it could reduce the pangs of consciousness that comes from lying because "the other" isn't present.

This is why statements about psychological harm to the child witness are circular. They only make sense if one assumes that the pain comes from the fact that the child witness is testifying truthfully, when in fact the pain might come from the fact that the child is testifying untruthfully and knows it.

This reality seems to me especially problematic in a case such as this one where the heart of the defense is that the child is lying. I'd argue that there is strong scientific support for the proposition that any displacement between the witness and the defendant increases the probability that the witness will lie whether that displacement is a physical barrier, a prerecorded disposition, etc.

pv said...

What about a blind witness who identifies her assailant at his trial by listening to his voice from a tape-recorded voice exemplar that the government obtained from the defendant before trial?

Mr/Ms Anonymous, is this a "displacement between the witness and the defendant" that increases the probability that the witness is lying?

Isn't the testifying witness's oath to tell the truth & full and fair cross-examination all that the CC requires?

There is no CC requirement that the witness actually see the defendant, correct?

All that is required is that the defendant (and the jury) can see the witness as she testifies against him.

Anonymous said...

@pv

"There is no CC requirement that the witness actually see the defendant, correct"

Of course there is. The definition of the word confront means "to bring face to face." So if there is no face to face contact, how can there be a confrontation? The word confrontation does not mean "place two bodies in the same room". That simply isn't what the word means.

If a witnesses chooses to close their eyes (which is the functional equivalent of blindness) that certainly doesn't violate the confrontation right. But in that situation the jury has the ability to judge the witness's action of eye closing however it sees fit.

The underlying point of confrontation is not merely to swear in the witness to tell the truth but to allow the jury to evaluate the witness for credibility purposes. Certainly being able to see the person's entire demeanor is an essential part of such an evaluation.

BTW, this article is from another field but it touches on an essential point: kids are more likely to lie about someone they know than someone they don't know.

Anonymous said...

Sorry, left out the link.

http://www.pbs.org/mediashift/2012/04/online-privacy-kids-know-more-than-you-think-093.html

sksasthamcotta said...

Sir this is to get an advise from you.Sir what is your opinion in regard to the present position of "witness anonymity" in united kingdom under the frame work of Coroners and justice Act.

Anonymous said...

Sir i would like to know your opinion about the present position of witness anonymity in the United kingdom under the frame work of Coroners and justices Act.

Anonymous said...

Prof,
Any insight as to what is holding up the decision in Williams? Presumably it will be a fractured opinion. I can imagine a 5-4 win for Williams where only 4 justices (Scalia, Thomas, Ginsburg, Sotomayor) hold Bullcoming is controlling. The fifth vote would be from Kennedy, who would maintain that Bullcoming was wrongly decided but conclude that Williams was a worse scenario than Bullcoming because the expert had no personal knowledge of either the particular testing done or the lab's general procedures (which the witness in Bullcoming did have personal knowledge of). I can also imagine a fractured dissent, with Roberts, Alito, and Kagan adopting the SG's argument that case presents a sufficiency of the evidence issue rather than a CC issue, while Breyer argues the reliability of expert testimony and the opportunity to cross the expert should be good enough. Wouldn't that be fun?

I guess I'm expecting a very fact based opinion that doesn't really answer many questions.

Expert Witnesses said...

Welcome back. Thanks for your valuable post.I have seen the petition.Waiting to see what gonna happen.

Plastic Ducting said...

Any insight as to what is holding up the decision in Williams? Presumably it will be a fractured opinion. I can imagine a 5-4 win for Williams where only 4 justices (Scalia, Thomas, Ginsburg, Sotomayor) hold Bullcoming is controlling. The fifth vote would be from Kennedy, who would maintain that Bullcoming was wrongly decided but conclude that Williams was a worse scenario than Bullcoming because the expert had no personal knowledge of either the particular testing done or the lab's general procedures (which the witness in Bullcoming did have personal knowledge of). I can also imagine a fractured dissent, with Roberts, Alito, and Kagan adopting the SG's argument that case presents a sufficiency of the . Wouldn't that be fun?

Richard Friedman said...

I should have responded the first time to this comment. I have no real insight as to what is holding up the decision. These speculations are plausible, as are others. We'll know the outcome soon enough (I assume!) and maybe that will give some insight into the cause for the delay. Or maybe not!

Anonymous said...

M-D was argued in November and wasn't decided until the end of June, so the wait in Williams shouldn't be too surprising.

Yoga Teacher Training said...

Thank you for such inspiring writing over the years. I think many have much to thank you for in setting the standards for polite irreverence! Me included.

Abs Pipe said...

Welcome back. Thanks for your valuable post.I have seen the petition.Waiting to see what gonna happen.

electronic components said...

who would maintain that Bullcoming was wrongly decided but conclude that Williams was a worse scenario than Bullcoming because the expert had no personal knowledge of either the particular testing done or the lab's general procedures (which the witness in Bullcoming did have personal knowledge of). I can also imagine a fractured dissent, with Roberts

las vegas escorts said...

This is why statements about psychological harm to the child witness are circular. They only make sense if one assumes that the pain comes from the fact that the child witness is testifying truthfully, when in fact the pain might come from the fact that the child is testifying untruthfully and knows it

pain therapy said...

At least with a screen the witness is in the same room as the defendant. Her presence at a remote location completely removed from the defendant's physical presence has a greater likelihood.

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who would maintain that Bullcoming was wrongly decided but conclude that Williams was a worse scenario than Bullcoming because the expert had no personal knowledge of either the particular testing done or the lab's general procedures.

Doug Miller said...

I understand that there is a question about the continued vitality of Maryland v. Craig. Others have speculated also about the tension between Crawford and Owens, the 1988 case about cross-examining a witness without much memory. Given Crawford's detailed analysis of contemporary standards, a deeper analysis of contemporary standards seems appropriate for Owens also. There wasn't much analysis in Owens, (even by the dissenters, if memory serves) (no pun intended), and it seems possible that the 6/A drafters would have seen little difference between an absent declarant and one who remembers nothing. Have an opinion?

duct cleaning said...

Crawford's detailed analysis of contemporary standards, a deeper analysis of contemporary standards seems appropriate for Owens also. There wasn't much analysis in Owens, (even by the dissenters, if memory serves) (no pun intended),

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Consumer Electronic said...

I should have responded the first time to this comment. I have no real insight as to what is holding up the decision. These speculations are plausible, as are others. We'll know the outcome soon enough (I assume!) and maybe that will give some insight into the cause for the delay. Or maybe not!

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Kelly was chief justice for two years, but the Democrat spent most of her 16 years in the minority on the Supreme Court. Conservative Republicans now control the court.
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