The Confrontation Blog

The latest from the European Court of Human Rights

2012-01-13T10:22:00.008-05:00

Last month, the Grand Chamber of the European Court of Human Rights decided Al-Khawaja and Tahery v United Kingdom. This is an obviously important decision, and I have thought to write a post about it, but I haven't had time. So I've asked William E. O’Brian, Jr., an American lawyer who is an Associate Professor of Law at the University of Warwick in England and who has in interest in confrontation matters, to do a write-up. Here it is, with a short follow-up commentary by me following.

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Al-Khawaja and Tahery v United Kingdom, (Nos 26766/05 and 2228/06, decided December 15, 2011) is a new and very important decision from the Grand Chamber of the European Court of Human Rights on confrontation. It contains for the first time a discussion of the Crawford case and its progeny, along with a discussion of similar cases from various other common law jurisdictions. Below I will briefly summarize the history of the case and the most important aspects of the new ruling. I have published several pieces comparing ECHR and UK law with US law on these matters before this decision, which I would be happy to share with those interested in knowing more.

Al-Khawaja was convicted of indecent assault on two women, one of whom committed suicide prior to his trial; her statement to the police was read at trial. Tahery was convicted of wounding with intent; the only witness to the altercation that was able to identify the defendant refused to testify at his trial due to fear, and his statement to the police was read at trial. Both appealed unsuccessfully in the English courts, and brought cases before the ECHR alleging that the use of their police statements at trial violated Article 6 § (3)(d) of the European Convention on Human Rights, which guarantees defendants in criminal cases the “minimum right”, inter alia, to “examine or have examined the witnesses against him.”

Previous decisions of the ECHR had interpreted this right fairly robustly, but had (in my own view) undermined this position by refusing to find violations in several cases where there was other evidence against the accused in addition to the hearsay evidence that was challenged. The leading case prior to this one was Luca v Italy, 36 EHRR 46 (2003), where the court held that a conviction based primarily on the statement of a co-accused to the police and prosecutor violated the Convention, because the conviction was based solely or to a decisive degree on statements that the accused had had no opportunity to examine. The original chamber that heard Al-Khawaja and Tahery invoked this “sole or decisive test” to find a violation in both cases. Al-Khawaja and Tahery v UK, 49 EHRR 1 (2009).

The UK government sought and obtained a Grand Chamber rehearing (more or less analogous to an en banc rehearing in a US Court of Appeals, although a Grand Chamber is final). Its position was bolstered by a unanimous judgment of the UK Supreme Court in R v Horncastle [2009] UKSC 14, [2010] 2 AC 373, in which the UK Supreme Court rejected various similar appeals, refused to follow the chamber decision, and subjected the “sole or decisive test” to withering criticism. In effect, the Grand Chamber decision furnished an opportunity for the ECHR to respond to the UK Supreme Court’s scathing attack on its previous confrontation jurisprudence.

The applicants argued that there were three possible approaches to the issues: (1) the “rigid and literal” approach of Crawford, (2) the chamber approach, under which untested hearsay could sometimes be used at trial but could not be the “sole or decisive” evidence against the defendant, and (3) the Horncastle approach, under which the defendant’s opportunity to examine the witness was simply a matter to be considered in determining whether the defendant had a fair trial overall. Applicants did not argue for the Crawford approach, undoubtedly because they did not need to, as it was reasonably clear, although not conceded by the UK, that the untested evidence was decisive in both cases.

The Grand Chamber decided that there were two requirements to avoid a violation. First, there must be a good reason for the non-attendance of a witness, and a violation can be found if there is no good reason for non-attendance even if the evidence in question is not “sole or decisive.” Second, if the conviction is based solely or to a decisive degree on evidence that the defendant has been unable to examine or have examined, the rights of the defendant may have been unduly restricted. But the Grand Chamber (see paragraph 147) rejected a rule that in such a case there has automatically been a violation. Instead, it held that cases where the untested evidence is the sole or decisive evidence require that the proceedings be subjected to “the most searching scrutiny,” including whether sufficient counterbalancing factors were in place to permit a fair and proper assessment of the reliability of the evidence. It rejected most of the UK Supreme Court’s arguments, which essentially asserted that other procedural safeguards provided in English law obviated the need for such scrutiny, but also decided that an inflexible rule finding an automatic violation whenever a conviction was based solely or decisively on hearsay “would transform the rule into a blunt and indiscriminate instrument.”

On the actual cases, the Court seems to have essentially split the baby, finding a violation in Tahery but not in Al-Khawaja. It relied in the latter case on the “similar fact” evidence of the other victim, along with the evidence that the deceased victim made similar statements to friends prior to her suicide, taken together with warnings delivered by the judge on the dangers of relying on her evidence in light of defendant’s inability to cross-examine, found that these provided sufficient counterbalancing factors. Two judges dissented, essentially arguing that the court should continue to adhere to the rule that a conviction based solely or decisively on untested evidence could not stand.

A few additional observations are in order.

First, the ECHR has not adopted a dividing line between “testimonial” and non-testimonial hearsay, but all of its cases have involved testimonial hearsay and at least one English court has held that Article 6 § (3)(d) only applies to such hearsay. The opinion in Al-Khawaja tends to use terms like “hearsay,” “untested evidence” and “absent witnesses” more or less interchangeably (see for example paragraph 147 of the majority judgment). The only references to the “testimonial” issue are in passages discussing Crawford and its progeny.

Second, the decision notes with approval previous indications in English decisions that there would be an exception for cases where the defendant’s own actions prevented the witness from testifying. In neither case was this a factor, however, as in Al-Khawaja it was conceded that the victim’s suicide was unrelated to the assault, and in Tahery’s case there was no evidence that the witness’s fear of testifying was due to threats or other actions by the defendant.

Third, both the majority and the dissenters adopt fairly narrow definitions of when evidence is decisive. The majority held that it should be understood as “evidence of such significance or importance as is likely to be determinative of the outcome of the case.” (paragraph 131). The dissent’s definition was even narrower, defining decisive evidence (in footnote 1 to the dissent) as “evidence without which the prosecuting authorities could not bring a case.”

Fourth, although no one argued for a Crawford approach, the dissenters do, in footnote 5, defend the Crawford rule against UK Government attacks on it as “absolutist and anachronistic,” while noting that it is “more exacting than our standard.”

Fifth, it is unclear to me why the court found that the victim’s statements to her friends in Al-Khawaja provided support for the police statement evidence that was challenged; there is no discussion of why those statements fare any better. The court does not view itself as laying down rules of evidence, but rather as ensuring that the trial is fair, and it may therefore believe that multiple incidents of hearsay may be sufficiently reliable to base a conviction on even if no one of them would be. Or it may be that these statements were not challenged because the parties assumed they were not testimonial, although the ECHR jurisprudence nowhere says that only testimonial hearsay is subject to Article 6 § (3)(d).

I have argued at length in favor of a robust approach along the lines of Crawford (but without the gloss of Giles), and am of course disappointed with the Grand Chamber ruling. But it is nowhere near as bad as the UK Supreme Court’s decision in Horncastle. The chief difficulty is that by leaving results ultimately subject to a balancing test, albeit a much stronger one than the UK courts wanted to employ, the ECHR may have let itself in for a large volume of future cases, whereas the previous Chamber judgment provided a much more bright line rule, although still subject to disputes over whether the evidence was “decisive” in individual cases.

William E. O’Brian Jr.
Associate Professor of Law
University of Warwick

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I agree generally with Bill's analysis, and will offer just a few brief follow-up comments. First, as I have noted before, it is ironic that the courts in England – where the confrontation right reached fruition and which long proclaimed that right as one of the great advantages of its system as compared to those of continental Europe – now has to be dragged into enforcing the right by a court sitting in France.

Second, I think one reason why the European Court developed a theory of confrontation without a very clear textual basis for it is that most of the nations within its jurisdiction do not have a law of hearsay. Hearsay law tends to clutter the analysis, because hearsay is a very broad category and any rule excluding all or virtually all hearsay would be impractical. So it is unfortunate that in this decision, the European Court has been led into using the language of hearsay, presumably because it was reviewing a UK decision. It would be much better if the court focused on the fact that the right that it has developed under the Convention concerns not a general law of hearsay but rather the conditions under which the testimony of witnesses may be received.

Third, if it had done that, I think the court would not be so ready to dismiss the Crawford approach. As Bill points out, the balancing approach that the court adopts is a recipe for future difficulty. Recognizing that the confrontation right applies only to statements that are testimonial in nature – but that as to those it expresses a fundamental procedural right that is applied categorically – is not only a more principled approach but an entirely practical one as well.

A (mostly) bad decision from the Fourth Circuit

2011-12-17T18:04:00.007-05:00

Several readers have pointed me to a decision made on Thursday by the U.S. Court of Appeals for the Fourth Circuit, U.S. v. Summers, 2011 WL 6276085. Here are a summary and some thoughts.

Summers was charged with drug-related crimes. The stuff was allegedly found in a black North Face jacket that he left behind in a chase. The prosecution authenticated the jacket through the testimony of several officers who testified that a particular jacket, Government Exhibit No. 1, was the one that Summers wore on the night in question. The defense introduced an internal log of the FBI lab, which purported to show the chain of custody of the jacket, but the signers of the log did not testify at trial.

There was no Confrontation Clause issue in this respect, and the court got this part of the case right. Given that the prosecution wanted to introduce the jacket as an exhibit (I'm not sure that it had to, but let's put that issue aside), its burden of authentication, as usually stated, was merely to present sufficient evidence for the trier of fact to conclude that the particular jacket was what the prosecution claimed it to be. (I actually think that the burden ought to be lower – see my article Conditional Probative Value: Neoclassicism Without Myth, 93 Mich. L. Rev. 439 (1994) – but let's put that issue aside as well.) The prosecution satisfied this burden by the direct evidence of witnesses who testified that the exhibit was the very jacket that Summers wore. (How they would remember this particular jacket among all others, and why they didn't tag it to make the identification surer – again, let's put those issues aside.) So the prosecution didn't feel any need to provide the log, perhaps because the jacket itself wasn't so important to its case. The defense introduced the log, but it couldn't pry its way into having a Confrontation Clause issue by presenting evidence on which the prosecution might have relied – had it chosen to and brought the witnesses in – but decided to forgo.

There has been loose talk in connection with Williams to the effect that there can't be a confrontation problem with anything that comes out on cross or as part of the defense case. I hope to write on that soon, because I don't think that's categorically true – if the defense flushes out that the in-court witness has testified without personal knowledge and instead has acted in effect as a conduit for an out-of-court witness who has not been subjected to confrontation, then I think there is a problem under the Confrontation Clause. But that's not what happened here – the prosecution presented the testimony that it deemed satisfactory with respect to the jacket, and that testimony was from personal knowledge. The defense could introduce the log if it wanted to, but that did not create an issue under the Clause.

As to the other part of the case, however, I think the majority of the Summers court erred pretty badly. This part involved proof that the predominant DNA found on the jacket was that of Summers. An FBI analyst, Shea, testified at trial, but he did not do any testing. One judge on the panel thought the court should not have reached the issue, because it found that any error was harmless, and I think that this is right: If, as the court concluded, it really believed that the case was lock solid without the DNA evidence, then it should not have reached the issue, especially given that Williams is pending. (The court never took note of Williams.)

The court, drawing on its precedents, said,

We perceive little difficulty with the admission of Shea’s testimony, given the predominance therein of his independent, subjective opinion and judgment relative to the lesser emphasis accorded the objective raw data generated by the analysts.

And then it cited and quoted Fed. R. Evid. 703, as if a late-20th century evidentiary rule can answer a constitutional question.

This mirrors an argument that has been made in the Williams case, and it is as wrong-headed here as it is there. Sure, Shea added his subjective opinion in evaluating the data – but the fact that the prosecution has an extra step to present (evaluation) cannot relieve its burden of proving the underlying facts in a constitutionally acceptable manner. Two critical points must be borne in mind. First, the underlying data were conveyed to Shea in a testimonial statement, a report by his colleagues. No confrontation issue arises unless this is true. Second, though Shea's testimony may not have emphasized that underlying data, his opinion was based on them; the court acknowledged that the data were "crucial" to the opinion; if the data were inaccurate, Shea had no basis for his opinion.

And in fact, though Shea might not have emphasized the data in his testimony, the report itself was introduced, with the data. This gave the majority "pause," but they overcame their doubts. Based on a prior decision in the Circuit, the majority thought that there was no problem with proving "the numerical identifiers of the DNA allele here, insofar as they are nothing more than raw data produced by a machine."

Let's be careful here. What was actually introduced, as I understand it, was an allele chart, similar to the one in the Cellmark report in Williams. Sure, such a chart reports data generated by a machine, but it in itself is produced by humans. (Moreover – though this should not be crucial – it requires judgment to produce the chart; this is not as simple as recording a number off a screen.) A machine makes a streetlight green, but a witness who observes that phenomenon and reports it for use at trial is making a testimonial statement, as Bullcoming made clear. It is no different here.

Indeed, it is somewhat remarkable that the Summers majority got to the result they did with respect to the report in the face of Melendez-Diaz and Bullcoming. And the way they did so shows just how subject to manipulation the law will be if the Supreme Court were to hold in Williams that there was no problem because the in-court expert presented her own opinion in evaluating the data. The Summers majority said,

The notarized certificates of analysis at issue in Melendez-Diaz revealed considerably more than raw data; they concluded that the substance attributed to the defendant’s possession "was found to contain: Cocaine."

And further:

Melendez-Diaz and Bullcoming each involved one or more absent expert’s "certification" with respect to the meaning of the underlying raw data, and no such certification is at issue here.

So in other words, in Melendez-Diaz, if the report had just avoided the very last word, it would have been acceptable to introduce the certificate without live testimony from anyone who observed performance of the test. I'm not sure just what "certification" in Bullcoming the Summers majority believes was fatal, but evidently there, too, the change of a few words in the report would have enabled it to be admitted without testimony of anyone who performed the test. In my amicus in Williams, I warned of precisely this manipulation: The report that gives everything but the bottom line.

The Summers court seems to have some qualms about this bad result, and it expresses some hope that if an accused makes a timely demand the prosecution will do the right thing and produce a lab witness. But if the courts don't compel the prosecution to do shttp://www.blogger.com/img/blank.gifo, I'm not sure why a request from the defense will persuade it to.

The Summers Court takes note of but disagrees with Derr v. State, 2011 WL 4483937 (Md. Sept. 29, 2011), which is discussed in Williams's reply brief, and on which I have written a prior post, A nice decision in a Williams-like case. Derr got it right when it said:

In light of Bullcoming and Melendez, it is inescapable that the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing or the supervisor who observed the analyst perform the DNA testing must testify in order to satisfy the Confrontation Clause, unless the witness is unavailable and the defense had a prior opportunity to cross-examine the witness.

The Cellmark report, and what it shows

2011-12-15T00:43:00.012-05:00

Here is the Cellmark report, taken from the public files of the United States Supreme Court in Williams v. Illinois. A few points about it:

First, it seems to me that simply looking at the report demonstrates whatever degree of formality any justice is likely to require for a statement to be considered testimonial. It is not sworn, but we know that this fact in itself does not make a statement non-testimonial. It is on letterhead, dated, with a title, “Report of Laboratory Examination,” addressed to a recipient at the Forensic Science Center in Chicago, and signed by two laboratory directors. It bears two case numbers (I gather one for Cellmark and one for the submitting agency). It refers to the “exhibits received” and then to the disposition of “evidence.” Clearly it was made in contemplation of use in investigation and prosecution of crime.

Second, examination of the report should make clear that it was not simply the product of a machine (even assuming that mattered; the electropherogram, which was indeed the product of a machine, still needed human input at least to identify the sample tested). There is a one-page summary report, stating what tests the lab used and on what samples, summarizing the conclusions, and proposing a return of the evidence (which presumably would have allowed retesting!), together with a second page containing the critical allele charts. The male donor profile deduced by Cellmark is contained in the second of these charts. These first two pages are produced by humans. After these two pages, the report incorporates the electropherogram.

Third, the report makes clear that Lambatos could not have come to her own independent opinion as to what the male donor profile was simply by examining the electropherogram sent by Cellmark. As Lambatos testified repeatedly, the only electropherogram sent by Cellmark was of the mixed profile – meaning the sample contained DNA from both the victim and the male donor. There is no way to tell from that alone who produced what alleles. To deduce the male profile, it was also necessary to know what alleles were present in the victim’s DNA, and Cellmark did not send an electropherogram of her profile. (Of course, that could have been done, but it wasn’t.) What Cellmark did provide with respect to the victim was simply an allele chart (on the second page of the report), representing its statement of what the victim’s profile was. See p.5 of petitioner’s reply brief. From that, it deduced what the male profile was. Some of the deductions required relatively delicate judgments. (For example, at one of the loci Cellmark reported three alleles. It is possible, but rare, for an individual to have three alleles at one locus – but Williams does not; evidently, Lambatos interpreted the report to mean that the assailant’s profile included two of the three alleles, a factor that should diminish slightly the probative value of the evidence.)

I believe that Lambatos conveyed more than her opinion of what the deduced male profile was; I believe she really used the profile deduced by Cellmark, with which she said she basically agreed (notice, for example, that at JA 65 she testifies that she entered the profile from the Cellmark report to perform the data-base search), and the reliance on Cellmark gave the evidence extra heft. But in any event, Lambatos could not have reached an opinion as to what the male profile as based simply on the machine-generated information presented to her.

Fourth, and as a related matter, I think it is clear from the report that it was not merely used circumstantially. The circumstantial evidence argument, as I understand it, is that from the fact, as indicated by shipping documents, that the mixed sample was sent to Cellmark and a report purporting to be on that sample was received from Cellmark, one can infer circumstantially that the report received was the proper one. That seems to me to be a stretch, especially given that Cellmark and the state lab sent materials for numerous cases at once, but let’s assume it’s valid. If it were, and if the report was nothing more than a machine printout, then there might be some force to the argument. But it appears to me that the whole thing falls apart when one realizes that the critical part of the Cellmark report was not machine generated. It bears emphasis again: The electropherogram, the only part that was machine generated, showed only the mixed profile, not the male profile. The male profile that Cellmark deduced was presented as a human-produced statement in the allele chart on the bottom of page 2. It is essentially a statement that the donor of the sperm had 23 or 24 of 25 listed features. (I word it that way because of the three-allele locus; as I understand it, Cellmark was saying that the assailant had one or two of the three alleles listed at that locus.) In that sense, it is no different from a statement describing a couple of dozen visible features that the assailant had (hair color, eye color, height, and so forth). This is a detailed human statement that purported to describe the assailant, that was used to help identify him, and that could do so only if it was true. Frankly, the argument that the evidence was used circumstantially strikes me – notwithstanding the great respect I have for Michael Dreeben, who argued for the United States, and also for Paul Vinegrad, who has articulated the argument in commentary on this blog and elsewhere – as a lot of hooey once one understands the nature of the Cellmark report

I hope to post another entry soon discussing a way in which the Cellmark might possibly have been presented as circumstantial evidence – but that’s not what happened here.

Finally, similar reasoning should dispose of the argument that the problem was not one of confrontation but rather of adequacy of the proof. If Cellmark produced a thing, and that thing tended to prove guilt, but only on the assumption that it was what the prosecution contended it was, then there presumably would be no Confrontation Clause problem; there would only be a problem of authenticating the thing. But that simply isn’t what happened. Again, it seems to me that there is no getting around the fact that the Cellmark report was a detailed testimonial statement produced by humans that supported the prosecution case only if it was true: The report asserted not merely that a male profile had been found, and not merely that the testing had been done accurately. It also asserted what the profile was (allowing for some uncertainty at one of the loci). If it had not made that particular assertion, it would not have helped the prosecution. And the fact that it asserted a given profile – i.e., one that was later determined to match that of Williams – was clearly conveyed to the trier of fact. This is a Confrontation Clause problem, pure and simple.

On posting the Cellmark report

2011-12-14T18:55:00.005-05:00

I will soon post the Cellmark report, which a friend has gotten for me from the publicly available files of the U.S. Supreme Court.

Before doing so, though, I want to note an issue that I had to resolve before posting the report. After I announced my intention on this blog to post it, I was given pause by a call from the Illinois State’s Attorney’s Office, mentioning Illinois criminal discovery rules. I had been aware of the rules, but did not believe they posed a problem, because the report is publicly available. But the attorney – who was pleasant and professional, and explicitly not threatening – put another slant on the matter by suggesting that I needed to take the issue particularly seriously because I am an attorney on the case. It is not clear that I am really an attorney on the case, but I understand that perhaps I could be treated as such, given that I consulted with petitioner’s counsel in preparation of the case. And so I did indeed take the issue seriously, and sought advice from a partner at one of the best-regarded firms in Chicago. I resolved that if this attorney advised me that state law precluded me from posting the report, or even if he thought it was a close call, I would not do so. But it is not a close call.

The State’s Attorney mentioned Illinois Supreme Court Rule 415(c) and the comment to it. The Rule reads:

Custody of Materials. Any materials furnished to an attorney pursuant to these rules shall remain in his exclusive custody and be used only for the purposes of conducting his side of the case, and shall be subject to such other terms and conditions as the court may provide.

And here is the Comment:

Comment: Paragraph (c). If the materials to be provided were to become, in effect, matters of public availability once they had been turned over to counsel for the limited purposes which pretrial disclosures are designed to serve, the administration of criminal justice would likely be prejudiced. Accordingly, this paragraph establishes a mandatory requirement in every case that the material which an attorney receives shall remain in his exclusive custody. While he will undoubtedly have to show it to, or at least discuss it with, others, he is not permitted to furnish them with copies or let them take it from his office. It should be noted that this paragraph also applies to the State. Nothing in this paragraph should be interpreted to prevent counsel from having tests performed by experts on materials furnished by opposing counsel or from having experts examine reports received from opposing counsel. Tangible objects, such as guns, knives, clothing, not subject to duplication but furnished for purposes of testing, etc., should be returned to the furnishing party when such testing or inspection is completed. If not returned routinely the last phrase permits the court to so order, in addition to any other terms and conditions provided.

After due consideration, the attorney with whom I consulted and I simply do not believe that the Rule prevents me, even if I am considered an attorney on the case, from doing what anybody off the street (First Street, N.W., Washington, D.C., that is) can do – going to the office of the Supreme Court clerk and copying the report from the file of the case and then publishing it. The materials already have become “matters of public availability.” The report was not publicly available until the Court, over the objection of the State’s Attorney, decided that it should be lodged with the Court. But the Court did so decide, and now the report is public. And what I am posting is the actual report I received from the files of the United State Supreme Court.

I have taken my professional responsibility seriously in this matter, and I believe I am free to post the report.

One other point: In my prior post announcing my intention to post the report I suggested that the State’s Attorney’s Office resisted the proposal to lodge because seeing the report undermines points that have been made on their side of the case. The assistant who spoke to me insisted that the reasons cited in their letter of opposition were the real reasons. (That letter, by the way, did not mention confidentiality, nor did it suggest as an alternative possibility that if the report were to be lodged it should be done under seal.) So I want to emphasize that I did not intend to make any suggestion of impropriety. I do believe that it was against the litigation interest of the State’s Attorney for the Supreme Court to see the report, and I also believe it was obvious that the Court should see it. I do not believe that it is coincidental that petitioner’s counsel – also highly responsible and very aware of and conscientious about the strictures of Illinois discovery law – proposed lodging the report and the State’s Attorney opposed it.

Fifth Circuit allows testimony under pseudonyms

2011-12-13T14:54:00.007-05:00

Once again I'm writing on the question of where the Confrontation Clause should be treated categorically and where as a balance.

In United States v. El-Mezain, issued on December 7, a unanimous panel of the Fifth Circuit upheld a trial court decision allowing two prosecution witnesses to testify under pseudonym. My former student Patrick Luff, now teaching at Washington & Lee, put me on to an essay on the case by another former student, Jeffrey Kahn of the SMU faculty.) I would not be surprised if, assuming the decision is not vacated by the full court sitting en banc, the case heads up to the Supreme Court.

The case concerns a purported charity, Holy Land Foundation (HLF), that the Government alleges funneled money to Hamas; the defendants are HLF and five individuals. Among the witnesses against them were a legal adviser to the Israeli Security Agency, who testified under the name “Avi” about Hamas financing methods, and a member of the Israeli Defense Forces (IDF), who testified as “Major Lior” to authenticate documents seized by IDF during a military operation. The defense objected, the trial court allowed the testimony, the defendants were convicted, and the Fifth Circuit panel has now affirmed.

Smith v. Illinois, 390 U.S. 129 (1968), seems to stand pretty squarely in the way of the decision. The majority there, per Justice Stewart, said flatly:

[W]hen the credibility of a witness is in issue, the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.

The panel attempts to avoid Smith first by citing Roviaro v. United States, 353 U.S. 53 (1957), which spoke of “balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” But goodness, Roviaro involved the defendant’s attempt to learn the name of an informer, not someone who had testified against him at trial; the confrontation right was not at play.

The panel also tries to suggest that Smith was a balancing case, but that seems to me to be a stretch. The panel is, however, able to point to the concurring opinion in Smith of Justice White, joined by Justice Marshall. He said that,

if the question asked is one that is normally permissible, the State or the witness should, at the very least, come forward with some showing of why the witness must be excused from answering the question. The trial judge can then ascertain the interest of the defendant in the answer, and exercise an informed discretion in making his ruling.

In Smith, he said, that was not done. And therefore, he joined the Court’s opinion, adding that, as he understood it, the opinion was “not inconsistent with these views.” I would have thought the unqualified language of the majority opinion was indeed inconsistent with those views, and that it was sufficiently obvious why the witness, who said he had bought heroin from Smith with marked money provided by police officers, might have felt fearful. But perhaps the Supreme Court of this era will resolve the matter.

Here, it does seem that the Government presented reasons to be concerned about the witnesses’ safety (though I believe that personally I would feel far less protected if I were a Chicago heroin purchaser testifying against my supplier than if I were an Israeli officer testifying against Hamas). It is not clear to me how important the testimony of these particular witnesses was to the prosecution case; Avi was presumably not the only person with the necessary expertise, and Major Lior was not even present at the seizure.

The panel emphasized how much the defense was able to do on cross; it appears to me that this does not meet the concern that other possibilities for discrediting the testimony cannot be pursued.

The panel also gave cursory attention to the possibility that identifying information might have been provided in confidence to defense counsel. Indeed, the panel gave no reason to suppose that any danger could not be avoided by making the disclosure to counsel alone. Compare United States v. Celis, 608 F.3d 818 (D.C. Cir. 2010). The panel did say that such limited disclosure was “unlikely to yield useful information.” It seems to me that this reasoning is precluded by Smith, which quoted an earlier case, Alford v. United States, 282 U.S. 687 (1931), also involving hiding the witness’s place of residence:

It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. . . . To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. . . .

It seems to me there should be a categorical right to have the information disclosed to counsel, under satisfactory confidentiality protections.

Hardy v. Cross -- Supreme Court decision on required efforts to find an unavailable witness

2011-12-12T17:49:00.003-05:00

The Supreme Court issued a summary decision today in a Confrontation Clause case, Hardy v. Cross.

Cross was tried on charges of kidnapping and sexual assault. The alleged victim, referred to as A.S., testified at trial, but in a way that the Seventh Circuit, 632 F.3d 356 (2011), later called “pause-filled and evasive.”. Cross was acquitted on the kidnapping charge but the jury hung on the sexual assault charges. The state declared its intention to retry Cross on those charges, and a date for the second trial was set. Shortly before the trial date, however, A.S. disappeared. The state made several efforts to find her, but without success. At the retrial, the state was allowed, apparently over objection, to introduce A.S.’s testimony from the first trial; a legal intern read in the transcript, apparently without the long pauses that occurred in the first trial and in a “more fluid and inflected” way, according to the Seventh Circuit. Cross was found guilty on two counts of criminal sexual assault, but acquitted on the charge of aggravated sexual assault.

On direct appeal Cross lost on his contention that the state did not make sufficient efforts to secure the live testimony of A.S. at the second trial for her to be deemed unavailable for Confrontation Clause purposes. And he lost in federal district court on his petition for habeas. But he won a unanimous reversal in the Seventh Circuit, undone today by the Supreme Court’s summary and unanimous reversal.

The Seventh Circuit held that the state did not make sufficient efforts to locate A.S., particularly given her importance to the case. The state delayed for a week after learning that she was very reluctant to testify again, and never subpoenaed her. Although it made repeated efforts to find her through the same sources, it never tried some possibilities, most notably speaking to her current boyfriend.

The Supreme Court was unimpressed. There was no reason, it said, to believe that if the state had made any of the attempts cited by the Seventh Circuit the result would have been that A.S. would have testified at the second trial. I wonder about that with respect to the boyfriend. There is no way of knowing for sure, but it does seem to me speaking to the witness’s current boyfriend is a pretty obvious move that shouldn’t be overlooked.

But the bottom line is that the inquiry is ultimately a very fact-intensive one requiring an assessment of good faith. In line with my post of yesterday, The niqab and the structure of the confrontation right, this is a determination that inherently requires balancing; I think it is very hard to state bright-line rules here. (That doesn’t mean there are none; if the state knows where a witness is and ihttp://www.blogger.com/img/blank.gift can invoke a formal procedure to secure her presence, then it should do so; this is Barber v. Page, 390 U.S. 719 (1968), and maybe that’s irrespective of the importance of the witness. But this case involves efforts to find a witness, and it’s much harder to state absolute rules as to what the prosecution needs to do.)

And this case, in any event, came up on habeas, which means that a deferential standard of review applies, a consideration that the Supreme Court emphasized; I suspect this factor contributed to the unanimity of the opinion.

And by the way – the Court cited the discussion of unavailability in Roberts, which resembled this case in some respects. I’ve always thought that in Roberts the state should have made more efforts than it did. But, Crawford notwithstanding, there has never been any doubt that this aspect of Roberts remains good law. For all the general discussion in Roberts, the decisive issue in the case was whether the witness should be deemed unavailable, and that would still be true if the case were decided under Crawford.

The niqab and the structure of the confrontation right

2011-12-11T19:11:00.002-05:00

A few years ago, I posted a couple of messages on the issue of whether Muslim women should be allowed to testify while wearing a niqab, covering the face except for the eyes. One concerned a Canadian case, and the other commented on the adoption by the Supreme Court of Michigan of a rule, unfortunate in my view, meant to authorize trial judges to preclude witnesses from testifying while wearing the niqab. My former student Felix Chang has informed me about this link to a discussion on the public radio show The World of the Canadian case, which is now pending in the Supreme Court of Canada.

My feeling remains that a witness who has a conscientiously religious-based reason for wanting to testify while wearing the niqab ought to be allowed to (whether or not wearing the niqab is an actual religious command), but witnesses ought not to be allowed to testify under such a cover out of mere personal preference.

This highlights a broader issue of the framework of the confrontation right. In some respects, as Crawford indicates, the right is categorical, but in other respects, even after Crawford, it is flexible, subject to balancing.

An accused has an absolute right to be confronted with an adverse witness. Assuming the accused has not forfeited the confrontation right, if admitting a statement would amount to allowing the witness to testify against the accused, then it may not be admitted absent an opportunity for confrontation – and it does not matter how expensive or difficult it would be to bring the witness in or how important the testimony is to the prosecution or how little value it appears that confrontation would have. In these respects the right is absolute.

But if the witness has had an opportunity for confrontation, then the question of whether the witness has to be brought in to trial depends on a balance of numerous factors. How difficult or expensive would it be to bring the witness in? How important is the testimony? How significant is any information that the accused may have learned since the earlier examination and that would assist the accused in cross-examining at trial?

I also think that forfeiture involves various questions of balancing. For example, how much pressure should be considered sufficient intimidation to warrant a determination that the accused forfeited the right? Also, if, as I believe, in some cases the government has a responsibility to take reasonable conduct that might mitigate the problem created by potentially forfeiting conduct, then there will often be a question of balancing; for example, should the government have arranged for a deposition of a witness who lingered for a considerable time before dying of wounds inflicted by the accused?

Similarly, some aspects of what constitutes confrontation are absolute. Putting aside the case of children and the question of whether Maryland v. Craig survives Crawford, the accused has an absolute right (again, subject to forfeiture) to be in the same room as the witness when she gives her testimony. But how close is a matter of balancing. The extent of questioning allowed also must be a balance – for example, how long and how intrusive the examination may be.

And I don’t think the confrontation incorporates an absolute requirement that the witness wear clothing meeting the norm of any particular time and place. Bear in mind that the accused doesn’t have an absolute right for the trier of fact to observe the witness’s demeanor; transcripts of prior testimony have long been acceptable in cases of unavailability. I don’t believe a witness should be allowed to cover herself up simply for personal preference. But given a well-established practice based in religious belief, it seems to me like a pretty easy case.

The Cellmark report

2011-12-09T18:30:00.000-05:00

Because the Cellmark report was never formally introduced at the Williams trial, it was never made part of the record. But it is, of course, at the center of the case before the Supreme Court. (One might call it the Hamlet of the Supreme Court case.) Several weeks ago, Williams’ counsel wrote to the Court proposing to lodge copies of the report with the Court. The state objected. What could have motivated the state to do so? I suspect that worries about the bounds of the appellate record were not at stake. I suspect, rather, that the state recognized that actually seeing the report would undermine any arguments that the report was insufficiently formal to be considered testimonial, that the key information was simply machine generated, and that it could be considered circumstantial evidence of the perpetrator’s profile. The Court approved the lodging last week, and the report is now on file with the Court. Given that it is now a public document, I intend to post it next week. I can’t do so just yet, largely because of mechanical issues but also because I first want to clarify a few factual points. But I do think that seeing the report will help clarify that Lambatos took a human-produced statement of a genetic profile, which she could not have generated on her own, and used it to say that Williams was the perpetrator.

Cellmark's record

2011-12-08T23:45:00.002-05:00

I have no doubt that Cellmark runs very proficient labs. But blog reader Patsy Myers points out that if you do a search for "Cellmark falsified evidence" you come up with a pretty substantial set of problems that they have encountered in the past. For example, the company has not been immune to professional misconduct affecting multiple cases.
And consider one case in which a Cellmark analyst discovered an error while testifying in court. Apparently, Cellmark diminishes the importance of this episode by pointing out that it did in fact correct the error!

Of course, reliability is not -- or at least certainly should not be -- the point. But the fact that Cellmark has a substantial history of difficulty should, I think, give some pause even to those who are ready to make accreditation a substitute for the confrontation prescribed by the Constitution.

The Williams argument

2011-12-07T23:52:00.003-05:00

On Tuesday, I attended argument of Williams v. Illinois in the Supreme Court. Here are some reactions. You can find the transcript by clicking here. The audio recording is not yet available.

Perhaps the most interesting aspect of the argument was the comments by Justice Kennedy, author of the dissents in Melendez-Diaz and Bullcoming, indicating that he thought the state’s case was weak, weaker than in those cases. He certainly seemed bothered by the fact that nobody from Cellmark was present. It is hard to draw too much from comments at argument, of course, but it may be that he is ready to accept Melendez-Diaz as law and make the best of it; he seemed to have turned from emphasizing what he has claimed would be dire consequences of Melendez-Diaz to trying to work out a reasonable and practical way of applying it. I don’t think any of his comments gave comfort to the state.

As expected, a couple of the justices (but not Kennedy!) were interested in the possibility that victory for Williams would mean that a parade of lab witnesses would have to testify live; Justice Breyer seemed to take this as a given, and Justice Alito pointed explicitly to the New York brief, which I discussed at length in a posting on Monday. I thought Brian Carroll, arguing for Williams, responded effectively (and along lines similar to that posting) that most of the participants in the process do not make testimonial statements that are conveyed to the trier of fact. (Justice Kennedy seemed to agree; he spoke of the person who reported the test results as "the Hamlet in hge play," and the others as merely "supporting actors.") Justice Alito did not pursue the point, and neither did either of the lawyers on the state side.

The attempt by the state side to draw a distinction between admission of the statement for the truth and admission in support of the expert’s opinion got considerable attention, including from Justice Kagan. I think Mr. Carroll clearly made the point that there is no meaningful distinction in this context, because the statement does not have any value in supporting the opinion unless it is true. But that did not stop the state side, especially Michael Dreeben of the Solicitor General’s Office, from making a valiant effort to demonstrate a difference.

One point he made is that Illinois law purportedly prohibited the trial judge (who sat without a jury) from using the statement to prove the truth of what it asserted. One problem with this is that on the face of it, as Mr. Carroll pointed out, the judge certainly appeared to have relied on Cellmark as reporting the truth; the citation by Anita Alvarez, the Cook County Prosecuting Attorney, of a passage from the state supreme court decision declaring that the use was in support of the opinion did not help her in this respect. The deeper problem is that Illinois law cannot overcome principles of logic or of federal law. The logic of the situation is that the Cellmark report was useless in support of the expert’s opinion unless it was true, and as a matter of constitutional law that should bring it within the scope of the Confrontation Clause. If not, there is an enormous opening in the Clause that states can exploit to whatever limit they choose, by presenting evidence that a someone deemed by the state to be an expert will claim supports an opinion on a disputed fact. (Thus, I think Mr. Carroll could have saved himself some trouble on rebuttal when Justice Sotomayor asked him whether any deference was owed to the state supreme court’s declaration that the statement was not used for the truth; the optimal answer, I think, is that no deference is owed, not only because the state supreme court’s characterization is plainly false but also because the distinction the court tried to draw has no force and should not be recognized as a matter of federal constitutional law.)

Mr. Dreeben’s second argument was that the state merely presented circumstantial evidence of what Cellmark did; therefore, it had to live with whatever weaknesses in the case it created. (Of course, the case was not so weak that it could not get a conviction.) One problem with this line is that, once again, the judge’s use of the Cellmark report contradicts the theory. Mr. Dreeben said that the state gave up the right to say, “You can believe that this DNA report is reliable and trustworthy because Cellmark says so.” But that’s pretty much precisely what the trial judge said. And more fundamentally, even if the state could prove circumstantially from shipping records that Cellmark did a DNA test on the vaginal swab – I’m dubious on that, but let’s put it aside – that wouldn’t be sufficient for the state’s purpose. The Cellmark test helped the state only if Cellmark reported the presence of DNA of a particular profile – one that, as determined both by Lambatos and a computer program, matched that of Williams. Lambatos’s testimony made clear that Cellmark did indeed report such a profile. And, even more broadly, the theory presented by the SG would fundamentally undercut the confrontation right. Under that theory, anyone whom the state is willing to characterize as an expert can gather testimony from the witnesses and then present summary evidence in court: “Based on my years of experience, gathering information in the way experts like me do [list sources of evidence], I have concluded that the accused committed the crime, in the following manner.” The prosecution would take a chance, says the SG, that the trier of fact would not find this persuasive evidence. Sorry, would be my response, the Confrontation Clause says the accused doesn’t have to take a chance on that style of presentation: Someone from Cellmark prepared a testimonial statement, and the state relied on it as a truthful report for a critical part of its case; the state had to bring a Cellmark witness in for confrontation

Justice Breyer made it clear that he was thinking of working up an exception to the confrontation right in which, if I understood it, statements by accredited labs would be admissible so long as there was no reason to doubt the credibility of the particular technician involved. (How the accused would determine that there was such a reason, I am unsure.) He did not claim any historical pedigree for this would-be doctrine, but suggested that, according to Wigmore, experts often relied on various forms of hearsay. A few points: First, Wigmore never understood the nature of the confrontation right, and I don’t think he should be considered authoritative in speaking about it. (He is, of course, an excellent source of material.) Second, I think it is clear that until Fed. R. Evid. 703 was adopted in the late 20th century, the standard rule was that experts could base opinions on facts known to them personally or stated to them hypothetically and proved by other admissible evidence; that certainly was the understanding of the drafters of Rule 703. Third, bear in mind an important point made by Crawford: Although various doctrines in the 18th century allowed certain types of what we would now characterize as hearsay, there was not a reliability-based set of exceptions for testimonial statements; the dying declaration exception (which I think should be justified on other grounds) was, as Crawford said, sui generis. Fourth, Justice Breyer explicitly based his idea on the on the fear of a parade of lab witnesses and on the presumed reliability of the evidence. The fear is, as suggested above, based on a false premise. (Melendez-Diaz also makes clear that such consequences should not dissuade the Court from adopting a valid construction of he Confrontation Clause, but I don’t think it’s bad for the Court to subject its views to a reality check.) And the second consideration seems to be little more than Roberts redux.

Thoughts on the brief of the New York DA and OCME in Williams

2011-12-05T15:27:00.004-05:00

I am going to try over the next several days to post (rather belatedly) a series of entries analyzing some of the arguments made by the state-side briefs in Williams. I’ll begin with the brief filed on behalf of the New York County DA’s Office and the New York City Office of the Chief Medical Examiner (OCME); I’ll refer to this as the New York brief. I’m beginning with this one because it probably makes the most extravagant claims of all the state-side briefs. It is in large part an attempt to scare the Court into thinking that if Williams wins this case prosecution use of DNA and some other types of forensic evidence will become unfeasible. That’s just not true.

A. The brief goes into depth to show the number of technicians that, in some labs, work on a DNA sample. A few responses:

(1) The brief simply mischaracterizes the position taken by, and in support of, petitioner as an “all-technicians-must-testify” rule. Williams contends for nothing of the sort. The Confrontation Clause only applies to testimonial statements that are in some way presented to the tier of fact. (I say “in some way” because there can be a confrontation problem without formal introduction of the statement; I’ve discussed this issue in other posts and will again.)

So consider the stages of DNA analysis discussed in the brief, p. 7:

(a) Examination: A technician “examines the sample and takes cuttings for DNA extraction.” There’s no testimonial statement there – examining and cutting do not constitute a statement.

(b) Extraction: A technician adds reagents to the sample. Again, no statement.

(c) Quantitation: A technician measures the amount of DNA. Presumably this technician reports on that amount. But even assuming that this report is a testimonial statement, there’s no need for it to be presented to the trier of fact. The witness who reports on the profile found in the later part of the process does not have to convey to the trier of fact or even rely in her own testimony on the results of this stage; we know from the fact that a DNA profile was ultimately found that there was enough DNA to perform the analysis.

(d) Amplification: A technician copies specific portions of the DNA to raise them to sufficient levels for testing.

(e) Electrophoresis: Here at last we have the performance of the test that matters. A technician who performs this test must report on the results. That report, in a case in which the test is clearly performed for forensic purposes, is a testimonial statement, and it provides the essential information that the prosecution needs.

So even assuming Williams wins and some labs continue to adhere to the procedure described by the New York brief, the Confrontation Clause would say nothing about most of the technicians involved in that procedure. As a check on this, try this thought experiment: Assume for the moment that Williams wins this case. Does anyone think that the signatories to the New York brief would be proclaiming that all the technicians in this procedure would have to testify?

I have not said anything here about chain of custody. So long as a witness speaks only about what she knows from personal knowledge, chain of custody is not a confrontation problem per se. Melendez-Diaz makes clear that as an initial matter it is up to the prosecution to decide what witness's statements it wishes to present to establish the chain of custody. If the gaps in the chain are too great, there may be insufficient proof, and at some point that could be a due process violation. But reasonable inferences can bridge some substantial gaps. And I don’t believe the sample needs to have been sitting still during those gaps; technicians may have performed procedures on it other than letting it change naturally over time.

(2) Given modern DNA techniques, retesting is virtually always a possibility. Neither the NY brief nor any other brief on the state side gives any reason to suggest that it would not be routinely possible in a case like this one. Only a small minority of cases go to trial; in a given case, if the original technician could not conveniently testify at trial, a technician better placed to do so could retest the sample without adding great expense.

(3) The Sixth Amendment does not incorporate the Cellmark protocol. Much of the New York brief reads as if Confrontation Clause jurisprudence must take as given the procedures such as those used by Cellmark in this case. But other labs use different procedures. Note, for example, that only one technician from the Illinois State Police lab did the test on the blood sample taken from Williams. The Michigan State Police lab rarely involves more than three people in a given lab test.

Of course, such vertically integrated procedures might not be as efficient as those used by Cellmark. But bear in mind that the Cellmark procedures were designed with little or no much regard to the confrontation rights of the accused. It is hardly surprising that procedures designed without that constraint would be more efficient than procedures subject to it.

Neither the New York brief nor any of the other state-side briefs suggest any reason why states that do not already operate under constitutionally satisfactory procedures cannot emulate states that do.

B. Neither does the Sixth Amendment incorporate New York evidentiary law. The New York brief says, p. 9, that under New York law the prosecution only has to present the analyst who compared DNA profiles. But note the consequence: No witness with personal knowledge testifies to the facts underlying the comparison. In my amicus brief, I presented an analogy to which no one on the state side has responded: An expert witness testifies that someone else (who does not testify in court) has given him a description of the assailant, and in the expert’s opinion that description matches the accused. Plainly that would not be allowed, assuming the description was given in contemplation of use in prosecution. That hypothetical actually is more than analogy – it is exactly what happened here, but the description, instead of being the more familiar characterization of features, was a statement of the genetic identity of the assailant.

C. Nor does the Sixth Amendment incorporate Fed. R. Evid. 703, a creation of the late 20th century. Invoking the language of that Rule, the New York brief refers, p. 15, to the dangers of “a constitutional rule that would preclude a testifying expert from reasonably relying on information provided by others.” Of course, no one is contending for such a general rule. But I doubt that even the authors of the New York brief would have the effrontery to contend for the opposite rule – that there is no constitutional constraint on an expert’s relying on information provided by others so long as a court can characterize the reliance as reasonable.

Again, there is no confrontation issue unless the underlying statement is both (a) testimonial and (b) conveyed in some manner to the trier of fact. I think that in light of Melendez-Diaz and Bullcoming, the Cellmark report here must clearly be considered testimonial. And in this case, I think it is clear that substance of the statement was conveyed to the trier of fact: The in-court witness testified that Cellmark deduced a male DNA profile from the vaginal swab, and that this profile was such that both she and a computer program matched it to Williams’s acknowledged profile. Whether there is sufficient communication of the statement in other situations – say, where the in-court expert relies on information she learned in a testimonial statement but does not disclose it – is an issue the Court need not reach here.

D. The New York brief suggests, p. 12, that “if there were an all-technicians-must-testify rule, no competent defense attorney would stipulate until she had assured herself that all of the technicians who worked on the defendant’s case were available to testify.” Well, first, of course, the premise is wrong – again, no one is contending for such a rule. And, as indicated above, whatever burden there is on coming to court is mitigated by vertical integration. But beyond that, all the attempts at creating a scare continue to ignore the fact that states that have always played by the rules for which Williams contends have not found this to be an insuperable burden. Why not? I do not deny that sometimes defense counsel plays this game, but often they realize it is more likely to do harm than good. For example, they may recognize from experience that the prosecution will do whatever it takes to ensure that any necessary lab witnesses appear. And often they understand that their chance of reaching an acceptable plea bargain will be substantially impaired if they’re perceived as game-playing in hopes of imposing costs on the prosecution. (In his Melendez-Diaz dissent, Justice Kennedy argued that it would be unprofessional for counsel to waive a client's rights for fear of incurring judicial displeasure; I am putting aside the possibility that counsel would act in that way.)

E. The New York brief also suggests, p. 10, that adoption of an “all-technicians-must-testify” rule – same flawed premise – might “force the OCME to reduce the amount of DNA testing it conducts, and force prosecutors to forego forensic DNA analysis in cases where it might be highly probative.” Oh, really. Requiring New York to adhere to the Constitution, as other states do, might cost it more money, but it’s not going to cause the state to forgo use of this powerful and efficient tool. The New York brief offers no basis for concluding that states that use constitutionally proper procedures rely on DNA evidence less than states that do not. And, as Jeff Fisher emphasized at a conference at Brooklyn Law School last month, the Confrontation Clause says nothing about police and investigative procedure, but only about the procedure for presenting testimonial statements at trial; a Supreme Court decision will not diminish the authorities’ desire to identify the actual assailant, nor will it diminish the ability of DNA testing to do that.

E. In my amicus brief, I pointed out that an in-court expert could rely on non-testimonial statements by lab technicians. I suggested, for example, that the report of a routine blood test would not be testimonial unless the testifying analyst announced gratuitously that she was seeking the information for prosecutorial purposes. The New York brief scoffs at this position. P. 16 n.10. It points out that at autopsies the OCME relies on tests from various sources, such as metabolic testing from NeoGen Screening. So, it asks, does the medical examiner have to hide her purpose from the NeoGen technician, and what if that technician figures it out? And is the defendant entitled to a hearing on the matter? The brief announces that merely to ask these questions shows that my position should not be the rule. Well, I disagree.

I’ll address the last question first – the accused is always entitled to whatever procedure is necessary to resolve a Confrontation Clause objection. But the trial court does not have to rely on admissible evidence in resolving that matter.

Assuming that the metabolic test is the type of thing that the NeoGen technician does as a regular matter principally for non-forensic purposes, and assuming that the technician doesn’t know that in the particular case the test is for forensic purposes, then, yes, I’d say it’s not testimonial – and I would bet a lot of money that, if the question were actually decisive in a case rather than something to be waved around for scare purposes, the OCME would vigorously advocate this position. And it does seem to me that if in fact the technician learns that the particular test is to be used for prosecutorial purposes, then it does become testimonial, so if they like the OCME and NeoGen can devise blind procedures. (Such procedures are a standard part of some scientific techniques.) But hey, if you don’t like my standard, then go for another. Here's one possible option: if a given type of report is usually or non-prosecutorial purposes then it is not testimonial even if in the particular case it is sought for such purposes and the author of it knows this. That rule would, in my view, be well sub-optimal – but it would do a lot less violence to the confrontation right than the positions advocated by the New York brief.

Ultimately, though, if in a murder case – the type of case in which an autopsy is usually relevant – a lab technician performs a test and writes a report on it knowing that it is likely to be used in prosecution, and before the accused is convicted of murder that technician is required to testify live rather than simply mail the report in, this does not strike me as a terrible result.

Finally, a general word. When Crawford was decided, I had hoped, naively, that most prosecutors would say, “OK, it makes sense that, when I want to use against an accused a statement that the person made understanding that it would be used for that purpose, I have to bring that person to trial. Let’s see how I can do this most efficiently.” And some good prosecutors and forensic lab directors have indeed taken that attitude. The New York County District Attorney’s Office is a good prosecutor’s office; if you didn’t know that, they announce it on p. 1 of their brief. Unfortunately, their attitude mirrors the one that most prosecutors have taken every step of the way since Crawford – “Let’s see how we can minimize this thing so that we have to present as little live evidence as necessary and change our way of doing things as little as necessary.” I think it’s very unfortunate that this brief uses persistent scare tactics in an attempt to achieve that result.

Anticipating the Williams argument

2011-12-04T23:23:00.002-05:00

Williams v. Illinois will be argued on Tuesday. Here is a link to a piece on it by Erwin Chemerinsky, and here is a link to an Op Ed piece in the New York Times by Jeff Fisher. I think Chemerinsky accepts too readily prosecutors’ predictions of difficulties that would be created by a win for Williams, and he fails to take into account the fact that numerous states have long operated without undue difficulty under the regime that Williams seeks to establish as a matter of constitutional law.

This week, SCOTUSblog is featuring discussion of various topics related to the Confrontation Clause. (I’ll be contributing something Wednesday on whether the testimonial approach to confrontation is correct and preferable to the “indicia of reliability” approach of Roberts. I think I’ll answer in the affirmative.)

Williams reply brief

2011-11-23T14:41:00.002-05:00

Sorry, I've been slow in posting the reply brief in Williams v. Illinois, but here it is.

Happy Thanksgiving to all!

Coping with the Melendez-Diaz line

2011-11-06T10:21:00.003-05:00

I'm attaching the draft of a short piece I've written on potential responses jurisdictions may take to the Melendez-Diaz line of cases. I expect to make changes in this, as I go along. Comments are welcome.

Bottom-side amicus briefs in Williams

2011-10-26T17:29:00.004-04:00

Today was the due date for amicus briefs supporting the state in Williams v. Illinois. Four have been filed.

You can read the brief of the United States by clicking here.

You can read the brief of 42 states, the District of Columbia, and Guam, all under the leadership of Ohio, by clicking here.

You can read the brief of the National District Attorneys Association by clicking here.

You can read the brief of the New York County District Attorney and the New york City Chief Medical Examiner by clicking here, and the appendix to that brief by clicking here.

State's brief in Williams

2011-10-20T16:04:00.003-04:00

The State filed is brief in Williams v. Illinois yesterday, and you can read it by clicking here. I hope to offer comments on it soon.

Arkansas holds confrontation right applies to jury fact-finding in sentencing

2011-10-16T00:08:00.002-04:00

In Vankirk v. State, 2011 Ark. 428, 2011 WL 4840620 (Oct. 13, 2011), the Arkansas Supreme Court has held that the confrontation right applies to sentencing proceedings conducted before a jury, in non-capital as well as capital cases. The logic of the opinion actually appears to apply to all sentencing proceedings, but in an apparent attempt to avoid conflict with other cases the decision is limited to proceedings before a jury, though the court does little to defend the distinction, and I believe it is a hard one to maintain.

Vankirk pleaded guilty to three counts of rape, of his niece, a child, and under Arkansas law elected to be sentenced by a jury. At the sentencing proceeding, the prosecution presented a videotaped interview that the girl made with a state police investigator. The state supreme court held that the girl's statements in the interview were testimonial. Putting aside for present purposes the matter of the child's age, that is clearly the right result. And then the court held that the confrontation right applied to the sentencing proceeding.

I think this case is a good illustration of the issue of confrontation rights in sentencing. Suppose the girl had testified live at the sentencing proceeding, but at the conclusion of direct, as defense counsel was rising to cross-examine, the judge said, "You are excused. We have no need for cross-examination, so I will not allow it." I think that would plainly be unconstitutional – if not under the Confrontation Clause, because the Clause is construed not to apply to this type of proceeding, then under the Due Process Clause. So should the result be any different when the witness testifies just outside the courtroom on videotape and the tape is played at the proceeding? I don't believe so. That in effect is what happened here. (I'm not sure it was actually in physical proximity to the courtroom, but it does seem that the tape was made at least in part to supply evidence for courtroom use; the state supreme court said the statements "were made to an investigator for the state police for the purpose of proving events relevant to a criminal investigation.") When I refer to the speaker as a witness and say that she is testifying, I am drawing on one of the essential points of Crawford: Simply because a person (such as Sylvia Crawford) speaks out of court does not mean that she is not testifying, and indeed the central focus of the Confrontation Clause is to require that testimony be given in court, under prescribed procedures, rather than in any other way, such as the cihttp://www.blogger.com/img/blank.gifhttp://www.blogger.com/img/blank.gifvil-law closed-door style.

So perhaps the U.S. Supreme Court should go the full route of holding that the Confrontation Clause applies with full force to all sentencing proceedings. It may be reluctant to do so, however. One possibility would be to hold that the Confrontation Clause itself does not apply to most sentencing proceedings (i.e., that it does not apply beyond the scope of Apprendi), but that, notwithstanding Williams v. New York, 337 U.S. 241 (1949), it does provide some right of confrontation, perhaps more easily overcome than the Sixht Amendment right.

A nice decision in a Williams-like case

2011-09-30T16:40:00.005-04:00

Yesterday, the Court of Appeals of Maryland issued its decision in Derr v. State, 2011 WL 4483937, a case very similar to Williams. This is a very useful opinion, rejecting numerous theories offered by the State that we may see once again in Williams. The court rejects the theories that

-- the reports on which the in-court expert based her opinion were not statements because they were machine products;

-- they were not testimonial statements;

-- there was no Confrontation Clause violation because the reports were not admitted (see the discussion in footnote 14, endorsing an argument made in this blog in a post titled Initial thoughts on Williams);

-- there was no Confrontation Clause violation because the in-court expert offered her own independent opinion; and

-- this result poses a serious problem with respect to old cases.

Two judges dissented in part, relying heavily on the state supreme court decision in Williams.

Top-side amicus briefs in Williams

2011-09-15T10:22:00.004-04:00

I've been slow to post the amicus briefs favoring the petitioner in Williams v. Illinois, but here they are:
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1. One by the Innocence Network, which you can see by clicking here.

2. One by the Public Defender Service for the District of Columbia and the National Association of Criminal Defense Lawyers, which you can read by clicking here. [I had the wrong link on this one before -- it should be corrected now.]

3. One by the California Public Defenders Association, the California DUI Lawyers Association, and the Mexican American Bar Association (of Los Angles County), which you can read by clicking here.

4. And one by me, which you can read by clicking here.

I haven't responded to recent comments on the blog regarding the case; I am http://www.blogger.com/img/blank.gifhoping my brief explains my position fully. There are a couple of passages that I would amend if I could, in which I refer to the "primary purpose" test and appear to assume that it governs a case like this. I believe a "reasonable anticipation" test is far preferable, and I am hoping that the "primary purpose" test will eventually recede, perhaps first by being confined to interrogations. The recent decision of the Michigan Supreme Court in People v. Fackelman,, which I expect to discuss in a post in the very near future, raises my hopes that this may turn out to be true.

Petitioner's brief and Joint Appendix in Williams

2011-08-31T16:43:00.002-04:00

The petitioner has filed his brief and the Joint Appendix in Williams v. Illinois. You can read the brief by clicking here and the Joint Appendix by clicking here.

Melendez-Diaz held not retroactive, in Melendez-Diaz case

2011-07-29T11:24:00.002-04:00

Here's an irony of sorts. The Massachusetts Supreme Judicial Court has held the rule of Melendez-Diaz not to be retroactive -- and it did so in Commonwealth v. Melendez-Diaz, 2011 WL 3000275 -- yes, involving a prior conviction of the same Luis Melendez-Diaz.

Initial thoughts on Williams

2011-07-09T02:26:00.011-04:00

In Williams, the state presented the testimony of a DNA expert that in her opinion, based on a Cellmark report on DNA found in a crime scene sample and on a report by the Illinois State Police on DNA found in a swab taken from the accused, that the accused was the source of the DNA found in the crime scene sample. No one from Cellmark testified at trial.

1. The Cellmark report was testimonial. As I understand it, this was a report on a crime scene sample referred to Cellmark by the Illinois State Police. I don’t think that there is much doubt that the primary purpose of the report, however one might analyze it, was to create evidence for use in prosecution. (That is more rigorous than the test I think ought to be applied, but that’s another issue.)

I think it’s important to bear in mind that the other issues raised by Williams come into play only if the underlying statement is testimonial. That may be obvious, but it is worth emphasizing for a couple of reasons. First, this fact should relieve much of the concern about costs, financial and in terms of lost evidence. No confrontation problem arises unless the report is made in anticipation of evidentiary use. For example, if a lab tech does a blood test without the anticipation of evidentiary use, it will not be testimonial, and there is no confrontation issue. Second, if the statement is testimonial, then that means that the statement was made in anticipation of evidentiary use – and in fact under current law it would mean that it was made with the primary purpose of creating evidence for use in prosecution. That, I believe, should raise alarm bells for a court considering creation of a doctrine that would allow use of the statement without the live testimony of a competent witness.

2. The statement was not formally admitted, but a crucial part of the substance was made known to the jury. The prosecutor asked Sandra Lambatos, the in-court witness, “Was there a computer match generated of the male DNA profile [reported by Cellmark] found in semen from the vaginal swabs of [the victim] to a male DNA profile [reported by another analyst in the state police lab] that had been identified as having originated from Sandy Williams?” She answered in the affirmative. The prosecutor then asked whether she had compared the two profiles. She said she had. He asked what the frequency of such a match would be if someone other than Williams were the source, and she answered with very low numbers. Finally, the prosecutor asked, “In your expert opinion, can you call this a match to Sandy Williams?” and she responded simply, “Yes.”

Formal admission of an out-of-court statement is not necessary to invoke the Confrontation Clause. When a statement is a writing, it is of course often admitted as an exhibit. When it is unrecorded, then no tangible exhibit of it can be offered. We necessarily rely on another witness's account of the statement -- but the Clause may be brought into play without that account being purportedly verbatim. It should be enough if the prosecution is effectively asking the jury to infer that the in-court witness is communicating some or all of the substance of an out-of-court testimonial statement, and that this substance is true. See my recent post, When is a statement presented for purposes of the Confrontation Clause?

In considering application of this principle to this case, note first that the existence of the statement was made clear to the jury. In other words, this is not a case in which an expert assembles information from one or more sources and then draws an inference based on that information without disclosing what it is or what its sources are. (I don’t believe that if that were so it would per se render the Confrontation Clause inapplicable; it still might that the jury would likely infer that the expert’s opinion was based on a statement to a certain effect, and even if not there would be a concern that the expert’s opinion is being used to repackage the information contained in an undisclosed testimonial statement. But, whatever the ramifications may be of that situation, the Court need not address them in the Williams case.) The testimony explicitly referred to the Cellmark report. Furthermore, it was clear what the substance of the statement was: It indicated that the vaginal swab taken from the crime scene reflected the same DNA profile as the swab taken from Williams. It is as if an in-court witness reports, “Somebody at the scene described the person she saw commit the crime, and the description closely matched Williams.” So far as the Confrontation Clause is concerned, the report was presented to the jury.

3. The argument that the statement was in any event presented to the jury not for the truth of a matter that it asserted but rather in support of the expert’s opinion seems willfully wrong-headed to me in this context. In prior posts on this blog, including one discussing the fine opinion in People v. Goldstein, 6 N.Y.3d 119, 843 N.E.2d 727, 810 N.Y.S.2d 100 (by a former boss of mine, Judge Robert Smith), I have emphasized the simple point that if a statement supports the expert’s opinion only if it is true then it is a sham to say that it is being presented to support the opinion but not for its truth; see also The Not-for-the-Truth End Run. And in Williams, the application of this principle is perfectly clear: If the profile revealed by the vaginal swab was not what the Cellmark report said it was, then that report provided no support whatsoever for the expert’s opinion.

4. This analysis should not be affected by concluding that the expert’s opinion conveyed additional information not contained in the original report – an argument not available to the prosecution in Bullcoming, where the in-court witness did nothing more than transmit the information reported by the absent analyst. The question is not whether the in-court witness’s testimony had added value, but whether the out-of-court report was presented for its truth. This is simply an ordinary instance of a prosecution case depending on multiple links in a chain – and each link must comply with the Confrontation Clause. We wouldn’t, for example, tolerate a witness testifying that a given sample contained cocaine without the prosecution also presenting proper evidence tying the sample to the case. This is no different. If the expert’s opinion does indeed convey additional information, that is something more that the prosecution has to prove; it does not ease the burden on the prosecution.

Indeed, the “expert value added” theory would be an invitation to manipulation by the prosecution and its witnesses. That is, the prosecution would have an incentive to manufacture needs for its in-court witnesses to add value over the other information presented to the jury.

For example, suppose a lab analyst reports results from which a qualified chemist could easily infer the presence of cocaine – but that the report does not include this bottom line. If the “expert value added” theory governed, a chemist could, so far as the Confrontation Clause is concerned, testify at trial against an accused, “In my opinion, cocaine was present in that sample.” (As discussed below, evidence law in most jurisdictions would require the expert to satisfy the court that the information on which she based her opinion was “of a type reasonably relied upon by experts” in her field, but that is a standard easily met.) The lab analyst, who by hypothesis knew that her report was intended for prosecutorial use, would not have to come to court, and the report would not even have to be introduced or otherwise presented to the jury.

5. Fed. R. Evid. 703, copied by most of the states (now including Illinois), provides:

If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data [on which a testifying expert bases an opinion] need not be admissible in evidence in order for the opinion or inference to be admitted.

A 2000 amendment to the Federal Rule adds:

Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

A few points. This Rule does not purport to state a constitutional principle. Nor does it state an evidentiary principle of long standing; it was developed and adopted in the third quarter of the 20th century. There is no constitutional problem with the Rule so long as the information provided to the expert is not a testimonial statement. But if the expert does base an opinion on a testimonial statement, then I think there are potential constitutional problems.

First, if the statement is presented to the jury for the truth of what it asserts – and I have argued above that in Williams these conditions were met for purposes of the Confrontation Clause – then there is a violation of the Clause, assuming the author of the statement (or someone else who can endorse its substance from first-hand knowledge) does not testify at trial. The last sentence of Fed. R. Evid. 703, if it were applicable, would relieve the statement of objection to admissibility under ordinary evidentiary rules, but of course it cannot provide relief from a constitutional objection – and note that it is based on a set of considerations, a weighing of probative value and prejudice, having nothing to do with the Clause. This sentence as adopted, as I recall, because courts were in conflict about how to handle the situation in which an expert was allowed to offer an opinion based in part on a statement otherwise inadmissible and the proponent sought to use the opinion as a lever to gain admissibility of the statement. Some courts, I believe, without quite recognizing the nature of the Confrontation Clause problem – this was before Crawford – nevertheless had a sense that in at least some cases there was something fishy about letting an otherwise inadmissible statement in on the basis that it supported the expert’s opinion. But the rulemakers couldn’t articulate the circumstances in which this created a problem – the answer, I think, is that it’s a problem when the statement is testimonial – and so they responded http://www.blogger.com/img/blank.gifwith a rather clumsy compromise, simply putting some extra weight on the prejudice side of the scale prescribed by Fed. R. Evid. 403.

Now, what if the out of court statement is testimonial but it is not presented to the jury? Is there a Confrontation Clause problem with allowing the expert to give an opinion based in part on the undisclosed statement, as Fed. R. Evid. 703 purports to allow? That, as I have said, is a question not presented in Williams, and there is no need for the Supreme Court to resolve it in deciding Williams. But a couple of comments. First, even if the statement is not explicitly disclosed to the jury, it may be that enough is disclosed that the jury will likely infer the substance of the statement. Second, even apart from that, I think there may be a substantial Confrontation Clause problem. Recall, that by hypothesis, the statement made to the expert is testimonial. The expert therefore may essentially be repackaging information provided by an out-of-court witness who does not come to court. Again, an example would be a chemist who offers an “opinion” in court that a substance was cocaine, based on a lab report giving information that strongly implies that conclusion to chemists.

In short, I worry that if the Supreme Court holds for the state in Williams, it will invite subterfuges and manipulations that will substantially impair the confrontation right.

Papers in Williams v. Illinois

2011-06-29T15:13:00.003-04:00

It's going to be a little while before I offer comments directly on Williams. But meanwhile, here are the petition for certiorari, the state's brief in opposition, the reply by Williams, and the crucial testimony of Sandra Lambatos.

Another cert grant: Williams v. Illinois

2011-06-28T10:36:00.002-04:00

It appears that the next case in the Melendez-Diaz line will come very quickly. The Supreme Court granted cert today in Williams v. Illinois, No. 10-8505, seeking review of People v. Williams, 939 N.E.2d 268 (Ill. 2010). The case presents the issue of what I have called the "not for the truth" end-run in the context of expert evidence: The Illinois Supreme Court held that the absent analyst's report was introduced not for the truth of what it asserted but rather "to show the underlying facts and data [the in-court witness] used before rendering an expert opinion in this case." I will write something more substantive on this later.

Thoughts on Bullcoming

2011-06-24T20:12:00.003-04:00

Here are some early reactions to the decision in Bullcoming.

1. For the first time in a substantive Confrontation Clause opinion in the Crawford era (I’m not counting Whorton v. Bockting, on retroactivity), Justice Scalia didn’t write. In fact, as the senior justice in the majority, he assigned the opinion to Justice Ginsburg. I don’t know to what extent he felt he had to because he already had an opinion from the sitting. And she had none. But the assignment may reflect his understanding that continued development of the Confrontation Clause requires that it not be perceived as a one-man show.

2. Justice Kagan, although having signed an amicus brief for the Government in Melendez-Diaz, declines to join the four dissenters from that case. That is very good news.

3. Justice Ginsburg treated the case as the simple one that it was: The state introduced a report signed by one analyst (Caylor) without presenting the live testimony of that analyst or of any other witness who could testify at first hand to the matters asserted in the report. Thus, said Justice Ginsburg, “when the State elected to introduce Caylor’s certification, Caylor became a witness Bullcoming had the right to confront. Our precedent cannot sensibly be read any other way.” And for good measure, she cited a passage from Justice Kennedy’s dissent in Melendez-Diaz, saying that the Court’s holding meant that the “analyst who must testify is the person who signed the certificate.”

4. Justice Ginsburg also properly rejects the theory that there was no Confrontation Clause violation because Caylor was a “mere scrivener.” That theory was inapplicable on its facts: Caylor reported what he did as well as what the machine indicated. More fundamentally, as Justice Ginsburg points out, witnesses often report simple factual observations – the color of a traffic light, the number above a door, the speed shown by a radar gun. She asks whether an officer other than the observer could report the observations in court, so long as that second officer could report about any technology used and the department’s standard procedures. “As our precedent makes plain,” she answers, “the answer is emphatically ‘No.’” And again she is able to use a statement from Justice Kennedy’s Melendez-Diaz dissent: (“The Court made clear in Davis that it will not permit the testimonial statement of one witness to enter into evidence through the in-court testimony of a second.”).

5. As for the state’s contention that the report was not testimonial, Justice Ginsburg noted that the state supreme court had recognized that “Melendez-Diaz left no room for that argument,” and she correctly characterized this conclusion as “inescapable.” This portion of the opinion says that the formalities attending the report “are more than adequate” to characterize it as testimonial. That should not be read as requiring formality for a statement to be deemed testimonial, and footnote 3 of Justice Sotomayor’s concurrence, with the aid of language from her opinion for the Court in Michigan v. Bryant, makes this clear. But Justice Ginsburg treats the matter delicately, presumably because formality was (unfortunately) essential for Justice Thomas’s vote. It is not clear to me why Justice Thomas did not join footnote 6 of the majority opinion, but it is possible that he read it as encapsulating a test without a formality requirement for whether a statement is testimonial.

6. It is also somewhat mysterious why Justices Thomas, Sotomayor, and Kagan declined to join Part IV of Justice Ginsburg’s opinion (leaving Justice Scalia as the only member of the Court to join Justice Ginsburg's opinion in full; this split appears to be between those who are and those who are not opera fans, but I am not sure of the reason). This section addressed the question of the practical burden that the decision might impose on the states. It repeated what the Court had said in Melendez-Diaz, that this burden does not alter the constitutional rule; it cast doubt on the extent of the burden created, and it suggested some ways – including retesting and notice-and-demand statutes – that might limit the burden. Perhaps the three justices thought that most of this Part was unnecessary for decision and so should not have been included.

4. Justice Sotomayor clears up some of the uncertainty that arose from the reliability language in her Bryant opinion – at least to the extent of making clear that the language should not be accorded very much impact. Justice Kennedy’s dissent says that in Bryant the Court ruled that reliability is “an essential part of the constitutional inquiry” under the Confrontation Clause. Justice Sotomayor says in her concurrence that, “[c]ontrary to the dissent’s characterization, Bryant deemed reliability, as reflected in the hearsay rules, to be ‘relevant,’ not ‘essential.’” It’s not entirely clear what that sentence means (Justice Kennedy had said that reliability was an essential part of the inquiry, which is different from saying that reliability (or its negation) is essential to a determination that a statement is not (or is) testimonial), but the next sentence asserts a basic distinction underlying Crawford: “The rules of evidence, not the Confrontation Clause, are designed primarily to police reliability; the purpose of the Confrontation Clause is to determine whether statements are testimonial and therefore require confrontation.” I suspected that the reliability language in Bryant was inserted at the instance of Justice Kennedy, and Justice Sotomayor’s treatment of it here seems to support that supposition; I’m hoping that Justice Sotomayor does not speak of reliability in the Confrontation Clause context again.

Justice Sotomayor does clearly mean something by her reference to hearsay rules. She repeats language from Bryant that in determining primary purpose for deciding whether a statement is testimonial under the Confrontation Clause hearsay rules will be relevant. But the language is capable of being understood as saying no more than that some hearsay rules carve out categories of statements that are not intended primarily for litigation and so are not testimonial. To a large extent, I agree. I believe many of the hearsay rules have grown up conforming to confrontation principles – that is, statements made with litigation in mind have tended to be excluded, and others have tended to be admitted. But this description of reality should not be taken as prescription – that is, simply because a statement fits within a hearsay exception as that exception has come to be construed does not mean that it is not testimonial. Melendez-Diaz should have made this clear.

7. Just who is it that must testify subject to confrontation under the Court’s holding? At one point, the Court says that it is “the analyst who made the certification,” but a couple of sentences before the Court says the question is whether a report containing a certification may be introduced “through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.” I think actually the “observe” part is, or should be critical (recognizing that one who performs a test necessarily observes (through one or more of the senses) performance of the test. First, observation is sufficient: Analyst B could properly testify, “I observed everything Analyst A did, and her report is an accurate rendition of what I observed.” (I do think that in a case of this sort, the defense would be entitled to an instruction that the jury should not put any weight on the credibility of Analyst A.) That is particularly important in autopsy cases, in which it is standard procedure in some jurisdictions (and probably ought to be standard in all) to have a second medical examiner in the room. Second, I believe observation is necessary. It should not satisfy the Confrontation Clause, for example, if A performs a test, writes up a report but leaves it unsigned, and then passes it on to B, who did not observe the test but who signs the report and then testifies in court to its contents. In other words, I believe the Confrontation Claus necessarily incorporates a personal knowledge requirement.

8. Justice Sotomayor includes a section indicating the limited nature of the holding. She points out that the report had no purpose other than use in litigation, and indicates that it would be a different matter if the report was necessary to provide medical treatment. I think this example (which the Court has touched on before) indicates one of the problems with the “primary purpose” test: Some reports made in the clear anticipation of evidentiary use can also be justified on medical grounds, and it may be easy for the reporter and the prosecution to persuade a court that the primary purpose was medical.

Justice Sotomayor also points out that this is not a case in which the in-court witness “was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.” The good news there is that she appears to recognize that if the underlying report is admitted into evidence and it appears to support the opinion of the in-court witness only to the extent it is true, then the author of the report should be deemed to be a witness subject to confrontation; saying that the report is being used only to support the opinion of the witness in court cannot be used as a talisman to avoid a confrontation problem. But what if the underlying report is not introduced into evidence? Justice Sotomayor points to Fed. R. Evid. 703 as supporting the proposition that an expert may base an opinion on facts or data not themselves admissible into evidence if they are of a type reasonably relied upon by experts in the field. But it must be remembered that Rule 703 is not a rule of historically long standing; it is a creation of the late 20th century, adopted with no sensitivity to the confrontation right. A concern is that the in-court witness’s testimony may be another way of packaging and transmitting to the jury the testimonial statement made by the out-of-court witness. This strikes me as a difficult issue, and we should not assume that Rule 703 states a principle of constitutional law. But I suspect that one of the next attempts to evade the impact of Melendez-Diaz will be to have the in-court witness express an opinion that has somewhat more content than the written report, and then argue that the report was merely one input that led the in-court witness to reach her opinion.

Finally, Justice Sotomayor suggests the possibility that a state could, “assuming an adequate chain of custody foundation,” present the printout from a machine. Maybe so, but the authentication would be difficult without a live witness. The person typing in, say, the suspect’s name may be making a testimonial assertion that the sample about to be tested is that of the suspect. So the printout is not completely “raw.”

9. Obviously, I don’t think much of Justice Kennedy’s dissent. I think Justice Ginsburg is right that the dissenters are objecting more to Crawford and Melendez-Diaz than they are to the application in this case. He insists, as noted above, that reliability is “an essential part” of the inquiry under the Confrontation Clause, which clearly flies in the face of Crawford – I don’t think he could reasonably contend that reliability makes a statement non-testimonial. Indeed, he explicitly uses the “indicia of reliability” standard that was the hallmark of Ohio v. Roberts. And he says quite explicitly that what he perceives as “trouble fashioning a clear vision” of Crawford’s meaning is “symptomatic of a rule not amenable to sensible application.” (Of course, one of the opinions that he cites as showing a range of interpretations is the majority opinion in Bryant; eliminate that one, and a good deal of confusion would disappear.) We should bear in mind that Crawford was a transformative decision and it is only seven years old; it is not all that surprising and not at all disturbing that the law remains unsettled. Justice Kennedy makes no attempt, so far as I can tell, to argue that the certificate here was not testimonial (he lost that battle in Melendez-Diaz) and the weight of his opinion seems to be to show that insisting on the testimony of the only analyst who observed the test is a “hollow formality” not worthwhile because (a) it will not produce much useful information; (b) the costs of requiring that analyst to testify live are oppressive; and (c) surrogate testimony is a pretty good substitute. As in Melendez-Diaz, the majority’s response to each of these is, in effect, “Irrelevant, and not true in any event.”

In a passage that I believe expresses what has been a particular concern of Justice Breyer, the dissent says, “In cases like Melendez-Diaz and this one, the Court has tied the Confrontation clause to 18th century hearsay rules unleavened by principles tending to make those rules more sensible.” That’s an odd statement, given that a major point of Crawford was to divorce confrontation law from the rules against hearsay. I think a more accurate statement would be this: During the two centuries following adoption of the Confrontation Clause, courts lost sight of the confrontation right, relying instead on an increasingly amorphous hearsay rule to do the work that an independently articulated confrontation right should have done. Accordingly, in the 20th century, some jurisdictions made the judgment, which seems pragmatically sensible only if one gives no independent weight to the right, that a prosecutor could present the results of a forensic lab test without producing a live witness who had observed performance of the test. But if one recognizes that the right is independent of whatever hearsay rules a jurisdiction might adopt, and that it is a rule governing the procedures by which prosecution witnesses give testimony, insisting that (absent stipulation) testimony be given live in the presence of the accused, then the results in Melendez-Diaz and Bullcoming become quite obvious.

I thought the majority opinion in Melendez-Diaz was a great one, and that the dissent by four justices showed a disturbing lack of understanding of what the confrontation right is all about. I have much the same feeling about Bullcoming. Right result, properly reasoned, but one vote away from an abyss – avoided only because the statement was a formal one, so that Justice Thomas’s vote was not lost. And with the dissent’s endorsement of using reliability – and even the old “indicia of reliability” formulation – as a test for applying the confrontation right, and its suggestion that Crawford can’t be made to work, the divide seems even starker than before.

Bullcoming reversed

2011-06-23T10:04:00.001-04:00

The Supreme Court has reversed the decision in Bullcoming, 5-4 per Justice Ginsburg. Right result, too close. That's all I know as of now. I have to speak about the case, and others, in 90 minutes to the state solicitors general, and then I'll be traveling; it may be awhile til I have substantive comments.

When is a statement presented for purposes of the Confrontation Clause?

2011-06-15T14:49:00.011-04:00

I had virtually completed the post below when Bullcoming was decided, and then I had to put it aside for a while. As it happens, the two issues discussed here are both involved in Williams v. Illinois. I hope to write later on Williams, but for now I'll post this without further reference to that case.

In 2008, I wrote a post titled No confrontation issue if the statement isn’t even offered. I believe my analysis of the case discussed there was correct, but the title was overstated. Prosecutors occasionally try to evade the Confrontation Clause by offering, rather than the actual words of a statement, evidence from which the substance of the statement can be inferred. This attempt should not be countenanced. So we have what actually can be a tricky problem, determining when a statement is sufficiently presented to invoke the Confrontation Clause.

Courts are sometimes but not always alert to the problem, which sometimes is tied to another problem that I have labeled the "not-for-truth end run".

Jeff Fisher has brought to my attention a particularly crude prosecutorial attempt at evasion, one that fooled a district judge but was corrected by the First Circuit. United States v. Meises, 2011 WL 1817855 (1st Cir. May 13, 2011).

After being arrested, one Rubis gave an interview to DEA agents. The prosecutor recognized that statements made by Rubis during this interview were testimonial, and so decided not to offer the “actual statements”. Instead, the prosecutor established through one of the agents that Rubis had agreed to cooperate, and that he was interviewed alone. This exchange followed:

Q: After this interview, did the targets of your investigation at this point change?

A: Yes, sir.

Q: Okay. After this interview, what did you decide to do with Defendant [Reyes–Guerrero]?

The agent then testified that Reyes-Guerrero and Meises were processed and taken to a federal detention facility.

(As an aside, the only objection made at trial explicitly referred only to the hearsay rule, and the district judge held that the statement was admissible because it was by a co-conspirator. This is incorrect as a matter of hearsay law, as the First Circuit noted, because Rubis had already been arrested. It also does not address the Confrontation Clause issue, which the First Circuit held was adequately raised by the hearsay objection.)

On the merits, the First Circuit held “that a reasonable jury could only have understood [the testifying agent] to have communicated that Rubis had identified appellants as participants in the drug deal. It makes no difference that the government took care not to introduce Rubis's ‘actual statements.’

And, the court added, “any other conclusion would permit the government to evade the limitations of the Sixth Amendment and the Rules of Evidence by weaving an unavailable declarant's statements into another witness's testimony by implication.”

I think the First Circuit got it basically right, though I would put the governing standard somewhat differently. I think the key point is not quite whether “a reasonable jury could only have understood” that the in-court witness was communicating the substance of an out-ofhttp://www.blogger.com/img/blank.gif-court statement; the evidence might be ambiguous and still create a confrontation problem. I think I might instead pose this question:

Is the prosecution, in offering the evidence on a given ground, effectively asking the jury to, or is there an excessive risk that the jury will
(a) infer that the in-court witness is effectively communicating some or all of the substance of an out-of-court testimonial statement, and

(b) use that statement as proof of the truth of an assertion it makes?

See Ocampo v.http://www.blogger.com/img/blank.gif Vail, 2011 WL 2275798 (9th Cir. June 9, 2011) (concluding that before Crawford it was clearly established that "testimony from which one could determine the critical content of the out-of-court statement was sufficient to trigger Confrontation Clause concerns" and that Crawford did not alter this result; finding a violation in part on the basis of an in-court witness's statement that "did convey some critical substance" of the out-of-court testimonial statement); State v. Swaney, 787 N.W.2d 541 (Minn. 2010)(trial court "violates the Confrontation Clause when it admits testimony that inescapably implies a nontestifying witness's testimonial hearsay statement").

In Meises, I think the answer is affirmative. Apparently, the prosecution offered the testimony on the ground that it explained the subsequent conduct of the officers. But how would it do that? The most natural, if not the only, plausible inference is that Rubis made a statement suggesting guilt on the part of the defendants, and that the officers believed it. Why does that matter? The most likely use that the jury will make of the evidence is to conclude that the officers got it right, and had good reason to arrest the defendants.

And this is where the "not for truth" end run comes in. The prosecution says that it was only offering the evidence to explain the conduct of the police. The First Circuit properly rejected this argument, elaborating on “the limitations on so-called background or context evidence” in a footnote that included this passage:

We take it to be common ground that the government may not have an agent testify, “X told us that the defendant was involved in the crime.” Quoting X's out-of-court accusation remains impermissible if the agent's testimony is changed to say, “We began to investigate the defendant because X told us that the defendant was involved in the crime,” and the government seeks to justify it by arguing that X's out-of-court statement was offered not for its truth but only to explain why the agent focused on (or arrested) the defendant. Nor does the result change if, instead of quoting the out-of-court statement, the government communicates its content to the jury by implication.

The simple fact is that in a case of this sort the jury doesn't need to know why the police arrested the defendants -- apart from knowing the evidence properly presented to them. But there is a very real danger that the jury will conclude that the out-of-court speaker made a truthful accusation to the police. And so the First Circuit properly decided that whatever valid probative value the evidence might have had was outweighed by the prejudicial danger of the evidence. That sounds like a discretionary ruling under Fed. R. Evid. 403 or a state counterpart. But it goes beyond that. Because the probative value for setting context is so minimal, and because there is a substantial probability that the jury will use the evidence to infer that a testimonial statement was made and is true, thus greatly aiding the prosecution, in this context the balance indicates that in effect the prosecution has presented a testimonial statement for the truth of an assertion it made. And so this is a judgment used to determine whether the Confrontation Clause is invoked -- it is not merely a discretionary matter of weighing on which an appellate court should defer to a trial court.

My comments here are of a piece with the standard I tentatively offered in a 2007 post, Conflict deepens on expert evidence, on the general question of judging when a testimonial statement supposedly not offered for the truth raises a Confrontation Clause problem:

It seems that a court . . . must first ask whether the testimonial http://www.blogger.com/img/blank.gifstatement has substantial value in proving the proposition for which it is supposedly offered without respect to whether the statement is true or not. If the answer is negative . . . then that proposition does not offer a basis for admitting the statement. If the answer is affirmative, then the court must assess whether that value warrants the risk that the jury will, notwithstanding an instruction to the contrary, use the statement to prove the trhttp://www.blogger.com/img/blank.gifuth of what it asserts.

As for that 2008 case, United States v. Tucker, 533 F.3d 711 (8th Cir. Jul. 17, 2008), here for ease of reference is what I wrote about ti then:

Tucker assisted her boyfriend Robson in a get-away from a bank robbery, and the critical issue was whether when she did so she knew that he had robbed the bank. So, as the 8th Circuit indicated, evidence that Tucker knew that Robson had committed other bank robberies was admissible to show her state of mind on this occasion, and it was also admissible to impeach the credibility of her testimony that she didn’t know Robson had robbed the bank. In cross-examining Tucker, the prosecutor asked whether on three specified prior occasions Robson had robbed a bank and either he had told Tucker about it shortly afterwards or she had helped him get away. Tucker denied each. No evidence of the other robberies was admitted.

If the prosecutor had no good-faith basis for asking questions of this sort, they would be highly prejudicial and improper. But if she did, then they were fair game – even if she had no other admissible evidence of the other robberies, she was entitled to hope that Tucker would tell the truth (as the prosecutor believed the truth is or may be, based on the information that gave her the good faith belief), and that would give her the evidence she wanted. And in this case, she did have a good-faith basis – a statement Robson had made to the FBI. The statement was clearly testimonial, and couldn’t be admitted against Tucker, given that she had not had a chance to cross-examine him. It wasn’t offered, and the jury never even learned of its existence, though they might well have inferred that the prosecutor was basing her questions on something of the sort. But the statement could, without violating the Confrontation Clause, form the good-faith basis for the prosecutor to ask her questions, and that is what the 8th Circuit properly held.

So clearly in Tucker the prosecutor did to ask the jury to infer the truth of a statement that could not itself be admitted; the logic of the offer did not require that. There may have been some risk that the jury would infer such a statement, but (a) the jury would not necessarily know what basis of information the prosecutor had for asking the question, and (b)the risk of such an inference is made much more tolerable by the fact that the defendant opened the door to impeachment by denying a proposition that the prosecution had good reason to believe was true. So neither aspect of the test I have suggested was violated.

An illustration of the dangers of the New Mexico rule in Bullcoming

2011-05-26T23:21:00.003-04:00

Hon. Dib Waldrip, a Texas trial court judge, active student of the Confrontation Clause, and reader of this blog, has told me about a recent case that illustrates the value of having the analyst who performed a lab test testify at trial – or, put another way, a danger that will not be prevented unless Bullcoming is reversed. He has given me permission to report on it here.

The defendant was charged with possession with intent to distribute a quantity of methamphetamine of 4 grams or more but less than 200 grams. In Texas, this is a first-degree felony with a punishment range of 5 to 99 years or life and a fine up to $10,000.00.

The official lab report, signed by the analyst who performed the actual test, reflected the presence in the tested substance of methamphetamine with an aggregate weight of 4.51 grams. The analyst testified at trial. Using his personal notes to refresh his memory, he testified that the aggregate weight of the methamphetamine was 1.51 grams. The prosecutor then asked the analyst to review the lab report. After a pause the analyst testified that report was in error and that his notes reflected the correct amount. (Apparently, a clerk prepared the report from the notes of the analyst and made the error.)

Soon after, the prosecutor moved to dismiss. The judge granted the motion, with thanks to the analyst for his integrity. But it appears that earlier, before a different judge, a co-defendant had entered a plea based on the erroneous report.

Mistakes like this might not happen every day, but by now we have heard enough evidence of lab errors that we should not think that they are extraordinarily rare. It has always seemed to me that, before sending a person to prison, perhaps for many years, it is not too much to ask that a someone with personal knowledge of the facts recited in a report that is critical to conviction come to court to testify in person about it.

Cert petition on the audience question

2011-05-06T21:38:00.003-04:00

An interesting and very capable petition for certiorari was filed this week in Racz v. California, 2011 WL 1689305. The petition seeks review of an unpublished decision of the California Court of Appeal in a "statements from the grave" case. Racz was convicted of murdering his wife, who disappeared. Among the evidence introduced against him at trial was a series of statements made by his wife, shortly before her disappearance, to friends and family members describing him as violent and expressing fear of him.

The petition ably shows that there is a sharp conflict of authority on the question of whether a statement can be deemed testimonial even though it was not made to governmental authorities. Regular readers of this blog will know that I believe the answer to that question should be affirmative. This is an important issue that the Supreme Court should resolve soon; whether this case is a good vehicle for that purpose, I do not know.

Even assuming an affirmative answer to that question, one would have to go further to conclude that the statements here were testimonial, but I think it reasonable to conclude that they were; it appears that the wife probably made the statements fully anticipating the possibility that she would be murdered and that her statements would provide evidence against her husband.

Even assuming the statements are testimonial, in an ideal world I believe a court should consider whether the accused forfeited the confrontation right by murdering his wife. But Giles v. California appears to foreclose that possibility.

2011-04-25T16:26:00.003-04:00

Further proof that the death of Crawford has been greatly exaggerated comes in the form of a recent decision of the United States Court of Appeals for the District of Columbia Circuit, United States v. Smith (D.C. Cir. Apr. 15, 2011), passed on to me by blog reader Stu Dedopoulos. Smith contended that the trial court had committed error by allowing the prosecution to prove a prior felony conviction – a predicate for a charge of felon-in possession-of-a-firearm – by introducing letters from a state court clerk, rather than a certified record or in-court testimony. A unanimous (and notably conservative) panel – Judges Sentelle writing, joined by Judges Ginsburg and Kavanaugh – agreed.

The decision breaks no new ground; the clerk’s letter was plainly testimonial under Melendez-Diaz. But it is notable nonetheless for adhering to a distinction drawn by that case. As the Smith decision points out, under Melendez-Diaz

[a] clerk is “permitted to certify to the correctness of a copy of a record kept in his office, but [has] no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.”

In other words, the prosecution should have produced a certified copy of the conviction record rather than a clerk’s letter – even though the letter bore the seal of the clerk’s court – describing what was in the records. That should be easy enough for prosecutors to do; I do not anticipate that this decision, if followed nationally, will create any significant administrative burden.

Though it’s not a relevant inquiry under the Confrontation Clause, one might still wonder whether this requirement achieves any significant gain in accuracy. Sure – to prove whether there was a conviction, or what it was for or what the punishment was, or when it was entered, the better evidence is the certified copy of the record itself rather than a second-hand account of it.

The tougher question is whether this distinction reflects any robust principle of confrontation law. The certificate of the conviction record itself appears to be a testimonial statement. It’s an assertion that the record is a genuine copy. And presumably it was made in anticipation of, and for purposes of, litigation. (I suppose that last point might be somewhat debatable, because perhaps court clerks get asked to do certified copies of conviction records for all sorts of purposes. But I’m guessing that when a federal prosecutor wants a copy of such a record for use in prosecuting a felon-in-possession charge the court clerk understands what’s happening.)

But clearly, as discussed in both the majority and dissenting opinions in Melendez-Diaz, there is a long history, going back before the framing of the Confrontation Clause, of certain copies of official records being admitted against criminal defendants. Certainly this rule had, and has, practical advantages: It meant, for example, that a clerk would not have to travel from Westminster to the provinces to prove the contents of an official record. But if all that is to be said for the rule is that it saves time, trouble, and inconvenience, that might leave us very uneasy; does that open the door to general balancing? The Melendez-Diaz cordoned off this rule on historical grounds, and I think that's fair enough. Beyond that, I suspect it reflects the long-standing stature of the royal seal; a rule of law effectively gave documents under seal the status of originals. A certified copy, I think, is a descendant of the less-accessible seal.

Of course, in older times a copy under seal was not an electronic reproduction of an image but rather a product of hand copying of communicative characters. If in Smith the clerk's letter had been a verbatim copy of the document, it would have been closer to the case of the old-fashioned seal.

I believe the role of the seal and its importance with respect to proof of the contends of official documents is an important subject for future research.

Statements made in the absence of interrogation

2011-03-28T12:22:00.002-04:00

Bryant concerns statements made in response to police interrogation. It remains clear, however, that interrogation is not a requirement for a statement to be considered testimonial in nature.

So how is the question of whether a statement is testimonial to be made if the statement is not testimonial? The principal theoretical issue that divided the majority and the dissent in Bryant – from whose perspective should the determination of whether a statement is testimonial? – does not arise if there is no interrogation: The choice must be made from the perspective of the speaker.

Bryant does appear to expand on Davis v. Washington by creating a general principle that “primary purpose” is determinative in all circumstances of whether a statement is testimonial. As I have written before, I think it would be better to speak of understanding or anticipation than of purpose, especially given that the test is supposed to be an objective one. Moreover, if determining the primary purpose requires a weighing of objectives – “Of these two (or more) purposes served by making the statement, which one would have been more important to a reasonable declarant in the position of the actual declarant?” – it is, as Justice Thomas wrote in his partial dissent in Davis v. Washington, “not reliably discernible,” and the test becomes inevitably “an exercise in discretion.”

But note how Justice Scalia handles “primary purpose” in Bryant. It is important to bear in mind that he was the author of both Crawford and Davis. In Bryant, of course, he was in dissent, but he was writing on a question that the majority does not address – how to determine the primary purpose of the declarant given that his purpose alone is determinative in the particular case. Scalia, of course, addressed that question because in his view only the declarant’s purpose is ever determinative. The majority did not address that question because in its view the purpose of the interrogator, if there is one, is also important, and indeed in Bryant the majority paid much more attention to the interrogator's perspective. But in a case without an interrogator, the majority will have to consider the speaker's perspective more carefully.

Justice Scalia wrote:

For an out-of-court statement to qualify as testimonial, the declarant must intend the statement to be a solemn declaration rather than an unconsidered or offhand remark; and he must make the statement with the understanding that it may be used to invoke the coercive machinery of the State against the accused.

That’s a useful, serviceable standard. It avoids the problems highlighted by Justice Thomas. And I believe it is consistent with Bryant. Courts should apply it.

Due process confrontation rights

2011-03-13T17:05:00.003-04:00

A California lawyer has written me raising an important issue on which I don't believe I've written. I'll only offer a few thoughts, because I'm sure others have thought more about this. The lawyer writes:

I am interested in any resources you know of which deal with the question of cross examination rights being denied in domestic violence, restraining order courts.

Here in California, we have courts hearing protective order applications in a "Jerry Springer" style, where in the majority of cases, one litigant, probably both, are not represented by counsel, and the judge takes a statement of accusation from the applicant, then asks the respondent about it, and goes back and forth until announcing a decision.

It seems this procedure, if it can even be called that, is commonplace in most California counties and probably around the country.

A common problem in all this is that, even if the accused person knows of questions which would greatly impeach the accuser, he is not asked if he has any questions, and often, as in the case of my appeal, if he asks the Court to ask questions, is simply blown off at the Court's whim, without any reason being given, unless of course he has an attorney.

In other words, the right to confrontation is often denied to the accused person. This is so even despite a California Supreme Court case, Elkins, which restates that litigants in family court, (where these order are issued under CA Family Code 6200) retain all procedural rights that other civil litigants have.

I am hoping you have knowledge of academics, judicial councils, state Bar associations, etc, who have expressed concern that basic due process rights, as I say confrontation being primary, are denied in these hearings.

Please let me know of anything that will help.

So, first off, the Confrontation Clause as such does not apply -- it only applies to criminal prosecutions. But in other contexts, a right of confrontation is incorporated in the right of due process. The key case is Morrissey v. Brewer, 408 U. S. 471 (1972), which involved revocation of parole. It seems to me that the situation posed by the reader – a hearing with significant consequences for the litigant, witnesses testifying from the stand, and the litigant not given an opportunity to pose any cross-examination – presents a strong case for holding that the due-process right to confrontation has been violated. The basic concept that if a witness testifies for one side the other side gets to cross-examine that witness is deeply established in Anglo-American jurisprudence.

The interesting problem, it seems to me, will arise if the state, in a non-criminal context, decides not to present a live witness because it is aware of the due-process confrontation right, and instead presents, say, a video-tape of a statement taken beforehand for use in the hearing. Effectively, the witness has been able to testify without coming to court; the idea that statements made out of court with litigation in mind may be deemed to be testimonial, and the focus of the confrontation right, lies at the heart of Crawford, and has force in this context as well. But presumably a narrower view of what should be considered testimonial, or a broader set of exceptions, or a looser sense of what the right means, or some combination of the three, must apply in this context than in the criminal context. If the approach the Supreme Court used in the Confrontation Clause context in Michigan v. Bryant had instead been applied in other contexts such as hearings for restraining orders or parole revocation, it wouldn't have been nearly so bad.

Doesn't the Confrontation Clause apply in Kansas?

2011-03-11T17:16:00.002-05:00

Gee, I realize that some prosecutors are holding out hope that Melendez-Diaz will be confined or even overruled in Bullcoming, but it is the law, and I would have thought that by now word would have reached Kansas. But John Collins, director of the Michigan State Police Laboratory, has passed on this article from the Wichita Eagle, Bill lets forensic experts report in writing, skip testifying. Yoo hoo! You can't do that.

Linda Greenhouse on Scalia and Bryant

2011-03-11T03:01:00.002-05:00

Linda Greenhouse of Yale Law School, and formerly the long-time Supreme Court correspondent of the New York Times, has written an interesting piece on Justice Scalia and Bryant. You can read it by clicking here.

Confrontation, the Journalist's Privilege, and Harmless Error

2011-03-10T14:55:00.002-05:00

Focus on Crawford-related issues should not obscure the fact that many significant Confrontation Clause questions concern the scope of the accused’s right to cross-examine a witness who actually testifies at trial. Adam Liptak of the New York Times has alerted me to an interesting decision issued yesterday by the Second Circuit in United States v. Treacy.

Treacy is a former president of the company that operates the job-hunting website Monster.com. He was convicted of securities fraud, the theory being that he participated in the back-dating of stock options. One of the witnesses against him was a Wall Street Journal reporter, Charles Forelle, who was subpoenaed by the Government to testify to the proposition that Treacy had made statements attributed to him in an article co-written by Forelle. Probably because the Second Circuit accords a journalist a qualified privilege protecting him from the compelled disclosure of even non-confidential materials, the district judge, while denying Forelle’s motion to quash the subpoena, tightly circumscribed both direct and cross-examination. For example, the court prevented defense counsel from asking Forelle about a follow up e-mail that he had sent to the company’s public relations representative and that arguably supported the defense’s version of the conversation between Forelle and Treacy. The Second Circuit held that the limitations on cross- examination were improper. It declared that

once a trial court has determined that the Government has made the required showing to overcome the journalists privilege and compel a reporter’s direct testimony, the trial court may not, consistent with the Sixth Amendment’s Confrontation Clause, thereafter employ the privilege to restrict the defendant’s cross-examination of the reporter to a greater degree than it would restrict such cross-examination in a case where no privilege was at issue.

That seems correct, or at least close to correct, to me. The case to bear in mind is Davis v. Alaska, 415 U.S. 308 (1974). There, the state had a general rule preventing the disclosure of a juvenile adjudication, but the Supreme Court held that this rule must give way to the confrontation right where the young witness’s history of trouble with the law gave him a possible motivation to point the finger for a theft to the accused.

In Treacy, the jurisdiction has a rule limiting the ability of a party to call on a journalist for testimony. But once a court decides that the constraints of this rule may be overcome in the particular case on behalf of the prosecution, the accused must be allowed robust cross-examination. Perhaps at the margin, the policy behind the qualified privilege may guide the trial judge’s discretion in limiting cross-examination – this is why I am not certain that the Second Circuit is correct in saying that the privilege washes out altogether – but in this case the cross-examination seemed a natural follow-up to the direct and should have been allowed.

The Second Circuit held that the error was harmless. In assessing harmlessness of a Confrontation Clause violation, it is important that the court not speculate as to how effective cross-examination would have been if it were allowed. Delaware v. Van Arsdall, 475 U.S. 673 (1986). The simplest way to do this is to examine the case on the hypothetical assumption that the direct testimony had never been introduced. Ultimately, this is what the Second Circuit did, concluding (whether accurately or not I don’t know) that “it is highly unlikely that [the Government] would have been unable to secure a conviction in the absence of Forelle’s testimony.”

Child Observers and Bryant — a GVR

2011-03-07T10:59:00.010-05:00

This morning, the Supreme Court GVRed — granted, vacated, and remanded — the case of Allshouse v. Pennsylvania, No. 09-1396, for reconsideration in light of last week's decision in Michigan v. Bryant. Allshouse involves statements by a four-year-old to a child protection agency worker investigating allegations of abuse. The petition, seeking review of Commonwealth v. Allshouse, 984 A.2d 847 (Pa. 2009)(unanimous court, one justice not participating; majority opinion, two justices concurring, and two concurring partially and in the result), was brought by Jeff Fisher; an amicus brief in support of it was filed by the National Association of Criminal Defense Lawyers. Interestingly, Pennsylvania acknowledged in its Brief in Opposition that the case was worthy of certiorari — so the very short reply brief in support of the petition argued that cert should be granted immediately rather than after the decision in Bryant. But not surprisingly, the Court held the case pending Bryant, and now it has signaled, wisely I think, that before stepping into the very difficult area of children's statements it wants to see how Bryant plays out in the lower courts.

A few reactions:

First, the GVR is one more indication that the impact of Bryant may be less dramatic than some observers have thought. If the Court thought it was obvious given Bryant that, as the Pennsylvania Supreme Court held, the statements were not testimonial, then it could simply have denied cert. Also, if it thought that Bullcoming might have any bearing on the outcome of this case — say, by narrowing the meaning of "testimonial" — it could have just held this case pending its decision in Bullcoming.

Second, statements by children are one of the few contexts in which taking a questioner's perspective into account makes it more likely that a court will deem the statement to be testimonial; the child presumably does not know the legal consequences of the statement, but the questioner certainly does.

Third, having said that, I suppose that the greater number of lower courts, and perhaps eventually the Supreme Court, will hold statements of this sort to be non-testimonial, on the grounds that the child did not anticipate prosecutorial use (it will be interesting to see whether the courts emphasize the speaker's perspective in this context more than the Supreme Corut did in Bryant!) and that the social worker was focused on therapeutic and protective goals rather than on gathering evidence — no matter how frequently the given social worker and her colleagues have just happened to find themselves testifying for prosecutors about statements made by children in similar situations. If I am right in this supposition, it demonstrates the manipulability and inadequacy of the Bryant approach.

Fourth, I am pleased to say that I have begun work on an article in this area with Steve Ceci, one of the world's leading developmental psychologists. I anticipate we will call it The Child Quasi-Witness. Here are the main points I hope we make:

1. Some very young children, even though capable of purposive communication, should not be deemed capable of being witnesses for purposes of the Confrontation Clause. Their statements, even though made in contexts that would lead to the statements being characterized as testimonial if they were made by an adult, should therefore be deemed beyond the scope of the Confrontation Clause. I hope to offer several perspectives on the standards courts might use in determining whether a child should be deemed capable of being a witness for Confrontation Clause purposes.

2. Even if a child is not capable of being a witness for Confrontation Clause purposes, her statements may have substantial probative value.

3. If a child is not capable of being a witness for Confrontation Clause purposes but a prosecutor offers her statement against an accused, then the accused should have a right — both as a matter of ordinary procedural law and as a matter of due process — to examine the child, as he would an inanimate object that is the source of crucial evidence against him. But this examination would not be by personal confrontation, under oath and subject to cross-examination in open court. Rather, it would be by a qualified expert — presumably a child psychologist — in a controlled environment.

4. This procedure is far better for truth determination than is cross-examination in open court of a very young child, and offers the accused a better opportunity to explore weaknesses in the child's account.

Defense counsel might consider making an argument along these lines as an alternative to an objection to a child's statements based on the Confrontation Clause; I think courts will find the relief called for by this argument much more appealing than a holing that the child must be subject to confrontation in open court.

Meanwhile, here is a set of old posts bearing on statements by children; some of these anticipate these arguments.

Children and forensic interviews, revisited, Jan. 7, 2008

Further developments and thoughts on child witnesses, Oct. 26, 2007

Child Witnesses on the Academic and Judicial Front, Sept. 7, 2007

An interesting sidelight on Crawford and Craig, June 26, 2006

R. v. Brasier — a classic case from 1779, Dec. 24, 2005

Maryland's Highest Court on "Tender Years" Statements, Feb. 7, 2005.

Paul Vinegrad on "Government Coercion & The Confrontation Clause: Getting To The Heart of The Matter"

2011-03-06T02:33:00.004-05:00

Blog reader (and retired prosecutor) Paul Vinegrad has asked me to put the following post on the blog. I’m happy to do it, though as usual I disagree with just about everything Paul has to say, creative though it is. Paul’s post begins after the first row of x's and after the second row I present my own comments in response.

Any reader who has a confrontation-related message too long for the comments section of the blog is welcome to submit it to me; so long as it is appropriate for the blog, I I will post it.

x x x x x x

I take the position that only hearsay that is created by sufficiently coercive government conduct is barred by the Confrontation Clause if the accused has not had an opportunity to cross-examine the declarant.

The following hypothetical illuminates my argument:

Gang warfare is rampant in South Central LA. The Bloods are shooting at the Crips. And the Crips are returning fire. Innocent bystanders have been maimed and killed in the ensuing battle, struck by a hail of bullets fired from automatic weapons stuck out of car windows by unidentified perpetrators.

Mr. V and his family, unfortunately, have to live and work in this gang infested area.

One evening, Mr. V is exiting his business – a local grocery market – with his wife. Crip gang members are in the parking lot. A car pulls up. Everyone in the car is dressed in blue attire. One of the occupants sticks a Mac-10 automatic weapon out of the window and opens fire on the Crips. The car speeds off. Mr. V is struck by several rounds from the Mac-10. He sustains very painful, but not life-threatening, wounds to his legs and arms. Mr. V recognizes the shooter from the neighborhood as Psycho Dan.

Mr. V makes the following statements after being shot:

(1) Upon being struck he immediately blurts out "Psycho Dan why did you do this!" This statement is heard by a bystander;

(2) His wife runs to his side. She asks him if he is ok. He says "yes." She then asks him who shot him? He says "Psycho Dan. But don't tell anyone! He will kill our family if he finds out that I was a snitch!"; and

(3) Several beat cops who were in the area, heard the shots, and are aware of the ongoing gang war and its toll on innocent people caught in the cross-fire, arrive. They reasonably believe the shooting was part of the ongoing gang war. They approach Mr. V. They ask him "Who shot you?" Mr. V says "I can't tell you. They will kill my family. Please get the paramedics!" The cops tell Mr. V that he will live, his wounds are not life-threatening, whoever did this is very dangerous and may kill innocent women and children as he moves through the area trying to shoot rival gang members. They plead with Mr. V to help them protect the public from this menace. They plead with him to tell them "Who did this?" Mr. V says "I can't tell you. They will kill my family. Please get the paramedics!" One of the cops then tells Mr. V "If you don't tell us who did this, we won't call the paramedics" Mr. V, in excruciating pain, says "Psycho Dan. Please don't tell anyone that I told you! He will kill my family!"

The prosecutor calls Mr. V to testify at Psycho Dan's trial. Mr. V, because of fear that his family will be hurt, refuses to testify. He is held in contempt by the judge. The prosecution then seeks to introduce each of Mr. V's statements identifying Psycho Dan. The defense objects on Confrontation Clause grounds.

It is my opinion that the judge should rule as follows:

(1) The blurted out identification is not barred by the CC. It was, in the words of Bryant, "reflexive." It was not made with any particular "purpose," or even anticipation of subsequent use by the government to investigate or prosecute the perpetrator. It was, to use Prof. Friedman's example, analogous to a drug sniffing dog barking when it smelled cocaine. Most importantly, there was no conduct by any state actor that "created" this statement. Despite Justice Scalia's suggestion in Bryant, and during argument in Bullcoming, that the CC would be applicable to "blurted out" statements (and neither "interrogation," nor any questioning, is required), I believe the overwhelming majority of the Court will reject his position, at least with respect to unsworn statements. And, ultimately, will hold that, absent any conduct by state actors, unsworn hearsay is outside the scope of the CC.

(2) The identification made to his wife (a private citizen) in response to her pointed question – a question (when viewed objectively) that was unmistakably designed to identify the shooter – is also outside the scope of the CC. Unlike the blurted out statement, and viewed objectively, it is reasonable to conclude that this interaction between Mr. V and his wife, and the resulting statement, had some purpose. Clearly, the "primary purpose" of the question and the answer was to identify the shooter, and not to address any "emergency," i.e., threat to the victim or any other member of the public. However, once again, no state actor participated in the "creation" of this statement. Absent that element, the CC is inapplicable to this unsworn statement. The Court, as it has done in the context of the Fourth and Fifth Amendments, will ultimately hold that state action is required before the CC can apply. Just as state action is required for the Fifth Amendment's prohibition on "compelling" a person to be a "witness" against himself in a criminal trail to apply, I believe, ultimately, the Court will hold that the Sixth Amendment's CC incorporates the same requirement.

(3) The identification made to the cops is barred by the CC, despite the fact that, objectively viewed, the "primary purpose" of the "interrogation" was to address an "ongoing emergency" – a more real and pressing "ongoing emergency" than existed in Bryant. The CC applies to (and bars admission of) this statement because of the coercive conduct by the cops in extracting the words from the declarant's mouth. I believe that it is this element of coercion by state actors that is at the heart of the CC.

Coercion by the government was utilized against Cobham in the form of "interrogation," while in custody, and accused of being a co-conspirator. It was used, albeit to a lesser extent, against Sylvia Crawford as she was "interrogated" in custody at the police station after being advised of her Miranda rights. It was used, to an even lesser extent (but still present), by the government against Amy Hammon as the police "interrogated" her, one (or two)-on-one, face-to-face, in a confined location not open to the public, and after she initially stated that "nothing happened."

The government created coercive conditions in these situations placed varying degrees of pressure (in the words of Fifth Amendment jurisprudence, "compulsion") on the declarants to tell the government actors what they believed they wanted to hear. Whether it was that Raleigh was conspiring against the King, Mr. Crawford was lying when he asserted self-defense, or Mr. Hammon did in fact beat Amy, despite her initial denial. In each instance the government coercion created a motive for the declarant to fabricate a story in order to gain some perceived benefit. Cobham's shifting of blame to Raleigh and providing details of the alleged conspiracy would, from the reasonable perspective of someone in his position, inure to his benefit. The same is true in the case of Sylvia Crawford and Amy Hammon – viewed objectively, each could have felt it would be in their interest to tell the police what they believed the police wanted to hear (regardless of the veracity of their statement) in order to end any "pressure" that the police created and were exerting.

This element of state created coercion was not present in Davis where there was physical separation between the government and the declarant. It is hard to pressure someone on the telephone to say what you want when they can simply hang up. The lack of resemblance between Davis and Raleigh's Trial really has nothing to do with the presence of an "ongoing emergency" in the former and no such emergency in later case. (In this regard I agree with Justice Scalia that one can make a reasonable argument that the "emergency" in the case of Raleigh – the potential overthrow of the King – was just as real and significant, if not more so, than that in Bryant, yet the circumstances under which Cobham's accusatory statements were created by the Crown were the paradigmatic CC violation.) Rather, despite the presence or absence of an "emergency" (ongoing or otherwise), the critical factor for purpose of determining the applicability and scope of the CC is whether the statements were uttered in response to a government created coercive situation.

Sufficient coercion did not exist in Bryant, given the very limited nature of the questioning by the cops, the public setting, and the absence of any external "pressure" by the police to get Covington to speak, i.e., to tell them what a reasonable person in his position would believe they wanted to hear. Nor does any coercion remotely exist in Bullcoming, where the declarant is simply asked, via a written request, to test a sample of blood and report back what, if any, alcohol is present. The analyst Caylor in Bullcoming was under no "pressure" by anyone to have the gas chromatograph generate a particular result. As Justice Alito alluded to in the Bullcoming argument, analyst Caylor's livelihood and/or promotions did not depend upon the results of testing that he performed.

Government created coercion/pressure does, however, permeate the statement by Mr. V identifying Psycho Dan to the cops. The fact that the cops were confronted with a very real "ongoing emergency," of which Mr. V was acutely aware, is irrelevant to the determination of the CC's applicability.

Coercion – not allowing any hearsay that is tainted by the possibility of government pressure – is at the heart and soul of the CC. It is the presence or absence of that coercion (when viewed objectively) that determines whether the "resemblance test" (approvingly cited by 6 justices in Bryant) has or has not been met.

x x x x x x x x

There are several problems with the coercion test proposed by Paul.

Perhaps the most obvious one is that it would be extremely difficult to apply, and so highly subjective I think it would provide very little protection.

Second, it has absolutely no grounding historically. We have to bear in mind that the confrontation right long pre-exists the institutions of a police force or a public prosecutor; most prosecution until the late eighteenth century was by private persons. The confrontation right would have been virtually empty if it only applied to instances of coercion by public officials.

Third, there isn’t even a whisper of such a limitation in the text of the Confrontation Clause.

Fourth, such a rule would yield very odd results. A person who observes a crime could write an affidavit, perhaps with the assistance of a private NGO, and send it to a prosecutor, and the confrontation right would never come into play.

Fifth, the Supreme Court has already rejected such a rule. As the last point suggests, a coercion rule is a more restrictive version of a test limiting the confrontation right to interrogations, and the Court has explicitly said that the Confrontation Clause is not so limited.

So far as the state action requirement is concerned, it is satisfied by the fact that the state is trying and presumably convicting an accused in part on the basis of testimony that it introduces without offering the accused an adequate opportunity for confrontation.

Impressions of the Bullcoming argument

2011-03-03T00:27:00.000-05:00

I attended Wednesday’s argument in Bullcoming v. New Mexico. Recall the facts in brief: The analyst who performed a test on Bullcoming’s blood was on unpaid leave at the time of trial. Instead of presenting his live testimony at trial, the state presented his report through a supervisor from the lab who had not observed performance of the test. Here are some impressions of the argument.

First, the reports of the death of the Confrontation Clause in light of Michigan v. Bryant appear to be greatly exaggerated. The New Mexico Attorney General, Gary King, cited Bryant in the very first sentence of his argument, and referred to it a couple of times later, though he actually tried to distance himself from the case by saying that the purpose test of Bryant did not apply absent an interrogation. No member of the Court seemed to be interested in any possible ramifications of Bryant for this case. Nor did any member of the Court suggest that the report ought to be admissible because it supported an expert opinion offered by the testifying supervisor, as countenanced by Fed. R. Evid. 703. Indeed, King emphasized the lack of human analysis in the report. Nor was there any suggestion that I picked up that any justices were considering overruling Melendez-Diaz.

Second, some of the justices continue to be troubled by the multiple-witness problem. This came up several times in various contexts. It is difficult to know whether they were persuaded by the fact that many states have long followed the rule that if a lab analyst’s report is admitted that analyst must testify in court, absent stipulation, and these states have not faced intolerable difficulties. But I think that enough empirical evidence has now been gathered demonstrating this point that it will be difficult for them to write an opinion predicting disaster if Bullcoming wins.

Third, much of the questioning focused on factual settings not quite like the one presented by the case. The nature of the questioning appeared to be an attempt to determine how states might cope efficiently with a ruling for Bullcoming. In the actual case, the prosecution introduced a report by the absent analyst, which is why this should be, as Jeff Fisher, arguing for Bullcoming, asserted at the outset, an easy case; an exchange between Jeff and Justice Alito clarified that the report asserted the identity of the sample tested, the lack of tampering, the procedures used, and the result. But what if the state had not introduced the report? Some of the justices were interested in the possibility that a witness could testify to a lab’s general procedures, from which the jury could infer that the procedures were followed in the case at hand. Jeff agreed that the Confrontation Clause would not pose an obstacle to doing that. But the problem would still remain of proving the results in the particular case. If, for example, one analyst enters the defendant’s name in a machine and the machine performs the test and spits out a report with the defendant’s name on it, there would still be a testimonial assertion by that analyst that this particular report is the result of a test performed on that defendant’s blood; I don’t believe a second analyst should be allowed to testify, in the absence of the first, that the practice of the lab is to enter accurately the name of the source of the blood in the machine and then perform the test.

But in any event, as I’ve said, that case is not the one before the Court, in which the prosecution clearly introduced a full report by the absent analyst. One possibility is that the Court will simply resolve the case before it, saying that this was a violation, and leave to future cases the development of the bounds of acceptable procedures.

Finally, Justice Kagan was essentially silent. She apparently began to ask one question but was interrupted and did not persist. So that makes any prediction even more speculative, and I won’t speculate.

Preliminary thoughts on the Bryant decision

2011-03-02T00:42:00.004-05:00

Here are some preliminary observations on the opinions in Michigan v. Bryant. First, a brief review of the facts.

Responding to a 911 call, police found Anthony Covington on the ground near a service station in Detroit, profusely bleeding from a gunshot wound. As each officer arrived, he asked Covington what happened. Covington said that a man named Rick – the accused, Bryant – had shot him through a door at Bryant’s home, about six blocks away and 25 minutes earlier; Covington had managed to drive himself to the spot where he was found. Covington died several hours later of his wounds. Bryant was eventually extradited from California and tried for murder. The first jury hung, and a second one convicted him. Ultimately, the Michigan Supreme Court held that admission of Covington’s statements violated the Confrontation Clause. The United States Supreme Court has now reversed that decision, in an opinion by Justice Sotomayor. Justice Thomas concurred in the result (on the ground, expected given his prior expressions, that the statements were not formal). Justices Scalia and Ginsburg wrote separate dissents.

Now, two over-arching thoughts:

(1) I believe the decision is a very unfortunate development for the Confrontation Clause. The approach that emerges is remarkably mushy, unjustified by any sound reasoning and virtually incoherent. It leaves courts ample room in many types of cases to characterize almost any type of statement as non-testimonial. It will be easily manipulable by governmental authorities and at times may distort their behavior.

(2) I believe this decision is in large part a result of the Supreme Court’s error in unduly restricting the scope of forfeiture doctrine in Giles v. California. In this case, there was substantial evidence, easily enough to justify a finding, that Bryant had killed Covington and therefore that he himself was at least the initial cause of his inability to cross-examine Covington. Given Covington’s condition, his death within hours, and Bryant’s flight, it does not appear that there was a reasonable opportunity to mitigate the problem by arranging a deposition. Accordingly, a court easily could have held that Bryant forfeited the confrontation right – had Giles not foreclosed the possibility by holding that even a defendant who murders a witness forfeits the right only if he commits the murder for the purpose of rendering the witness unavailable. The bottom-line result of the Michigan Supreme Court’s decision – that Covington’s statements were inadmissible – is singularly unappealing at a gut level, and I think it was inevitable that courts would compensate for the unavailability of forfeiture in cases like this by narrowing the confrontation right. See my post of June 29, 2008, Reflections on Giles, Part 2: Is Giles bad for defendants?

Some more particularized comments:

For the first time, the Court has purported to give a broad, general approach to determining what is testimonial. It takes the “primary purpose” language of Davis and expands on it. Now, “primary purpose” is not simply a test to choose between whether a statement is testimonial or instead made in response to an “ongoing emergency”. Rather, it appears, the accused now has the burden of establishing that the primary purpose of the conversation in which the witness’s statements were made was to “creat[e] an out-of-court substitute for trial testimony.” Determining primary purpose is, of course, a very tricky matter, as Justice Thomas emphasized in his dissent in Davis and repeats here. Indeed, the concept is very difficult to nail down; if a person makes a statement for the purpose of creating trial testimony and also for another purpose, how do we determine which one is the primary purpose? By which one she would be more willing to give up if she had to choose? But beyond that, let’s say that we are able to analyze the situation precisely and conclude that 48% of the person’s purpose was testimonial and 52% not (sounds silly, I know, but it’s not my idea to determine which is primary); why is that not testimonial? I’ve argued elsewhere, and won’t repeat the argument here, that the real question is not purpose but anticipation. Justice Scalia’s dissent adopts this view. He tips his hat to his language in Davis by saying that for a statement to be testimonial the speaker has to intend to make a solemn declaration, but the test that carries the bite for him is whether the speaker has “the understanding that it may be used to invoke the coercive machinery of the State against the accused.”

The more serious problem is that the Court adopts what it calls “a combined approach” in determining the perspective from which the question of whether the statement is testimonial should be determined. That is, it looks to the purpose of both the speaker and the interrogator (if there is one). Now, I don’t think there is any real objection to taking all circumstances into account in determining whether a statement is testimonial, and if there is a questioner the purpose for which the questioning is conducted is certainly a factor that might affect the understanding of the speaker. But that is a different matter from what the majority does, which is to make the test an indeterminate combination of what did the speaker intend and what did the questioner intend: A court is supposed to determine “the purpose that reasonable participants would have had.”

That the proper perspective is that of the speaker – the lack of a testimonial purpose on the part of a questioner should not make a statement non-testimonial if the speaker knows she is creating evidence, and a questioner’s hope to gather evidence does not make another person’s statement testimonial (though in some cases of trickery an estoppel should operate) – is another point that I have argued repeatedly, and I won’t go through the matter again here. (For those who are interested: The majority cites my amicus brief as making an argument that it rejects, and Justice Scalia cites one of my articles, Grappling with the Meaning of "Testimonial", 71 Brook. L. Rev. 251 (2005), in agreeing with the point.)

But note two problems with the majority’s test. First, because the Court properly adopts an objective test, it cannot ask what the actual participants intended. It has to put it in terms of reasonable participants. But because it has phrased the test in terms of purpose rather than understanding, it has to ask a baffling question: What purpose would reasonable participants have had? The problem is that purpose is a matter of desire, not simply understanding, and equally reasonable people might have different desires in a given situation. So I guess what a court has to do is posit a reasonable person in the position of a participant and, drawing on all the facts of the incident, take a stab at guessing what the primary purpose of most reasonable people in that situation would be. That’s pretty awkward.

More seriously, what on earth could the majority mean by the combined purpose of “the interrogation”? Justice Sotomayor says that simpler is not always better, and that the Court is “unwilling to sacrifice accuracy for simplicity.” But accuracy in determining what? It appears to me that the majority has adopted a standard that is not only the wrong one but is really empty. As Justice Scalia points out, there is a glaringly obvious problem that the majority never touches on – what if the speaker has one purpose and the questioner another? That of course is entirely plausible, especially in cases like this one in which the statements are made right after police officers come up to a scene: It may be that the officers have little idea what is going on, whether a crime has been committed or whether there is a grave threat to the public safety, and yet the speaker knows perfectly well that a crime has been committed, that there is no imminent threat to the public safety, and that what she is about to say will provide information useful in bringing a criminal to justice but will have little value other than that.

So in a circumstance like that, what is a court supposed to do, given the Bryant decision. The majority denies that it “intend[s] to give controlling weight to the ‘intentions of the police,'” and that is good. But look what they did in this case. They emphasized at length the uncertainties and potential dangers facing the officers as they arrived at the scene. I don’t think that even so they are able to make a plausible argument that their “primary purpose” was to resolve an ongoing emergency – the officers were doing a lot of evidence gathering and not a whole lot of public protection at that point – but this is their best shot. As for the speaker, Covington, all the Court does is emphasize his dire situation at the time and pronounce conclusorily that it “cannot say that a person in Covington’s situation would have had a primary purpose to establish or prove past events potentially relevant to later criminal prosecution.” Well, why not? Badly as Covington was hurt, he was coherent in speech and seems to have been thinking straight. He was giving information describing the background and commission of a serious firearms assault. Presumably he was strongly motivated to see that the person who had shot him was brought to justice. And what else could he have been attempting to accomplish? The majority does not even offer an alternative suggestion.

So one of my concerns is that police officers will quickly learn that they can get statements characterized as non-testimonial if they testify, in effect, “I came up to the scene and didn’t know what was happening. My principal concern was securing the public safety. What this person told me was very important for that purpose.” They will also have an incentive to gather as much information as possible before the situation is fully under control; thus, the decision in this case distorts their incentives in performing their policing function. And once they do control the situation, if they can no longer make a credible contention that they had some primary purpose other than evidence gathering, then they can pass the witness – so I may continue to call the person who makes a statement while understanding its likely future prosecutorial use – on to a social worker, whose "primary purpose," of course, will be therapeutic, notwithstanding the fact that in performing that function she repeatedly learns, and relays to juries, information that turns out to be useful in prosecuting crime.

Perhaps in emphasizing some of the problems in this decision I am being unduly pessimistic. Perhaps the Court’s emphasis on the context-dependence of the determination of whether a statement is testimonial will ultimately limit the impact of the decision. Perhaps, indeed, this decision will be understood over time to be a product of the unfortunate inability of the Court to apply forfeiture doctrine to this case. Perhaps the Court’s insistence that the speaker’s intent is one consideration will become more important over time, and perhaps the Court will recognize what a giant opening for manipulation and distortion it has left by making the purpose of the questioner, when there is one, a significant factor.

What is more, there are a few good points in the decision. Establishment of an objective test was not a surprise, but the clarification is useful. The Court explicitly rejects the notion of an absolute formality requirement, even though it gives formality considerable force. It continues to preserve the possibility that statements made to persons other than government officials might be considered testimonial in some circumstances.

So we’ll have to see over time. But this decision strikes me as a giant step backwards towards a morass like that of Ohio v. Roberts, which gave the courts considerable leeway to let almost any statement in. Indeed, I have not even begun to address the jarring suggestions, which read at their most dangerous seem to augur a return of Roberts, that a factor in determining the Confrontation Clause issue may be the reliability of the statement and that hearsay law may be a guidepost in that determination. More on that later.

Bryant reversed

2011-02-28T13:29:00.001-05:00

I have been out of electronic contact most of the day; presumably many readers already know that the Supreme Court reversed the decision in Michigan v. Bryant. A very unfortunate result. The vote was 6-2, per Justice Sotomayor (a surprise to me); the basis of the decision was that the primary purpose of the statements was to resolve an ongoing emergency (also a surprise to me). Justices Scalia and Ginsburg wrote separate dissents; Justice Scalia said that the decision leaves Confrontation Clause doctrine in “a shambles”. I will write more after I have had a chance to read and absorb the opinions.

The Rae Carruth Case Six Years Later

2011-02-15T18:10:00.003-05:00

Nearly six years ago, I wrote a long post, Forfeiture, the Prosecutorial Duty to Mitigate, and Rae Carruth. Carruth is the former NFL player who has been convicted of conspiring to kill his pregnant girlfriend, Cherica Adams; the prosecution's theory was that he stopped or slowed down his SUV in front of Adams's car while, by prearrangement, someone from another car pulled up alongside Adams and shot her. Adams survived for nearly a month. Immediately after the attack, she made a 911 call, describing the incident in considerable detail, including an assertion that Carruth had made a cell call shortly before leaving his house and that he had blocked her car. Over the next several hours, she made additional statements, including one at the scene and one at the hospital to a responding officer, and hand-wrote notes to a nurse at the hospital, describing the incident and preceding events. Some time after writing those notes – just how long I am not sure – she sank into a coma from which she did not recover.

Today, the U.S. Court of Appeals for the Sixth Circuit issued a decision affirming the denial of a petition for habeas made by Carruth (whose legal name is Wiggins). Notably, Carruth did not contest before the Sixth Circuit that the 911 call was admissible and the state did not contest that the subsequent statements were inadmissible under the Confrontation Clause; the only issue for the court, so far as the latter statements were concerned, was whether the error in admitting them was harmless, and the court held that it was.

The case therefore becomes something of a measure of the development of Confrontation Clause doctrine. Presumably Carruth assumed that the court would hold that the 911 call did not violate the Confrontation Clause because of the emergency doctrine of Davis v. Alaska, and presumably the state assumed that the court would hold the later statements to be testimonial, under the other part of Davis (the part governing Hammon v. Indiana) and that under Giles v. California it would not prevail on an argument that Carruth forfeited the confrontation right. Accepting these assumptions as accurate for present purposes, I think they show how the doctrine has gone wrong in a couple of respects.

True, Adams called 911 in dire circumstances, and in that sense the call was one for help (which the statements in the pending Bryant case were not, given that the police were already on the scene when the victim made them). But it is clear that much of what she had to say -- most notably, identifying Carruth and telling about his behavior before and after the shooting – had little or nothing to do with getting help and was instead a communication of how the grievous assault had been committed and who had played a central role in it. I believe it should be regarded as testimonial, and to the extent Davis persuades a court otherwise that is unfortunate.

The later statements clearly were testimonial. But were they subject to forfeiture? After Giles, presumably not, because, while there was ample evidence that Carruth conspired to kill Adams, there is no showing that he did so with the design of preventing her from testifying in any proceeding. As I've often said, on this blog and elsewhere, I think Giles was a very unfortunate development. In my view, whether forfeiture should be applied in this case should depend in large part on how long Adams remained able to communicate. I analyze the issue at some length in the prior post, though when I wrote that I did not know that Adams had become comatose some time before her death. Adams had no hesitation making accusatorial statements, and the police, among others, had no hesitation in soliciting them. It is conceivable – I cannot say it is certain – that there was a window during which it would have been practicable and not inhumane to hold a deposition. There are many examples of this being done, even with victims who eventually died, during the founding era; the Forbes case, discussed in the prior post, is one example.

Melendez-Diaz acquitted

2011-02-11T14:07:00.002-05:00

As some readers already know, Luis Melendez-Diaz was acquitted yesterday on retrial of the case that made him famous within the circle of people that pay attention to developments related to the Confrontation Clause. Here is a report on the outcome. A chemist from the Massachusetts Department of Public Health did testify live as to the lab reports -- but I don't know whether this was the same chemist who performed the test, or whether his conclusions were challenged by the defense. One of Melendez-Diaz's lawyers said the case was one of "guilt by association," which seems to suggest that the principal defense was that the stuff found in the car did not belong to Melendez-Diaz.

Reply brief in Bullcoming

2011-02-09T14:03:00.002-05:00

You can read the reply brief in Bullcoming, which was just filed, by clicking here.

"Pure Cold Case" Prosecutions & The Confrontation Clause: What Does The Future Hold?

2011-01-26T01:42:00.006-05:00

Paul Vinegrad has asked me to post the following, under the above heading; it is too long to fit in this blog as a comment. I’m glad to do so, and offer my comments after Paul’s post.

Prof. Friedman, could you provide an analysis of the following scenario and commentary on my suggested formulation:

An NYPD DNA expert (X) writes an unsworn report. In the report, X states that on January 1, 2011 she responded to a crime scene. There she observed a naked female, face down, dead with a cigarette butt on her back. She collected the cigarette butt and brought it back the the NYPD lab. She processed the cigarette butt, following the lab's standardized procedures for processing evidence for DNA, and extracted a tiny amount of saliva. She used the latest available scientific techniques and equipment. Her testing procedures resulted in raw data – graphs, charts, etc. (i.e., a DNA profile). She used her expertise to interpret the DNA profile. And reached the opinion that the DNA profile was from a male Caucasian. The tiny test sample was consumed during the testing process. X then entered the DNA profile into a nationwide DNA database.

30 years later, X died in a car accident. As of that date, NYPD had not yet identified a particular suspect, i.e., they didn't have "reasonable suspicion" to detain anyone, or "probable cause" to arrest anyone, there were no "hits" from the database.

10 years later, an NYPD DNA expert (Y) was notified that there was a "hit." And the defendant (Mr. Z) was identified as the suspect. Y obtained a blood sample from Z. He then determined Z's DNA profile. In Y's opinion, Z's DNA profile "matched" the DNA profile of the saliva, i.e., in Y's opinion there was a statistical match probability of 99.9%.

At trial, would the CC prevent the prosecution from introducing the following evidence (assume that there are no other constitutional or evidentiary hurdles to admissibility):

(1) The raw data establishing the DNA profile of the saliva?;

(2) Y's expert opinion testimony (based upon a review of X's report – the substance of which is not disclosed to the jury – and his own expertise) that (A) the DNA profile of the saliva "matches" Z's DNA profile; (B) the DNA profile of the saliva was accurate/reliable because X was qualified and followed all proper procedures?; and

(3) X's entire report setting forth her expert opinion that the DNA profile of the saliva was that of a male Caucasian?

For what is worth, I believe that X was not a CC "witness," and, therefore, all of the above evidence would overcome a CC objection. I believe that at least four justices in Bullcoming (and, perhaps, in Bryant) will redefine CC "witnesses" in a manner consistent with the following formulation:

Persons (who have personal knowledge of the crime allegedly committed by the defendant) who make out-of-court statements (i.e., an assertion of fact by a human being) -- whether testimonial or nontestimonial (under any of the three formulations in Crawford) -- and whether sworn or unsworn, are not CC "witnesses" unless each of the following requirements are met: (1) a government official (or their agent) responsible for the investigation and prosecution of crime, (2) by some affirmative action (i.e., questioning, "interrogation," etc.), was involved in the production of the particular statement, (3) at a time that an "adversarial relationship" existed between the government official (or their agent) and a particular person (i.e., at the time the statement was produced, the government had "reasonable suspicion" to detain (or "probable cause" to arrest) a particular person for criminal activity, and (4) viewed objectively, from the perspective of a competent adult in the position of the declarant, the declarant knew that they were providing a statement against someone.

The third element of this test replaces the "primary purpose"/"ongoing emergency" formulation set forth in Davis. Under the "adversarial relationship" element, once "reasonable suspicion" to detain (or "probable cause" to arrest) exist, it will be conclusively presumed that the government's "primary purpose" was to create evidence for possible use in a future criminal trial. Before the government has "reasonable suspicion" to detain a particular person, they have no motivation whatsoever to manipulate or manufacture evidence against that person by means of coercion, trickery or otherwise. However, once the "reasonable suspicion" threshold has been crossed (a determination that courts have routinely been making for Fourth Amendment purposes since Terry was decided) the police have a motive to start to build their case against the suspect. With that motive comes the distinct possibility that the reliability of the resulting evidence, and the truth-seeking adversarial process the CC is designed to protect, will be compromised.

The formulation that I set forth is entirely consistent with all of the Court's CC cases, before and after Crawford, including Melendez-Diaz as the "analyst" in that case didn't have any personal knowledge regarding the defendant's crime.

While the Framers didn't have to consider the constitutional ramifications of "pure cold case" prosecutions involving unavailable expert DNA analysts, the formulation that I have set forth is a "reasonable estimate" – as "reasonable" as any other estimate given the absence of any direct historical evidence – of how they would have treated these cases, at least under the CC.

If Giles's forfeiture doctrine would have been broader then, at least in "pure cold case" murder prosecutions, the Court would not be faced with the constitutional question that I raise. In Bullcoming (indeed, in Bryant) the Court has the opportunity to revisit the scope of the term "witnesses" in the CC. It is evident the framing-era historical record does not provide a clear cut answer. Any solid historical evidence that does exist lends itself to more than one "reasonable" interpretation of the original meaning of this text. Thus, policy considerations which are consistent with the truth-seeking purpose of the CC come into play. Four justices in Melendez-Diaz have voiced their dissatisfaction with the "testimonial" approach set forth in Crawford. It appears as though Justices Sotomayor (in Bryant and Bullcoming) and Kagan (in Bullcoming) might be the swing votes and might be instrumental in moving CC jurisprudence in a new direction that, in the absence of clear historical guidance, focuses more heavily on the practical, real life, impact of the constitutional rule on the lives of all Americans, not only the accused.

Criticisms, critiques and alternative formulations to the one I set forth above are welcome.

I will continue to avoid predictions, but I do think that Paul’s formulation would severely impair the confrontation right. It seems to be one more attempt by prosecutors (here a former one) to devise rules that would under cut down on the right and, to a substantial extent, nullify Crawford. (Having said that, I do continue to believe that the decision in Giles was most unfortunate.) I really wish all that mental energy went into seeing how those states that have routinely violated the confrontation right could efficiently bring themselves into line with states that have a good compliance record.

I’ll also say as a prefatory matter that yes, sometimes in long-delayed cases prosecutions are lost because by the time the prosecution is brought a crucial witness who has not been subjected to cross-examination is no longer available. This is a cost of our system that we have been tolerating for 500 years or so.

Paul has put forward before the idea that a statement is not testimonial unless a government official is involved in producing it. I think this is a non-starter, for reasons I’ve indicated before. It conflicts with historical practice; it’s important to understand that the confrontation right long predates the institutions of public prosecutors and police forces. The Court has already made it clear that volunteered statements, not made in response to interrogation, can be testimonial. If Paul’s suggestion were taken, there would be an army of private statement-takers who would enable witnesses to avoid confronting the accused.

Paul now suggests that for a statement to be testimonial there has to be an identifiable suspect before the statement is made. (I’m not sure whether in his view the suspect at the time of the statement has to be the ultimate accused.) I’m not sure where he gets that – so far as I know there is no historical basis for it. If adopted, this idea would distort police behavior; it would encourage police to avoid focusing on a suspect – and being in a position in which they could at least somewhat credibly contend later that they had not focused on a suspect – for as long as possible so that they can gather incriminating evidence. And the consequences of this idea would be stunning. Paul seems to acknowledge that, for example, a witness describing a crime scene would not be covered by the confrontation right. But more than that – nobody who made any statement in the 40 years between the crime and the time that the cold hit was made would be considered a witness against the accused for Confrontation Clause purposes – even if the statement was made to the authorities in the full hope and expectation that eventually it would be used as evidence at trial against the person the authorities identified as the killer. (This would include the victim if she made a statement describing the crime and giving a general description of the accused.) As a matter of principle, there is no justification for decimating the Clause in this way. The optimal rule is actually pretty simple. A person is a witness for purposes of the Clause if a reasonable person in her situation would realize that her statement would likely be used in investigating and prosecuting a crime. And if her testimonial statement is introduced against an accused, that makes her witness against the accused for purposes of the Clause.

What can the state do to minimize the danger of losing lab evidence if the there is a substantial chance that the case will not be tried for many years? Preserve some of the sample for retesting; Paul’s hypothetical is becoming increasingly unrealistic with improved DNA methods. If the case is important, have a second observer, as some jurisdictions routinely do for autopsies. Sometimes videotaping the testing might help. An extreme response – one of dubious constitutionality, but one with precedent and preferable to cutting the Clause down so close to its core – would be to appoint counsel shortly after the test for the as-yet unidentified suspect to depose the analyst; sometimes, notwithstanding the lack of identifying information at the outset, the interest of the ultimate accused is clear from the start.

Two more bottom-side amicus briefs in Bullcoming

2011-01-20T16:59:00.003-05:00

In addition to the brief of 33 states and the District of Columbia, which I earlier posted, two other bottom-side amicus briefs were filed in Bullcoming. You can read the brief of the National District Attorneys Association and other organizations by clicking here, and the brief of the New Mexico Department of Health Scientific Laboratory Division by clicking here.

There is also one loud silence -- for the first time in the Crawford line, the United States Solicitor General did not file in support of the state.

Michigan – a state that does it right.

2011-01-20T16:55:00.002-05:00

Last month, shortly after I posted results of the study of Michigan trial transcripts done by students under my supervision, Mark Dwyer, the long-time and very capable Chief of the Appeals Bureau in the District Attorney's Office and a regular reader of this blog, asked:

If your reports let you answer, I think it would be interesting to know in how many of the DNA cases the witness or witnesses who testified were present at every stage of the DNA processing. I suspect that this would be a rare circumstance. Have you a view on whether one lab witness "familiar" with the testing will suffice, if he or she was not present at every stage?

I responded:

An important question. For now, I'm going to stick with the comments I made in footnote 9 of the amicus brief I just posted. I hope to have more to say next week.

So far as what I think should suffice, I will continue at least for now to stick with the comments in my brief. But I can add more about the Michigan practice because I have spent some time with John Collins, director of the Michigan State Police Forensic Science Division. (I met with him shortly after Mark posed his question, which is why I hoped to supplement my answer before this, but I haven’t gotten around to doing it until now.) I am delighted to say that, though he is a Michigan State guy, John strikes me as a very capable, dedicated, and thoughtful public official, and he clearly believes that his labs are able to comply with constitutional requirements without having to bear an undue burden.

So, in answer to Mark’s question, no, ordinarily there would not be one person who observed every phase of DNA testing. But ordinarily, according to John (who graciously consented to allowing me to report on our conversation), there are no more than three lab technicians who perform work on a given sample. So the prospect of having to present a nearly endless chain of witnesses to introduce the results of one DNA test is really a strawman for the Michigan state lab, given the degree of vertical integration that it uses to conduct these tests. If in a given case all three analysts were required to testify live, John says they would do so without question. If in all cases all three were required to testify, it would indeed create a heavy burden on the lab as currently funded. But this doesn’t happen. Recall that the data in my amicus brief show that on average even in DNA cases that go to trial only 1.25 lab witnesses testify. For all the fears expressed by the Melendez-Diaz dissenters, the reality is that even for a complex test like DNA matters have settled down so that the number of witnesses who have to testify is quite reasonable.

It also bears emphasis that the reason why as many live witnesses testify as do is attributable at least in large part to the demands of the prosecution rather than the defense. That is, often the prosecution wants its technical witnesses to testify live, to make a vivid impression. (To put it bluntly: When prosecutors want lab witnesses to testify live, they do so, and no controversy arises; when defendants want lab witnesses to testify live but the prosecutor doesn’t, or can’t produce the witness, the prosecutor (in states unlike Michigan that before Melendez-Diaz did not follow proper procedures) complains about how burdensome the production is.) One piece of information I learned from John strengthens this point: Michigan has developed facilities for lab technicians to testify, on consent of the parties, by remote video. John is obviously interested in fostering this practice. He reports that it is the prosecutor rather than the defense that most often is unwilling to allow this cost-saving convenience.

John did express concern on one point: Too often, he said, defense counsel refuses to stipulate to presentation of a lab report until the witness appears ready to testify; then, counsel, (1) recognizing that the prosecution is able to present the witness live and (2) not really wanting live testimony, stipulates to admissibility of the report. I don’t believe John has any data on how often this happens, and it clearly is not a debilitating problem. But it does seem to me that the problem could be cured by a simple statutory fix: If the defense declines a pre-trial request to stipulate to admissibility of the report (or, in those states having a notice-and-demand statute, makes a demand), it must assert that it does not intend to stipulate to admissibility of the report if the witness appears at trial ready to testify. There are some statutes that require the defense to assert that it is making the demand in good faith or that it intends to cross-examine. The first of these strikes me as too vague and the second as too demanding; perhaps the defense wants to see what the direct testimony is, expose the witness to the trier of fact, and only then decide whether to cross-examine or not. But a statute that says in effect that if the defense demands confrontation it must really want that the witness testify live and not merely that the prosecution be put to the test of bringing the witness to court seems entirely reasonable to me. And I think it would greatly reduce this problem, however significant or insignificant it might be: A defense lawyer will not want to have to explain very often why it belatedly decided to stipulate to admissibility of the report after declining to before. And I suppose if this isn’t good enough a state could adopt an even stronger statute, providing that if the defense declines a timely request to stipulate (or makes a timely demand), and the witness appears at trial prepared to testify live, the court must call the witness to give live testimony.

Machines and human witnesses

2011-01-19T23:54:00.002-05:00

Paul Vinegrad has posed a question to me as a comment to an ealrier post. It’s sufficiently interesting that I’ll answer it here. Paul’s question:

Prof. Friedman, your thoughts on the following hypothetical would be illuminating:

Cop arrests suspect for DUI. Cop takes suspect's blood sample to government run lab. Cop watches as analyst places blood sample in gas chromatograph. Gas chromatograph prints out result of .21 BAC. Cop takes print out and leaves.

At trial, Cop describes this sequence of events. Cop identifies print out. Print out is marked as an exhibit and introduced into evidence to prove defendant's BAC was .21. Cop does not offer any opinion on accuracy/reliability of print out.

Did any human "witness" make a "statement" (testimonial or otherwise) that defendant's BAC was .21?

My answer is that, with one caveat discussed below, there is no human witness that the BAC is .21. What we have is a witness to a process that generated the identified piece of paper.

If instead of this test, it were a simple litmus paper test, and the witness identifies a particular piece of red litmus paper as the one that was dipped in a particular solution, and says it is now the color that it was after it was dipped in, I don’t think there’s yet been an assertion by a human witness that the solution was acidic. One can infer that proposition by understanding the processes that led to the red color.

Now of course the case Paul presents is different in that humans presumably created and calibrated the machine. But presumably that all happened before the particular testing. Even if one could discern a human assertion there, it’s harder to discern an assertion about the particular sample, and I think Melendez-Diaz suggests pretty strongly, for better or worse, that an assertion at this point wouldn’t be considered testimonial.

The caveat is that it is theoretically possible that somebody purposely set the machine so that it would report a BAC of .21. If so, I’d say that’s an assertion, made by a human through a machine – just as one might use a machine to broadcast his voice. But I think the burden would be on the defendant to produce evidence of this kind of manipulation.

The most difficult question here is one of relevance, or probative value: Is there enough of a basis for the trier of fact to conclude that because the piece of paper says .21 that in fact the blood alcohol content of the sample tested was .21? Compare this to a witness who says that when a robbery occurred the digital clock on the top floor of the bank said it was 1:45. In a case like that, I don’t think we’d demand proof as a precondition to admissibility that the clock was accurate, at least if the evidence is significant even without pinpoint accuracy; the jury could probably infer that the clock was likely reasonably accurate or it would’ve been corrected. (Though in my town there is a prominent digital clock, right where cars pull off a main road into one of the malls, that has been slow by about four minutes for many years). Of course, the prosecution might choose to supply such proof on its own initiative, and the defense may challenge the accuracy of the clock. But in this case, assuming the cop isn’t familiar with the machine from other encounters, is there enough of a basis for the trier of fact to infer that the machine is reasonably accurate? I don’t know. Certainly the prosecution would be better off presenting proof of accuracy. But I don’t think failure to do so is a confrontation problem.

States' amicus brief in Bullcoming

2011-01-17T17:43:00.002-05:00

Thirty-three states and the District of Columbia have filed an amicus brief in Bullcoming. You can read it by clicking here. And here are some comments by me.

The brief is well-written. (Mike Chamberlain of the California Attorney General's office took the lead in writing it.) But in large part it is one more installment of the states' continuing effort to show that the consequences of fully adhering to the confrontation right would be intolerable. For that reason, it is particularly striking to me that the only times the state of Michigan is mentioned are to indicate that Michigan is one of the signing amici. The brief makes no attempt to address the data I have presented on this blog and discussed in my amicus brief showing that, though Michigan does adhere to the right in respects material to this case, no intolerable burden has resulted.

One might therefore ask a question that Justice Alito asked me at the Briscoe argument – "If this is not a burden on these . . . States plus the District of Columbia, why are they bothering to make this argument? Just for amusement?" I think the three-part answer I gave then still holds. First, a certain amount of solidarity encourages states like Michigan, which do not have a strong interest vested in the outcome of this case because they already comply with the rule demanded by the petitioner, to join with other states. Second, of course there is some additional expense in complying with the right, and the states would rather not be compelled to incur it. And third, they probably recognize that in some cases producing witnesses whom they would rather not produce will lead to evidence favorable to the defense.

Here are some comments on individual points in the states' amicus brief.

On p. 13, the brief says, "When scientific evidence is presented as an independent opinion formed by a qualified expert witness . . . that opinion is the evidence and that expert is the witness for purposes of the Confrontation Clause."" Obviously, the expert opinion is evidence – but so too is the factual information on which the opinion is based. And a statement reporting such information, made in anticipation that it will be used in support of prosecution, is testimonial.

On p. 14, the brief says: "Empirical data or observations underlying a conclusion . . . are distinctly non-testimonial, whether or not transcribed into a report." Data and observations are not testimonial. But a report of them is, if made in anticipation of prosecutorial use. The idea a report of pure information is less likely to be testimonial than is an opinion is very curious. What does an ordinary lay witness report? The information (data) that she has observed. It might be as simple as, "The light was red." We want pure data from lay witnesses, to the extent possible. That does not make their statements non-testimonial. The idea that factual assertions in the lab context are somehow beyond the concern of the Confrontation Clause appears to reflect a Roberts-style assessment of the reliability of the evidence.

On p. 16, the brief says that the data that underlie an opinion "will be meaningless to a layperson without the expert’s explanatory conclusion." True enough, often. But then it adds that the data "thus should not be considered 'testimonial.'” Taking into account once again that data are not testimonial, but a report of them can be, the conclusion does not follow. The brief offers an analogy to cases holding that the Bruton rule doesn't apply to an out-of-court statement that is not “incriminating on its face,” but becomes incriminating “only when linked with evidence introduced later at trial.” But these are not cases about what statements may be admitted against an accused; the point of Bruton is that the statement in question can be admitted against one defendant but not against another, and sot he issue is whether, or in what circumstances, the statement may be admitted in a joint trial and a limiting instruction will be a sufficient safeguard.

On p. 17, the brief says that raw data are just “premises for a conclusion” – OK – and that “[t]he conclusion invariably draws upon still other premises to become ‘evidence.’” That’s just playing with words. In all sorts of evidentiary contexts a conclusion depends on multiple evidentiary premises. Of course, the data are the case-specific pieces of information that make it possible to reach an opinion.

On p. 18, the brief says that “instrument-generated data are not witnesses. An instrument is not a person and cannot bear testimony.” True but irrelevant. Just as the data are not themselves testimonial, an instrument is not a witness. But it takes a witness to say what the machine did and how it came to do that. More than that – in Bullcoming the state presented a statement by the absent analyst saying those things – what test he performed, how he did it, and what the results were. That was a testimonial statement.

On p. 21, the brief tries to equate case-specific data with “the academic body of scientific knowledge upon which expert witnesses also rely for their opinion evidence.” It points out that “[s]cientific evidence is the product of collective and cumulative knowledge from an amalgam of different sources” and that an expert may offer opinions not based on first-hand observation. But assertions of scientific knowledge are not ordinarily testimonial. An assertion by a forensic laboratory technician about the alcohol content of a blood sample referred by the police for testing are very different. Similarly, on p. 22 the brief points out that in using a statistic as to how rare a given DNA trait is an analyst “must rely on many out-of-court statements of other persons . . . .” But those statements aren’t testimonial.

On p. 22 n.5, following Justice Kennedy in Melendez-Diaz, the brief says that it is not always easy to determine who “the analyst” is. As I pointed out in my amicus brief, I think this is the wrong question. Here, there was a statement introduced against the accused. If that statement was testimonial in nature – as I believe it was – then the author is a witness against the accused as to whom the confrontation right applies. For this reason, I think Bullcoming is a relatively simple case.

Beginning on p. 23, the brief discusses Fed. R. Evid. 703. It may well be that certain applications of that Rule are unconstitutional. That would not be amazing. This is not a long settled rule; rather, it is a creation of the late 20th century. But the Court doesn’t have to reach such questions here. The prosecution introduced a testimonial statement (the state court concedes it is testimonial) and the accused never had an opportunity for cross. Easy case.

Beginning on p. 26, the brief discusses “well-developed rules of evidence . . . designed to facilitate reliable scientific testimony.” This can’t add anything to the other arguments: If the statement is testimonial, Crawford makes very clear that – however useful other protections may be – there is no constitutional substitute for an opportunity for confrontation.

Justin McShane on the state's Bullcoming brief

2011-01-11T17:41:00.002-05:00

Justin McShane of Harrisburg, PA, has attempted to comment on the State's brief, but each comment is limited to about 4000 characters, and he had more to say than that, so I'll post his comments here. I hope to add my own comments tomorrow, but meanwhile here is what Justin has to say:

Disclosure: I was one of the amici that filed a brief in support of Bullcoming with NACDL/NCDD.

Here is my analysis of the Respondent’s brief:

1. They spend in an inordinate amount of time trying to explain how GC EtOH determination is non-testimonial. (This is an argument that at least a majority (if not all) of the sitting justices at the time of M-D rejected in the case of GC-MS. For example, the least favorite fan of M-D in J. Breyer even states that such analysis is testimonial, he just believes that the application of the Confrontation Clause is situational— that lab reports are sufficiently reliable— and if the Confrontation Clause does not yield to “practical realities,” then the system may be over-taxed.)

1.1 They try to rationalize that this method of analytical measurement and testing was not made for the primary purpose of litigation in criminal court. (Why else was it analyzed?)

1.2 Failing that they try to say somehow that if it is unsworn and not in an affidavit that somehow it being “less formal” that the right to Confrontation based upon its contained assertions is not guaranteed. (Perhaps this meant to appeal to Thomas’s opinion of concurrence in M-D.)

1.3 If that fails, then they urge the Court to roll back to 1986 in Inadi (and really back to Roberts in 1980) in favor of the subjective “sufficient reliability” test and abandon the Davis rule (which they may do any way in Bryant), in favor instead of a notion that the applicable test should be whether or not it was generated in substitution of live testimony, then it would be testimonial (which begs the question that how does the particular facts in Bullcoming dictate a result of it being anything other than testimonial even if we now use this rationale which they urge to be adopted?)

1.4 But why stop to 1986 or even 1980, they next argue. Let’s go all the way back to the bail statute of 1554 and argue that Confrontation only applies to pre-trial ex pate judicial examinations of a witness in lieu of the witness’s appearance at trial. Confrontation doesn’t apply at trial at all. (Maybe trying to appeal to Scalia’s originalism, but forgetting he put together Crawford, Davis, M-D, and held the majority together with Briscoe)

1.5 Failing that that somehow the mere fact that the analysts are “public officials” and the computer is “non-adversarial,” and the mistaken belief that the analysis requires no interpretation whatsoever, then Confrontation is excused.

1.6 Failing that (perhaps attempting to seize upon the Scalia’s and Thomas’s perceived desire to narrow the Exclusionary Rule in modern 4th Amendment analysis), they argue that the right to Confrontation should be seen as a prophylactic rule (which is really amazing to me, because a classic definition of a prophylactic rule is one that gives more protection than such right might abstractly seem to require on its face, in order to safeguard that constitutional right or improve detection of violations of that right). Clearly, it is not prophylactic even as applied in the case of M-D or even Briscoe.

2. It is not until page 52 of the 59 page brief that we get to anything that remotely addresses the question presented and certified by the SCOTUS which is “Whether the Confrontation Clause permits the prosecution to introduce *****testimonial statements***** of a non testifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.” Note that contained within the certified question itself from the SCOTUS that the SCOTUS itself even states that it is a “testimonial statement.” In sum, they argue:

2.1 Retesting (by the same lab and probably the same analyst) is the same as cross-examination (which is really admirably ignorant of the process). In fact, they assert that retesting (by the same lab and probably the same analyst) is actually better and more effective than Confrontation of the particular witness, meaning the actual analyst who did the testing.

2.2 The sky will fall and evil doers will run amuck. Bullcoming, if decided in accordance with Crawford and M-D, will be an extinction level event just like the solar flare in the movie “Knowing.” (I am being facetious, but you argue the absurd with the absurd, I suppose)

2.3 Any old analyst is just as good as the particular analyst who performed the test even if that surrogate has no idea what actually happened in the testing itself.

2.4 It was all harmless error because let's face it he was drunk. If they finally fail, they ask that it be remanded for the state court to determine whether or not it was all harmless beyond a reasonable doubt given these facts.

That's my take on it.

[As an aside, I really appreciate the blog and your efforts to bring Confrontation and other important and timely issues to the forefront.]

Justin J. McShane
www.TheTruthAboutForensicScience.com
www.TheMcShaneFirm.com
www.PADUIBlog.com

State's brief in Bullcoming

2011-01-11T12:41:00.002-05:00

The State has filed its brief in Bullcoming v. New Mexico, and you can read it by clicking here. I expect to offer some comments on it later.

A cert petition on the scope of unavailability

2010-12-23T17:34:00.004-05:00

Along with local counsel in Maryland, I filed a cert petition this week in Benitez v. Maryland, concerning how unavailability should be determined for purposes of the Confrontation Clause. You can see the petition by clicking here. You can read the decision that it seeks to review (by the Maryland Court of Special Appeals), by clicking here.

Top-side amicus briefs in Bullcoming

2010-12-08T21:20:00.003-05:00

Top-side amicus briefs – that is, the ones in support of the petitioner – were filed yesterday in Bullcoming v. New Mexico. Here they all are.

To see the brief filed by five evidence professors, under the lead of Jennifer Mnookin, click here.

To see the brief of 26 defender organizations, led by the Public Defender Service for the District of Columbia, click here.

To see the brief of the National Association of Criminal Defense Lawyers, the National College for DUI Defense, and the New Mexico Criminal Defense Lawyers Association, click here.

To see the brief of the Innocence Network, click here.

And to see the brief that I filed, click here.

Is there a multi-witness problem with respect to forensic lab tests?

2010-12-07T10:11:00.004-05:00

While litigating Briscoe v. Virginia, I conducted – through a research assistant, Andrew Mackie-Mason, now a student at the University of Chicago – a study of transcripts of Michigan drug trials. Michigan adheres to constitutional procedures with respect to forensic lab results; it does not allow prosecutors to prove such results, over the objection of the accused, by introducing the lab report without presenting the testimony, subject to confrontation, of the author. The principal aim of that study was to find out, given this condition, how often a lab witness actually had to appear at trial. The results – reported in my main brief in Briscoe – showed that in the great majority of cases no lab witness appeared. In some cases, the state presented no evidence of lab results; more frequently, the state presented lab results by introducing a written report, the prosecution not wanting to bring the author of the report in as a live witness and the accused consenting to admissibility of the report. The study also demonstrated that when a lab witness does testify at trial, the defense nearly always cross-examines.

In the pending case of Bullcoming v. New Mexico, No. 09-150, the state presented a forensic lab report and also live testimony of a witness from the lab – but the witness did not perform the test and had no personal knowledge of the conduct of it. Like the petitioner in Bullcoming (represented by Jeff Fisher), I believe this procedure was unconstitutional. Anticipating that, as they have done in Melendez-Diaz and Briscoe, many states will contend that adhering to constitutional procedures would be prohibitively expensive, I have, through a group of student research assistants, conducted a more extensive study of Michigan trials. (Let me give due credit right off: The students who did the work are Wencong Fa, Tasha Francis, Justin Gillett, Regan Nunez, Matthew Parelman (who assembled and organized the data), Kimberly Parks, Luke Rachlin, Joe Reiter, Liza Roe, Alex Su, Sean Stiff, and Anna Walker.) This study was primarily intended to determine, in a state that recognizes that forensic laboratory witnesses are not exempt from the accused's right to be confronted with a witness who made a statement admitted against him, whether there was a significant multi-witness problem. That is, is a chain of witnesses from the lab routinely necessary to prove the results of a forensic lab test? The answer is resoundingly negative.

As in the prior study, we used transcripts provided by the State Appellate Defenders’ Office (“SADO”) – my gratitude to Jonathan Sacks, Deputy Director of the Detroit office of SADO, and to other members of the SADO staff, for making this possible. SADO, which is appointed in a random selection of approximately 25% of indigent trial appeals from every county in the state, maintains electronic copies of trial transcripts from its cases. In this study, the students examined all the trial transcripts to which they were able to get access in the Detroit office in three categories: trials involving drug charges from February 14, 2000 to July 15, 2010; trials involving charges of operating under the influence of liquor (OUIL) from February 3, 2003 to April 20, 2010; and trials involving rape charges with penetration (first- and third- degree criminal sexual conduct) spanning from September 15, 1997 to November 25, 2010. I chose drug cases because they generate more presentations of forensic laboratory tests than any other kind. I chose OUIL cases (which we have referred to more informally as DUI) because Bullcoming itself is a case of this type and because forensic lab results are commonly presented in them. And I chose rape cases involving penetration because they are probably the type of case in which DNA tests – a particularly complex form of lab testing – are most frequently presented.

The detailed results of the study are presented on a spreadsheet that you can examine by clicking here. Here is a summary of the results.

The students examined a total of 154 drug cases. In 116 of these, the prosecution presented lab results presented at trial. But in only 59 of these cases did lab analyst actually testify at trial. In 49 of those cases, only one lab witness testified at trial, and never did more than one lab witness testify at trial with respect to a single test. In nine trials, two lab witnesses testified to two separate tests, and in one trial four lab witnesses testified to four separate tests. So all in all, this makes 71 lab witnesses in 154 trials, or about .46 per trial.

Of the 55 DUI trials examined, 41 included the presentation of lab results at trial. In 26 of these cases, one or more lab analysts testified live. In four cases, two witnesses testified live at trial, and there were never more than two. In only one of these four cases did the two witnesses testify with respect to a single test. (In another case, not included among those four, three analysts, in addition to the one who testified live at trial, testified via video-conference. Together, the four witnesses in that case testified to two tests.) In all, 30 witnesses testified live at these trials, for an average of about .55 per trial. I believe there is a ready explanation for why this number is somewhat higher than in drug cases. Very few DUI cases go to trial. Given the relative simplicity of these cases, when one does go to trial there is a rather high probability that it is because the defense believes that for some reason the lab evidence is problematic.

Of the 104 rape cases examined, 25 included DNA lab results presented at trial. These are, of course, particularly serious prosecutions, and DNA testing is more complex than the other types studied. Therefore, it is not surprising that, as compared to the other two classes of cases, analysts testify live at a higher percentage of the trials at which lab results are presented and that it is more common that more than one lab witness will testify at trial with respect to a given test. (Usually when this happens, they are testifying to different phases, one to screening for DNA and the other to profiling; given that the ultimate forensic result is one result (the identification of the DNA) – in contrast to the identification of two separate substances or two different tests of the same condition – it is appropriate for present purposes to consider this one test.) Of the 25 cases, 21 trials included live testimony by lab witnesses – one witness in 12 cases, two witnesses in eight cases, and three witnesses in one case. That is a total of 31 live witnesses in the 104 trials, or about .30 witnesses per trial; if we restrict our attention to the 25 cases in which DNA results were presented, the average is 1.24 witnesses per trial.

The Michigan appellate courts have been very good in insisting that a lab report cannot be introduced, over the objection of the accused, through the testimony of a surrogate witness who had no personal knowledge of the matters reported, and I understand from discussions with SADO lawyers that only rarely do Michigan prosecutors violate this rule. To double-check, I asked the students to look at the appellate opinions in the cases they examined to see whether a violation of the confrontation right was claimed. (Given the way SADO's briefs are filed, it was far easier finding the opinions rather than the briefs themselves.) In some of the newer cases, the court of appeals has not yet ruled (indicated by "Not found" in the last column on the spreadsheet), but in well over 200 of them it has, and in only one of those, People v. Frey, 2009 WL 2244521 (Mich. App.), appeal denied, 775 N.W.2d 788 (Mich. 2009) (marked in red on the spreadsheet), did the court discuss a claimed Confrontation Clause violation. (That court held there was no plain error when the analyst who performed part of a DNA test did not testify at trial – but the analyst who did testify at trial was present while the test was performed.) So it appears that only very rarely has there been what even the excellent, aggressive SADO lawyers believe is plausibly a confrontation violation.

I do not want to over-claim for this study. To make it feasible in a limited amount of time, I have relied on a large group of students, and my instructions developed somewhat as we learned more. I am sure, therefore, there is some variability in the way the cases have been reported. (Some, for example, affirmatively noted when lab results were admitted by stipulation, and some did not.) I suppose some small inaccuracies are inevitable. But I think the basic results are very strong, and would not be materially altered by discovering small glitches: In Michigan, the defense often consents to the presentation of lab results without the need for live testimony. In drug and DUI trials, even when a lab witness testifies at trial, there is virtually never more than one such witness per test, and when DNA results are presented through live testimony there is virtually always either one or two witnesses.

As in the prior study, what we cannot tell from this data is how often live witnesses are presented because that is the preference of the prosecution; for all that appears from the data, it could be that virtually always when a live lab witness testifies it is because the prosecution chooses to bring the witness in.

Petitioner's Brief and Joint Appendix in Bullcoming

2010-12-01T17:27:00.002-05:00

Jeff Fisher, for the Petitioner, has filed the opening brief on the merits in Bullcoming v. New Mexico, the case involving a surrogate witness to a lab test. You can read it by clicking here. And you can see the Joint Appendix by clicking here. Amicus briefs supporting the Petitioner are due on Tuesday, December 7.

Retaliatory killing and forfeiture

2010-11-20T22:24:00.002-05:00

A couple of people have pointed out to me the decision of the Sixth Circuit yesterday in United States v. Hendrickson. There are numerous interesting features of the case, but I'll focus on just one: The defendant was charged with killing two people in retaliation for providing information against him in a prior case. In trying to gain admission of the victims' statements in this case, the Government apparently did not even make a serious attempt to contend that forfeiture doctrine does not apply -- because the killings could not have been designed to prevent testimony in that prior case. I suppose that's right as a strict matter of reading the Giles case, and perhaps that's the conclusion that the Supreme Court would come to if it were to look at this issue. But to me, it's just one more case highlighting the misfortune of Giles. The insult to the integrity of the judicial system -- on which Giles, unfortunately in my view, places great weight -- does not seem significantly less when a person kills in retaliation for testimony than when he kills to prevent it.

Audio recording in Bryant

2010-10-11T11:56:00.002-04:00

I just learned from Scotusblog that the Supreme Court is now making audio recordings of arguments available the week of argument. You can hear the argument in Bryant by clicking here.

Reactions to the Bryant argument -- Part 2

2010-10-07T17:18:00.004-04:00

Here are further comments on the Bryant argument.

The consequences of holding this statement non-testimonial – Justice Ginsburg asked an important question: What if the speaker had survived? Lori Palmer, for the state, answered straightforwardly that this would not alter what happened at the time of the statement, so in her view it would still be non-testimonial. But then she said the statement would be excluded by the rules of hearsay unless the speaker were unavailable. Not true! In this case, the Michigan courts held that the statement passed the hearsay bar as an excited utterance. In nearly all cases, the courts will find some way to except a highly probative statement from the rule against hearsay; given the existence of a residual exception, they don't have to work hard. And the consequence of this is that even if the speaker is alive and well and living around the corner, or if he decides to take a vacation during trial, under the state's view there is no bar to admissibility – not only no constitutional bar but really no bar at all.

The perspective question – There was extensive discussion of what might be called the perspective question. The justices asked whose purpose matters, the speaker or the questioner's. As indicated in my first set of comments, I think the optimal test operates in terms not of the purpose of the speaker but rather of the understanding, or anticipation, of a reasonable person in the speaker's position. But the basic question remains the same: Do we test whether it is testimonial from the perspective of the speaker or of the questioner, if there is one? To say that the test should be an objective one does not really answer this, because the question remains – objective based on the information available to whom, the speaker or a questioner? I've stated ad nauseum the reasons why I believe the perspective of the speaker – the person who is arguably a witness for purposes of the Confrontation Clause – is the proper one, and the interrogator's perspective makes no sense. I won't repeat these reasons here. I will say that I don't believe the state, or the Solicitor General, or any justice made a genuine argument that the proper perspective is that of an interrogator. And in this case, once we take the speaker's perspective, I think it becomes very clear that this statement was testimonial. Which ties into . . .

Emergency – It's important to recognize – as I think Peter Van Hoek, arguing for Bryant, made clear – that a defendant contending that the emergency doctrine articulated in Davis does not apply is not suggesting any criticism of the police officers on the scene: The doctrine (unlike, say, the exigent circumstances doctrine of the Fourth Amendment) is not a standard for police conduct, but rather a measure of whether a statement should be deemed testimonial for Confrontation Clause purposes. The emergency doctrine is not an exception to the confrontation right, but rather a marking of its outer bounds. I think the best way of accommodating it with sound confrontation doctrine is to say that in some circumstances the need to respond to the emergency is so urgent that a reasonable person in the speaker's position would not, at that time, be anticipating prosecutorial use of the statement. But whether we look at it that way or simply ask the question in terms of primary purpose, the application in this case is clear, once the speaker perspective is taken: The statement was not responsive to Covington's medical situation. And that was the only exigent circumstance he faced, because he knew the shooter was not around and there was no reason to suppose – certainly he gave no indication – that the shooter was on a rampage. The only purpose the statement served was to bring the shooter to justice. I think that's core testimonial. (Even if we look at it from the (misguided) interrogator's perspective, it's at best a dubious case for calling the interrogation emergency-oriented. The officers were reconstructing past events and do not seem to have been at all oriented to resolving an exigent situation.)

Dying declarations and forfeiture – Justice Ginsburg wondered whether the state might be able to renew the argument that the statement was a dying declaration; she understood that a conscientious application of Crawford raises the potential value of a dying-declaration argument for the prosecution. It is conceivable that the Court will remand for that purpose (though as I understand it, there is nothing in the record suggesting that Covington thought he was on the verge of death).

Justice Scalia expressed doubt as to whether there is a dying-declaration exception to the confrontation right (as opposed to a hearsay exception). Frankly, that surprised me, for two reasons. First, Justice Scalia's majority opinion in Giles v. California relies heavily on the establishment of the exception at common law, and in Crawford he indicated that the exception might be sui generis, an exception applicable to testimonial statements that was established by the time of the framing. Second, dying declarations have been admissible for a couple hundred years, and in many circumstances keeping them out is a very unappealing result. I have argued rather strenuously that in fact there should not be a dying declaration exception to the confrontation right, and that the function should be served by a robust doctrine of forfeiture. But the majority opinion in Giles forecloses that possibility; unless the Court revisits the Giles issue (which I hope it does), either the Court will incorporate the traditional dying-declaration exception into confrontation doctrine, or it will exclude statements that have long been admissible (which I don't think it will do), or it will interpret the scope of "testimonial" unduly narrowly to get these statements in.

Let's see how this all plays out in Bryant. Under the doctrine that I regard as optimal, there would be a good chance that Bryant would be held to have forfeited the confrontation right: If the trial court concluded, to whatever degree of certainty is held appropriate, that Bryant killed Covington, then he should be held to have forfeited the confrontation right, because he has no valid, equitable complaint based upon the foreseeable consequences of his own serious misconduct. In some circumstances, even if the accused kills a potential witness, he can contend plausibly that he still didn't forfeit the right because the state had and forsook reasonable opportunities to preserve the right in whole or part, as by taking a deposition. But as I understand the facts here, there was no such opportunity. Covington underwent surgery almost immediately after reaching the hospital, and he died several hours later; I am guessing that he never recovered consciousness, but in any event there was no chance for a deposition (even if a court were to hold that the state, if it can do nothing else, should hold a deposition in the absence of the accused, who in this case was not found till many months later). So I believe that – again, assuming a predicate finding that Bryant killed Covington – the only truly equitable result is to hold that Bryant forfeited the confrontation right. But Giles seems to foreclose this possibility, because it holds that forfeiture does not apply unless the accused killed the witness with the design of rendering the witness unavailable to testify, and there is no indication that Bryant killed Covington for the purpose of preventing Covington from testifying.

That leaves the troubling possibility that – with the Court having made forfeiture doctrine inapplicable and with the facts apparently not supporting application of a dying-declaration exception – some justices will be inclined to adopt a narrowing definition of "testimonial". I remain hopeful that at least four justices will let the judgment of the Michigan Supreme Court stand. But if that happens, the long-term damage to the confrontation right will be attributable in significant part to the mistake made by the Court in adopting too restrictive a view of forfeiture in Giles.

Reactions to the Bryant argument -- Part 1

2010-10-06T12:19:00.002-04:00

I will not make any prediction on the ultimate outcome of Bryant, but here is a first installment of reactions to the argument. More to follow later, but I’m posting this so I don’t have to wait til I’ve written everything.

More than in any previous argument in the Crawford line, in this one the Court was really focusing on the basic questions that go into determining what makes a statement testimonial for purposes of the Confrontation Clause. If the justices write on the case – not inevitable, because there is the possibility of a 4-4 split – they may well resolve some of these issues.

Underpinnings of Crawford; relation of confrontation and hearsay law – Justice Breyer indicated misgivings about how Crawford has developed. He wondered why, if a state treated a matter as within a hearsay exception, the Confrontation Clause should require exclusion.

There was some irony here, because Justice Breyer’s concurrence in Lilly v. Virginia, 527 U.S. 116 (1999), was one of the first opinions to indicate that tying confrontation doctrine to hearsay law might be a mistake. I do hope that Justice Breyer will return to his earlier insight, and will recognize the fundamental nature of the confrontation right as articulated by Crawford.

The right of confrontation is a basic part of our criminal procedure, prescribing how witnesses against an accused must testify – not in a police station, not in their living rooms, not on the pavement of a gas station while talking to police, but in open court (or if necessary another formal procedure), under oath, subject to cross-examination, and in the presence of the accused. I think the key point is this: If a speaker makes an out-of-court statement in given circumstances knowing full well that it is likely to be used against an accused, and the statement is in fact so used, then we have created a system in which speakers can testify against an accused by making statements in those circumstances.

Of course, the confrontation right applies only to statements that are testimonial in nature, not (as Justice Breyer seemed to worry) to the vast majority of hearsay statements. Thus, conspirator statements (an example he cited), even those made to undercover police officers, are not testimonial, because a reasonable person in the position of the speaker would not anticipate prosecutorial use. But where a statement is testimonial, it simply does not do to rely on the hearsay law of the jurisdiction. In formal terms, of course, that is abdicating constitutional responsibility to the rulemakers of the states. In practical terms, it should be recognized that the modern law of hearsay is essentially a sieve – just about anything can get through. Justice Breyer listed a few hearsay exceptions, but the list is long and it is topped off by a residual exception. It would, in my view, be a great misfortune to return to a period in which we hope that courts applying hearsay law will do the work of protecting a fundamental aspect of our criminal procedure.

History – There was a brief allusion to history. I think the history is clear: Neither at the time of the founding nor for many years afterwards — really, I think, nearly two centuries – would a common law court have plausibly admitted the statement at issue in this case. The NACDL amicus brief does an excellent job on this. The res gestae doctrine had not yet developed at the time of the framing. The Brasier case, from 1779, involved a statement made shortly after the crime, with the assailant at large, and the court is very clear in regarding the statement as testimonial and in holding it inadmissible. In the first decades of the development of the res gestae doctrine, the doctrine did not allow narratives of past events. (For example, in the Bedingfield case of 1879, even a statement made seconds after the event was (controversially by then) held inadmissible.) Gradually, courts loosened up – but really, it wasn’t until the late 20th century that a court would have seriously considered admitting a statement like this (putting aside considerations of dying declarations and forfeiture).

It’s also worth emphasizing in this context a point made by Crawford -- putting aside the dying declaration exception and forfeiture, none of the doctrines admitting hearsay that were established at the time of the framing (for example, a develolping doctrine governing business records) were applicable to testimonial statements.

Formality – The state put its primary reliance on a formality test. It appeared to me highly unlikely that a majority of the Court would accept that line of reasoning, and for good reason. As I’ve said (many times) before, a formality test gets things backwards and misses the point of the Confrontation Clause, which was to ensure that testimony be given under proper (formal) conditions; if a statement should otherwise be characterized as testimonial, lack of formality means not that the statement is non-testimonial but rather that it was not given under acceptable conditions. A formality test is also very manipulable – government agents can get around the confrontation clause just by taking testimony under informal conditions. It also distorts incentives – it gives police the incentive to postpone gaining control over a situation until they have taken witness statements made in anticipation of trial. As I have explained before, I believe that if Davis is read as establishing a formality standard – not inevitable, because Davis said merely that it did not deny that formality was essential for a statement to be testimonial – it is best understood as having no independent content beyond the requirement that reasonable person in the position of the speaker would anticipate that the statement would be used for prosecutorial purposes.

Purpose – Justice Alito suggested it makes no sense to ask what the primary purpose of the speaker is. Well, I sure don’t think that test is optimal. I believe the decisive question should be not what the primary purpose of the speaker was but rather what the understanding of a reasonable person in the speaker’s position would be. (And given Davis, I think we have to say that we take the reasonable person in the actual circumstances, acting in the heat of the moment.) Asking about the understanding of a reasonable person avoids the difficult weighing of purposes on which Justice Alito was commenting. It also avoids an inquiry into the subjective frame of mind of the speaker. Even more importantly, it is better justified as a matter of principle: in some circumstances, a witness might not want to create testimony (for example, if it is an unwelcome part of a plea bargain), but if he realizes that in fact he is creating a narrative statement that will be used in prosecution, he is testifying. In this case, I think a reasonable person in Covington’s position clearly would have understood that his statement would be used in prosecuting the assailant.

That's all I can do for now. I'll present comments on the proper perspective - speaker's or interrogtor's -- and on emergency and maybe one or two other issues later on.

Bryant Transcript

2010-10-05T17:34:00.001-04:00

The Supreme Court held argument today in Michigan v. Bryant. You can read the transcriupt by clicking here. I will post some comments on the argument, tonight or tomorrow.

Bryant argument on Tuesday

2010-10-03T16:48:00.004-04:00

Michigan v. Bryant will be argued in the U.S. Supreme Court on Tuesday. I will be second chair to Peter Van Hoek, lead counsel for respondent Bryant. Here are a few thoughts in advance of the argument. These are my own views entirely, and none should be attributed to Bryant or to Peter.

First, a quick review of the facts. Responding to a 911 call, police arrived at a gas station here they found Anthony Covington lying on the ground, bleeding and in pain. In response to their inquiries as to what happened, he told him that he had been shot about half an hour before at the house of “Rick” – arguably a reference to Bryant – six blocks and had driven himself to the spot where the police found him. Covington died later that day. His statement to the police was a crucial piece of evidence in convicting Bryant of murder.

The question here is whether the statement was testimonial for purposes of the Confrontation Clause. I believe that on careful analysis the answer is clearly in the affirmative.

The basic question, in my view, is whether a reasonable person in Covington’s position would realize that his statement was likely to be used in investigating or prosecuting a crime. And I think there can be no doubt that the answer is yes: Covington was giving information about a gunshot assault on him. The case is not like Davis v. Washington, for at least two basic reasons. In Davis, the assault was in progress or just concluded at the time of the statement; here it was a closed incident in the past. And in Davis, the victim was unprotected and presumably seeking protection from the assailant; here, by contrast, Covington was in no need of protection, because the police were already around him.

In part for this reason, the fact that Bryant was at large does not alter this analysis. A rule that a statement is not testimonial if the accused is not already in custody would lack logical support and it would create a badly distorted incentive for the police – to delay taking a suspect, even a dangerous one, into custody while they are gathering evidence.

Nor does the fact that Covington was in dire medical condition alter the analysis. If his statements were ones that could aid in treating his medical condition, then the case would look different, but this was a simple statement describing the crime. There is no remaining contention in the case that the statement was a dying declaration – and even if it were, that would be a separate question from whether the statement was testimonial. If the doctrine governing forfeiture that I regard as ideal were in place, a court might conclude as a preliminary matter that Bryant forfeited the confrontation right by killing Covington. But that possibility – which is also a separate question from the one of whether the statement is testimonial – has been foreclosed by the Court’s decision in Giles v. California, because there is no evidence suggesting that Bryant killed Covington for the purpose of rendering him unavailable as a witness.

It should be borne in mind in this context that nothing in the state’s argument depends on the fact that Covington in fact died before trial. In the state’s view, if he had made a full recovery – or if, though he needed prompt medical attention his life was never in serious danger – and he or the state simply decided that he would not testify at trial, the case would look the same, and because the statement would be characterized as non-testimonial, nothing in the Confrontation Clause would preclude admitting the statement. Indeed, when stripped of the fact that the victim died before trial, this case looks very much like Hammon v. Indiana -- a statement describing an alleged crime made some time after the incident, by a person who was allegedly a victim injured during the crime, made at the scene to police who arrived in response to a 911 call and were able to protect the speaker at the time of the statement. If such a statement is admissible, then I believe we have defeated the purpose of the Confrontation Clause: We will have in effect created a system in which a person who observes a crime may create narrative evidence that will be used at trial to convict a person with no need ever to take an oath or face the accused or cross-examination -- all the person need do is make a statement to the police describing the incident shortly after it occurs.

As in Hammon, the statement be regarded as non-testimonial on the ground that it was not sufficiently formal. I’ve addressed this point enough times in enough places I’ll just make two quick points. First, formality as an independent requirement for characterizing a statement as testimonial makes no sense, because the very point of the confrontation right is to ensure that testimony is given under proper conditions, including the required formalities. If a statement was made in the reasonable anticipation that it would be used for prosecution, the absence of formalities does not mean that the statement is not testimonial; it just means that the statement was not given under acceptable conditions for testimony.

Finally, I want to point out that virtually all the arguments made on the state’s side proceed from the premise, usually made only implicitly, that the question whether a statement is deemed testimonial should be determined form the perspective of the questioner (assuming there is one). Again, this is a point that I have addressed many times (including in my amicus brief in this case). I think that perspective makes no sense at all, and Davis does not stand for it. This case could make a solid contribution to the development of the doctrine of the Confrontation Clause if it establishes that the proper way of determining whether a statement is testimonial is to look at the situation from the point of view of a reasonable person in the position of the declarant.

Cert grant on the surrogate witness issue

2010-09-28T16:59:00.011-04:00

I just realize I didn't post the first part of this message a few hours ago, when I thought I did!

The Supreme Court granted cert today in Bullcoming v. New Mexico, No. 09-10876. This is likely to be a very significant follow-up to Melendez-Diaz, posing the issue of whether forensic lab results may be introduced through a surrogate witness. That is, given that the results must be proved through a live witness, may that witness be an analyst who has no first-hand knowledge about the matters as to which he is testifying?

Here are the following documents in Bullcoming: the cert petition, the state’s brief in opposition to the petition, and the reply brief in support of the petition.

And, while I'm at it, here is a decision of the state same court, issued the same day as Bullcoming, in a companion case, State v. Aragon, 225 P.3d 1280. In Bullcoming, the court holds that one analyst can testify to the facts reported by an absent analyst; in Aragon, the court holds that one analyst cannot pass on the absent analyst's opinions. I do not believe the distinction will hold.

Decision on remand in Briscoe

2010-09-16T11:47:00.001-04:00

The Virginia Supreme Court today issued its decision in Briscoe on remand from the United States Supreme Court. You can read it by clicking here">. The court held that the former Virginia statutory scheme (under which the defendant had to call a lab analyst as his witness if he wanted to examine the analyst) was unconstitutional. This, of course, was the point that I sought to establish in bringing the petition for certiorari; Melendez-Diaz made the point clear, and now the Virginia Supreme Court has drawn the obvious conclusion.

The court held that the error was harmless in Briscoe’s case, but Cypress’s conviction was reversed. I expect his case will plead out.

State's reply brief in Bryant

2010-07-19T00:31:00.002-04:00

The state has filed a reply brief in Michigan v. Bryant. Like its main brief, the reply is refreshingly short. You can read it by clicking here. Below is a summary of the three points made by the brief, and my thoughts on each.

First, the state argues that the perspective for judging whether a statement is testimonial should be an objective one. Nobody disputes that. But the state conflates the subjective-objective question with the entirely different (I will resist the temptation to call it orthogonal) question of the perspective from which the determination should be made. For various reasons that I have summarized in several places, including this blog and my amicus brief in Bryant, I believe it is important that the determination be made from the perspective of the speaker. The state equates a speaker-oriented determination with a subjective one. But that equation does not follow: The proper question, I believe, is what the anticipation would be of a reasonable person in the position of the speaker.

Note that to say that the determination is objective does not avoid the question of asking this question: On the basis of what body of information is the determination made? It makes no sense (again, I will not review the reasons here) for that body of information to be what was available at the time to the police interrogator, even assuming there is one. Rather, the body of information should be what was available at the time to the speaker. A subjective determination would ask: What was the speaker’s purpose (or anticipation) when he or she made the statement? An objective test asks a question like this: Would a reasonable person knowing the information available to the speaker at the time anticipate the statement would be used in investigating or prosecuting the crime?

As I see it, the only way the state could have even a hope of victory is if the Court were to adopt (or implicitly apply) an interrogator’s perspective – that is, basing the determination on the information available to the interrogator at the time of the questioning. Thus, I think this case – more than Crawford, Davis, Hammon, Melendez-Diaz, or Briscoe – may provide a vehicle for deciding the perspective question. But the Court need not decide that question; it could well decide that even from the officers’ perspective it was clear from the outset that the conversation was not designed to relieve an emergency but to assist in prosecution of a crime.

The state’s second main point in its reply is that the emergency doctrine of Davis is not limited to criminal events. But even assuming that is so, it should not help the state. The victim’s statements did not – and were not reasonably calculated to – assist treatment of his medical condition. They were clearly likely to be used to assist in prosecution of the crime (and were so intended).

Finally, the state engages in a debate with Bryant over the contours of the res gestae exception to the hearsay rule. The doctrine is a 19th century creation, long post-dating the Confrontation Clause. Over the course of that century – far too late to be of assistance to the state – the courts loosened up in admitting statements made some time after the incident. Indeed, the significance of this line of cases is that at the time of the Clause and for decades after – even after the broad and newly developing rule against hearsay began to shroud the principle underlying he confrontation right – courts did not admit statements describing past criminal activity, even though the interval was very short. The fact that by the time they did start doing so they tended to talk in terms of the rule against hearsay rather than of the confrontation right is of no assistance here to the state.

Bottom-side amicus briefs in Bryant

2010-06-24T18:54:00.003-04:00

Yesterday was the due date for amicus briefs supporting the respondent (the defendant) in Michigan v. Bryant. I filed one, which you can read by clicking here, and the National Association of Criminal Defense Lawyers filed another, which you can read by clicking here. If I learn that there are others, I will post them as well.

Respondent's brief in Bryant

2010-06-17T13:02:00.002-04:00

Here is the brief, filed yesterday, of respondent Bryant in Michigan v. Bryant. Amicus briefs supporting Bryant are due on the 23rd. I expect to file one.

Cert denied in Pendergrass (and reply brief)

2010-06-14T11:08:00.005-04:00

As reported in a comment by an anonymous reader, the Supreme Court denied cert this morning in Pendergrass v. Indiana. I may have mroe to say on this later. For now, I'll simply say that the basic issue presented by the case -- who must testify as to the results of a forensic lab test -- is an important one that the Court will have to resolve sooner or later.

I never posted Pendergrass's reply brief in support of certiorari, but for completeness will do it now; you can see it by clicking here. Personally, I think the issue is well enough joined that the Court could have taken this case if it were disposed to resolve the matter now. It may be that both sides from Melendez-Diaz are a little wary given the addition of yet another new Justice.

State's BIO in Pendergrass

2010-05-11T12:02:00.002-04:00

The state has filed its Brief in Opposition in Pendergrass v. Indiana. You can read it by clicking here.

Sooner or later, the Court is going to have to address the basic issue raised by this case -- whether a prosecutor may prove an event or condition (here, the conduct and results of a lab test) by presenting the testimony of a person who did not observe that event or condition.

State-side amicus briefs in Bryant

2010-05-11T11:52:00.002-04:00

The Solicitor General's Office and 36 states have filed amicus briefs on the state's side in Michigan v. Bryant. You can read the SG's brief by clicking here and the states' brief by clicking here. Both briefs, like that of Michigan, take the perspective of the interrogator in determining whether the statement is testimonial. I think this is a basic error, and I hope the Court does not fall into it.

I assume that if SG Kagan is confirmed to the Court she will be recused from sitting on this case, given that her name is now on the cover of a brief submitted in it. And that means that it is possible that the Court will ultimately be equally divided, which would leave the decision below untouched.

State's brief in Michigan v. Bryant

2010-04-29T14:37:00.002-04:00

The State, which is the petitioner, has filed its brief -- a day early -- in Michigan v. Bryant, the pending case on fresh accusations. You can read it by clicking here. I expect to be filing an amicus brief on behalf of the respondent. So for now I will confine myself to a few short comments.

1. The brief justifies its name. It is refreshingly short -- the body is only 17 pages.

2. At the very outset, it poses the Question Presented: "[A]re preliminary inquiries . . . nontestimonial . . . ?" But the question isn't whether the inquiries, preliminary or not, are testimonial. The question is whether the statements, in this case by the victim, are testimonial or not. One of the critical points that I hope will be clarified as a result of this case is that the question of whether a statement is testimonial or not must ultimately be made from the perspective of the speaker (or of a reasonable person in the position of the speaker), not from that of the questioner, if there is one.

3. The brief appears to take the position that any statement made in response to police interrogation before the police have ascertained the identity and location of the perpetrator is non-testimonial. This view would vitiate much of the confrontation right. It would also distort the incentives of police, and detract from their protective function.

More on Bryant

2010-03-02T15:04:00.003-05:00

Some more on Bryant: Here, once again, are links to the Michigan Supreme Court opinion, from the court's website and from Westlaw. And here, via Scotusblog, are links to the petition for certiorari and to the brief in opposition.

Bryant will give the Court a chance to resolve several important issues in confrontation law. Here are several points I hope it will establish:

1. The proper perspective for determining whether a statement is testimonial is that of the speaker – that is, of the potential witness – not of a police interrogator, if there is one. The state will try to argue that in this case when the police came to the scene they did not know how dangerous it might be. Even if that assertion were true – and it seems dubious at best – it is clear that the victim knew that the assailant posed no immediater danger. The victim's statement was made for evidentiary purposes, to describe the crime and identify the person who committed it. On this ground, it should be considered testimonial.

2. To the extent formality is a requisite for a statement to be deemed testimonial, it is satisfied by demonstrating that a reasonable person in the position of the declarant would expect the statement to be used in investigation or prosecution of a crime. It would make no sense to adopt a separate formality requirement. The purpose of the Confrontation Clause is to ensure that testimony is given under the proper conditions. To hold that a statement clearly made in anticipation of evidentiary use is not testimonial because it was given informally would stand logic on its head and invite witnesses and government authorities to evade the confrontation right by giving and taking such statmeents informally.

3. That the witness is in a medical emergency does not render non-testimonial his statements describing the crime and identifying the assailant. The situation of the victim was dire – but he did not help it by identifying the shooter and describing the circumstances of the shooting. Plainly, these statements were made for testimonial purposes.

4. That the suspect is at large when the witness speaks does not render the statements non-testimonial. The victim did not have any reason to believe that either he or anybody else was in further imminent danger from the assailant. A rule making a statement non-testimonial whenever the suspect identified by the statement is at large would yield absurd results, invite abuse, and create an incentive for bad policing.

One further thought: As mentioned in my first post on this case, I think it is an interesting question whether, under what I believe to be the optimal rule for forfeiture of the confrontation right, Bryant should be held to have forfeited the right. That depends on whether it was feasible, consistent with standards of humaneness, to take the victim's deposition. I believe that to the extent that one has an intuitive feeling that the statement in this case should be admitted this is responsive to an impulse that Bryant should not be allowed to have killed the victim and then caused his statement to be excluded on grounds of forfeiture. But Giles v. California appears to foreclose this resolution of the matter. I very much hope that what I regard as a mistake in one direction in Giles does not lead the Court to make a compensatory but broader mistake in construing the breadth of the confrontation right in Bryant.

Cert grant in Bryant

2010-03-02T08:30:00.001-05:00

I was out of touch, skiing, yesterday, and am slow in reporting the news that the Supreme Crut granted cert in Michigan v. Bryant; I had previously reported on the state supreme court case. More on this later.

Cert petition on "Who must testify?"

2010-01-25T21:18:00.003-05:00

Sooner or later, the Supreme Court will have to resolve the question of who must testify to the substance of a lab test. Indeed, with Briscoe now safely off the Supreme Court's docket, this would be a logical next issue for the Court to tackle; the justices were interested in it both in Melendez-Diazand in Briscoe. Jeff Fisher has just filed a cert petition raising this issue in Pendergrass v. Indiana, seeking review of Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009). You can read it by clicking here.

G . . . VR in Briscoe

2010-01-25T16:51:00.002-05:00

One June 25, the day the Supreme Court decided Melendez-Diaz, most observers -- including me -- confidently predicted that it would GVR Briscoe -- that is grant the petition, vacate the case, and remand it to the Virginia Supreme Court for further consideration in light of Melendez-Diaz. Well, now that has happened, in a rather odd way. The Court granted the petition on June 29. And, as many readers already know, today -- after full briefing and argument -- it vacated and remanded. You can find the per curiam opinion -- and the Court is listing it as an opinion, rather than as an order -- by clicking here, and you need not budget more than a few seconds to read it.

Thus, we have the result that most observers fully expected right after the Melendez-Diaz decision in June. We will probably not know, at least for a long time, why the Court decided to take the case. But there has been considerable speculation that it did so to give it an opportunity to reconsider Melendez-Diaz, or cut back on it, given the replacement of Justice Souter by Justice Sotomayor. A comment by Justice Scalia at argument lent some force to this theory.

Twenty-five states and the District of Columbia, as amici, explicitly asaked the Court to overrule the case. That didn't happen.

The essence of the argument presented by Virginia and the United States was implicitly that the Court should overrule Melendez-Diaz to the extent that it held that a state violates the Confrontatin Clause if it presents testimony in written form, leaving it to the defendant, if he wishes, to put the witness on the stand. (Virginia contended that the now defunct statute involved in the case required the prosecution to guarantee the presence of the witness, a reading of the statute that I believe is unjustified, and both Virginia and the United States conceded that this would be required to make the statute valid.) That didn't happen.

Instead, we have a per curiam decision, for a unanimous Court that now includes Justice Sotomayor rather than Justice Souter, treating Melnedez-Diaz without question as good law, as one would expect the Court should do.

I hope that states and prosecutors that have been waiting in hopes that somehow the Court would go back on what it just decided seven months ago today will now get on with what they should do. They should recognize that numerous states have long acted in a way that fully complies with the Confrontation Clause as it is so well applied in Melendez-Diaz, and that they can do the same.

No doubt, the issue of who must testify with respect to lab results will have to be resolved by the Court. In fact, Jeff Fisher has just filed a cert petition on this issue, and I will post that soon. Eventually, perhaps, the Court will also adress the lower-significant issues of whether a state may require a defendant who demands live testimony to assert a good faith reason or an intent to cross-examine.

But for right now, on an issue that is -- pardon the expression -- orthogonal to those, the issue of how must a prosecution witness testify, the critical point confirmed by Melendez-Diaz remains the law: A prosecution witness must testify live, face to face with the accused, and not in writing.

Top 50 Criminal Justice and Criminology Blogs

2010-01-14T19:34:00.002-05:00

I just received word that Justice City, USA, another blog, listed the Confrontation Blog as one of the top 50 Criminal Justice and Criminology Blogs. I didn't even know there were 50 blogs in the field! But it's an interesting list, which you can find at.

http://careersincriminaljustice.net/?p=60

In any event, my thanks to readers. I look forward to being able to comment with (relative) lack of restraint once Briscoe is decided.

Transcript in Briscoe

2010-01-12T18:23:00.002-05:00

The Supreme Court heard argument yesterday in Briscoe v. Virginia. You can read the transcript by clicking here. I will hold substantive comments -- including about the exchange on the word "orthogonal" -- until after the decision.

Here are a couple of corrections, though, as to case names. On page 8, line 21, the case I referred to was Learn, not Warren.

On page 50, lines10-11 the cases to which Ms. Kruger referred were Inadi and White v. Illinois.

Reply brief in Briscoe

2009-12-07T16:31:00.002-05:00

I have just served and filed the reply in Briscoe. You can read it by clicking here.

The argument will be on January 11, at approximately 11 am. I will argue on behalf of the petitioners. Steve McCullough, who became the Solicitor General of Virginia while the petition in this case was pending, will argue on behalf of Virginia. I want to take this opportunity to say that he has been extremely gracious, as well as professional, throughout the entire matter. The United States has asked for and received 10 minutes of time, from Virginia's allotment; I don't know who will argue.

Briscoe: Bottom side amicus briefs, and argument date

2009-11-02T17:11:00.002-05:00

The Solicitor General has filed an amicus brief in support of Virginia in the Briscoe case. You can read it by clicking here. Twenty-six states and the District of Columbia have also filed a brief in support of Virginia, and you can read that one by clicking here.

The argument has been set for January 11.

Respondent's Brief in Briscoe

2009-10-26T11:32:00.002-04:00

The Commonwealth of Virginia has just filed its brief in Briscoe v. Virginia. You can read it by clicking here. The reply brief is due November 25, and I believe the argument will likely be held on January 11.

Joint Appendix in Briscoe

2009-09-03T17:17:00.002-04:00

For anybody who might be interested, here is a link to the Joint Appendix in Briscoe

Petitioners' Brief in Briscoe filed

2009-09-01T17:17:00.002-04:00

I have filed the Petitioners' Brief in Briscoe v. Virginia (U.S., Supreme Court, No. 07-11191) today. You may see it by clicking here.

Cert granted in Briscoe

2009-06-29T16:22:00.002-04:00

As some readers already know, the Supreme Court granted cert today in Briscoe v. Virginia, on a petition I filed last year. The petition sought review of the decision of the Supreme Court of Virginia in Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d 113 (2008). You can read the petition by clicking here, the Commonwealth's brief in opposition by clicking here, and my reply brief in support of the petition by clicking here.

I had said that I would comment on the dissent in Melendez-Diaz. In light of the grant in Briscoe, I will not do that.

An initial reaction to the Melendez-Diaz decision

2009-06-25T20:05:00.005-04:00

Here are some early thoughts about the majority opinion in Melendez-Diaz v. Massachusetts, 2009 WL 1789468, and Justice Thomas’s concurrence. I’ll try to write in a few days about the dissent.

First, this is a terrific decision. It is the right result, for the right reasons. It clears up a lot of issues that should have been clear. It should have been unanimous; the principal concern it raises is not anything it says, or doesn’t say, but that only five justices joined it, and one of those five is about to leave the Court.

An anonymous commenter to my earlier post said that the Court never made an affirmative argument as to why the lab reports were testimonial. I don’t think that is correct. Part II of the opinion makes the case. It does so briefly because Justice Scalia believes – accurately, I think – that this is an easy case, a “rather straightforward application of Crawford.” First, the Court says that affidavits are in the core class of testimonial statements identified by Crawford, and these certificates are clearly affidavits. Correct. Sufficient for the result. But then the Court gives an underlying basis. Although it had just quoted the three definitions of “testimonial” recited by Crawford, now it just applied one, the right one (or at least the one closest to right) – the statements were made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” And under that standard, the case is an easy one; indeed, the sole purpose of the certificates was evidentiary. Easy case.

But the Court goes on to respond to a “potpourri” of counter-arguments. As an introduction, it notes that its result does not upset a long-standing, well-established body of law; most of the decisions allowing lab reports in without a live witness are from the Roberts era.

The first counter-argument it knocks down is that the certificates are not testimonial because they are not accusatory. Lots of witnesses give testimony that is not accusatory. It would wipe out a good deal of the confrontation right if it were limited to statements that are accusatory. Descriptions of a crime scene, narrations of the victim’s whereabouts or of the defendant’s – none of these are accusatory.

Next, the Court knocks down the idea that somehow the Confrontation Clause doesn’t apply because lab technicians are not “conventional” witnesses. It breaks this down into three parts. One is that the witness’s observations were “near-contemporaneous” – to which the Court’s response is essentially, “Not really true, and irrelevant in any event.” Second, the lab analyst doesn’t observe the crime or any human action related to it. That’s pretty similar to the “accusatory” argument – lots of testimony falls outside that narrow category. Third, the statement wasn’t made in response to interrogation. Once again, so what? The Court emphasizes a point it made in Davis – a volunteered statement can be testimonial. (And anyway, it says, this was in response to a police request.) All plainly right.

Third is the argument that somehow the certificates are different because they report on a scientific test. That, says the Court, is just an invitation to return to the pre-Crawford regime of Roberts. Right. And anyway, these statements aren’t always so reliable. But lest anyone believe that the Court’s discussion of reliability signaled that it was hedging on its rejection of reliability as the governing criterion for the Confrontation Clause:

The analysts who swore the affidavits provided testimony against Melendez-Diaz, and they are therefore subject to confrontation; we would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.

I didn’t know that Mother Theresa’s reputation for veracity was so strong – but otherwise, clearly correct.

Fourth, the Court blasts the idea that the certificates should be exempt as business or official records. Once again, the Court's basic take is "Not true, and so what anyway?" The certificates don't qualify under the traditional exception because they were produced for use at trial. And if the exception did extend so far, it wouldn't do the prosecution any good. The Court gives a clarification, which was necessary but should not have been, of the relationship between the Confrontation Clause and hearsay exceptions:

Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because – having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial – they are not testimonial. Whether or not they qualify as business or official records, the analysts' statements here – prepared specifically for use at petitioner's trial – were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.

Fifth is the argument that the power to subpoena the analyst, either under the Compulsory Process Clause or a state statute, adequately fulfills the confrontation right. Justice Scalia gives this argument the back of the hand that it deserves, dismissing it in a single paragraph – though several states had adopted it. And it was dangerous, too, because the principle was limitless and would have posed a significant threat to the continuing vitality of the Confrontation Clause. I confess I was a little sorry to see this part of the opinion; my petition in Briscoe v. Virginia, which has been held pending this decision, had raised this issue, and I would have loved to argue it. Instead, we get handed a victory without argument. Darn.

Finally, and perhaps what most motivated the dissenters, is concern about the burden to the judicial system. Once again, the response is basically two-fronted. Sure the Confrontation Clause, like other constitutional guarantees, makes prosecution more burdensome, but that does not give us leeway to ignore it. At greater length, the Court expresses doubt about "dire predictions": "Perhaps the best indication that the sky will not fall after today's decision is that it has not done so already." Plenty of states do not rely on certificates (or on surrogate witnesses), and they have managed. I will write more about this issue later, but for now just a couple of quick points: First, most defendants, as the Court says, have no desire for the lab technician to appear. Second, the Court properly notes that a simple notice-and-demand statute is valid. Under such a statute, if the prosecution gives timely notice of of intent to use a certificate, the defendant must make a timely demand for the witness to appear or give up the right. Correct.

Finally, one brief point about Justice Thomas's concurrence. He has, incorrectly in my view, placed emphasis on formality. But these certificates were as formal as could be. I don't think this was a particularly difficult case for him.

More at a later time. Now, I'm going to celebrate my 20th anniversary with my wife. A better gift from the Court than Giles, which was decided a year ago today.

Melendez-Diaz reversed

2009-06-25T10:23:00.001-04:00

Scotusblog reports that Melendez-Doiaz has been reversed, by a 5-4 vote, with Justice Sclaia writing the majority opinion and Justice Kennedy writing a dissent. I will post more when I know more!

Michigan allows judges to bar witnesses wearing the niqab

2009-06-18T12:53:00.005-04:00

Nothing today on Melendez-Diaz. But yesterday the Michigan Supreme Court again took an action of interest, though this one I regard as very unfortunate. By a 5-2 vote (with Chief Justice Kelly and Justice Hathaway dissenting) it promulgated an amendment to Michigan Rule of Evidence 611(b) so that the rule now reads:

(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.

Though the Rule does not so indicate on its face, it is motivated by a recent decision of a Michigan judge not to allow a plaintiff to testify while wearing a niqab, a garment worn by some Moslem women that covers the face except for the eyes. I have already summarized in a prior post the reasons why I bleieve this decision was a bad one. The new rule is not necessary to protect the confrontation right or to allow the trier of fact a fair opportunity to assess the credibility of the witness. It is particularly unforutnate for this state -- with a large Moslem population -- to be taking this step now.

Colin Miller has posted a very useful summary of caselaw on the question of court's control over the attire of witnesses. You can see it by clicking here.

Commentary against the amendment in the form in which it was proposed and eventually adopted was submitted by:

(1) the Michigan Civil Rights Commission, available here. I spoke before the Commission in opposition to the proposal.

(2) the ACLU of Michigan, on behalf of itself and numerous other organizations and a couple of indiivduals, including my colleague Doug Laycock. That commentary is available here.

Commentary in favor was submitted by:

(1) the Michigan District Judges Association, available here. The MDJA statement offers no explanation.

(2) an individual, James L. Rudolph, available here. (He says, "We cannot allow cultures of other countries to dictate how we run our court system." I agree with that; I don't think allowing a witness to testify in the dress style she favors on religious grounds threatens that result.).

(3) another individual, Timothy A. Baughman, an attorney, avialable here. He discusses cases in which witnesses have not been allowed to disguise their identity. I don't think those are particularly apposite.

A nice decision from Michigan on fresh accusations

2009-06-11T12:30:00.008-04:00

The wait for Melendez-Diaz must be nearly over – Monday is another potential decision day. Meanwhile, I haven’t made any new postings for a while because there haven’t been developments that I thought were worth discussion. But now there is a nice decision, by a 4-3 majority of the Michigan Supreme Court, in the area of fresh accusations. The case is People v. Bryant (Mich. June 10, 2009), and you can see it by clicking here.

Bryant was accused of murder. He had supplied the victim with drugs for years, and the shooting allegedly occurred at his home. The victim drove himself to a gas station about six blocks away, and there police, responding to a radio dispatch, found him lying on the ground, bleeding and in considerable pain. According to the court, "[t]he police asked him what had happened, who had shot him, and where the shooting had occurred." In response to questions, the victim told the officers that the defendant had shot him about 30 minutes before at the defendant’s house. The victim died several hours later.

The only serious constitutional question was whether the victim’s statement was testimonial. (If Giles had come out the other way, there might have been an interesting issue whether the defendant had forfeited the confrontation right, and I think that would depend primarily on whether one thought it was humanely possible to take a deposition of the victim.) The crucial issue here is one of perspective. Given that the victim was lying on the ground, bleeding and badly wounded, when the police approached him, if one takes the perspective of the officers, knowing only what they knew at the very outset, then it might be plausible to conclude that their primary purpose was to respond to an ongoing emergency. That is essentially the position taken by the three dissenters. But the majority realized that this is the wrong perspective. It said:

Davis stated that “in the final analysis [it is] the declarant’s statements, not the interrogation’s questions, that the Confrontation Clause requires us to evaluate.” The declarant here (i.e., the victim) made these statements while he was surrounded by five police officers and knowing that emergency medical service (EMS) was on the way. Obviously, his primary purpose in making these statements to the police was not to enable the police to meet an ongoing emergency of the type identified by the United States Supreme Court, but was instead to tell the police who had committed the crime against him, where the crime had been committed, and where the police could find the criminal. That is, the primary purpose of the victim’s statements to the police was to “establish or prove past events potentially relevant to later criminal prosecution.”

Only after this passage did the court add comments from the perspective of the police. The court said: "The primary purpose of the police questioning of the victim at the gas station was to determine who shot the victim and where the shooter could be found so that they could arrest him." Now, one can quibble with that description if one takes the perspective of the officers at the very beginning of the conversation -- again, they apparently knew nothing, and they may well have worried that the shooter was on the loose nearby. But the court's statement is accurate if it is taken as a description of what the victim (or a reasonable person in the victim's position) would understand the officer's purpose to be. And the anticipation of a reasonable person in the victim's position is the critical one.

The court also rejected the state's argument that there was an ongoing emergency because the police had to stop the assailant from hurting someone else; as the court pointed out, that would almost always be true when a suspect is at large. The court quotes Jeff Fisher approvingly to the effect that emergency must be narrowly construed lest "statements reporting criminal activity or accusing others of crimes . . . always be testimonial until a suspect was in custody and unable to cause further harm."

And the court refused to treat the fact of the victim's condition as creating an emergency for Confrontation Clause purposes; that, it said, would confuse "a medical emergency with the emergency circumstances of an ongoing criminal episode."

On the whole, this is an excellent decision, and I hope other courts follow it.

Maybe they forgot about it?

2009-04-06T13:24:00.002-04:00

The Supreme Court completed its latest sitting today without deciding Melendez-Diaz v. Massachusetts. The long wait -- the case was argued November 10 -- suggests that something is brewing. Perhaps the Court is still debating the merits of the particular question presented, whether a forensic lab certificate reporting the presence of cocaine is testimonial. But I still think that should be an easy yes. Perhaps they are debating broader questions concerning the meaning of "testimonial." And perhaps they are debating yet more general questions of constitutional interpretation. April 21 is now the first date on which, barring something unusual, perhaps we will find out.

Still no decision in Melendez-Diaz

2009-03-09T14:08:00.002-04:00

The Supreme Court has completed this sitting without issuing its decision in the Melendez-Diaz case, in which it will decide whether a forensic lab report asserting that a substance contains cocaine is testimonial for purposes of the Confrontation Clause. The next date on which the Court is scheduled to issue opinions is March 23.

Giles sent down for retrial

2009-03-02T15:22:00.004-05:00

Here is a belated report: The Giles case is wending its way back down through the California courts. After the remand from the United States Supreme Court, the California Supreme Court transferred the case back to the Court of Appeals. In February, that court sent the case back for trial. You can read the opinion by clicking here. It is noteworthy that the court decides, without prejudice given the skimpy nature of the record, that the statement in issue was testimonial. That is the right decision, and encouraging. The court also leaves it open to the state to present evidence that the standard enunciated by the U.S. Supreme Court for forfeiture (whatever that may be) is satisfied. So the further proceedings should be very interesting to follow.

NRC report on forensic evidence casts further doubt on reliability of lab evidence

2009-02-18T16:09:00.002-05:00

In deciding the Melendez-Diaz case, the Supreme Court should not give any weight to whether lab reports are reliable; the essence of Crawford is to make this factor irrelevant. But if the Court were tempted to take reliability into account, a series of recent developments should provide strong caution: Lab reports are not as reliable as people are tempted to believe. Now a report by a committee of the National Research Council has struck another nail in the coffin. The report, issued today, criticizes the nation's entire forensic system, including labs, on numerous grounds. You can read the press release announcing the report, and find a link through which you can order the full report, by clicking here.

Confrontation and the Niqab

2009-02-04T14:33:00.003-05:00

I was interviewed yesterday on a Canadian Broadcasting Corporation radio program, The Current, about a pending case in which a Moslem woman, the complainant in a sexual assault case, wishes to testify while wearing a niqab – a covering that obscures most of her head but leaves her eyes visible. (You can find out more about the case and a link that will allow you to listen to the broadcast – I'm on for just a few minutes at the end – by clicking here.) The issue is an interesting one. As I understand it, for this woman at least there isn't an absolute religious command to wear the niqab at all times, but it is clear that she wears it as a matter of her longstanding and consistent religious practice. I am inclined to believe that she should be allowed to testify while wearing the niqab.

So far as the trier of fact's ability to judge her demeanor is concerned, I think there is not really a serious issue. First, ability of the trier to observe demeanor has never been deemed absolutely esssential; traditionally, if the witness is unavailable, a deposition transcript may be read. Second, the ability of the trier to determine credibility by observing demeanor is often over-estimated; people really aren't very good at it. Third, the trier does have a chance to observe numerous demeanor clues – body language, eyes, and voice. (If the eyes are not visible to the trier because of the niqab, presumably some kind of projection of her image could be used.)

The aspect of confrontation that is essential is the presence of the accused with the witness when she gives her testimony. (I'm going to put to the side the rule of Maryland v. Craig, which allows a child witness to testify in a separate room, electronically hooked up to the courtroom, if trauma seems likely. Perhaps an American court would draw on Craig to make allowances in this situation. But Craig is of doubtful continuing vitality after Crawford; I don't know the Canadian practice.) But here, too, I don't think the impairment is substantial. The witness can still look the accused in the eye when she gives her testimony; presumably her view is unobstructed, and if his presence carries with it a reminder of her obligation to tell the truth I don't believe the niqab lessens that message. And he can see her eyes and hear her voice. I think he's getting an opportunity to be confronted with her.

What if other complainants, without a religious basis, sought to testify wearing a niqab, saying it made them feel more comfortable? I still doubt there's a violation of the confrontation right, but I think the court should probably say, "Sorry, you have to testify the way we say you do it."

Interesting problem. I welcome comments, and mentions of other cases raising the issue. (I know of one American case, a civil small-claims case from Michigan, in which the judge did not allow the plaintiff to testify while wearing the niqab. Silly, in my view.)

Still waiting for Melendez-Diaz . . .

2009-01-27T13:38:00.002-05:00

The Supreme Court issued several decisions yesterday, including a couple from November and even one from December. But Melendez-Diaz, which was argued November 10, was not among them. The Court's next open session is February 23, and a decision could come down that day or soon after. If I were a defendant appealing from a conviction based on a lab or autopsy report that was admitted in the absence of a person who completed it or observed first-hand the event or conditions it states, I would certainly ask the court to postpone proceedings pending the Supreme Court's decision.

Thoughts on Melendez-Diaz: Certificates of Authenticity

2008-12-24T13:27:00.003-05:00

At the Melendez-Diaz argument, Justice Breyer posed one of the most interesting issues that is suggested by the case though not directly presented by it. Suppose that it is critical for the prosecution to introduce Joe Jones’s birth certificate (to use Justice Breyer’s example), or information contained in it. The birth certificate itself is not a testimonial statement. But the copy was produced for the particular prosecution, and is accompanied by a certificate of authenticity. Does the Confrontation Clause require the prosecution to present the custodian of records to authenticate the certificate?

I think the answer is no, and this case is clearly distinguishable from Melendez-Diaz, on several grounds.

(1) The certificate of authenticity is probably not testimonial. True, the prosecution agent who procured the copy of the birth certificate and the accompanying certificate of authenticity knew, by hypothesis, that they were to be used in a prosecution. But it is the anticipation of the declarant – in this case, the one who made the certificate of authenticity – that should count in determining whether a statement is testimonial, not the intended use by the one who procures the statement. (This is an argument I have made many times before, on this blog and in other writing.) Records clerks make many assertions that documents are authentic, and most of those are not anticipated for litigation use. Presumably the prosecution agent in a given case does not say to the records clerk, “Please give me a copy of Joe Jones’s birth certificate, with a certificate of authenticity, so that I can use it in a prosecution.” But even if the agent does add those gratuitous words at the end, or if they seem implicit in the request given the source, the certificate of authenticity is the same type of statement that the clerk routinely makes in non-litigation contexts, and presumably the same type of statement the clerk would make about this certificate even if she did not know about the intended use.

The report in Melendez-Diaz stands in sharp contrast to a certificate of authenticity, of course; it was clearly prepared for prosecution use. Similarly, a certificate showing that there is no record of permission given to a particular alien to re-enter the country after deportation should be considered testimonial; such certificates are presumably prepared only for purposes of assisting in prosecutions for re-entry without permission after deportation. (But I think Congress could easily eliminate that problem. I assume that very few deported aliens are given permission to re-enter; the statute could be reframed so that the crime is re-entry after deportation, and permission to re-enter is an affirmative defense. Poof!)

(2) The certificate of authenticity resembles the old official seal; indeed, it is likely to come in the form of a seal directly affixed to the underlying birth certificate, rather than in a separate document. Certain documents under seal have long (since well before adoption of the Sixth Amendment) been admissible. I believe that understanding the historical use of the seal is a fertile area for academic research. One view might be that the seal is not so much an assertion as an official act that effectively makes the copy the equivalent of the original. It may also be that the seal can only be used when, in accordance with the reasoning in point (1) above, it should not be considered testimonial in nature. In any event, the impact of the seal is limited to demonstrating that a given document is an accurate copy of an original official document. That would do the prosecution no good at all in a case like Melendez-Diaz.

(3) Finally, so far as the Confrontation Clause or any other part of the Constitution is concerned, there is no need for the prosecution to present any authenticating evidence at all. If a piece of evidence appears on its face – without the aid of testimonial statements – to be what the proponent claims it to be, then without any additional evidence about it the jury could infer that this is what it is. If a piece of paper says it is Joe Jones’s birth certificate, then the jury does not, as a logical or constitutional matter, need more evidence to prove that it is indeed Joe Jones’s birth certificate. (Note how a certificate of a lab report is different in this respect – the only way we know what that is from the face of it is by virtue of the fact that it says it is a particular lab report, and that statement was made for prosecutorial purposes.)

There is nothing unusual about this idea. Fed. R. Evid. 902 contains a long list of categories of self-authenticating evidence – that is, evidentiary items that do not need “[e]xtrinsic evidence of authenticity as a condition precedent to admissibility.” Some of these, including government records, require certifications of authenticity; in other words, though the proponent does not need to present admissible evidence supporting the authenticity, the document does have th be accompanied by some sort of certification that it is authentic. But others are truly self-authenticating – if the thing appears to be what its proponent claims, then nothing more is needed to satisfy an authentication requirement. These include the following:

(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.

(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.

(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

There is no reason that a jurisdiction could not add to this list papers purporting – without reliance on testimonial statements – to be within certain categories of official records.

If a jurisdiction does adopt this approach, and the prosecution does not present supporting evidence to demonstrate that the document is the birth certificate it purports to be, it is, of course, open to the defense to challenge the authenticity of the document. And if the state does choose to present supporting evidence, that would have to be in admissible form.

In sum, holding for Melendez-Diaz would not commit the Supreme Court to holding that a certificate of authenticity can never be admitted unless the author of the certificate testifies subject to confrontation. The Court need not reach that issue at all in Melendez-Diaz.

Thoughts on Melendez-Diaz: The Product of Machines

2008-12-18T01:43:00.006-05:00

One of the issues addressed by some of the cases dealing with lab reports, and in the Melendez-Diaz argument, is the status for Confrontation Clause purposes of the output of the machines that do the testing.

As some courts have noted, the output of a machine is not in itself an assertion that can come within the scope of the confrontation right, or of the hearsay rule. Nor are the raw data. But raw data – the numbers themselves – are meaningless without being linked to the case.

Let’s say Officer A brings to the lab a sample labeled “Melendez.” Lab technician B takes the sample, puts it into a machine, and runs a test to determine whether it contains cocaine. When the test is completed, the machine spits out a piece of paper bearing only test results that an expert can testify indicate the presence of cocaine, without any identification of the sample tested.

Now suppose that the prosecution wants to prove its case based only the testimony of Officer A, the printout, and the testimony of an expert that the numbers on the printout reflect the presence of cocaine. This is plainly inadequate: We have sufficient proof that a sample linked to the defendant was brought to a lab, and a piece of paper bearing numbers that, the expert’s testimony indicates, would, assuming they are the results of a test, demonstrate the presence of cocaine in the tested sample. But we don’t have proof that any test was actually performed on the sample linked to the defendant or that the printout reflects the results of that test.

So let’s say technician B wrote an affidavit stating, “I took the sample Officer A gave me, put it into our machine, and performed a prescribed test for determining the presence of cocaine.” I will call this the input proposition. B’s statement of the input proposition seems plainly testimonial; it is made with the understanding that it will very likely be used in prosecution of a crime. The affidavit should not be admitted unless B testifies to the input proposition subject to confrontation, at trial if she is then available and otherwise in some other setting such as a deposition.

Even with B’s live testimony that she performed the test, the prosecution’s case is incomplete absent proof that the particular piece of paper presented is in fact the printout of the machine after performing the test on the sample in question. I will call this the output proposition. Proof of the output proposition could be supplied by B’s testimony asserting it – but an affidavit stating the proposition is testimonial and should not be admitted absent confrontation.

Now suppose that instead of writing an affidavit asserting the input and output propositions, B types into the testing machine an identification, such as “Melendez,” and when the machine spits out the test results it includes that identifier at the head of the page. Doing so does not render the printout admissible. In context, typing the name amounts to an assertion of the input proposition. It also amounts to an assertion of an altered form of the output proposition – altered because the printout does not exist at the time the assertion is made, so the assertion is that the printout that the machine will produce will be a product of the test on the sample in question. So the fact that the printout generated by the machine bears the name of Melendez does not obviate the need for B to testify. I do believe that incorporating the identifying information on the printout does relieve the prosecution of one potential burden. Suppose B does not stand continuously by the machine during the entire interval between the time she puts the sample in the machine and the time the machine generates the printout. Then absent an identifying mark on the printout she could not say that the printout is the one generated by the test on the sample in question. But if she types in the name, and the name is on the printout, then even if she did not see the printout being generated, I believe she has can testify that this printout is the one for the sample in question: Given the way the machine works, she has effectively tagged the printout by typing the name in.

In the actual Melendez-Diaz case, it was not a machine printout at all that the prosecution offered, but a certificate based on the machine readings. I think it is very clear that this certificate, obviously prepared for prosecutorial use, is testimonial, and the fact that it reports machine readings does not diminish this fact. Even more clearly than the printout bearing an identifying marker, the certificate is a human assertion prepared for prosecutorial use. Obviously, it asserts the input proposition – that the sample in question was submitted to the given test. And it asserts a broader form of the output proposition – not that a machine-generated printout bears the results of the test, but that numbers as described by the writer are the results of the test. The certificate cannot be admitted consistently with the Confrontation Clause unless a witness with personal knowledge – presumably but not necessarily the author of the certificate – testifies to both propositions.

A recent opinion usefully summarizing the decisions on this matter, and coming to the proper result, is United States v. Crockett, 2008 WL 4937029 (E.D. Mi. Nov. 14, 2008). The opinion does not go into as much detail as I have here, but I think its analysis is consistent with that presented here.

Eye contact between defendant and witness

2008-12-04T15:06:00.005-05:00

This blog focuses mainly on what might be called the hearsay aspect of the confrontation right — that is, on the question of when the confrontation right precludes the use of out-of-court statements against the accused; that is the aspect of the right that was transformed by Crawford, and so the aspect in which there has been the most dramatic recent development But of course another critical aspect of the Confrontation Clause is the question of what the right of confrontation means if the witness does actually come to court to testify. The case discussed here, and another one that I hope to discuss soon in another posting, deal with different questions related to that aspect – one on the physical nature of confrontation and the other on impeachment for bias.

My former student Craig Chosiad has called to my attention the rather bizarre case of United States v. Kaufman, 2008 WL 4868480 involving a therapist who allegedly kept mentally ill patients essentially as prisoners on a farm and compelled them to engage in extensive activities, some of them sexual, in the nude. At the trial of Kaufman and his wife, the court ordered that the defendants not maintain eye contact with the patient-witnesses. Defense counsel did not object, so the question on appeal was whether this was plain error. The Tenth Circuit properly recognized that it might be. Let’s assume that Maryland v. Craig, 497 U.S. 836 (1990), remains good law after Crawford – an interesting question that will have to be resolved by the Supreme Court. And assume also that Craig applies to unusually vulnerable adults as well as to children – a pretty good assumption. Then the court can in a proper case take steps to protect a witness from the rigors of being face to face with the accused during cross-examination. But Craig makes clear that such unusual steps are permissible only upon an individualized determination that the witness will likely be traumatized by being brought face to face with the accused. In this case, the trial court made no such individualized finding. It merely issued a blanket ruling that eye contact – no matter how unthreatening it might be, no matter whether it might awaken the conscience of a witness inclined to perjure herself or be sloppy with the facts – was not permitted for any of the patient-witnesses.

The reason the appellate court did not go the full distance of holding that the order was plain error was that ultimately it determined that any error was harmless. I think this part of the decision was probably wrong. I’ll suppose that the court was correct as a matter of fact in concluding that it was very unlikely that eye contact would have altered the outcome of the trial. But it appears to me that this was a determination that the court should not have made. As Coy v. Iowa, 487 U.S. 1012 (1988), made clear, when confrontation of a witness is denied, the court may not speculate as to what the impact on the witness would have been, and so on what the witness’s testimony would have been in the end, if confrontation had been permitted. Instead, the court must treat the case as if the witness had not testified. Now of course that involves a certain amount of speculation as well – what would a jury have done with this lesser body of evidence? – but in that case at least we don’t have to speculate what the body of evidence before the jury would be. The Tenth Circuit attempted to distinguish Coy, but the grounds struck me spurious.

Thoughts on Melendez-Diaz: chain of custody, products of a machine, who must testify, etc.

2008-11-13T18:24:00.006-05:00

While Melendez-Diaz is pending, I am going to write about various significant issues beaing on it. Here I will write about the chain of custody, products of a machine, who must testify, and other related topics.

Chain of custody is not a technical requirement that should be belittled as a mere technicality. The chain is part of the requirement of authentication, which is that the proponent demonstrate that a piece of evidence is what its proponent claim it to be. Absent authentication, the evidence has no substantial probative value, because its connection to the case has not been demonstrated. Authentication is a fundamental part of the whole story told by the prosecution, which is how a course of events that included the crime charged wound up producing the evidence that the prosecution has presented in court. Some items are treated as self-authenticating because from the face of the item it is readily inferrable, on the basis of information of the type that jurors are allowed to bring with them to court, that the item is what it appears to be; no evidence need be produced that an item that appears to be the New York Times of November 14, 2008 is exactly that. But assuming, as is usually the case, that the item is not self-authenticating, then, like any other part of that story that the jurors cannot infer based on the information they are entitled to bring to the job, authentication has to be proved by ordinary admissible evidence.

So let’s say a breathalyzer spits out a red splotch on paper if the subject’s blood alcohol level is excessive. Plainly, the prosecution cannot prove its case simply by introducing a red splotch on paper of the type generated by the breathalyzer. Absent evidence that this splotch was generated by a test performed on the accused’s breath, the splotch is essentially irrelevant; its connection to the story we are concerned about has not been shown.

Suppose now that a lab technician who performs the test writes on the margin of the paper, "Jack Sparrow, Nov. 14, 2008." Taken in context, that is an assertion that the red splotch is the result of a test done on Jack Sparrow on the date recited. That assertion was plainly meant for evidentiary purposes, and it is testimonial. The red splotch itself is not testimonial, of course – as has been noted on the states' side in this case, and by some courts, that is just the product of a machine. But without a testimonial statement as to just what that product is, it is of no help to the adjudication. And if the paper with the writing is offered by the prosecution, then a testimonial statement has been offered without the witness having been subjected to cross-examination. That is a Confrontation Clause violation.

So what can the state do, assuming the defendant does not waive the confrontation right? Obviously, the way it can most clearly solve the problem is to present as a witness at trial, the technician, who will testify how the splotch was generated. I will discuss here five other possibilities. Two are clearly permissible. Another should be permitted, in my view, though it is controversial. The final ones I believe are clearly unconstitutional.

1. A properly drawn notice-and-demand statute is constitutional. Petitioner has acknowledged that a "bland" notice-and-demand statute is constitutional. That is, so long as all the defendant has to do to get confrontation is make a timely demand, there should be no problem. Of course, a statute could make an unreasonable demand on the defendant, and that could create a problem. And I think some leeway ought to be allowed if some reason arises belatedly giving the defendant reason to demand confrontation. But in general, a well-drafted notice-and-demand statute is constitutional, and that relieves much of the problem; most defendants have no desire to have the technician tesify live.

2. The constitutional requirement is not that the person who performed the test or wrote the report testify subject to confrontation, but that someone testify from first-hand knowledge about the process leading to the reported results. The critical factual propositions to which the technician would testify at trial, if she does appear, are:

a. The person or bsubstance tested was the one material to the case.
b. The test was performed as described by the witness.
c. (1) The results of the test were as testified by the witness, or (2) A
given tangible item is the product of the test.

Testimony subject to confrontation as to these propositions must be presented by a witness with personal knowledge of them. That witness could, of course, be the technician who performed the test, but it need not be. Suppose that at every step along the way the technician is accompanied by a trainee who touches nothing and writes nothing but observes everything the technician does. (Some jurisdictions routinely have multiple physicians present at an autopsy.) Then that trainee could testify at trial as to these propositions. For that matter, suppose the cop who brings the suspect, or the sample, to the lab stays and watches the entire test being performed. The cop could then testify from first-hand knowledge as to these propositions as well.

Now note that if the technician testifies she will often testify as to a fourth proposition:

d. The proper interpretation of the test results is as testified by the
witness.

But even assuming that interpretive evidence is necessary, there is no requirement that the witness providing the interpretation be the one who testifies as to the three factual predicates identified above; as long as a witness with first-hand knowledge is able to testify to those predicates, then any witness with sufficient expertise to interpret the test results may do so.

3. The state may provide a pre-trial opportunity for confrontation, and if it does the courts should be generous in holding that the witness is unavailable at the time of trial. Much of the inefficiency that Massachusetts and its supporting amici complain about would be avoided if the state provides a full pre-trial opportunity for confrontation. The deposition can be scheduled ahead of time, and does not have to depend on what happens at trial. A witness coming from a distant city could schedule several depositions on one trip. In most cases involving lab reports, there is no mystery early on what the lab report would be used to prove and what the defendant would like to achieve on cross. Early cross-examination offers the possibility that the witness will have a clearer memory of the test than at trial. And the deposition can be videotaped.

The sticking point is that under Crawford a pre-trial opportunity for cross suffices only if the witness is unavailable to testify at trial. I think it would be wise to be rather generous in deeming a witness who has been subjected to cross-examination to be unavailable at the time of trial. Unavailability is often a matter of degree, and given the prior cross and the rather small probability that a second cross would add much, I think the trial court should be allowed to characterize as unavailable a lab technician who would have to travel a great distance. Also, if at the time of trial the witness has virtually no memory of the particular incident -- and that should be subject to demonstration without live testimony from the witness -- then that is a basis for holding her unavailable.

Pretrial testimony is a second-best solution. But in this context, I think it should be constitutionally acceptable.

4. A surrogate should not be allowed to testify to the factual predicates necessary for proving the test results. I stated above the three predicates necessary to admit lab results. Notwithstanding the position taken by several other law professors in an amicus brief, I think it is plainly inadequate for a witness who did not observe the conduct of the test or the handling of the substance tested to report someone else's assertions as to the chain of custody of the substance, the test performed on it, and the results of that test. ("I didn't see the stuff being handled, I didn't see the test being performed, and I didn't see the results of the test. But I'll tell you what my colleague wrote on these points.") There is simply no justification for presenting a surrogate witness to report the testimonial statement made by another witness who has not been subjected to confrontation and whom the state cannot or would rather not produce.

5. The state should not be allowed to shift the burden of presenting the witness to the defendant. I have said that a simple notice-and-demand statute should be constitutionally acceptable. But the confrontation right is not satisfied by providing that the defendant may call the technician as his own witness. The passive language of the Confrontation Clause suggests that such a burden-shifting statute is unacceptable. So does the fact that, given the Compulsory Process Clause, the Confrontation Clause would be rendered a virtual nullity if such a statute were valid. But to my mind, the most significant factor is that practical considerations make clear that telling the defendant, "You may call this technician whose report has been entered against you" is simply not the equivalent of telling the defendant, "You may cross-examine the prosecution witness who has just testified against you." My pending petition in Briscoe v. Virginia explores the reasons why this is so.

The Melendez-Diaz argument

2008-11-10T21:49:00.005-05:00

I have not been able to work much on the blog lately, because of the press of other work. But I attended the argument of Melendez-Diaz v. Massachusetts in the Supreme Court yesterday and I want to report on that. (The transcript is available on the Court's website; you can see it by clicking here.)

For those who have not been tracking the case, it concerns the question whether the Confrontation Clause covers a certificate of a lab report that a given substance cocaine. I believe the answer is clearly affirmative, and I am hopeful that the Court will reach this result; I would not be amazed if it were unanimous, though that is of course hard to predict.

There was no substantial doubt that the certificate was prepared in contemplation of use in prosecution; the statute makes it clear on its face that these certificates are to be prepared for usei n law enforcement, and the Commonwealth (represented at argument by Attorney General Martha Coakley) has not denied the point.

Much of the discussion concerned the practical impact of holding that lab reports are testimonial. Jeff Fisher, arguing for the petitioner, explained effectively that in most case the author of the report would not have to come to trial because usually defense counsel would be willing to do without confrontation. Defense counsel might make this clear by stipulating to admission of a certificate. Also, a state can validly create a simple “notice and demand” system, under which the state gives notice of intent to introduce the certificate and it is admissible unless the accused demands that the state produce the author of the report. But it is the defense’s choice whether to demand confrontation, not one that can be made by a court. (Jeff made the same point in response to questions about whether cross-examination of the analyst would be futile given the analyst's presumed lack of memory; he might have also added that the Supreme Court has said, in upholding admissibility of a witness's prior statement despite the witness's inability to respond to many questions on cross, that showing the witness's loss of memory is a benefit to the defense.) Jeff also pointed out that numerous states – including California and other large ones – currently have procedures that are constitutionally satisfactory, and they seem to be able to operate effectively. At one point, Ms. Coakley said that California had joined the amicus brief of Attorneys General – but the Chief Justice soon pointed out that she was mistaken.

Lisa Schertler, arguing for the United States as amicus, contended that the certificate should be admitted because it merely reported the output of a machine. I don't think she made much headway with the argument, and for good reason. Justice Scalia presented an interesting hypotheical -- the time of murder is significant, and a witness says the clock was striking twelve. Obviously, that would be testimonial. The output of the machine is of course not itself testimonial, but the certificate reflects much more. At the outset of the argument, I believe there may have been some confusion on this score, but by the end -- there was a good exchange between Jeff and Justice Souter at the very end -- I think the matter was clear: The state must present a witness who can testify from personal knowledge about the chain of custody from the time the material enters the lab to the time the test is performed, and about what test was performed. This, I believe, must include testimony establishing that the particular test output is the result of the test on the relevant substance and not on another. But once this is done, any qualified expert can give an interpretation of the output.

Another issue that came up a couple of times was whether the Confrontation Clause was satisfied because the accused has a right to call the author of the report himself. Jeff answered that this argument could lead to trial by affidavits of any witness the prosecution chose, and that it ignores the passive nature of the confrontation right -- that is, the accused has a right to be confronted with the witness, to demand that the witness be presented to him. Also, it would essentially render the Confrontation Clause a nullity, given the Compulsory Process Clause. He did not address the practical reasons why the defendant's chance to call the analyst is not the equivalent of the right to cross-examine the analyst; his reply brief pointed out that I raised these practical problems in my pending petition for certiorari in Briscoe v. Virginia. If the Court decides to treat this issue outside the question presented by the Melendez-Diaz petition and instead to address it in Briscoe, I would not be unhappy. But it may be that the Court will simply hold here that the right to call a witness does not satisfy the confrontation right.

Justice Breyer in particular pushed one issue: Suppose there is a non-testimonial document, not prepared in contemplation of litigation, and the prosecution offers a certificate, prepared in contemplation of being used in prosecution, that the underlying document is authentic. Must the author of that certificate testify in court, and if not what is the distinction between that certificate and the one at issue here? Jeff responded that a certificate of this sort is not evidence as such, but is akin to a seal, which can be used as foundation for the document. In contrast, the certificate here is being used to establish an element of the crime.

I think this is at least the kernel of the answer. This is a tricky matter that could not be adequately addressed in oral argument -- and that, I believe, warrants further historical research. The United States took the view that "human assertions that merely establish the foundation for admitting nontestimonial evidence do not themselves trigger Confrontation Clause rights," but that cannot be right. Suppose a non-testimonial letter allegedly by the victim is critical in a murder case; the prosecution could not authenticate it by presenting the certificate of a handwriting analyst that the letter was in fact written by the victim. But when the prosecution wishes to produce a copy of an official document, I do not believe there is a constitutional requirement that there be evidence of proof that the document is what it appears to be; there are some documents that the law treats as self-authenticating, and this could be one. Traditionally, documents under seal were regarded as self-authenticated, and certificates of copies are a modern counterpart. They amount virtually to a form of judicial notice of authenticity. It is clear that documents under seal were not thought of in the founding era as an alternative form of testimony (as dying declarations were). They were categorically different from testimony, and they do not resemble the certificates in this case, which report on a test performed in contemplation of prosecution.

States' amicus brief in Melendez-Diaz

2008-10-17T17:12:00.001-04:00

I previously posted what I thought were all the state-side amicus briefs in Melendez-Diaz -- but I had not received, and was unaware of, one submitted by 35 states plus the District of Columbia. You can see it by clicking here.