The Confrontation Blog

Pitts v. Mississippi: Supreme Court appears to reaffirm Craig in a per curiam opinion

2025-11-24T17:48:00.004-05:00

Maryland v. Craig, 497 U.S. 836 (1990), an important pre-Crawford case, held that in some circumstances a child witness may be allowed to testify against an accused at trial without being brought face to face with the accused; in Craig, the child was allowed to testify via one-way closed-circuit television. A major question, which the Supreme Court has declined several times to address, has been whether Craig survives Crawford. The results are perfectly compatible with one another: Crawford established that witnesses against an accused must testify at trial, under oath and subject to cross-examination; Craig prescribes how that testimony may be conducted for a subset of witnesses. The two decisions have co-existed for more than twenty years. But they stand on radically different theoretical grounds. Craig was issued in an era of balancing, and it was written by Justice O'Connor, a classic balancer. It was a 5-4 decision, with the dissent by Justice Scalia, who tended to prefer hard-edged rules. Crawford, written by Justice Scalia, adopted such rules for the Confrontation Clause, and clearly eschewed balancing; Justice O'Connor was one of the two dissenters. So it's been an interesting question whether, if the Supreme Court took up the question, Craig would survive.

Today the Court gave an answer, of sorts, in a per curiam summary reversal in Pitts v. Missisippi. Itts was accused of sexually molesting his young daughter. At trial, the child, who was then four years old, testified from behind a screen that permitted the judge and jury to see her but that obscured her view of the defendant; a Mississippi statute purported to give her the right to testify in this manner, and the trial judge applied it without holding an evidentiary hearing. Pitts was convicted, lost on appeal, and then petitioned for certiorari. The petition did not seek to have Craig overruled; indeed, it never even mentioned Crawford. On the contrary, it argued that Mississippi stood alone in failing to adhere to Craig and Coy v. Iowa, 487 U..S. 1012 (1988), an earlier decision holding that use of a screen to shield witnesses from the accused was improper under the Confrontation Clause, but not absolutely foreclosing such use in another case.

The Supreme Court obviously fund the petition persuasive, because it reversed summarily. Like the petition, the brief and unanimous per curiam did not cite Crawford and assumed that Coy and Craig are good law. Here is how it began:

Ordinarily, the Sixth Amendment’s Confrontation Clause “guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U. S. 1012, 1016 (1988). In child-abuse cases, however, that rule sometimes gives way. Consistent with the Sixth Amendment, a court may screen a child witness from the defendant when “necessary to protect [the child] from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child’s ability to communicate.” Maryland v. Craig, 497 U. S. 836, 857 (1990).

It then went on to say, though, that "before invoking this procedure, a court must proceed with care." Here the Mississippi court had failed to hear evidence leading to a case-specific finding of likely trauma, and so the judgment had to be reversed. The Court was emphatic on this point, allowing it to decide summarily and unanimously.

Given that nobody in the case argued that Craig should be discarded given the radically different framework of Crawford, I do not think this brief, summary per curiam reversal forecloses the issue, but it does probably give a hint of how the Court would ultimately decide. My own view, which I have often presented, sometimes in conjunction with Steve Ceci, is that very young witnesses – and the 4-year-old here would qualify – should not be deemed witnesses at all, though they are sources of evidence, and the accused should have a right of examination by a qualified forensic examiner, but not cross-examination at trial.

The Pitts Court cautioned that the Confrontation Clause violation might be deemed harmless error. As I have indicated previously on this blog, I believe that the proper method of answering the harmless-error question is not to speculate as to how effective properly held cross-examination might have been, but rather to consider the case as if the witness in question had not testified at all.

One other point: The first paragraph of the opinion, quoted above, gives no indication that Craig might be extended to extenuating situations involving adult witnesses, and the implication appears to be to the contrary. That's good news, I think.

Franklin v. New York -- interesting statements accompanying a cert denial

2025-03-28T01:35:00.002-04:00

For decades, I have benefited from the extraordinary efforts of three friends to keep me informed on matters I should know about – my co-clerk Ed Krugman, my former law-firm colleague Eric Freedman, and regular blog reader Stu Dedopoulos. On Monday, all three of them told me about the cert denial in Franklin v. New York. Justices Alito and Gorsuch issued very different statements accompanying the denial. I haven’t been able to offer my thoughts before today, but I’m glad to do so now.

First, Justice Alito’s statement. He contends that in a future case the Court should reconsider Crawford. This isn’t entirely surprising news. As a very junior justice, he joined in the 8-1 decision in Davis v. Washington, but in Giles v. California he expressed misgivings about Hammon v. Indiana, which was part of the Davis decision and held the statements there to be subject to the Confrontation Clause. And he was one of the dissenters in Melendez-Diaz and Bullcoming, and author of the prevailing opinion in Williams v. Illinois and of a separate opinion in Smith v. Arizona, echoing the views of those earlier opinions. But in Smith, the prior Gang of Four was reduced to two, and in Franklin Justice Alito stands alone; that is probably good news. Justice Alito based his argument on two points – that Crawford does not clearly reflect the original meaning of the Confrontation Clause and that it has proved unpredictable in application.

Justice Alito says that Crawford’s treatment of a person who makes a testimonial statement as a witness for purposes of the Confrontation Clause is “radically different” from the meaning of the term witness elsewhere in the Constitution; his point is that elsewhere the term “refer[s] to people who testify in court.” Three responses.

First, there really is no incompatibility. As Justice Alito recognizes, the Compulsory Process Clause, on which he puts his primary reliance, gives a defendant the right to subpoena witnesses to come to court to testify in his favor. The Confrontation Clause, which as he recognizes, is the other side of the coin, gives the defendant a right to demand that those who testify against him do so in court. (On both sides, we must recognize a qualification; if the witness cannot come to trial, a deposition might do.)

Second, what do witnesses do? They testify; they give testimony. In English, as I have pointed out, we have different words for witnesses and what they do, but in many other languages they are the same root. (For instance, témoin and témoinage in French.) There are various ways in which one might give testimony, some of which are allowed in other jurisdictions, but as Crawford makes clear the way that is acceptable under the Confrontation Clause is face to face, presumably at trial. So the difference really isn’t a different meaning of the word witnesses, but a different function of the respective clauses. The Compulsory Process Clause gives the defendant the right to bring favorable witnesses to court, the Treason Clause requires the prosecution to bring two witnesses to court, and the Confrontation Clause more generally gives the defendant the right to insist that the prosecution bring its witnesses to court.

Justice Alito goes on to cite academic literature that in his view casts doubt on Crawford’s perception of Framing-era practice with respect to “what we now call hearsay.” I’m not going to try to get into an extended historical argument here. But two quick points: I think it is clear that the Confrontation Clause was not rooted in a doctrine resembling the modern law of hearsay; it was, and is, a rule about how witnesses give testimony. Second, the laser-like focus in some of the literature on the Framing era – what did the Framers know, and when did they know it – while historically interesting, doesn’t resolve the question that is important for construing the Clause. The norm that prosecution witnesses must testify face to face, ordinarily in open court, and not by, say, giving a statement in private to a government official, had developed over hundreds of years, and had ancient roots; Crawford clearly recognized this and was dead right about it.

And that ties in to my third point. Justice Alito’s apparent belief that the Confrontation Clause gives the accused rights only with respect to those witnesses who testify in court (a theory at one point adopted by the second Justice Harlan) would be an utter disaster. It would allow a prosecutor to try a case entirely by affidavit, putting the burden on the defense to compel the attendance of those affiants it wanted to examine (if they were even available, and presumably with only non-leading questions allowed). That has never been how a common-law criminal trial has been conducted.

As to unpredictability, as my colleague Rick Lempert has pointed out there is a certain degree of chutzpah in Justice Alito’s claim, because much of the unpredictability has been attributable to his own promotion of untenable theories. (A statement not directed against a “targeted individual” cannot be testimonial. Really? A description of the crime scene? A description of the crime itself, without any information identifying the perpetrator?) As Crawford pointed out, Roberts was inherently unpredictable. The Supreme Court can develop a sturdy conception of what is testimonial; it just hasn’t done so yet. But let’s bear in mind that it’s just a little over twenty years since Crawford was decided, and the Court addresses the issue only very occasionally. (It reminds me of the old joke about a member of a religious order who is allowed to speak only every ten years, to the abbot. After ten years, he says, “The beds are hard.” After twenty, “The food stinks.” After thirty, “I quit.” And the abbot replies, “Not surprising; you’ve been doing nothing but complaining for thirty years.”)

I’ve said the Court can develop a sturdy conception of the meaning of the Confrontation Clause, and that brings me to Justice Gorsuch’s statement. As in Smith, he casts doubt on the “primary purpose” test. Well, good for him, because that test truly is inherently unpredictable and manipulable; Justice Thomas pointed this out from the start. A test based on the reasonable anticipation of a person in the position of the purported witness would provide good guidance and would express the essence of what the Clause is about. That does not mean, of course, that there would be no close cases. But that is true of just about any area of law. When the Court heard argument in Ohio v. Clark, there was so much dissatisfaction with the “primary purpose” test that I thought it might be on the chopping block. But in the end, Justice Alito’s opinion for the Court stuck with the test, and the Court doubled down on it, at least to some extent, in Smith. But I always say the future is bigger than the past, and there’s plenty of future in which the Court can change course. Perhaps continued dissatisfaction with the “primary purpose” test, and pressure from Justice Gorsuch to take a different course within the Crawford framework (and perhaps even Justice Alito’s pressure from outside that framework) will cause the Court to take another look.

A Ninth Circuit decision -- room for improvement

2024-08-28T15:58:00.000-04:00

The United States Court of Appeals for the Ninth Circuit just issued a decision, not designated for publication, in United States v. Riggs, that is worth commenting on, both for its good aspects and a couple of curious ones.

Riggs was accused of killing his boyfriend, Martinez; the death apparently occurred in Indian country, which is why the case was in federal court. The prosecution was allowed to introduce statements Martinez made to the police after two prior alleged assaults. The Ninth Circuit properly held that Martinez’s statements on these occasions were testimonial. In each case, “Martinez was alone with the officers and safe from harm during the questioning.” Good!

The court then adds that “even if there was an ongoing emergency when the officers initially arrived on the scene, by the time Martinez identified Riggs as the assailant, it was clear that ‘what appeared to be a public threat [was] actually a private dispute’ with no ongoing emergency. Michigan v. Bryant, 562 U.S. 344, 365 (2011).” That this was a private dispute and not an ongoing emergency appears clear. But I think it’s an unfortunate relic of Bryant that courts continue to look at these matters largely from the point of view of the inquiring police officer rather from that of the speaker – who knew all along that there was not a continuing emergency.

And then the court says that the district court should have redacted the statements to exclude the portions that had become testimonial. But what happened to the first part of the court’s discussion, in which it indicated that there never was an emergency? Moreover, the court goes on to hold that Martinez’s statements were not admissible under the excited-utterance, medical-diagnosis, or residual exceptions. But why was the court discussing these at all? If, as the first part of its discussion seems to indicate, Martinez’s statements were testimonial, then their hearsay status shouldn’t matter. I hope the court doesn’t think that those exceptions are also exceptions to the confrontation right. Maybe all it meant was that if parts of the statements were not testimonial (notwithstanding the beginning of its discussion), then the hearsay status would have to be determined – but the court doesn’t make this at all clear.

One other aspect: The setup of the case resembles Giles v. California – that is, a killing, and prior statements to the police by the victim alleging domestic violence by the accused. I think it should be open to the trial court to determine that the accused wrongfully rendered the victim unavailable and therefore forfeited the confrontation right. Giles makes that impossible unless the trial court determines that the accused rendered the victim unavailable for the purpose of preventing testimony – but it makes that determination somewhat easier in the context of domestic violence. But the Riggs court doesn’t even mention the possibility of forfeiture.

An unpublished opinion, I know, but by a panel of one of our federal courts of appeals, and I think it's suggestive of how courts' Confrontation Clause analysis could improve.

Failure to preserve: Why does this keep happening?

2024-08-16T14:21:00.000-04:00

Occasionally, but too often, a perfectly good Confrontation Clause objection is held unreviewable and lost because defense counsel fails to preserve it, usually by objecting but only on hearsay grounds. A frustratingly good example is presented by a decision issued yesterday by a Texas appellate court, Edwards v. State (Tx. Apps. 13th Dist.).

Edwards was convicted on gun-smuggling charges and sentenced to forty years in prison. Important evidence against him was a statement to a detective by an apparent confederate, Simmons, that Edwards was his supplier. So there was no doubt that the statement was testimonial, and there's no suggestion that Edwards either had an opportunity for confrontation or forfeited the right. (And, for good measure, it appears that Simmons was available, because Edwards contended that the State could have subpoenaed him.) The confrontation violation was clear.

Unfortunately, the objection by Edwards's counsel did not explicitly mention the Confrontation Clause as a ground. The trial court, in overruling it, explicitly referred to it as a hearsay objection, and the debate appears to have been over whether the statement fell within Texas's exception for statements against penal interest, Tex. R. Evid. 803(24)Cwhich, unlike its federal counterpart, Fed. R. Evid. 804(b)(3), does not require unavailability.

The appellate court held that the Confrontation Clause issue was not preserved for review, because the objection did not cite the Clause specifically. Two thoughts about that decision. First, it seems somewhat stingy on its own terms. Counsel did repeatedly complain that the State could have subpoenaed Simmons, and also that cross-examination was not possible; the appellate court might have interpreted these as sufficient to implicate the Clause. Brooks v. State, 132 S.W.3d 702, 705 (Tex. Apps. 5th Dist. 2004), cited by Edwards in his appellate brief, is quite directly on point and offered ample authority for doing so. But even apart from that, this would seem to be a very good case for applying the doctrine of "fundamental error," the rubric Texas uses for what other jurisdictions call "plain error." (Edwards, perhaps confident that the issue was preserved given Brooks, did not invoke the possibility of fundamental-error review.)

So this strikes me as quite a bad decision. But I feel like a coach after a close loss saying, "Don't complain about bad calls. You've got to put yourself in a position where bad calls won't hurt." Twenty years after Crawford, it certainly seems that defense counsel should be aware that there is this thing called the Confrontation Clause that they should at least think about when they're objecting to an out-of-court statement. Had trial counsel just mumbled the words "Confrontation Clause" this situation would not have arisen. Why does this keep happening?

I don't have a comprehensive answer, but I'll offer one speculation. The traditional way of teaching hearsay is to go into some depth on the definition of hearsay, then into greater depth on the exceptions to the hearsay rule, and somewhere along the way, perhaps near the end, acknowledge that the Clause exists. I think many Evidence teachers still do that, and so I suspect that a good many lawyers are insufficiently sensitized to the Clause. Before Crawford, maybe this was justified. Since then, I believe, it really isn't. ("Are there any textbooks that avoid this pitfall?" you may ask. Oh, so glad you asked.)

People v. Washington – an excellent decision on statements not explicitly reported at trial, on when a statement is testimonial, and on the “explaining what the officer did” end run

2024-07-28T18:23:00.000-04:00

On Friday, the Supreme Court of Michigan issued its decision in People v. Washington, a case about which I have posted a couple of times before, here and here. The decision is an excellent one on several issues related to the Confrontation Clause. (There was another issue, which I’ll just mention briefly.) It was unanimous, written by Justice David Viviano, who as it happens is a former student of mine – but not, as I recall, in Evidence!

The basic facts are simple: Washington blew past a toll at a border crossing between the US and Canada. Some time later, Canadian officers brought him back. None of them testified at trial. But the American officer in charge, Paul Stockwell, testified that he had communications with the lead Canadian officer, Matthew Lavers, and that as a result he took custody of Washington and body armor (a bullet-proof vest) that Lavers brought along with him. Washington was charged with possession of body armor by a person who has been convicted of a violent felony. (He also made statements to his mother acknowledging that he had had the vest; the admissibility of those was in question on other grounds, mentioned briefly below.)

The intermediate appellate court held that the evidence concerning the Lavers-Stockwell exchange violated the Confrontation Clause, and the State appealed. There are several issues related to the Clause. I'll take them up in an order different from the court's.

First, nothing that Lavers said was explicitly admitted into evidence. So was there a Confrontation Clause issue (or for that matter a potential hearsay issue) at all? Drawing on ample precedent, the Washington court held that a statement is effectively introduced "if the [in-court] witness’s testimony leads to a clear and logical inference that the out-of-court declarant made." Some courts put the point differently, asking whether the substance of the statement was conveyed. It all comes out to the same point. However the test is phrased, it was satisfied here — the clear inference to be drawn from Stockwell's testimony was that Lavers had told him that the Canadian officers had recovered the vest from Washington's possession. Note that we don't need to know the exact words that Lavers used; we rarely do when a witness recounts an oral statement. We don't even need to know whether Lavers said that Washington was wearing the vest, because that was not necessary for the prosecution; it is clear that Lavers said something to the effect that Washington had possessed the vest, and that's what the prosecution used it for.

Some courts in addressing this issue ask whether the statement is "implied" in the in-court testimony or alternatively whether it is "introduced implicitly" through that testimony. There's noting inherently wrong with such phrasing, but in this case it led to some confusion, which the supreme court nicely cleared up. Hearsay, in most modern codifications, does not include action that appears to reflect the actor's belief in the proposition at issue but does not actually assert that proposition, and presumably the Confrontation Clause would be held inapplicable to such conduct as well. The term "implied assertion" is sometimes used to refer to such conduct — not a helpful term in my view (because one can make an assertion without doing so explicitly), but so it goes. The dissenting judge below, and the prosecution in the state supreme court, invoked this doctrine. But that is just a category error, as the supreme court made clear in footnote 11 of its opinion: So-called implied assertions are conduct of the out-of-court actor that do not assert the proposition. Here, Lavers, the out-of-court actor, did clearly make an assertion of the proposition at issue. The "implicit" or "implied" aspect is in inferring what he said from the testimony of the in-court witness. That is an altogether different matter. And note why it makes a difference for the Confrontation Clause: If Lavers made the statement, and it was testimonial and introduced for the truth of what it asserted (all true here, as will be further discussed below), then there is a Confrontation Clause violation in introducing evidence of the statement, and the prosecution should not be able to avoid that conclusion by presenting evidence that, wink, wink, doesn't quite report explicitly that Lavers made the statement but makes clear that he did and what the substance of it was. But if Lavers merely acted in a way that suggests he believed in the proposition at issue, but did not try to communicate that proposition to another person, then in no proper sense can he be deemed to have testified.

Second, was the statement testimonial? Drawing on its decision in People v. Fackelman, 802 NW2d 552 (2011), the court held that the "primary purpose" test only applies in the emergency context. I would love to see the U.S. Supreme Court narrow the scope of the "primary purpose" test in this fashion. That Court's recent decision in Smith v. Arizona continued to invoke the "primary purpose" test, but Justice Gorsuch treated the matter as an open question. So we'll see what happens.

Instead of trying to discern the purpose of the statement, the Washington court said, "the standard requires courts to consider the foreseeability—based on the context at the time the statement was made—of whether the statement would later be used at trial." That, I think, is basically the proper approach, making the test one of reasonable expectation rather than of purpose and clearly operating from the perspective of the speaker; the court quoted Fisher v. Commonwealth, 620 SW3d 1 (Ky. 2021), which repeatedly termed the proper approach "declarant-centric." Just right.

In applying the test, the court stressed that it was highly context-dependent. It emphasized that Lavers's statement was made to another law enforcement officer —but without suggesting that this was a prerequisite —and also that Lavers made the statement while turning custody of Washington over to Stockwell after having arrested Washington for engaging criminal activity. There is more that the court could have said with reference to the vest particularly. But this was enough.

Third, was the statement offered for the truth of what it asserted? The prosecution tried to argue that it was not, because it was offered to show the chain of custody. But that got them nowhere. As the court made clear, chain-of-custody evidence must be admissible, and that includes satisfying the Confrontation Clause. And to show a chain of custody that would be relevant to the case, the prosecution would have the prove that Washington possessed the vest, which is what the statement asserted.

The prosecution also argued that the evidence of Lavers's statement was admissible to explain Stockwell's conduct in taking Washington and the vest into custody. This is what I have often referred to as an end-run around the Confrontation Clause: "We're not offering it to prove what it says, but only to explain the officer's conduct." The court also properly rejected this contention. It said that the evidence was substantive proof that Washington was guilty of the crime charged. Yes, but it seems to me that this only sets the problem up: The evidence, if taken to be true, tends to prove the crime charged, but the prosecution is contending that it has value irrespective of its truth, to prove the officer's conduct, and that it could be admitted for that purpose alone. I think the real answer is expressed well in United States v. Kizzee, 877 F.3d 650 (5th Cir. 2017), which the Washington court quotes at length in a footnote: Unless the accused is challenging the adequacy of an investigation (and Washington did not challenge the adequacy of this one), there is little or no need to present additional context, and the evidence is highly prejudicial.

It is highly prejudicial in the sense that the jury is likely to use it for the purpose forbidden by the Confrontation Clause, to prove the truth of what the statement asserts. I have long thought this is a particularly vulnerable setting for the confrontation right: The prosecution articulates some purpose for which the statement is supposedly relevant irrespective of the truth, and asks for it to be admitted for that purpose, with a limiting instruction supposedly doing the work of ensuring that the jury does not use it for the truth. Given the U.S. Supreme Court's professed faith in the power of limiting instructions, see, e.g., Samia v. United States (U.S. 2023), except, apparently, when a former President of the United States is the accused, Trump v. United States (U.S. 2024), slip op. at 31-32, there is no sure-fire protection against abusive use of this technique other than case-by-case vigilance of the courts. It is good to see such vigilance in cases such as Washington.

In the end, the Washington court remanded the case, because Washington himself had made statements acknowledging that he possessed the vest. The court of appeals had held these inadmissible under the doctrine of corpus delicti. But the state supreme court reversed on that issue, on the ground that this doctrine only applies to confessions and Washington's statements were not confessions, because they admitted only possession and not the full crime, which also required a prior conviction. So the case has to go back down to determine whether the Confrontation Clause violation was harmless error. Bottom line: The decision is not a clear victory for Washington, but it is for the confrontation right.

Smith v. Arizona: Were the statements testimonial?

2024-06-27T14:52:00.001-04:00

In a prior post, I have analyzed the justices’ treatment of the questions presented in the petition in Smith v. Arizona. Lurking in the case was the issue of whether the statements at issue were testimonial. Although the state seemed to have conceded the issue, it drew some attention in the briefs, a great deal of attention at argument, and some discussion in the majority opinion and in two concurrences. So here are a few thoughts.

1. The Court properly declined to resolve the issue; it was not part of the questions presented, and, as the Court noted, it may have been forfeited. Indeed, the Court need not have said anything at all on the issue, and I think that would have been the better course. And so does Justice Gorsuch. In declining to join Part III of the Court’s opinion, the portion that addressed this issue, he emphasized that this issue was a separate one from the main issue of the case and “in no way necessary to the resolution” of the case. Nevertheless, Justice Kagan, speaking for a bare majority of the Court, offered “a few thoughts . . . about the questions the state court might usefully address if the testimonial issue remains live.” Oh well.

2. The Court, not surprisingly but rather casually, once again endorsed the “primary purpose” test. And so Justice Thomas, also not surprisingly, declined to join in Part III, and instead repeated his frequently stated views on the matter. This time around, he used both “formality” and “solemnity,” as he has at times in the past; he also repeated the qualification that the Confrontation Clause “reaches the use of technically informal statements when used to evade the formalized process.” As I have also stated, I wish he would drop the use of “formality”, which I think is unduly limiting and confuses matters; ”solemnity,” properly interpreted, has more promise. Interestingly, though Justice Kavanaugh asked repeatedly about Justice Thomas’s approach at argument, he said nothing about it here.

3. What was surprising was Justice Gorsuch’s concurrence, because it not only questioned the merits of the “primary purpose” test but seemed to treat it as a new trial balloon – at one point referring to it as “the Court’s proposed ‘primary purpose’ test” – as opposed to doctrine that the Court articulated in 2006 and has applied at least fairly regularly ever since. (And the potential sources of confusion that he suggests, the question of whose purpose should be decisive and how we determine what purpose is primary, have been much discussed since then.) Well, if in a future case Justice Gorsuch can get the Court to rethink the test, that might be all to the good, especially given that in his view the test “may be a limitation of our own creation on the confrontation right.” One of the possible tests that he suggests for what is testimonial, a statement that relates a factual assertion or discloses information, strikes me as way too broad. The other potential approach he offers, treating a witness as any person who gives or furnishes evidence, seems to me to be much closer to the mark, if we modify it by adding the modifier “knowingly.”

4. The Court noted that (assuming they reach the question of whether testimonial statements are in issue) the Arizona courts will have to resolve which statements are actually in issue. The state contends that Longoni was relying only on Rast’s notes; Smith contended that he relied on Rast’s report as well as on her notes, and treated them essentially as a unit. In my view, it should not make a difference, and the Court did not say that it would. But for reasons I’ll discuss now, it might, and the Court pointed to that possibility.

5. The Court said that in determining primary purpose, the courts should “consider the range of recordkeeping activities that lab analysts engage in.” Some records, it said, “will not have an evidentiary purpose.” Two such possibilities that it mentioned – “that lab records may come into being primarily to comply with laboratory accreditation requirements or to facilitate internal review and quality control” – do not seem particularly troublesome (but see below!), at least for now. But the third does: The Court says that “some analysts’ notes may be written simply as reminders to self.” And in all these cases, the Court asserts, “the record would not count as testimonial”; for that, it added, “the document’s primary purpose must have ‘a focus on court.’” So a couple of things.

a. The “focus on court” language is taken from the oral argument. Eric Feigin, arguing for the U.S. as amicus (which, unusually in criminal cases, did not side with the state) said, “I think something that is created for an investigatory purpose, as opposed to with a focus on court, may well be – not be testimonial.” Such a hesitant, qualified statement at argument is an awfully thin basis on which to rest an assertion of principle. I also think it’s wrong. If a statement is made to assist in investigation, with the anticipation that it will help prosecution, that should be enough – especially in an era in which the vast majority of cases never get to trial.

b. The idea that the prosecution can avoid the Confrontation Clause by characterizing notes written by a lab analyst, who is knowingly working on a case for prosecution, as “reminders to self” raises considerable difficulties. So maybe we are about to enter a period in which lab analysts will generate notes that they will characterize as – and perhaps even title – “reminders to self.” (And perhaps they will not even write formalized reports, because they don’t need them.) If the case goes to trial and the analyst testifies there, she can rely on these notes, and presumably they would be admissible. And if the author of the notes doesn’t appear at trial, the prosecution would present another analyst, who would offer to testify to similar conclusions on the basis of the notes. Gee, it would say, these were written for personal use, so they’re not testimonial, but we happen to have them, and nothing in the Confrontation Clause stops the in-court witness from relying on them. So then what’s left of Melendez-Diaz in effect?

And maybe it’s even worse than that. In response to my prior post, Jacob Berlove says the decision in Smith will not make any difference because a majority of the Court will happily jump on the “quality control” and “laboratory accreditation requirements” evasions. I am reluctant to disagree with Melech – the King, who has been labeled the best Supreme Court predictor in the world – so I have to acknowledge that this is at least a possibility. But I suspect the courts will find the “reminders to self” evasion a little easier to use. As Jacob suggests, the answer is to make the test depend on anticipation of likely use (and I’d say in prosecution, not at trial), and to do away with the primary-purpose test. Perhaps if we see a flood of cases involving notes that courts admit as evidence while maintaining that they were written for some other purpose, the Court will see that its approach is not working and is just an invitation to a sham. But we may have to wait a while.

Smith v. Arizona: The Supreme Court decisively rejects the “in support of the opinion” end run

2024-06-25T18:07:00.001-04:00

The Supreme Court decided Smith v. Arizona on Friday. On the whole, it was a very good decision. The Court reversed unanimously, with seven justices, all but the Chief Justice and Justice Alito, signing on to the principal parts of Justice Kagan’s opinion for the majority. On the principal question presented, whether the prosecution can avoid the Confrontation Clause on the ground that a statement is offered in support of an expert opinion, even though the statement supports the opinion only if it is true, that opinion was emphatic and clear: The answer is no.

This post will analyze the justices’ treatment of that question; I will later put up another post addressing their treatment of another question that was not presented by the petition but that gained a great deal of attention at argument, whether the statements in question were testimonial. Throughout this post I’ll assume that they were indeed testimonial (as I believe they were).

(An aside: I say “principal question” because the petition also raised the question of whether Smith’s failure to subpoena Rast made any difference for Confrontation Clause analysis. The petition presented this question because the Arizona appellate court noted that Smith “could have called [Rast] to the stand and questioned her, but he chose not to do so.” But the Court devoted only one footnote to this question because, as it noted, the state rightly did not defend this rationale. Melendez-Diaz v.Massachusetts made clear that the defendant’s right to subpoena a witness does not satisfy the confrontation right.)

Smith was accused of drug-possession crimes. To prove that the substances in question were illicit drugs, the prosecution relied on the testimony of a lab analyst, Longoni. But Longoni did not do any testing himself; instead, he based his opinion on statements made by another lab analyst, Rast. For reasons that were never explained, Rast was no longer employed by the lab at the time of trial, and the state did not attempt to secure her live testimony. The state argued that, to the extent Rast’s statements were presented to the jury, they were not presented for the truth of matters they asserted, but rather in support of Longoni’s “independent” opinion. The Arizona courts accepted this argument, even though Rast’s statements would provide no support for Longoni’s opinion unless they were true. But five justices had rejected that theory in Williams v. Illinois; that did not fully resolve the matter, though, because four of those five were in the minority, Justice Thomas joining the other four in concluding (on different grounds from those four) that the lab report there was not testimonial. So the principal question on which the Smith Court granted cert was whether that was a valid argument.

We can assume that, strictly as a matter of modern rules of evidence, Longoni’s testimony would be admissible, under FRE 703 or its state counterparts, or at least would be given a proper foundation. (Arizona has a rule substantively identical to FRE 703.) But, Justice Kagan noted, “Evidentiary rules . . . do not control the inquiry into whether a statement is admitted for its truth,” because that inquiry “marks the scope of a federal constitutional right.” (Of course, the same inquiry also is crucial in implementing hearsay law, but she was focusing on the confrontation right.) And “federal constitutional rights are not typically defined . . . by reference to non-constitutional bodies of law like evidence rules.” The “not typically,” she explained in a footnote, was to take into account one qualification: “If an evidentiary rule reflects a long-established understanding, then it might shed light on the meaning of the Confrontation Clause.” But that could not be so here, because Rule 703 “is a product of the late 20^th-century, and was understood from the start to depart from past practice.” (This done with a citation to my amicus brief, which only encourages me to keep on submitting them.)

So, were Rast’s statements presented for their truth? Justice Kagan – properly, I think – found this a very easy question:

If an expert for the prosecution conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts. How could it be otherwise?

Put another way, she said, the truth of the basis testimony (here Rast’s statements, the basis for Longoni’s opinions) is what makes it useful to the prosecution, because “that is what supplies the predicate for – and thus gives value to – the state expert’s opinion.” And looked at from another perspective, if the jurors believe the basis evidence to be true, that will lead them to give more credit to the in-court expert’s opinion, and if they believe it false, it will do the opposite. Thus – a critical passage quoting Justice Thomas’s separate opinion in Williams – “'[t]here is no meaningful distinction between disclosing an out-of-court statement’ to ‘explain an expert’s opinion’ and ‘disclosing that statement for its truth.’” Whatever “label” the state uses, “in all respects the two purposes merge.”

The Court then took some of the facts of the case as an “almost-too-perfect illustration” of the general principles it had articulated. Longoni’s entire testimony was predicated on Rast’s findings. If those findings were false, Longoni’s opinion “would have counted for nothing.” Longoni was effectively “Rast’s mouthpiece.”

Further, if the practice in this case were approved, it would “allow for easy evasion of the Confrontation Clause,” making Melendez-Diaz and Bullcoming v. New Mexico “a dead letter”: “[E]very testimonial lab report could come into evidence through any trained surrogate, however remote from the case.”

The Court noted that its decision did not deny experts like Longoni any useful role at trial. They could testify in general about forensic guidelines and techniques. If the expert worked in the particular lab, as Longoni did, they could testify from personal knowledge about how that lab operates, including how it maintains chains of custody. And the expert could be asked hypothetical questions, as to what conclusions followed assuming a given predicate. Justice Alito jumped on this last possibility, as discussed below. I believe the Court’s catalog of possibilities, which it did not contend was necessarily exclusive, was completely accurate. But note – what presumably set Justice Alito off – none of the possibilities appear to allow the prosecution to prove lab results in a particular case without presenting testimony subject to confrontation of an analyst who observed the key case-specific facts. And that is as it should be.

So that was clear and straightforward and really excellent. I’ll raise one sort-of nit. The Court refers a couple of times (as it has before) to “testimonial hearsay” as being at the core of the Confrontation Clause. I wish the Court would avoid that phrase, because it tends to minimize the separation between the confrontation right and hearsay doctrine, and that separation was crucial to Crawford. (Justice Alito’s opinion says that the majority opinion takes the view that “basis testimony is always hearsay,” and that he would remand because Longoni’s testimony “is hearsay under any mainstream conception.”) I understand the temptation – for there to be a Confrontation Clause violation, there has to be a statement that was made out of court and that is offered for the truth of a matter that it asserts, and that’s the basic definition of hearsay. But that just suggests that the two doctrines have an overlapping area of concern. If there is a Confrontation Clause violation, it is not because the statement would be deemed to be hearsay – and if a statement avoids exclusion under the hearsay rule, that says nothing about its standing under the Confrontation Clause.

And now let’s consider Justice Alito’s opinion. He begins by saying that “the Court inflicts a needless, unwarranted, and crippling wound on modern evidence law.” Wow! What is that wound? Well, at considerable length he shows that the presentation of expert testimony in traditional common law was largely dependent on hypothetical questions, and these created significant problems. So along came Rule 703, and it “replaced” hypotheticals. And now the Court has “disinterred that procedural monstrosity,” in an “assault on modern evidence law.”

OK, let’s first bear in mind that it’s just one rule, not all of modern evidence law that’s affected. And it’s only the implementation of that rule with respect to some prosecution evidence that’s affected: Evidence in civil trials, or evidence presented by a criminal defendant, has nothing to do with this case, and even with respect to prosecution evidence this decision will have no effect at all if the statement at issue is not testimonial. (Think of a routine blood test taken without any indication that it is for evidentiary purposes, perhaps even before the crime is committed. And also note that if the in-court expert’s opinion doesn’t depend on the truth of the statement, neither Rule 703 nor the Confrontation Clause comes into play.) And Rule 703 did not do away with hypotheticals; indeed, the Advisory Committee Note explicitly refers to hypothetical as continuing to be one way of presenting expert evidence. Putting aside the Confrontation Clause for the moment, it did not even do away in all circumstances with the need to ask a hypothetical question, because the predicate for operation of Rule 703, that experts in the field would rely on the particular type of facts or data in forming an opinion on the subject, will not always be satisfied. (Note also the Advisory Committee Note to Rule 705, which says that the instances in which counsel is required to make prior disclosure of the facts or data underlying an opinion “are reduced.”

What Smith holds is that if (1) a prosecutor seeks to introduce an in-court witness’s opinion, and (2) that witness did not observe the facts supporting the opinion, and (3) the factual basis supporting the opinion is contained in an out-of-court testimonial statement, and (4) that statement supports the opinion only if it is true, and (5) the in-court witness testifies to the substance of that statement but (6) the author of the statement does not testify in court, then there is a Confrontation Clause violation (absent forfeiture, we might add). That is hardly an assault on modern evidence law. Nor does it constitute a “trashing” of Rule 703, as Justice Alito suggested at oral argument. Now, it is true that if there were no Confrontation Clause, Rule 703 would presumably allow the evidence even in this situation. But so what? Rule 703 is not only a latter-day creation; it was written at a time when there was no clear conception of what the Confrontation Clause meant, so it is not surprising that it did not take the Clause into account. And as the Court indicates, and Justice Alito does not deny, the Constitution trumps evidentiary rules, not the other way around.

But then, eager though Justice Alito is to protect application of Rule 703, how did he get around the Confrontation Clause? Well, he says, under Rule 703, the evidence is admissible only to support the opinion, and on request the trial judge must instruct the jury to consider it only for that purpose, not for the truth. So there’s no Confrontation Clause violation; we presume jurors will follow instructions.

The problem, which he ignores altogether, is that such an instruction makes no sense at all, for a reason indicated by the majority’s quotation from Justice Thomas’s Williams opinion – if the statement supports the opinion only if true, there is “no meaningful distinction” between admitting the statement for its truth and admitting it in support of the opinion. (Justice Alito overstates the case when he says that “the Court seems to think that all basis testimony is necessarily offered for its truth.”) This is not a matter of distrusting the jury; it’s a matter of simple logic. If we instructed the jurors to stand with both feet on the ground while one foot is in the air, it would not be incompetence of the jurors that would prevent them from complying.

But after all that, Justice Alito still concluded that the trial court erred. He equates the requirements of the Confrontation Clause in this area (apart from the question of whether the statement in question is testimonial) with those of the Federal Rules of Evidence – a false conjunction, as I have indicated – and says that Longoni could have disclosed the information in Rast’s statements, if, under Rule 703, the court found that the probative value of that information substantially outweighed its prejudicial potential. “But,” he then said,

he could not testify that any of the information in the report was correct—for instance, that Rast actually performed the tests she recorded or that she did so correctly. Nor could he testify that the items she tested were the ones seized from Smith. Longoni did not have personal knowledge of any of these facts, and it is unclear what “reliable” scientific “methods” could lead him to intuit their truth from Rast’s records. Fed. Rule Evid. 702(c) (defining a permissible expert opinion).

And in this case, Justice Alito says, he agrees with the Court that Longoni “stepped over the line and at times testified to the truth of the matter asserted,” because at times he asserted as true various assertions made by Rast, such as the methods as procedures she followed, the tests she performed, and the results she got.

Wow again. First, let’s not slide over what strikes me as a rather large irony. I have always thought – and I hope readers will correct me if they think I’m wrong – that given certain findings (that the in-court expert is making the type of reasonable reliance on an outside statement that experts in the field make, and that the probative value of the statement outweighs the prejudicial effect) Rule 703 does in fact allow the in-court witness to testify to the truth of that statement, the hearsay rule notwithstanding. That is why the Rule says that if the reasonable-reliance predicate is satisfied, the underlying facts or data “need not be admissible,” and why Rule 703 is sometimes thought of as an extra hearsay exception. I suppose one could say that the witness would be allowed to testify, “I relied on this statement, but I’m not saying it is true.” But what sense does that make? Unless it’s believed to be true, it provides no support for the opinion. So is that the type of testimony Justice Alito wants experts to give under Rule 703? And if so, who is undercutting the usefulness of that Rule, not only when prosecutors attempt to use it to get in testimonial evidence, but across the board?

Second, how far apart in the end is Justice Alito from the majority? He says that Longoni’s testimony was improper, because in trying to support his opinion he really was testifying to the truth of statements made by the absent Rast. Gee, sounds a fair amount like the majority. So I wonder just what is it he thinks Longoni should have been able to do that the majority doesn’t? Perhaps readers can enlighten me.

A related question: What if, as Rules 703 and 705 allow, Longoni just testifies to an opinion, without disclosing the underlying statements. Would the Confrontation Clause tolerate that? I think it’s clear that under Rules 703 and 705 the defense should be allowed to ask what the basis for the testimony is – and that as soon as the witness discloses the basis we are back in the same position.

In the end, I wonder to what extent Justice Alito and for that matter the Chief Justice too, were motivated by the fact that they appear to have lost this part of the battle. They were part of a foursome in Melendez-Diaz, Bullcoming, and Williams, and by picking up Justice Thomas’s vote in Williams they were able to get the result they wanted. But four members of the Court have since left, two from the Melendez-Diaz majority and two from the minority, and all four junior justices joined the Smith majority (on the Melendez-Diaz majority side, Justice Gorsuch for Justice Scalia and Justice Barrett for Justice Ginsburg, and on the minority side Justice Kavanaugh for Justice Kennedy and Justice Jackson for Justice Breyer). So Justice Alito can snarl all he wants, but on this issue at least he now speaks for only two justices.

The Smith argument and the meaning of "testimonial"

2024-05-28T00:12:00.002-04:00

I believe that the Supreme Court will decide Smith v. Arizona on the assumption, made in the Question Presented in the petition for certiorari, that Rast’s statements were testimonial. (And I believe they clearly were testimonial.) The state did not challenge that proposition in the Arizona courts, at least not more than very inferentially, and it was not argued there. I believe the oral argument revealed no disposition on the part of the Court to use this case, at least at this point, to do anything substantive with respect to the question of what statements are testimonial. But it wouldn’t be surprising if a remand invited the Arizona courts to take another look; the Court sure was interested in the question at argument. So I’ll offer some comments here.

Justice Kavanaugh repeatedly raised the question of whether the Court should adopt Justice Thomas’s view of what is testimonial, dependent on formality or solemnity. Eric Feigin for the SG and Alex Samuels for the state were hospitable to the idea; Hari Santhanam said, accurately in my view, that the test is too narrow and would not apply to many statements that fit within the core of what is testimonial. At least that is true, I believe, given how Thomas applied the test in Williams v. Illinois. But I think that if the Court were to adopt a test based on solemnity and if – very big if – it would apply such a test appropriately, then it might get to a better place.

I’ve often written on this subject, and I'll do so again, rather briefly, now. Let’s focus on formality. Formality is not what makes a statement testimonial; it’s what makes testimony acceptable. The oath, presence of the accused, and cross-examinations may all be considered incidents of formality, and they are all essential for prosecution testimony to satisfy the standards of our system. But that does not mean that a statement given informally is not testimonial. Suppose a police officer says to someone who has witnessed a crime, “I’d like you to tell me what happened. You can tell me very informally. You don’t have to take an oath. I won’t record it, and I won’t take notes. That way, you won’t have to come to court. I’ll remember what you say, and I’ll tell the jury.” That has to be testimonial; if it isn’t, then we have a system in which a witness can knowingly create evidence for use in prosecution by having such an informal conversation and not take an oath, confront the accused, or be subject to cross-examination. That’s pretty much unthinkable in our system. Now, I suppose you could say well, that’s really sufficiently formal to be considered testimonial because the witness expected prosecutorial use of the statement – it was “made in contemplation of legal proceedings,” as Justice Thomas put it in his concurring opinion in White v. Illinois (1992). That would be OK by me, and I think it would get close to a good definition of testimonial, but it seems clear to me that the word formality here is misplaced and is not really doing the work; it’s the expectation of evidentiary use that is.

If we take a narrower view of formality, in which some set of hoops must be jumped through for the statement to be deemed formal, then we will have virtually nullified the Confrontation Clause, because any witness wanting to create evidence for use at trial, or any investigator seeking to generate such evidence, can simply avoid the hoops. Is an oath or certification a prerequisite for a statement to be deemed formal, as Justice Thomas suggested in Williams v. Illinois? Then just avoid oath and certification. Frankly, I am still mystified by Justice Thomas’s characterization of the lab report in Williams as not testimonial because insufficiently formal. You can find the report here. Notice that it’s on letterhead stationery, identified as a report of a laboratory examination, addressed to a forensic science center, and signed by two reviewers, and signed by two reviewers, one of whom is identified as the director of the forensics laboratory and the other as director of the identity laboratory. In addition, it bears a case number and refers to the materials tested as exhibits and as evidence. If the Court were to adopt the view that this is not enough to render a lab report testimonial, then it would be a simple matter for labs always to avoid the rule of Melendez-Diaz v. Massachusetts (2009): Just avoid saying sworn or certified, and you never have to come to court.

Now let’s talk about solemnity. It’s not entirely clear what Justice Thomas means when he uses this word. If he means it as a synonym for formality, then the same concerns apply. But another, more useful, view of solemnity is possible. If one takes solemnity to mean appreciation of the gravity of the consequences of making the statement, then it seems to me that gets at the essence of what testimonial means. That is, if the speaker understands that her statement will likely be used in prosecution, and that it might help convict a person and lead to punishment, then it ought to be deemed to be testimonial. More on this below, but it seems far preferable to an inherently ambiguous “primary purpose” test.

Apart from the question of whether the Court should move in the direction of adopting a test based on formality or solemnity, the Court was interested in the question of whether the statements at issue in Smith itself were testimonial. Justice Barrett particularly pressed the point: What if a police officer jots down notes only for her own use to help think about the case, without intending them to be incorporated into a report? (Samuels argued that in fact the in-court expert, Longoni, relied only on the notes of the absent analyst, Rast, rather than on her report; Hari Santhanam, for Smith, without conceding that point, argued that the two were closely interconnected.) Justice Kagan said it must depend on the facts of the case; some notes would be testimonial and some not.

I would take a more categorical approach. Yes, I think that if a lab tech, understanding that a sample is being tested for possible prosecution, jots down notes before writing a report, or if a police officer jots down notes about a crime scene to help her think about the case, it should be deemed testimonial. No, such notes might not be formal, in the narrow sense of the word, but that shouldn’t matter. But they are written in contemplation of being used in prosecution. And if they are held admissible in favor of a prosecutor, and admitted, then we have a system in which a lab tech or police officer can create evidence for use in court by writing down such notes, and everybody would understand that this is what can be done. In any realistic sense, the lab tech or officer is testifying by marking down the notes. Eric Feigin, arguing for the United States as amicus, appeared to acknowledge this point when he said that there is a “chicken-and-egg problem,” because expert opinions will be aware of the Court’s decisions. In other words, if the Court says that such notes are not testimonial, and that therefore the Confrontation Clause does not restrain their admissibility, then presumably they will be admitted as a regular matter, and they will be created with the expectation – and indeed the purpose – of being used as evidence at trial.

This points to a complication. If we are trying to determine the expectation, or the purpose, with which a statement is made by one involved in the criminal justice process, then whether or not the statement would be admissible at trial is a critical factor. But notice the apparent paradox: If the maker knows the statement would be deemed testimonial, and so not admissible, then it could not be made with the anticipation, or purpose, of being used as evidence at trial. So wouldn’t that mean that it is not testimonial? And if the maker knows that the statement would not be deemed testimonial, and so would be admissible, then it likely would be made with the anticipation of purpose of being used as evidence at trial. So wouldn’t that mean that it is testimonial? I think there are two plausible approaches that would avoid this paradox.

One is to ask not about potential use as evidence at trial but only about potential use in the prosecutorial process. Even if the statement is testimonial, the maker could well anticipate that it would be used as part of that process. I think that should be enough to render the statement testimonial. If a person makes a statement knowing that it will be used in the criminal justice process, then I believe it is enough to say that the person is acting as a witness as part of the case, by contributing to its resolution, whether or not the statement is formally introduced at a formal trial.

The other is to assume hypothetically that evidentiary or procedural rules would not prevent the statement from being admitted at trial and ask whether a person in the position of the maker of the statement would reasonably anticipate use at trial. If the answer is affirmative, the statement should be deemed testimonial; the combination of an affirmative answer and admissibility would mean that in our adjudicative system a person could make a statement knowing that it would be used as prosecution evidence at trial and never confront the accused or be subjected to cross-examination.

I have spoken about purpose as well as anticipation because the Supreme Court has phrased its test in terms of "primary purpose." But I think that is an unfortunate choice, and if the Court ultimately takes a hard look at the question it should do away with that test. Trying to pick one purpose as primary is, as Justice Thomas suggested in Davis v. Washington (2006), a fool's errand. But more fundamentally, I believe any test should be expressed in terms of anticipation rather than of purpose. I gave reasons for this long ago in an article titled Grappling with the Meaning of "Testimonial", 71 Brooklyn L. Rev. 241, 251-53 (2005), which you can see here, and I won't add more now.

The argument in Smith v. Arizona: The Question Presented

2024-05-27T23:58:00.001-04:00

I put up a short post on the argument in Smith v. Arizona right after the case was decided, and intended to present a fuller account soon after that. Time has gotten away from me, but better late than never. (And by the way, there were some interesting comments to that short post from a forensic scientist; I just noticed those while preparing this post. I’ll respond to those on the prior thread.)

Perhaps the most notable aspect of the argument was how interested the Court was in the question of whether the statements at issue were testimonial, rather than in the question actually presented, whether the statements satisfy the Confrontation Clause because they were introduced in support of the testifying expert’s opinion. In the end, I doubt that the Court will use this case to revise the standard for what is testimonial, or even that it will determine that the statements at issue here were not testimonial. And I think it is highly likely that Smith will get a reversal, with the Court holding that the statements should be deemed for Confrontation Clause purposes to have been presented for the truth of what they asserted. But it is possible that a remand will leave it open for the Arizona courts to consider whether the statements were in fact testimonial. I’ll comment in this post on the issue actually before the Court. I’ll then present another post on the question of whether the statements were testimonial and the standards that should be used in determining that.

The essence of the case is that one lab analyst, Rast, performed tests on certain items and wrote notes and a report stating her findings, but a second witness, Longoni, who had nothing to do with the testing or report, testified to an opinion, on the basis of the facts reported by Rast, that the items contained controlled substances. The state courts held that the references to Rast’s findings should be deemed to be presented in support of Longoni’s “independent opinion,” and not for the truth of what they asserted, and that therefore there was not a Confrontation Clause problem.

The problem, though, is that in this case Rast’s statements supported Longoni’s opinion only if they were true. When a statement is offered to prove the truth of what it asserts, that proposition is most often an intermediate point on the way to some other conclusion, and this is no different; here, the other conclusion (itself an intermediate point on the way to the conclusion of guilt) is Longoni’s opinion. I think it was quite clear that most of the Court understood this to be so; Justice Jackson was particularly vigorous in pushing the point. I’m not sure that I could point to a single justice who thought otherwise.

Justice Alito did say that Hari Santhanam, Smith’s counsel, was going out of his way to “trash” Rule of Evidence 703. (Federal and Arizona Rule 703 are substantively the same; I’ll just refer generically to Rule 703.) And Alex Samuels, arguing for the state, suggested that a holding in favor of Smith would undermine Rule 703 beyond criminal cases. These concerns seem to me entirely unfounded. Rule 703 is very useful in its sphere. It allows an expert to form an opinion on the basis of otherwise inadmissible information, if it is of a type on which experts in the field reasonably rely, and sometimes it allows the expert to testify to that information. That’s good. A holding for Smith would not have any impact on the operation of the rule in civil cases, or in favor of an accused – nor even in favor of a prosecutor so long as it did not result in a testimonial statement being used for the truth of what it asserts. (For example, an expert could form an opinion as to public attitudes on a given issue on the basis of statements by people in a survey, whether or not those statements would otherwise be admissible.) But Rule 703, a relatively recent creation, has to be subsidiary to the Confrontation Clause: It can’t allow a testimonial statement to be presented against an accused for the truth of what it asserts. And if the statement supports the opinion only if the statement is true, that’s just what is happening.

Samuels repeatedly emphasized the possibility of giving a limiting instruction, telling the jury not to use the statement for its truth but only in support of the opinion, and the fact that the defense in this case never asked for one. But a limiting instruction in this context is meaningless: If the jury is told to use the statement in support of the opinion but not for the truth of what it asserts, then it is being told it may do something that is in fact logically impossible. Santhanam addressed this point on rebuttal when he said that a limiting instruction is appropriate only when there is a valid use of the evidence, and here there was none.

A related matter: Samuels said that Arizona law is clear in this situation that Rast’s statements are not admissible for the truth of what they assert. But remember Lincoln’s line about how many legs a dog has if you call a tail a leg. Four; calling a tail a leg doesn’t make it a leg. The state saying that the statement is not being presented for its truth doesn’t make that fact so if that’s the only use the jury could have made of it. A court protecting the Confrontation Clause cannot be controlled by state pronouncements of this sort. Santhanam gave a similar, and effective response to a question posed by Justice Alito as to what the result would be if a judge said, “I’m not going to use this for the truth, only in support of the expert’s opinion.” The judge saying that’s so can’t make it so.

Justice Alito also seemed to suggest at one point that Smith’s argument would invalidate hypothetical questions posed to prosecution expert witnesses. It’s possible that I misunderstood him, but in any event there is no cause for concern with that. An expert can give testimony of the form, “If factual predicate X is true, then my opinion is Y.” It is then up to the prosecution to present valid evidence of predicate X.

As for the state’s repeated characterization of Longoni’s opinion as independent: It is only independent in the sense that Longoni presumably drew his own conclusions from the facts reported by Rast. But those facts were essential for the opinion. I believe that Justice Jackson was driving at much the same point when she asked a long hypothetical – she is a former Breyer clerk, and his successor in more ways than one – that seemed aimed at presenting a situation in which the opinion of the expert testifying live was clearly dependent on facts provided by the absent expert, but not on the absent expert’s opinion. Samuels said the result would depend on whether the live expert was adding anything. But I think that’s plainly wrong. The question is whether a testimonial statement of the absent expert is being used for the truth of what it asserts, whether as a predicate for the live expert’s opinion or for any other reason. Also, as I pointed out in my amicus brief, in this case given the facts asserted by Rast the conclusion to which Longoni testified followed pretty much immediately. I think all the talk of an independent opinion is really a sham. (I do not mean to be critical at all of Samuels, who I thought did a very good, professional job with a weak case.)

Eric Feigin of the Solicitor General’s Office, arguing for the United States as amicus, sought to strike a middle position. (The fact that the United States was coming in on neither side, rather than in support of the state, as it usually does, was itself noteworthy, as Justice Kagan, a former SG pointedly remarked.) He strongly intimated, without quite saying, that Smith was entitled to a reversal because Longoni explicitly endorsed statements by Rast. But he argued that Longoni could have testified to the usual practice, and to the fact that he had no reason to believe anything different was done in this case. He would then be exposed to cross-examination to emphasize that he knew nothing about the particular case from personal knowledge. That seems right to me – the jury can infer that something was done on a particular occasion from the fact that this is how the organization usually does it – but a couple of points. First, the Chief Justice asked why that type of cross wasn’t sufficient in this case. I think the answer is that in this case the state presented more – it presented the testimonial statements of an out-of-court witness and effectively asked the jury to believe the truth of those statements. So the fact that Longoni could be cross-examined on what he did or didn’t know is neither here nor there. Second, if we take the SG’s suggestion, it still does not get the prosecution all the way home. If the prosecution wants to present machine-generated data and graphs, which presumably are not testimonial in themselves, it would still have to satisfy a chain-of-custody problem. And this usual-practice approach would not help getting Rast’s statements in.

People v Washington: pending Michigan case with multiple interesting issues

2024-01-23T13:35:00.002-05:00

I have previously posted about a Michigan case, People v. Washington. It is now in the state supreme court, and will be argued in March; I have filed an amicus brief and hope to argue as amicus as well. The case is an interesting one on several points (and good fodder for exams!).

You can find papers in the case here.

Washington blew past a toll at a border crossing between the US and Canada. Some time later, Canadian officers brought him back. None of them testified at trial. But the American officer in charge, Paul Stockwell, testified that he had communications with the lead Canadian officer, Matthew Lavers, and that as a result he took custody of Washington and body armor that the Canadian officers brought along with him. Washington was charged with possession of body armor by a person who has been convicted of a violent felony. (He also made statements to his mother acknowledging that he had had the body armor; the admissibility of those is in question on other grounds.)

The court of appeals held that the evidence concerning the Lavers-Stockwell exchange violated the Confrontation Clause, and the State has appealed. There are several issues related to the Clause.

First, nothing Lavers said was formally introduced, but in context, the evidence made clear that Lavers told Stockwell that Lavers had been found in possession of body armor. So, as indicated in my prior post, I think the court of appeals was correct in treating the evidence as tantamount to admission of Lavers’s statement. The dissent in the court of appeals and the State have confused matters by speaking of this case as involving an “implied assertion.” I never find that term useful, and it is particularly misleading here. It is usually used to refer to the conduct of an out-of-court person who does not assert a material proposition but acts in a way arguably reflecting belief in that proposition – think of the classic example of the sea captain embarking on a voyage with his family after inspecting a ship, offered to prove that the ship was seaworthy. But here, it is clear that Lavers asserted that Washington was in position of the body armor. (Indeed, other evidence in the record, not admitted at trial, is explicit on the point.) What is left to implication is not the connection between his conduct and the material proposition, but the connection between the in-court testimony and his assertion. Here, the implication is very clear.

Second, was Lavers’s statement testimonial? The State argues that the Canadian officers had no reason to believe that Washington’s possession of the body armor was a crime. But Washington had sped past a toll barrier and got into an altercation with the Canadian officers. They returned him in force – half a dozen officers or more in three vehicles. They plainly regarded this as more than a simple case of toll jumping, and they must have known that the body armor would be at least relevant information in any potential prosecution of Washington.

Third, was Lavers’s statement presented for the truth of what it asserts? The State, as prosecutors often do, contends that the statement was used to show Stockwell’s subsequent conduct (though in another part of its brief it says that “Stockwell did not processor criminally charge Defendant based on the information provided by Lavers.”). This is a move that is often rejected by courts, but too often accepted. (Note, for example, just from yesterday, State v. Glavic, 2024 WL 229787 (Ohio Ct of Apps Jan 22 2024).) In most cases, as here, the prosecution really has no need to explain the officer’s subsequent conduct – and here it is clear that the jury would take the evidence for its most obvious use, as proof that Washington had been found in possession of the body armor.

Finally, the State argues that the circumstantial evidence – Washington being brought back, with the body armor in the car – is enough to prove possession. Two responses: First, whether or not that is so, that is not all the prosecution presented concerning the handoff; it also presented the evidence about Lavers’s communication with Stockwell, which taken together with proof that Stockwell took custody of Washington and the armor amounted to proving that Washington had been found in possession of the armor. Second, the circumstantial evidence argument cannot be correct. That would be something like proving that a defendant committed a crime because shortly after a police officer who had been there was leading him off in handcuffs.

Argument in Smith v. Arizona; a preliminary report

2024-01-10T12:40:00.005-05:00

The Supreme Court heard argument this morning in Smith v. Arizona. It's going to be a couple of days until I can give a fuller report, but for now: I think it is highly likely that Smith will get a reversal. I don't think more than one or two justices, if that, will adopt the principle that admission of a testimonial statement in support of an opinion is not admission for the truth of what the statement asserts, when the statement supports the opinion only if it is true. The Court seemed more interested in the enduring question of what are the bounds of the category of testimonial statements. And Justice Kavanaugh asked each of the three advocates what they thought of Justice Thomas's formality-solemnity test. But the Court seemed strongly disposed to conclude that the question of whether the statements here are testimonial had not been preserved for review; the Court might be prepared to take another case to reconsider thee "primary purpose" test, but I don't believe it will be here.

Comments on the Arizona and SG briefs in Smith v. Arizona, Part 2

2024-01-04T12:41:00.000-05:00

Arizona and the SG, and some of the other supporting amici as well, raise once more the supposed multi-witness problem – i.e., the idea that if the Confrontation Clause is deemed to require that an analyst in the position of Rast testify subject to confrontation then there will often have to be a parade of lab witnesses. I have often (most recently in my amicus brief in this case at 24-26) responded to this supposed concern, which I believe is raised largely as a scare tactic. A few quick points.

First, there’s no data presented suggesting that this is a problem in reality. On the contrary, I’ve presented data indicating that it isn’t. Part of the reason is that very often defendants have no interest in having a lab witness testify live.

Second, only those who make testimonial statements that the prosecution chooses to present need testify subject to confrontation. See Melendez-Diaz, 557 U.S. at 311 n. 1. Yes, there may be a question of whether the prosecution has left such large gaps in its proof that there isn’t enough to support a conviction, but that is not in itself a confrontation problem.

Third, most lab tests are performed by a single lab analyst – and if a lab is worried about multiple analysts having to testify, it can organize itself in a vertically integrated way, even for DNA tests. (Note the case of the army lab, highlighted in my brief.)

Fourth, in most cases (not all, as the SG points out, but most), retesting is a possibility, so that if in fact a lab witness has to testify and one who otherwise would do so is unavailable, or multiple witnesses would have to testify, it’s a simple matter to have an available witness retest and testify.

Fifth, the state can reduce any burden by various means. Notice-and-demand statutes help. If a lab is far away from where many trials are conducted then – even assuming it is not practical to locate a lab closer – a lab tech who must testify in several cases can do so on one trip by giving depositions. Courts can be flexible about scheduling.

Finally, even assuming there is some extra expense, that has no constitutional significance. We have to remember that all times that lab witnesses are witnesses like any other, and they are providing testimony that may be crucial in convicting a person, perhaps leading to a multi-year sentence. It is not asking too much to require them occasionally to testify in front of the person whose future they may be affecting so gravely.

One other, somewhat related point: The SG says that in many cases the jury would not even understand what the lab tech reports. So what? If a witness testifies in a foreign language, most jurors will not understand the testimony without translation. We still require confrontation by the witness. Here, the lab tech is providing crucial information; maybe she can translate it herself, maybe another witness can, but in any event the accused has a right to examine her about how she came to make the assertions she did.

Thoughts on the Criminal Justice Legal Foundation brief in Smith v. Arizona

2023-12-28T19:43:00.000-05:00

I’m hoping to write more in a few days on the Arizona and SG briefs in Smith v. Arizona. But my old friend Eric Freedman has called to my particular attention the amicus brief of the Criminal Justice Legal Foundation (CJLF), which makes some dramatic assertions, and I want to offer a few thoughts on it.

As I understand it, the CJLF advocates doing away with the testimonial-non-testimonial distinction, and instead treating the confrontation right as simply a rule of trial procedure – that is, prescribing what rights the accused has with respect to those witnesses whom the prosecution chooses to present at trial, or maybe also with respect to those who testify at very formal proceedings. As I will explain below, I disagree sharply with this, and I believe it ignores a whole lot of history. But first let me note that there are some aspects of the brief with which I agree.

One of these is that the current doctrine is murky and gives too little guidance. That shouldn’t be a reason to throw out Crawford (and the CJLF brief relies a lot on dissents and the views of Crawford-skeptic judges). It does mean that current doctrine can be improved on. I agree with the CJLF that the “primary purpose” test is ahistorical and does not work well.

I also agree that Crawford does not account well for the allowance of dying declarations. I agree with the CJLF that there is a long history of allowing them, and I believe that there would not be much support for a doctrine that did not do so. Crawford made room for them by suggesting that they constituted a sui generis exception to the general principle that the maker of a testimonial statement presented against an accused must be subject to confrontation, and I agree with the CJLF that this is a patchwork, not a satisfying account. (A patchwork can be an acceptable second-best solution, though.) As I have often argued, the solution seems rather simple: Dying declarations should be considered as an aspect of forfeiture doctrine. The imminence requirement should be considered as marking a boundary of the state’s duty to mitigate by providing an opportunity for confrontation. I’ve explained this approach in numerous places, including this article. Adopting this view would mean walking back from Giles v. California, but so far as I am concerned that would be a very good thing. I’ll also note that the CJLF gives no account of why, even before hearsay law had gelled, courts imposed stringent requirements on dying declarations.

Now, the CJLF says that nowhere in the early materials do we see anything like the line between testimonial and nontestimonial. I think this misconceives a few hundred years of history. Until the late 18^th century, there was no well-formed hearsay doctrine, nothing resembling the elaborate doctrine we have today. But there was an elaborate law governing witnesses. What do witnesses do? They testify. Many sources make clear that it was regarded as one of the glories of the English system that it insisted that witnesses give testimony face to face with the adverse party, in open court if reasonably possible, and not in any other way. The idea of the Confrontation Clause was not just to say, “Here are the witnesses whom the prosecution has produced at trial; you may face them and cross-examine them.” Rather, it was to ensure a system in which witnesses would be brought in to trial, or if necessary another formal testimonial proceeding such as a deposition.

So we have to think in systemic terms: What are the consequences of allowing, or not allowing, this evidence for how witnesses testify? What then do we make of Rast’s notes, which the CJLF says are not close to being covered by the Confrontation Clause? If they are not, then anyone in Rast’s position knows, “If I do not testify at trial (and perhaps even if I do) my notes may be used by a prosecutor against the person who is charged with possessing this substance.” Then in any realistic sense we have created a system in which a lab analyst can testify against an accused by writing out lab notes. Without ever taking an oath, or facing the accused, or answering questions under cross-examination, she can knowingly make factual assertions that she understands will be used as evidence to convict a person of a crime. We could expect that lab analysts would often testify in this way, and other witnesses as well. This would be not only a clear violation of the confrontation right but a profound alteration of our method of trials.

Comments on the Arizona and SG briefs in Smith v. Arizona, Part 1

2023-12-27T23:47:00.003-05:00

Smith v. Arizona, in which I am hoping the Supreme Court will clear up some of the confusion created by its splintered decision in Williams v. Illinois, will be argued on January 10. As a reminder: Smith was convicted of drug-related crimes in large part on the basis of the testimony of a lab analyst, Longoni. But Longoni did not perform the tests on the materials in question, nor write a report on those tests. Instead, Longoni relied on writings by another lab analyst, Rast, who was no longer with the lab (for unexplained reasons) at the time of trial. The state court held that this was OK, and that Rast’s findings were not being used for the truth of what they asserted but only in support of Longoni’s opinion.

Arizona, the respondent, filed its brief on Dec. 13, and the supporting amicus briefs were filed a week later. You can find all the briefs in the case through the Supreme Court’s docket sheet, here.

Below, somewhat belatedly, is the first portion of comments on Arizona’s brief and the one submitted on behalf of the United States by the Solicitor General’s Office. I hope to offer more within a few days. The SG’s brief argues for reversal, but on narrow grounds, without upsetting the supposed distinction between offering a testimonial statement for its truth and offering it in support of an expert’s opinion, even when, as is almost always the case, the statement supports the opinion only if true.

Both Arizona and the SG try to make an argument that the procedure here uses a long-accepted method of proof. I believe the attempt fails. Notably, they come up with at most a single case (and that one a civil one) from the founding era or anywhere close of an expert being allowed to testify to an opinion on the basis of facts asserted in a testimonial statement that was not itself admissible evidence. They do make clear that experts have to rely on general underlying information, to be found in treatises and the like. (Just as, by the way, ordinary percipient witnesses rely on what they’ve been told about the world by other people.) And they cite a couple of civil cases from the founding era and a few from well after in which maybe experts were allowed to offer opinions on the basis of otherwise inadmissible statements of case-specific information. (This is not clear, because the cases do not dwell on whether those statements could have been admitted on their own; and in at least some, e.g., one involving “daily price lists,” they probably could have been.) But they do nothing to undermine the well-established fact, which the drafters of Fed. R. Evid. 703 openly acknowledged, that that Rule, allowing an expert to rely on otherwise inadmissible evidence if it is of the type ordinarily relied on by experts in the field, went against the great weight of the common law. Note, for example, the discussion and citations in my amicus brief in this case at 6-7 and 17.

Arizona and the SG contend that Arizona law and the Federal Rules take the position that in situations such as that involved here the out-of-court statement is presented only in support of the expert’s opinion, not for the truth of what it asserts. But a court, ultimately the Supreme Court, construing and applying the Confrontation Clause must make its own assessment on that point. And the simple fact is that, assuming that only if the out-of-court statement is true does it support the opinion, then, as five justices recognized in Williams, there is no real distinction between presenting the statement in support of the opinion and presenting it for its truth. The logic of the jury, assuming it accepts the opinion, has to be: “Predicate Fact F is true, and therefore Opinion O is more likely true.” There are innumerable other situations in which a predicate fact supports the probative value of other evidence (“The letter was sent to the intended addressee, and therefore it gave notice”) and there is no doubt that the predicate facts is being proven for its truth. This situation is no different. Neither Arizona nor the SG suggest any way in which telling the jury in a case like Smith to use the out-of-court statement only in support of the opinion actually alters what the jury can or will do with it.

Arizona and some of the other bottom-side amici suggest that the statements by Rast on which Longoni relied were not testimonial. The Court should reject this argument as well. I’ll assume for purposes of argument that Longoni did not rely at all on Rast’s report, but only on her notes. So let’s understand right off that if those are not deemed testimonial, then a prosecution has a surefire way of never having to present for confrontation the lab technician who performed the test in question and recorded the results: Simply give those notes to some other lab tech, who can then testify in court to a conclusion based on the facts asserted by the first tech (and which might, as in this case, follow obviously assuming the truth of those facts). Then we have a system in which a lab witness can testify – creating evidence knowing it will likely be used in prosecution – just by writing lab notes.

But, Arizona argues, the notes are not formal and they are not solemn. Though sometimes the Supreme Court has spoken of formality as a requirement for a statement to be testimonial, I think that is potentially misleading. Suppose a statement is given very informally, but in full knowledge, and even with the purpose, that it will be used as evidence in prosecution. Then it seems clear that it ought to be deemed testimonial. Formality, as I have often said, is not a requirement for a statement to be testimonial. Rather, certain formalities, if you want to call them that – the oath, subjection to confrontation, presence at a formal testimonial event – are necessary for testimony to be acceptable. As for solemnity, I think that gets closer to the mark, if properly conceived. I think solemnity in this context means appreciation of the gravity of the consequences of the statement (which is why we ask witnesses to “solemnly swear.”) And notes can have this solemnity; if they can be used as prosecutorial evidence, and the writer of them understands that – which would of course be true if Rast’s notes are deemed admissible – then the writer understands that her notes may be a critical factor in convicting a person of crime. That’s enough for the statement to be considered testimonial.

More later.

Smith v. Arizona -- top-side briefs filed

2023-11-20T18:05:00.004-05:00

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

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

2023-09-30T13:45:00.000-04:00

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

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

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

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

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

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

2023-06-23T15:16:00.002-04:00

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

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

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

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

2023-03-06T18:59:00.002-05:00

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

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

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

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

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

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

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

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

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

Another good decision in a fresh-accusation case

2023-02-17T16:36:00.004-05:00

There are, in my view, a lot of bad decisions involving fresh accusations, made shortly after the alleged crime, often to a 911 operator or a responding police officer. I believe the "primary purpose" test insisted on by the Supreme Court muddies up this field and makes it too easy for trial courts to admit out-of-court statements that any reasonable observer would likely understand from the beginning were likely to be used as evidence in a prosecution. Several months ago, I posted about a good decision by the Minnesota Court of Appeals. And now there's another, State v. Johnson, issued by the Ohio Court of Appeals, 8th District. But it's 2-1, and the fact that there was even an issue is one more demonstration of the weakness of the "primary purpose" test.

This is a domestic-violence case. The complainant fled the house, went to her parents', and there made a 911 call that included the statements at issue. The majority, in an opinion by Judge Eileen Gallagher, did the best it could within the confines of the "primary purpose" test and held the statement testimonial. The dissenting judge, Sean Gallagher, thought the primary purpose of the complainant was to get police protection.

In my view, the majority was clearly right in deeming these statements testimonial. Any reasonable person in the position of the complainant must have known that the statements would likely be used to arrest the accused and ultimately might be used in prosecuting him. If they can be used without the complainant coming to testify, then we have a system in which a witness can find a safe place, make a 911 call, and make extensive statements that will be used to convict the person she accuses. In what way is that not testifying against him?

The primary-purpose test asks for an unmanageable inquiry into the psyche of the speaker, and as sometimes applied (as by the dissent here, in a well-written and perceptive but, I think, misguided opinion), relies on an untenable distinction between seeking police intervention for protection and creating testimony. The sooner it is discarded, and replaced by a test that depends on the reasonable anticipation of a person in the position of the speaker, the better.

Shields v. Kentucky: BIO, reply, and ready for conference

2023-02-17T16:16:00.001-05:00

I reported in an earlier post on the cert petition in Shields v. Kentucky. The Commonwealth has now filed its brief in opposition, and Shields has filed a reply. The case materials have been distributed for the Court's conference of March 3. So we should know whether the petition will be granted on Monday, March 6.

A useful opinion on statements not reported explicitly at trial

2022-12-27T07:03:00.003-05:00

On the first of this month, the Michigan Court of Appeals issued a useful decision, People v. Washington, concerning the situation in which a prosecution witness does not explicitly report the content of an out-of-court testimonial statement but nevertheless conveys its substance. A 2-1 majority of the panel properly held that such testimony violates the Confrontation Clause. (I didn't want to post on the case when it first came out, because I used it for a series of exam questions.) And I'm glad to say that the brief for Washington was drafted by two students in the University of Michigan Law School's Criminal Appellate Advocacy clinic, Greg Momjian and Erica Arensman, under the supervision of Doug Baker; it was argued by Kierston Nunn.

The defendant, Washington, was convicted of possession or use of body armor by a person who had previously been convicted of a violent felony. A toll-both operator on the Canadian side of the Blue Water Bridge, which connects Port Huron, Michigan, and Sarnia, Ontario, testified that she had seen a Ford pickup truck blow through her lane, following close on another car. She immediately notified her supervisor, and several officers gave chase.

Paul Stockwell, a supervisory officer with U.S. Customs and Border Protection, testified that on the American side of the bridge he met Matt Lavers, one of a crew of Canadian officers, and that they had Washington in a cruiser. Neither Lavers nor any other member of the crew testified at trial. Stockwell's testimony included this exchange:

[The Prosecutor]: At some point did Officer Lavers from the Canadian services hand you any other evidence?

Officer Stockwell: Yes, he did.

[The Prosecutor]: What did he hand you?

* * *

Officer Stockwell: A body armor.

* * *

[The Prosecutor]: Now, without saying anything about what was said, the only question I have for you is were there communications between you and Officer Lavers?

Officer Stockwell: There were.

[The Prosecutor]: Okay. And ․ based on those communications you took custody of [defendant]?

Officer Stockwell: Yes, we did.

[The Prosecutor]: And you took possession of the body armor that was turned over at the same time?

Officer Stockwell: Yes, sir.

The testimony took that form because, in response to an in limine motion to exclude evidence of the armor (a bulletproof vest) the trial court had ruled that Stockwell could testify as to what was turned over to him so long as he did not testify as to what was said. Washington was convicted and appealed. The court of appeals, in an opinion by Judge Elizabeth Gleicher (Judge Sima Patel concurring), reversed.

First, and most significantly, note that no statement by Lavers was actually introduced. But, the majority pointed out, there would have been a clear violation of the Confrontation Clause had the prosecution asked Stockwell, "What did Officer Lavers tell you about the body armor?" And, the court noted, Stockwell's actual testimony "conveyed precisely the same information: that Washington had been wearing the body armor when caught by the Canadian authorities."

This has to be right, I think: What would otherwise be a Confrontation Clause violation cannot be excused by the fact that the in-court witness does not purport to report the actual statement made, if the effect of the testimony is to convey the substance of that statement to the trier of fact. It seems plainly obvious that it cannot be that the Confrontation Clause is violated only when the in-court witness purports to be repeating the statement verbatim; if that were true, the Clause would be rendered a virtual nullity with respect to unrecorded oral statements, because the in-court witness would not usually remember the statement verbatim anyway. And similarly it cannot be that the Clause can be evaded by asking the in-court witness, "Please summarize in your own words what [the absent witness] said." Now in Washington, and in similar cases, the prosecution did not explicitly ask the in-court witness to communicate the substance of what the out-of-court witness said. But in some circumstances, as in Washington, that is, as the majority said, precisely the effect of a series of questions that leads to an inference as to what was said. Here, the prosecutor asked Stockwell whether Lavers made a statement and what Stockwell did as a result. What could the jury infer in the circumstances but that Lavers said he had found Washington wearing the vest? Indeed, if that were not the inference to be drawn then the case should never have gone to the jury, because there was not other evidence that would support the inference that Washington was found wearing the vest.

Judge Jane Markey, in dissent, argued that implied assertions are not hearsay and should not be deemed to create a confrontation problem. It seems to me that this is a rather clear category error. What are commonly called implied assertions (and perhaps should more accurately be called inferred assertions) are a type of conduct that is not intended to assert the proposition at issue but that indicates the actor's belief in the truth of that proposition. So, most notably, in the famous case of Wright v. Tatham (H.L. 1838), letters written to the decedent Marsden assertedly indicated the writers' belief that Marsden was of sound mind, but none of the letters asserted that proposition. The Wright majority deemed these to be hearsay, but under modern law, they would not be (see FRE 801(a) ("intended . . . as an assertion"). And there would not be a confrontation problem. (Notice that conduct of this sort is almost inevitably not testimonial; witnesses who testify intend to make assertions.) But this is an altogether different matter from what is at stake in the Washington case and others like it: In Wright-type cases, the out-of-court actor did not assert the proposition at issue, and the evidence of the actor's conduct is thought to imply his or her belief in the proposition. In Washington-type cases, the out-of-court witness presumably did assert the proposition at issue ("Washington was wearing this vest"), and that fact is inferred from the evidence actually presented at court. These are altogether different situations.

Judge Markey raised other issues, standard ones in confrontation cases, but I don't think either has merit, and both were rejected by the majority. First, she contended that the evidence of Lavers's communication to Stockwell was not offered for the truth of the presumed assertion but rather only to explain why Stockwell took Washington into custody. This is the "why the officer did that" end run that prosecutors often offer and on which I have commented before. In most cases, including this one, there is no reason why the jury needs to know that. And besides, as the majority pointed out, "Stockwell took Washington into custody because Washington was in possession of body armor."

Second, Judge Markey contended that the presumed statement of Lavers was not testimonial because "the purpose of the communication was simply to provide Officer Stockwell with the information necessary for Officer Stockwell to formally take defendant into custody from Canadian authorities and proceed with the charging process under Michigan law." But, as the majority said, "The 'explanation' for Stockwell's conduct is relevant only because it inculpated Washington." Under a proper view of what is testimonial – I am tempted to say under any reasonable view – if one officer passes on information to another on the understanding that the other will use the information in prosecution of a crime, and presumably will transmit the first officer's report of that information to the trier of fact, that conduct is testimonial. If not, we have created a system in which a witness can testify by passing information to an officer, without even an intention that the witness will show up at trial. That's a clear violation of the confrontation right.

Shields v. Kentucky: A cert petition to watch on preliminary-hearing testimony

2022-12-26T08:00:00.000-05:00

Jonathan Ellis and Gregory DuBoff of the McGuire Woods firm have filed an excellent cert petition in Shields v. Kentucky, No. 22-450. The question is whether, or in what circumstances, testimony of a prosecution witness at a preliminary hearing may be used at trial if the witness is then unavailable. This is an issue on which the Supreme Court has not given any guidance since Crawford, and the petition ably shows that the lower courts are in clear dispute.

Shields was charged with murdering his uncle, and the prosecution presented the testimony of Shields's elderly aunt, the decedent's widow, at the preliminary hearing. It did so without advance notice, or any indication that it was seeking to preserve the aunt's testimony for trial, and without making disclosures of exculpatory evidence that would have been required by trial. Cross-examination was perfunctory. The Commonwealth never attempted to take a deposition. The aunt died before the time scheduled for trial. Shields entered a conditional plea of guilty, allowing him to appeal the trial court's ruling that the preliminary-hearing testimony was admissible. The Kentucky Supreme Court affirmed.

My own view is that preliminary-hearing testimony of a prosecution witness who has become unavailable by the time of trial should be allowed if and only if certain conditions (apart from the obvious ones that the accused has a right to be present, to be represented by counsel, and to have the witness testify under oath) are satisfied. The purposes of a preliminary hearing and of trial, and defense counsel's goals, are very different -- it is usually, as it was here, a foregone conclusion that the defendant would be bound over for trial. Accordingly, preliminary-hearing testimony cannot be a substitute for trial testimony unless (1) the prosecution has given the accused notice that it intends to use the testimony, if necessary, for preservation; (2) the notice is given in sufficient time to allow adequate preparation; (3) the prosecution has made relevant disclosures that would be required by the time of trial, at least those that would be constitutionally required; and (4) there were no limitations beyond those that would apply at trial. In addition, I think that probably, if the accused is able to show that developments subsequent to the preliminary hearing would have opened up significant lines of cross-examination, that would justify a holding that the earlier testimony is not adequate.

I've expressed these views in an amicus brief in support of the petition. You can find the papers filed so far in the case -- including the petition, my amicus brief, and two other amicus briefs filed in support of the petition, by clicking here.

Samia v. United States: Cert granted in a Bruton-type case

2022-12-26T07:59:00.000-05:00

Earlier this month, the Supreme Court granted cert in Samia v. United States, in which it may resolve one of the issues left open by Bruton v. United States, 391 U.S. 123 (1968), Richardson v. Marsh, 481 U.S. 200 (1987), and Gray v. Maryland, 523 U.S. 185 (1998).

Samia was tried along with two other defendants for murder for hire and related crimes. One of the co-defendants had made a confession that named Samia. The court instructed the jury not to consider it against Samia, but under Bruton, that alone would not have been sufficient. Nor, under Gray, would it have sufficed if the confession had been redacted with Samia's name replaced by some indication such as "[name deleted]." But under Richardson, if it had been redacted to remove all references to Samia, that would have been acceptable. Samia's case falls between Gray and Richardson; the trial court allowed redactions so that the confession as reported to the jury included references in forms such "somebody else" and "the other person he was with." Given other evidence in the case, it could be readily inferred that the references were to Samia.

I'm going to guess that the cert grant suggests that the Supreme Court will come down on Samia's side. We should know before the end of the term.

A good decision in a fresh-accusation case

2022-08-02T09:13:00.002-04:00

I use the term fresh accusations to cover statements made shortly after an event asserting that someone committed a crime. Often, though not inevitably, they are made to a police officer or 911 operator. They are especially common in domestic-violence cases. I believe that Davis v. Washington left the law in this area in a very unsatisfactory state. If a court resolves that the statement was made primarily to resolve an "ongoing emergency," then it will call the statement non-testimonial. And courts will very often seize on any facts that allow them to characterize a statement as having been made in response to an emergency.

So State v. Tapper, a unanimous decision by the Minnesota Court of Appeals, is a welcome development in this respect, though it should be utterly unsurprising. This was a domestic-violence case, and the statements in question were made to a responding officer after a 911 call. But the court recognized that this particular incident had ended and that the complainant was not in immediate danger; she was outside her apartment with the officer and her ex-husband, the alleged assailant, was apparently asleep inside. Her children were inside and she said that she would not leave them, but she did not "express fear for their safety or indicate they [had] been harmed by Tapper in the past." She had suffered injuries – she was covered with blood and reported that her head was "messed up," but most of the conversation concerned what Tapper had done on the incident in question an on prior ones. She was sniffling at the beginning of the conversation, wiping her eyes and nose and breathing rapidly, but soon she was able to speak calmly, and she answered the officer's questions coherently. Some courts might have used these factors – the presence of the kids in the apartment with the alleged assailant, the complainant's injuries, and her demeanor at the beginning of the conversation – to justify a conclusion that the statement wasn't testimonial. But it clearly was, and the Minnesota appellate court, like the trial court, recognized this. Too bad it designated the decision as non-precedential!

A good decision from the Fifth Circuit on the "why we acted the way we did" end run

2022-05-17T13:43:00.000-04:00

I have written before -- most recently here -- about how too often a court allows a prosecutor to introduce a testimonial statements on the ground that it is not offered for the truth, when the prosecution has no real need to prove the proposition for which the evidence supposedly is offered. In particular, courts often allow prosecutors to use such statements to prove the reason for authorities’ conduct, especially why they investigated the accused.

This is a particularly difficult problem, because a testimonial statement can be introduced for a legitimate purpose that the prosecution has, other than to prove the statement’s truth, and one cannot say that explaining officials’ conduct is utterly immaterial. So some degree of balancing tends to come in; if the prosecution’s need is flimsy, usually the court should recognize the very substantial probability that the jury will use the statement for its truth and so the statement should not be admitted. But courts tend not to do a good job of balancing when the confrontation right is at stake; the temptation to admit probative evidence is often too great, and that is one reason the categorical rule of Crawford was necessary.

Some courts get it, though. Eric Freedman, who has been keeping me informed for more than four decades, has called to my attention the fine opinion Judge Jerry Smith for a unanimous panel of the Fifth Circuit in United States v. Hamann, which is not only keenly aware of the problem but emphasizes a categorical rule that, if followed, would solve a good deal of it.

Hamann was charged with conspiracy to distribute meth. An investigator, Stanley, testified to a statement by a confidential source to the effect that “Cali,” understood to be Hamann, was “moving multiple ounces” of meth and to also to statements by local law enforcement that an unknown declarant had said Hamann “was selling narcotics.” Stanley also testified to details concerning a controlled purchase that was used to establish probable cause for a search warrant – but this testimony was second- or third-hand, because Stanley did not observe the transaction. The panel had little difficulty that Stanley was thus able to testify to out-of-court testimonial statements. The fact that he did not recount an “identifiable statement” concerning the controlled purchase did not matter, given that he described the purchase in detail despite not having observed it, making it inferrable what he purported to have been told. All good.

The more serious question was whether the statements were used for the truth of what they asserted. The panel noted that prosecutors often try to introduce evidence highly probative of guilt “[u]nder the guise of explaining why police began their investigation or conducted it a certain way.” But even if the evidence is relevant for this purpose, the panel said, quoting the court’s earlier decisions, the trial court must be “circumspect in its use”; the evidence would be deemed admitted for the truth of what it asserted if it “specifically links a defendant to the crime” or, put another way, “points directly at the defendant and his guilt.” Thus, “[t]he government must advance a specific reason why it needs to provide inculpatory ‘context’ for its investigation.” The defendant might open the door by challenging the adequacy of the investigation, but “[o]therwise, there is no reason why it cannot begin its account by explaining that it got a search warrant or that ‘a tip prompted’ it to begin investigating a suspect.”

Application of these principles here was straightforward. Hamann had never contended that the investigation was inadequate. And so the panel said, “We perceive no reason why the government could not have begun its case-in-chief by explaining that officers arrived at the motel to execute a search warrant and found Hamann and Davis together in the parking lot holding distributable amounts of meth.” The prosecution’s “inculpatory prequel” was far from circumspect, and highly prejudicial. Hamann hadn’t had an opportunity to cross-examine the confidential source or the non-testifying source (and neither was shown to be unavailable). So there was a clear Confrontation Clause violation, which the panel concluded was not harmless.

The panel made clear that it was simply reaffirming principles it had often stated, but the vigor with which it stated them is notable; it said that “ the government has repeatedly failed to take the lesson” and it “remind[ed] prosecutors to take note” – it could and probably should have have included trial courts in these statements. And the decision appears to state not only a stern and skeptical attitude but a very useful per se rule: If a testimonial statement specifically links an accused to a crime, and the accused does not challenge the adequacy of an investigation, then the statement may not be introduced on the basis that it explains the official conduct. That does not solve the whole problem, but it does take care of a good large part of it.