Unavailability under Crawford

Tag Archives: confrontation clause

Unavailability under Crawford

Posted on December 14, 2011 by Jessica Smith

Under the new Crawford confrontation clause test, testimonial hearsay statements by declarants who do not testify at trial may not be admitted unless the declarant is unavailable and there has been a prior opportunity to cross examine. I’ve previously blogged about the meaning of the key term testimonial and about what it means to have a prior opportunity to cross examine. But what about unavailability under the Crawford test—what does that mean? In other publications, such as the one here exploring the new Crawford test, I’ve suggested that a witness is not unavailable unless the state has made a good faith effort to obtain the witness’s presence at trial. In its recent decision in Hardy v. Cross, 565 U.S. __ (Dec. 12, 2011), the U.S. Supreme Court confirmed that to be the correct standard and helps us along in our understanding of what constitutes a good faith effort to obtain the witness’s presence.

In Hardy, the defendant was tried in state court for kidnaping and sexual assault and the victim testified at trial. After a mistrial, a retrial was scheduled for March 29, 2000. Nine days before the retrial, the prosecutor informed the trial judge that the victim could not be located. On the day before the trial, the State moved to have the victim declared unavailable and to introduce her prior testimony at the retrial. The State represented that it had remained in constant contact with the victim and her mother and that every indication had been that the victim, though very frightened, would testify. On March 3, however, the victim’s mother and brother had told the State’s investigator that they did not know where the victim was; the mother also reported that the victim was “very fearful and very concerned” about testifying. About a week later, the investigator interviewed the victim’s father, who had no idea where she was. On March 10, the victim’s mother told the State that the victim had run away the day before. Thereafter, the prosecutor’s office and police attempted to find the victim. Their efforts included: constant visits to her home, at all hours; visits to her father’s home; conversations with her family members; checks at, among other places, the Medical Examiner’s office, local hospitals, the Department of Corrections, the victim’s school, the Secretary of State’s Office, the Department of Public Aid, and with the family of an old boyfriend of the victim. On a lead that the victim might be with an ex-boyfriend 40 miles away, a police detective visited the address only to find that the lead was bad. The State’s efforts to find the victim continued until March 28, the day of the hearing on the State’s motion. That morning, the victim’s mother informed the detective that the victim had called approximately two weeks earlier saying that she did not want to testify and would not return to the area. The victim’s mother said that she still did not know where the victim was or how to contact her. The trial court granted the State’s motion and admitted the victim’s earlier testimony. The defendant was found guilty of sexual assault. On appeal, the state appellate court agreed that the victim was unavailable and that the trial court had properly admitted her prior testimony. The defendant then filed a petition for a writ of habeas corpus arguing that the state court had unreasonably applied clearly established Supreme Court precedents holding that the confrontation clause precludes the admission of the prior testimony of an allegedly unavailable witness unless the prosecution made a good-faith effort to obtain the declarant’s presence at trial. The federal district court denied the petition; the Seventh Circuit reversed.

The Hardy Court began its analysis by noting that under Barber v. Page, 390 U. S. 719 (1968), “a witness is not ‘unavailable’ for purposes of the . . . confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Here, the Court held, the state court’s holding that the prosecution conducted the requisite good-faith search for the victim was not an unreasonable application of its precedents. The Seventh Circuit found that the State’s efforts were inadequate for three main reasons. First, it faulted the State for failing to contact the victim’s current boyfriend or any of her other friends in the area. But, the Court noted, there was no evidence suggesting that these individuals had information about her whereabouts. Second, the Seventh Circuit criticized the State for not making inquiries at the cosmetology school where the victim had been enrolled. However, because the victim had not attended the school for some time, there is no reason to believe that anyone there had better information about her location than did her family. Finally, the Seventh Circuit found that the State’s efforts were insufficient because it failed to serve her with a subpoena after she expressed fear about testifying at the retrial. The Court noted: “We have never held that the prosecution must have issued a subpoena if it wishes to prove that a witness who goes into hiding is unavailable for Confrontation Clause purposes, and the issuance of a subpoena may do little good if a sexual assault witness is so fearful of an assailant that she is willing to risk his acquittal by failing to testify at trial.” It concluded: “when a witness disappears before trial, it is always possible to think of additional steps that the prosecution might have taken to secure the witness’ presence, but the Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising.” (citation omitted).

Category: Uncategorized | Tags: confrontation clause, crawford, hardy, unavailability

Is the Translation or Interpretation of Another’s Statements Hearsay?

Posted on December 7, 2011 by Shea Denning

Suppose a person who speaks only Spanish is stopped on suspicion of impaired driving by two officers, Officer A and Officer B. Officer A speaks and understands only English. Officer B is fluent in English and Spanish. Officer B asks the defendant if he has been drinking. The defendant states, in Spanish, that he drank some beer and a little whiskey at a friend’s house. Officer B tells Officer A, in English, what the defendant said. The defendant ultimately is arrested for impaired driving by Officer A. At defendant’s trial on impaired driving charges, only Officer A testifies though Officer B remains employed by the same police department. When the prosecutor asks Officer A what the defendant said after he was stopped, the defendant’s attorney objects on Confrontation Clause grounds. Defendant’s attorney argues that any testimony from Officer A about what defendant said contains two layers of hearsay. First, the statements made by the defendant are hearsay (though they are subject to the hearsay exception in N.C. R. Evid. 801(d) for admissions of a party opponent). Second, the translation of those statements amounts to an out-of-court statement by Officer B, who is not testifying though he is available to do so. Defendant’s attorney asserts that allowing Officer A to testify about what defendant said to Officer B, based on Officer B’s translation of those statements, violates the defendant’s right to confront witnesses against him. The prosecutor asserts that Officer B’s statements do not add an additional layer of hearsay and thus there is no Confrontation Clause concern. Who has the better of these arguments?

Considering a similar objection on evidentiary grounds before the Supreme Court issued its opinion in Crawford v. Washington, 541 U.S. 36 (2004), the North Carolina Supreme Court in State v. Felton, 330 N.C. 619, 633 (1992) analyzed the admissibility of a translated statements under principles of agency based upon an interpreter’s service as a language conduit. The agency/language conduit analysis attributes an interpreter’s statements to the declarant absent circumstances that rebut the presumption that an interpreter is acting as the declarant’s agent. Viewed through this lens, the interpretation of a declarant’s statement by an interpreter considered to be the declarant’s agent does not add an additional layer of hearsay. Thus, the court in Felton held that a law enforcement officer who interrogated a defendant with the aid of an interpreter could testify at trial regarding the defendant’s responses, even though the interpreter herself did not testify, so long as circumstances did not negate the presumption that the interpreter was the defendant’s agent. Felton identified the following factors as tending to refute an inference of agency: (1) a substantial possibility that the interpreter had a motive to misrepresent, such as an interest in shifting suspicion to the accused and away from the interpreter, or (2) a lack of capacity or demonstrated incompetence on the part of the translator. The court explained that “‘[w]here, however, there is no motive to mislead and no reason to believe the translation is inaccurate, the agency relationship may properly be found to exist. In those circumstances the translator is no more than a “language conduit,” . . . and a testimonial identity exists between declarant and translator. . . .’” Id. at 635. Felton also rejected the notion that the selection of an interpreter by law enforcement officers or an interpreter’s employment by a law enforcement agency removes the presumption of agency that arises “when an accused accepts the benefit of the proffered translation to make a voluntary statement.” Id. at 636.

Courts in other jurisdictions have employed a similar analysis both pre- and post-Crawford. See, e.g., United States v. Nazemian, 948 F.2d 522, 526-27 (9th Cir. 1991) (noting that “[w]hile many of the early state cases and a number of contemporary state cases take the position that the statement of an interpreter constitutes inadmissible hearsay . . . all of the federal circuits which have considered the question recently have taken the view that the translator may in some circumstances be viewed as an agent of the defendant, and the translation hence be attributable to the defendant as her own admission”); Hernandez v. State, 662 S.E.2d 325 (Ga. App. 2008) (concluding that, in light of the language conduit rule, the trial court did not abuse its discretion in allowing the jury to hear an out-of-court translation of defendant’s statements); People v. Jackson, 2011 WL 1878794, __ N.W.2d ___ (Mich. Ct. App. May 17, 2011) (concluding that (1) nurse’s reports to officer regarding witness’s hand-signal responses to officer’s questions fell within the language conduit rule and did not constitute an additional layer of hearsay, and (2) defendant did not have a constitutional right to confront nurse because what she reported properly was considered to be the statements of a witness whom defendant had a full opportunity to cross-examine).

Thus, if the declarant whose statement was translated testifies at trial and language conduit principles apply, there is no Confrontation Clause violation. See Jackson, 2011 WL 1878794. And when the defendant is the declarant, admission of his or her statements does not implicate the Confrontation Clause because a defendant has no right to confront himself. See, e.g., Vasquez v. Kirkland, 572 F.3d 1029, 1037 (9th Cir.2009) (“cases involv[ing] the use of a defendant’s own statements against him … implicate a defendant’s Fifth Amendment rights rather than the Sixth Amendment right of confrontation”), cert. denied, ___U.S. ___ , 130 S.Ct. 1086 (January 11, 2010); United States v. Brown, 441 F.3d 1330, 1358-59 (11th Cir.2006) (admission of defendant’s statement did not violate Confrontation Clause); United States v. Lafferty, 387 F.Supp.2d 500, 511 (W.D.Pa.2005) (“Inherent in Justice Scalia’s analysis in the Crawford opinion was the idea that the right of confrontation exists as to accusations of third parties implicating a criminal defendant, not a criminal defendant implicating herself.”).

So, in the scenario above, absent evidence that Officer B was not qualified or competent to interpret defendant’s statements, or that he had a motive to misrepresent the defendant’s responses, the prosecutor has the better of the arguments.

Category: Evidence, Uncategorized | Tags: confrontation clause, hearsay, interpreters, translators

Court Holds that Probable Cause Hearing Provides a Prior Opportunity to Cross Examine

Posted on November 7, 2011 by Jessica Smith

As blog readers well know, the new Crawford confrontation clause rule provides that absent an exception or a waiver of rights, testimonial hearsay statements of a declarant who does not testify at trial may not be admitted unless the witness is unavailable and there has been a prior opportunity for cross-examination. This is a tough rule for the prosecution because even if it can show unavailability (e.g., the witness is now dead), without a prior trial the prosecution rarely can show a prior opportunity for cross examination. But under a new court of appeals decision in State v. Ross, that just changed. In Ross, the court held that a victim’s testimony at a probable cause hearing provided a prior opportunity for cross-examination that satisfied the Crawford rule.

Ross involved the following facts. Early one morning Pedro Amaro and his wife, Angelica Besies, were awoken by a knock at the door. Amaro found the defendant at the door and recognized the defendant as the person who had sold him a shotgun a day or two earlier. Shortly after Amaro let the defendant inside, he heard a gunshot, felt heat at the back of his head, and his vision began to blur. He then heard his wife scream from the bedroom and heard another gunshot. The defendant had entered the bedroom and pointed his gun at Besies’ head. Besies struggled with the defendant and ended up shot in the hand. Amaro eventually subdued the defendant by holding him on the floor while Besies called 911. Four officers then arrived and secured the defendant, who claimed that he went to the residence to collect money that Amaro owed him from a drug deal. Amaro and Besies were brought to the hospital for treatment and upon their release were themselves arrested on numerous drug-related charges.

In addition to being charged with various offenses in connection with the Amaro/Besies home invasion, the defendant also was charged with several offenses, including first-degree murder, that occurred a few days earlier. None of these other charges involved Amaro or Besies. All of the charges against the defendant were later joined for trial. But before that happened, Besies, who was in custody on the drug charges, testified at the defendant’s probable cause hearing on the home invasion charges. Some months later Besies posted bond and was released from jail. When the defendant’s case came on for trial, Besies’ lawyer did not know her whereabouts. Amaro, who was still in custody, said she was in Mexico. In Besies’ absence, the prosecution offered, and the trial judge admitted, her statements at the probable cause hearing. The defendant was convicted of, among other things, attempted first degree murder, felony assault, and attempted armed robbery, all in connection with the home invasion. He was acquitted on the murder and other charges that were joined with the home invasion charges for trial.

On appeal, the defendant argued, in part, that the trial court violated the Crawford rule when it admitted Besies’ probable cause hearing testimony. Conceding that Besies was unavailable, the defendant argued that the probable cause hearing did not afford him an adequate prior opportunity to cross-examine her. Specifically, he asserted that his opportunity for cross-examination was inadequate for three reasons: (1) that all of the charges had not yet been joined for trial; (2) that his lead trial counsel had not yet been appointed; and (3) that at the time of the hearing, defense counsel had not yet had an opportunity to review all of the discovery. As to the joinder issue, the court noted that the probable cause hearing took place with respect to the home invasion charges, the only charges for which the defendant was ultimately found guilty. Thus, it concluded “with respect to the charges on appeal, defendant’s motive to cross-examine Ms. Besies would have been the same as his motive at trial.” It went on to note that the defendant failed to identify any topics that defense counsel did not address at the probable cause hearing that would have been covered in cross-examination at trial. As to the issue of lead counsel, the court noted that the lawyer who represented the defendant at the probable cause hearing served as co-counsel at the defendant’s later trial. And finally, as to the discovery issue, it noted that “our courts have never held that discovery must be complete for a cross-examination opportunity to be adequate.” It did not further explore this issue. The court then concluded:

Here, defendant was represented by counsel at the probable cause hearing (who was one of his trial counsel), he had the same motive to cross-examine Ms. Besies as at trial, and his counsel did in fact cross-examine Ms. Besies. These circumstances are sufficient to establish an adequate opportunity to cross-examine Ms. Besies. The trial court, therefore, did not err in admitting Ms. Besies’ probable cause hearing testimony.

After string of disappointments in the Crawford arena, Ross is sure to please the prosecution. Aside from holding that probable cause hearings can constitute an adequate prior opportunity for cross-examination, the case opens the door to arguments that similar pre-trial examinations—such as depositions—serve the same purpose. Of course, Ross is a court of appeals decision and as we’ve seen with regard to other aspects of the Crawford analysis, litigation tends to continue beyond the intermediate appellate courts. Thus, while Ross is the law, the prosecution’s aggressive use of it is not without risk. As for the weakest link in the Ross analysis, I’d say it’s the way with the court dealt with the discovery issue. But I’d love to hear your thoughts. Post away!

Category: Evidence, Procedure, Uncategorized | Tags: confrontation clause, crawford, cross examination, prior opportunity, ross

N.C. App. Holds that Maryland v. Craig Survives Crawford

Posted on October 13, 2011 by Jessica Smith

In a case decided earlier this month, the North Carolina Court of Appeals held that Maryland v. Craig, which allows certain child abuse victims to testify by way of closed-circuit television (CCTV) systems, survives Crawford. Crawford, of course, is the U.S. Supreme Court’s 2004 decision radically revamping confrontation clause analysis. As a general rule, the confrontation clause protects the right to face-to-face confrontation. This is understood to mean that the witness testifies live at trial in a setting in which the defendant and the witness can see and hear each other. In Maryland v. Craig, 497 U.S. 836 (1990), however, the United States Supreme Court carved out an exception to the right to face-to-face confrontation. In Craig, the Court upheld a Maryland statute allowing a judge to receive, through a one-way CCTV system, testimony from an alleged child abuse victim. The Court reaffirmed the importance of face-to-face confrontation of witnesses appearing at trial, but concluded that such confrontation was not an indispensable element of the confrontation right. It held that while “the Confrontation Clause reflects a preference for face-to-face confrontation, . . . that [preference] must occasionally give way to considerations of public policy and the necessities of the case.” Id. at 849 (quotation and citation omitted). It went on to explain that the confrontation right “may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 838 (emphasis added). As to the important public policy at issue in the case at hand, the Court stated: “a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers.” Id. at 854. However, the Court made clear that the State must make a case-specific showing of necessity. Specifically, the trial court must (1) hear evidence and determine whether the procedure is necessary to protect the welfare of the child witness; (2) find that the child would be traumatized by the defendant’s presence; and (3) find that the child’s emotional distress “is more than de minimis.” Id. at 855-56. The Court went on to note that in the case presented, the reliability of the testimony was otherwise assured. Although the law prevented a child witness from seeing the defendant while testifying, it required that (1) the child be competent and under oath; (2) the defendant have full opportunity for contemporaneous cross-examination; and (3) the judge, jury, and defendant are able to view the witness while he or she testified. Id. at 851.

Some questioned whether Craig remained good law after Crawford. After all, Craig involved a balancing of interests and rights: the public policy interest in protecting child victims versus a defendant’s confrontation clause rights. Crawford, however, noted that “[b]y replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design.” Crawford, 541 U.S. at 67-68. Earlier this month North Carolina’s intermediate appellate court addressed the issue, holding that Craig survives Crawford. The case was State v. Jackson and it involved sex offenses allegedly committed against a four-year-old victim C.G. The trial court found C.G. (who was six at the time of trial) competent to testify. Based primarily on expert witness testimony that C.G. would experience trauma by testifying in the defendant’s presence that would affect her ability to communicate with the jury, the trial court authorized C.G. to testify using a CCTV system. Using such a system, C.G. testified that the defendant “put his priva[te] part in [her] mouth” while wiggling his body and “put his finger in [her] private part.” The defendant was found guilty and he appealed, arguing in part that by allowing C.G. to testify using a CCTV system, his confrontation clause rights were violated. The court rejected this argument, deciding instead to “join the weight of authority” and hold that Craig survives Crawford. The court went on to find that C.G.’s testimony complied with both Craig and G.S. 15A-1225.1, the statute allowing for CCTV testimony by child victims.

So where are we? Notwithstanding Jackson, prosecutors still may be taking a risk when they seek to have a child victim testify by way of CCTV in a criminal case. Given the importance of the issue I wouldn’t be surprised if we get a higher court opinion, which of course, might come out differently. Also, it’s important to note that Craig pertained to child victims. A lot of people cite Craig as allowing for remote testimony by other types of witnesses, such as those who are elderly, frail, or inconveniently located. But applying Craig—and Jackson—to those scenarios would extend existing law. And given the massive quantity of post-Crawford litigation, it’s probably safe to assume that such an extension will lead to a court challenge.

Category: Uncategorized | Tags: cctv, confrontation clause, crawford, jackson, remote testimony

On the Horizon: U.S. Supreme Court to Decide Another Substitute Analyst Case

Posted on September 1, 2011 by Jessica Smith

In a post here, I wrote about the U.S. Supreme Court’s decision in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), holding that substitute analyst testimony in an impaired driving case violated Crawford. Bullcoming was no great surprise in light of the Court’s prior decision in Melendez-Diaz. However, less than one week after the Court issued its decision in Bullcoming, it granted certiorari in another substitute analyst case, Williams v. Illinois (No. 10-8505). Because of the underlying facts, Williams promises to be more significant than Bullcoming.

In Williams, the defendant Sandy Williams was charged with, among things, sexual assault of L.J. After the incident in question L.J. was taken to the emergency room, where a doctor performed a vaginal exam and took vaginal swabs. The swabs and other evidence were sent to the Illinois State Police (ISP) Crime Lab for testing and analysis. An analyst confirmed the presence of semen in the swabs. About six months later, the defendant was arrested on unrelated charges and a blood sample was drawn from him pursuant to a court order. An analyst extracted a DNA profile from the sample and entered it into ISP Crime Lab database. Meanwhile, L.J.’s swabs from the earlier incident were sent to Cellmark Diagnostic Laboratory for DNA analysis. Cellmark returned the swabs to the ISP Crime Lab, having derived a DNA profile for the person whose semen was recovered from L.J. At trial, ISP forensic biologist Sandra Lambatos testified as an expert for the State. Lambatos indicated that it is a commonly accepted practice in the scientific community for one DNA expert to rely on the records of another DNA analyst to complete her work and that Cellmark’s testing and analysis methods were generally accepted in the scientific community. Over a defense objection, Lambatos then testified to the opinion that the DNA profile received from Cellmark matched the defendant’s DNA profile from the blood sample in the ISP database. Cellmark’s report was not introduced into evidence. Also, while Lambatos referenced documents she reviewed in forming her opinion, she did not read the contents of the Cellmark report into evidence. At the conclusion of Lambatos’ testimony, the defendant moved to strike the evidence of Cellmark’s testing based upon a violation of his confrontation clause rights. The motion was denied and the defendant was convicted. On appeal to the Illinois Supreme Court the defendant again argued that Lambatos’ testimony about the Cellmark report violated his rights under Crawford and Melendez-Diaz. The court disagreed reasoning:

Lambatos’ testimony about Cellmark’s report was not admitted for the truth of the matter asserted. The State introduced this testimony, rather, to show the underlying facts and data Lambatos used before rendering an expert opinion in this case. The evidence against the defendant was Lambatos’ opinion, not Cellmark’s report, and the testimony was introduced live on the witness stand. Indeed, the report was not admitted into evidence at all. Rather, Lambatos testified to her conclusion based upon her own subjective judgment about the comparison of the Cellmark report with the existing ISP profile.

The court also rejected the defendant’s suggestion that Lambatos was merely a “conduit” for Cellmark’s report, finding her opinion to be “categorically different” from the certificate at issue in Melendez-Diaz.

As noted above, the U.S. Supreme Court has granted certiorari in Williams. The question presented is: Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

Recent North Carolina substitute analyst cases have followed the approach of the Illinois Supreme Court, finding no confrontation clause violation when the testifying expert forms an independent opinion based on reports done by others (for a full listing of relevant cases, see the cases listed under “Evidence,” Crawford Issues,” “Substitute Analyst and Related Cases” in my Criminal Case Compendium, posted here). If Court finds for the state in Williams, this law will remain intact. If it finds for the defendant, however, North Carolina will once again find its confrontation decisions invalid.

I will do a follow-up post when the case is decided.

Category: Evidence, Uncategorized | Tags: confrontation clause, crawford, melendez-diaz, substitute analyst, supreme court, williams

Bullcoming and Substitute Analysts

Posted on June 29, 2011 by Jessica Smith

On June 23^rd, the U.S. Supreme Court decided Bullcoming v. New Mexico. As anticipated, the case turned out to be a straightforward application of Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009) (forensic laboratory reports are testimonial; absent a stipulation, the prosecution may not introduce such a report without a live witness to testify to the truth of its contents), with the Court holding that substitute analyst testimony in an impaired driving case violated Crawford. Bullcoming involved an extreme example of substitute analyst testimony: the testifying expert had no independent opinion as to the matter in question (blood-alcohol level) and he neither participated in nor observed the test being done; as a result, he served as a mouthpiece for the non-testifying expert (something N.C. courts already have held is impermissible). For those dealing with more subtle substitute analyst cases (e.g., the testifying pathologist who did not perform the autopsy but has an independent opinion as to cause of death based on autopsy photographs, tests, and other documentation, all introduced as basis of the opinion), Bullcoming doesn’t advance the ball. It does, however, highlight a deep divide in the Court, with at least four Justices seeking to limit Crawford.

In Bullcoming, the defendant was involved in a car accident. Because the defendant’s eyes were bloodshot and he smelled of alcohol, the police were called. After leaving the scene, being apprehended and failing field sobriety tests, the defendant was arrested for impaired driving. When he refused to take a breath test, police obtained a warrant for a blood sample, which was drawn at a local hospital and sent to the N.M. Department of Health, Scientific Laboratory Division (SLD) for a determination as to blood-alcohol level (BAC). Curtis Caylor, a SLD forensic analyst, used a gas chromatograph machine to test the sample and certified his finding on an unsworn SLD form report. Specifically, Caylor recorded that the BAC in the sample was 0.21. The defendant was charged with aggravated impaired driving (requiring a BAC greater than 0.16).

At trial, the State announced that it would not call Caylor as a witness because he had recently been put on unpaid leave. When defense counsel objected, the State proposed to introduce Caylor’s finding as a “business record” during the testimony of Gerasimos Razatos, an SLD scientist who had neither observed nor reviewed Caylor’s analysis. The trial court overruled defense counsel’s confrontation clause objection and admitted the report. The defendant was convicted and the case went to the N.M. Supreme Court, which held that the report was testimonial but that its admission did not violate the confrontation clause. First, it determined that Caylor “was a mere scrivener,” who simply “transcribed” results “generated by the . . . machine.” Second, it concluded, although Razatos did not participate in the testing, he was an expert regarding the gas chromatograph machine and “provided live, in-court testimony.”

The U.S. Supreme Court granted certiorari to decide this question: Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification? Writing for the Court, Justice Ginsburg answered that question in the negative, reversing the N.M. Supreme Court. Finding the report to be testimonial, the Court then explained:

[S]urrogate testimony of the kind Razatos was equipped to give could not convey what Caylor knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed. Nor could such surrogate testimony expose any lapses or lies on the certifying analyst’s part. Significant here, Razatos had no knowledge of the reason why Caylor had been placed on unpaid leave. With Caylor on the stand, [defense] counsel could have asked questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for Caylor’s removal from his work station. Notable in this regard, the State never asserted that Caylor was “unavailable”; the prosecution conveyed only that Caylor was on uncompensated leave. Nor did the State assert that Razatos had any “independent opinion” concerning [the defendant’s] BAC. In this light, Caylor’s live testimony could hardly be typed “a hollow formality[.]”

It concluded: “In short, when the State elected to introduce Caylor’s certification, Caylor became a witness [the defendant] had the right to confront. Our precedent cannot sensibly be read any other way.”

In a portion of the opinion that lacks the votes to make it the opinion of the Court, Ginsburg challenges the assertion that the ruling puts an “undue burden” on the prosecution. She notes that re-testing always is an option; she also rejects the State’s argument that the defendant can be required to initiate such re-testing, asserting that the prosecution bears the burden of proof. She also cites notice and demand statutes as a procedural mechanism to lessen the State’s burden.

As Justice Sotomayor points out in her concurring opinion, Bullcoming is “materially indistinguishable” from Melendez-Diaz. Why then did the Court grant certiorari? It only takes four Justices to do so. Perhaps the four Bullcoming dissenters (Kennedy, Roberts, Breyer and Alito), who characterize the Court’s prior confrontation rulings as “missteps,” hoped that the new Justices — Sotomayor and Kagan — would tip the balance against Crawford. But that didn’t happen and Bullcoming reaffirms that Crawford is the law of the land.

Unfortunately, Bullcoming doesn’t provide guidance on how other more complicated substitute analyst issues should be resolved. Concurring, Justice Sotomayor highlighted the opinion’s limited reach, specifically noting several issues that were not presented:

when there is an alternate purpose or alternate primary purpose for the BAC report, such as medical treatment;
when the person testifying is a supervisor, reviewer, etc. with a personal connection to the test;
when the testifying expert has an independent opinion about underlying testimonial reports that are not themselves admitted into evidence; or
when the State introduces only machine-generated results, such as a printout from a gas chromatograph machine.

If you are looking for cases addressing these issues, we have a number of post-Melendez N.C. cases on point; none appear to be disturbed by this ruling. The N.C. cases are summarized in my Criminal Case Compendium, posted here.

Category: Evidence, Motor Vehicles, Procedure, Uncategorized | Tags: confrontation clause, crawford, DWI, melendez-diaz, supreme court

Michigan v. Bryant, Part III

Posted on March 24, 2011 by Jessica Smith

In my first two posts, I explored the Bryant opinions. Today I’ll discuss what the case means for confrontation clause analysis going forward.

1. Although Crawford is intact, the Court may be creeping back towards the old Ohio v. Roberts reliability test. Slip op. at 14; id. at 15 n.9; Op. of Scalia, J. dissenting at 12. In fact, in Scalia’s view, Bryant “recedes from Crawford.” Op. of Scalia, J, dissenting at 15. This is good news for the State and bad news for defendants.

2. The two-pronged Davis inquiry for determining the testimonial nature of statements made during police interrogations also remains intact, but with a modification expanding the scope of potentially non-testimonial statements. The Bryant Court stated: “[T]here may be other circumstances, aside from ongoing emergency, when a statement is not procured with a primary purposes of creating an out-of-court substitute for trial testimony . . . . Where no such primary purpose exists, [the statements are non-testimonial].” Slip op. at 11-12. After Davis we wondered how to categorize statements for which the primary purpose was something other than meeting an emergency or establishing past facts. Bryant suggests that if the primary purpose is anything other than establishing past facts for a prosecution, the statement is non-testimonial. Again, good news for the State; bad news for defendants.

3. The Court continues to use the term police interrogation in its colloquial sense. Slip op. at 8 n.2.

4. Bryant emphasizes that the ultimate question when determining whether a statement is non-testimonial or not is: What was the primary purpose of the interrogation? In assessing the primary purpose of the statement, the following principles apply.

The test is an objective one. Slip op. at 23.
Whether an ongoing emergency exists is one of the most important factors to consider. Id.
The statements and actions of both the interrogators and the declarant are relevant. Id. at 20.
The relative formality or informality of the statement also is relevant. Id. at 19-20.

5. The “ongoing emergency” determination remains a “highly context-dependent inquiry” Id. at 16.

6. The “ongoing emergency” net is broader than some had realized. Id. at 16. In Scalia’ view, it is so broad that it carves out an “expansive” confrontation clause exception for violent crime. Op. of Scalia, J., dissenting at 10.

7. In a paper published here, I suggested factors relevant to the determination of whether or not an ongoing emergency existed. Specifically, I suggested that the following factors supported the conclusion that an ongoing emergency existed:

The perpetrator remains at the scene and is not in law enforcement custody.
The perpetrator is at large and presents a present or continuing threat.
Physical violence is occurring.
The location is disorderly.
The location is unsecure.
Medical attention is needed or the need for it has not been determined.
The victim or others are in danger.
The questioning occurs close in time to the event.
The victim or others call for assistance.
The victim or others are agitated.
No officers are at the scene.
The declarant is speaking about the events as they are occurring.

I suggested that the following factors indicate that an emergency has ended or did not exist:

The perpetrator has fled and is unlikely to return.
The perpetrator is in law enforcement custody.
No physical violence is occurring.
The location is not disorderly.
The location is secure.
No medical attention is needed.
The victim and others are safe.
There is a significant lapse of time between the event and the questioning.
No call for assistance is made.
The victim or others are calm.
Officers are at the scene.
The relevant event is complete.

Bryant validates the relevancy of many of these factors and suggests that the following questions also are relevant:

What type of weapon was involved? Slip op at 17 & 27. Bryant noted that when the weapon consists of the defendant’s fists, the threat may be neutralized – and the emergency ended – simply by removing the defendant from the room. However, when the weapon is a gun, this may not suffice. Id. at 17. Also, when a gun is involved, the nature of the weapon may extend the emergency beyond the initial violent act (the shooting). Id. at 27.
Had the threat been neutralized? If yes, this suggest that the emergency has ended. Slip op. at 16.
Is the perpetrator known? If not, this may suggest that an emergency is continuing. Id.
Did the dispute occur in a public or private location? Slip op at 12. Bryant suggests that when a dispute occurs in public, the emergency may be extended by creating a danger to responding officers and the public. By contrast, a dispute that occurs in private—such as in a home—limits the potential danger to others, and thus the scope of the emergency.

8. The Court continues to indicate that statements can begin as non-testimonial but become testimonial. Slip op. at 18.

9. Because there was no dispute in Bryant about Covington’s unavailability or whether there was a prior opportunity to cross-examine, Bryant doesn’t add to our knowledge on those issues.

10. Because Bryant involved statements to the police, the Court did not address whether and when statements made to non-police actors are testimonial. Slip op. at 10 n.3; see also Op. of Scalia, J., dissenting at 3 n.1.

11. Because the issue was not before the Court, it did not decide whether dying declarations are excepted from Crawford. Slip op. at 4 n.1; Op. of Ginsburg, J., dissenting at 1-2.

12. The line-up of Justices on confrontation clause analysis has shifted significantly, with Scalia moving from opinion author to dissenter. Given that the important Bullcoming substitute analyst case (discussed here) is still pending before the Court, we are certain to get some interesting opinions.

13. Finally, Bryant twice mentioned due process as potentially limiting admissibility. Slip op. at 4 & 24 n.13. Thus, if Crawford falls, this may be the next battlefield over admission of hearsay statements.

Category: Evidence, Procedure, Uncategorized | Tags: bryant, confrontation clause, crawford, testimonial

Michigan v. Bryant, Part II

Posted on March 23, 2011 by Jessica Smith

In my last post, I looked at the majority opinion in Bryant. Today, I’ll discuss the other opinions, focusing on Scalia’s dissent. In my final post on this issue, I’ll wrap up with a discussion of what the case means for evolving confrontation clause law.

As noted in my last post, Justice Sotomayor wrote the majority opinion, holding that the victim’s statements to the responding officers were non-testimonial. Justice Kagan took no part in the consideration or decision of the case. Justice Thomas concurred, agreeing that the statements were non-testimonial but arriving at that conclusion because he believed they lacked sufficient formality, not because there was an ongoing emergency. Thomas, as he has done before, criticized the majority’s primary purpose test as creating uncertainty for the police and for the lower courts. Opinion of Thomas, J., concurring at 1. In his opinion, the majority’s test is an “exercise in fiction,” that “yields no predictable results.” Id. According to Thomas, a better approach is to consider the extent to which the interrogation resembles those historical practices that the confrontation clause was meant to address. Id. at 1-2. In his view, assessing the formality of the statement does just that.

Scalia bitterly dissented in Bryant. The first paragraph to his dissent sets his tone:

Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the People adopted, as described in Crawford v. Washington, 541 U. S. 36 (2004), I dissent.

Op. of Scalia, J., dissenting at 1.

As a preliminary matter, Scalia disagreed with the majority’s focus on the intent of the declarant and the interrogator. According to Scalia, when assessing the primary purpose of the interrogation, only the declarant’s intent matters. Id. at 2. Looking at Covington’s purpose, he found the case “absurdly easy.” Id. at 5. Scalia noted that upon arriving at the scene, five different officers questioned Covington about the shooting, with each asking: what happened, who did it, and where did it occur. They also asked follow-up questions about the perpetrator’s description and the exact address and description of the home where the shooting occurred. From Covington’s perspective, Scalia argued, his statements had little value except to ensure Bryant’s arrest and prosecution. When Covington made his statements, he knew the emergency had ended when he fled Bryant’s house and that it was entirely “beyond imagination,” id. at 6, that Bryant would again open fire while Covington was surrounded by five armed officers. Scalia believed that rather than suggesting an ongoing emergency, Covington’s medical situation actually reinforced the testimonial character of his statements. According to Scalia, Covington understood the police were focused on investigating a past crime, not his medical needs. The officers did not ask him how he was doing or meaningfully attempt to assess his wounds or administer aid.Instead, they asked questions having no relevance to his dire situation. Underscoring that Covington understood the officers’ investigative role, he interrupted their questions to ask when medical help would arrive. Or, as Scalia out it, “When, in other words, would the focus shift to his medical needs rather than Bryant’s crime?” Id. at 7. Scalia concluded: “Ex parte examinations raise the same constitutional concerns whether they take place in a gas-station parking lot or in a police interrogation room.” Id. at 8.

Scalia further criticized the majority opinion, arguing that even if the officers’ perspectives were relevant, the primary purpose was still clear: to establish past facts relevant to a prosecution. He noted that none of the officers’ actions suggested that they perceived an imminent threat. They did not draw their weapons; they did not immediately search the gas station for potential shooters; and none asked the question that would have been critical had they truly feared for their safety: Where is the shooter? In Scalia’s view, the majority opinion’s application of the law to the facts “creates an expansive exception to the Confrontation Clause for violent crimes.” Id. at 10.

Finding the majority’s decision to be a “gross distortion of the facts,” Scalia further criticized it as a “gross distortion of the law.” Id. at 12. In his view, the majority opinion, improperly brought the reliability standard back into confrontation clause analysis. He further criticized the majority opinion for “reced[ing] from Crawford” in another way: by requiring judges to conduct “open-ended balancing tests” and “amorphous, if not entirely subjective,” inquiries into the totality of the circumstances bearing upon reliability. Id. at 15. In Scalia’s view, such rules do violence to the Framers’ design. Id. at 16.

Justice Ginsburg also dissented, agreeing with Scalia that Covington’s statements were testimonial and that it was the declarant’s intent that matters. Op. of Ginsburg, J., dissenting at 1.

In my next post, I’ll explore what Byrant means for confrontation clause analysis.

Category: Uncategorized | Tags: bryant, confrontation clause, crawford, testimonial

Michigan v. Bryant, Part I

Posted on March 22, 2011 by Jessica Smith

On February 28, 2011, the United States Supreme Court decided Michigan v. Bryant, its latest Crawford case. In an opinion written by Justice Sotomayor, the Court held that a homicide victim’s statements to responding officers were non-testimonial. In this post, I will explore the majority opinion. In my next post, I will summarize the other opinions, focusing on Scalia’s dissent. In my final post, I’ll look at Bryant’s implications for future cases.

The facts of Bryant are as follows. At around 3:25 a.m., Detroit officers responded to a dispatch indicating that a man had been shot. They arrived at the scene and found Covington lying on the ground next to his car at a gas station, with a gunshot wound to his abdomen. He appeared to be in great pain, and spoke with difficulty. The police asked what happened, who shot him, and where the shooting occurred. Covington said that “Rick” shot him at around 3 a.m. He explained that he spoke with Bryant at Bryant’s house and when he turned to leave, he was shot. He then drove to the gas station. This conversation lasted about 5-10 minutes, ending when emergency medical services arrived. Covington died within hours. After speaking with Covington, the police called for backup and went to Bryant’s house. Although Bryant was not there, they found blood and a bullet on the back porch, an apparent bullet hole in the back door, and Covington’s wallet and identification outside the house.

At Bryant’s pre-Crawford murder trial, the State introduced Covington’s statements to the officers as excited utterances (no foundation was established for a dying declaration). Bryant was convicted and the case went up to the Michigan Supreme Court. That court reversed the conviction, holding that Covington’s statements were testimonial and their admission violated Crawford. The United States Supreme Court granted certiorari.

To put the legal issue in context, recall that Crawford v. Washington, 541 U. S. 36 (2004), held that testimonial statements by declarants who do not testify at trial may not be admitted unless the State establishes unavailability and a prior opportunity to cross-examine. In the Court’s later decision in Davis v. Washington, and Hammon v. Indiana, 547 U. S. 813 (2006) (“Davis”), it refined the meaning of the term testimonial, as it applies to police interrogations. Davis held:

(1) Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency; and

(2) Statements are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Noting that both Davis and Hammon were domestic violence cases, the Bryant Court recognized that case at hand required it to provide additional clarification on the ongoing emergency prong of the Davis primary purpose analysis.

The Court held that when determining the testimonial nature of a statement, a court must assess the primary purpose of the interrogation by objectively evaluating the statements and actions of the declarant and the interrogator, in light of the circumstances of the interrogation. The relevant circumstances include objective facts, such as where the interrogation occurred. However, the existence of an emergency or the parties’ perception that one is ongoing, “is among the most important circumstances . . . in determining whether an interrogation is testimonial.” Slip op. at 14. The Court explained that “statements made to assist police in addressing an ongoing emergency presumably lack the testimonial purpose that would subject them to the requirement of confrontation.” Id. at 23-24. It also clarified that the existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public.

Turing to case at hand, the Court noted that its analysis was complicated by the fact that because the case was tried pre-Crawford, there was no record of the primary purpose of the interrogation. Nevertheless, the Court examined the circumstances of the interrogation and concluded: “At bottom, there was an ongoing emergency here where an armed shooter, whose motive for and location after the shooting were unknown, had mortally wounded Covington within a few blocks and a few minutes of the location where the police found Covington.” Id. at 27. On these facts, the Court determined that “[t]he potential scope of the dispute and therefore the emergency . . . stretches more broadly than those at issue in Davis and Hammon and encompasses a threat potentially to the police and the public.” Id. Significant to its analysis was the fact that the assailant used a gun.

Having determined that an ongoing emergency existed, the Court considered the statements and actions of Covington and the police. Based on Covington’s condition and statements, the Court could not conclude that a person in his situation would have had a primary purpose of establishing or proving past events relevant to a criminal prosecution. As for the police, they responded to a call about a shooting without knowing why, where, or when the shooting had occurred, the location of the shooter, or anything else about the crime. The questions they asked were necessary to assess the situation and the threat to them, the victim, and the public. In other words, the Court determined, they solicited information to meet an ongoing emergency. Finally, the court evaluated the formality of the statements, concluding that the interrogation was more similar to the 911 call in Davis than the stationhouse interview in Crawford. Thus, it held: because the circumstances of the encounter as well as the statements and actions of Covington and the police objectively indicate that the primary purpose of the interrogation was to enable the police assistance to meet an ongoing emergency, Covington’s statements were non-testimonial.

Having summarized the majority opinion, my next post will explore the other opinions.

Category: Evidence, Procedure, Uncategorized | Tags: bryant, confrontation clause, crawford, testimonial

Confrontation at Probation Violation Hearings

Posted on March 17, 2011 by Jamie Markham

Under G.S. 15A-1345(e), a probationer is entitled at a probation violation hearing to “confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation.” What does that statute mean by confrontation?

The statute’s language comes directly from a 1973 case called Gagnon v. Scarpelli, 411 U.S. 778 (1973), in which the Supreme Court of the United States set out what process is due at a probation violation hearing. The Court held that before probation is revoked, a probationer is entitled to, among other things, “the right to confront and cross examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Id. at 786. As you can see, the statute practically quotes the Court.

The law’s reference to confrontation may call to mind the Sixth Amendment’s Confrontation Clause, which Jessie Smith has written so much about on this blog and elsewhere (her flagship bulletin, Jessica Smith, Understanding the New Confrontation Clause Analysis: Crawford, Davis, and Melendez Diaz (Apr. 2010), is available here). The Confrontation Clause provides that “[i]n all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him.” If you’ve learned anything from Jessie you know that the Confrontation Clause, as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), excludes a lot of evidence that might otherwise be admissible under the rules of evidence and older confrontation case law.

But that’s Sixth Amendment confrontation. Read the amendment carefully and you’ll see that it applies to “criminal prosecutions”—and North Carolina’s courts have long held that a “proceeding to revoke probation is not a criminal prosecution.” State v. Duncan, 270 N.C. 241 (1967). The supreme court put it to an even finer point in State v. Braswell, 283 N.C. 332, 337 (1973): at a probation hearing, the “Sixth Amendment rights of th[e] defendant are not involved.”

The confrontation right discussed in Gagnon is not a Sixth Amendment right, but instead a matter of due process under the Fourteenth Amendment. Due process confrontation is more flexible than its Sixth Amendment cousin. It’s not, as the Court called the Sixth Amendment in Crawford, a procedural “guarantee.” Rather, it’s rooted in notions of “fairness,” and the court may deny confrontation if it has a sufficiently “good cause”—something that would not be true if Crawford controlled. The Supreme Court even noted in Gagnon that “[w]hile in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not . . . intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.”

But due process confrontation is not so flexible as to be meaningless. In State v. Coltrane, 307 N.C. 511 (1983), the Supreme Court of North Carolina reversed a probation revocation when the trial court did not allow the probationer to confront her probation officer. At the hearing the district attorney simply relayed to the court that the probation officer told the DA that the probationer had failed to get a job. The probation officer wasn’t present at the hearing, and the conversation between the probationer and the judge went like this:

Probationer: “I’m expecting a call about a job at—”

The Court: “Do you have a job now?”

Probationer: “No, sir.”

The Court: “Let the sentence be put into effect. She’s in custody.” Id. at 515.

The court of appeals upheld the revocation, but the supreme court reversed on grounds that the defendant “was allowed to confront neither the prosecuting attorney who claimed that the probation officer had told him that the defendant had not procured employment nor the probation officer herself.” Further, the high court concluded, “No findings were made that there was good cause for not allowing confrontation.” Id. at 515–16. In short, the Coltrane court concluded that G.S. 15A-1345(e) means what it says.

In a more recent case, State v. Terry, 149 N.C. App. 434 (2002), a probationer complained on appeal of her revocation that she didn’t get an opportunity to cross-examine someone (one of her professors, who did not appear at the hearing) who provided damaging information about her to her probation officer. The court of appeals affirmed the revocation, noting that the defendant never subpoenaed the professor or otherwise asked to confront him. (That line of reasoning would be improper in the Sixth Amendment context. The Supreme Court has said 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.” Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2540 (2009).) The Terry court added that any error by the trial court was harmless to the extent that the professor’s statements merely confirmed information provided through other sources.

Terry never cites to Coltrane so it’s hard to know precisely how the cases fit together when thinking about how confrontation at probation hearings plays out in practice. I won’t let that stop me from concluding with a few practical thoughts.

For probation officers: I am told you are sometimes asked to testify based on a violation report prepared by another officer. When that happens, it seems the testifying officer should be prepared to explain why the officer who prepared the report is unavailable. That’s not to say, however, that I think the State needs to make the same showing of a “good faith effort to obtain the witness” that it would be required to make for Sixth Amendment purposes. Cf. Smith, supra, at 26.

For judges: We don’t have much guidance on what amounts to a “good cause” for not allowing confrontation. It strikes me that (at a minimum) you’d need to consider both the reason for the witness’s absence and the type of information at issue. Some violations, such as a positive drug screens or a new criminal convictions, may be proved just as well through documentary evidence, whereas others, such as failing to report to the officer in a “reasonable manner,” would seem more likely to require live, first-hand testimony.

And finally for probationers, it seems the best advice on this front may be that if you want to confront an adverse witness, be sure to bring it up at the violation hearing. Don’t raise it for the first time on appeal. See, e.g., Duncan, 270 N.C. at 246 (“[N]owhere in the record does it appear that the defendant asked to cross-examine any witnesses for the State, and particularly the State Probation Officer . . . , and was refused.”).

Category: Evidence, Procedure, Uncategorized | Tags: confrontation, confrontation clause, due process, probation hearings, probation revocation, probation violations

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