Another Confrontation Case at the Supremes - Williams v. Illinois

This Tuesday (6 Dec 11), the United States Supreme Court heard another Confrontation Clause case (Williams v. Illinois) dealing with forensic testing (ala Melendez-Diaz and Bullcoming).  The question presented was

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.

At trial, the state called a DNA expert to testify about how it matched the accused's DNA profile with DNA evidence recovered from a rape victim, but the state did not call a DNA analyst from the company that conducted the initial testing.  The defendant later claimed that his right to confrontation was violated because he was denied an opportunity to question all of the DNA analysts that tested the evidence.  The Court was hotly divided on the issue, at times debating amongst themselves. 

Robert Barnes of the Washington Post covered the case HERE.  I couldn't attend the hearing, so I'll rely on his account of the oral argument.

The ABA preview of the case, which briefs and such, is HERE.

Videotaped Testimony of Child Sexual Abuse Victims Held Unconstitutional

Last week, the Texas Court of Criminal Appeals issued its opinion in Coronado v. State. 

[The CCA] granted review of the case to determine whether the videotape procedures set out in [the Texas Code of Criminal Procedure] Article 38.071, Section 2, including the use of written interrogatories in lieu of live testimony and cross-examination, satisfy the Sixth Amendment rights of confrontation...

The case involved a six year-old victim (who was three years-old when the abuse began) that the trial court determined was "unavailable" to testify in court because of the likelihood that she would suffer severe emotional trauma upon seeing the defendant.  Accordingly, the trial court allowed a neutral child interviewer to videotape an interview pursuant to Article 38.071, Section 2.  The defense counsel agreed to this procedure and propounded numerous questions for the interviewer to ask.  The defense counsel also agreed to allow the interviewer to ask follow-up questions that she deemed appropriate.  At trial, the video of the interview was played to the jury in lieu of any live testimony by the victim.

The videotape procedures of Article 38.071, Section 2, were enacted prior to the Supreme Court's decision in Crawford v. Washington.  Since that time, there has been a marked shift in confrontation clause jurisprudence in favor of a strict requirement of face-to-face live confrontation.  The lower appellate court, however, failed to cite (or even mention) the Crawford line of cases in its analysis.  The CCA, on the other hand, explained:

We are unable to find any post-Crawford precedent from any jurisdiction that states, or even suggests, that a list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is a constitutional substitute for live cross-examination and confrontation...There was no "rigorous adversarial testing" of [the child victim's] testimonial statements by that greatest legal engine for uncovering the truth: contemporaneous cross-examination.  The written-interrogatories procedure used in this case does not pass muster under our English common-law adversarial system or our United States Constitution.

The CCA's reluctance to overturn this case was apparent.  On page 2 of the opinion, Judge Cochran writes, "On federal constitutional matters, we are obliged to follow the dictates of the United States Supreme Court regardless of our own notions."

Judge Hervey concurred.  While she agreed with the majority that the procedure used in this case was unconstitutional, she wrote separately to express her opinion that the defendant's right to confrontation should be balanced with the societal interest in protecting child victims.  She would not foreclose the possibility of allowing testimony via closed circuit television where the witness would testify in a separate room, but where the victim could still see the defendant and the jury.

Presiding Judge Keller dissented.  In a well-reasoned opinion, she explains why she believes that the confrontation clause was not violated in this case.  She calls this a "close case," but she would have affirmed.

Revisiting Michigan v. Bryant

Back in February, we alerted you to the Supreme Court decision in Michigan v. Bryant regarding testimonial v. non-testimonial statements.  I wanted to re-post on this case and take a deeper look at what has changed as a result of the Supreme Court’s opinion.

The Bryant court came up with a new test to evaluate what types of statements made to law enforcement are testimonial.  Before Bryant, Crawford basically stated that statements made during interrogations qualified as testimonial.  But, Crawford was just the tip of the iceberg.  After Crawford, the Court in Davis v. Washington specifically addressed statements made to officers to enable them to respond to an ongoing emergency.  The Court held that those statements are non-testimonial.  The problem was that the Court in Crawford and Davis failed to give us a clear test to determine what types of statements would be non-testimonial.

Finally, the Court decided Bryant, giving us a test. Under the Bryant test, courts must consider three factors:

1) The circumstances of the encounter;

2) The questions and statements of the participants; and

3) The primary purpose of the interrogation as viewed by reasonable participants at the time.

The case was consistent with Crawford.  Analyzing the facts in Crawford, we can see that a 911 call reporting an ongoing assault would still be held non-custodial under the Bryant test.  The circumstances of the encounter was that there was an ongoing emergency taking place, the questions and statements of the participants were specifically in relation to the 911 call and the primary purpose of the 911 call was to report an emergency.  The Bryant court ultimately held that if the primary purpose of the statement is not for the purpose of creating a substitute for trial testimony, then the Confrontation Clause does not apply.

For all practical purposes, Crawford seemed to give a blanket exception for all 911 calls as being non-testimonial.  By giving us a test, the Supreme Court left each statement to be evaluated on a case-by-case basis.  Could a 911 call be considered testimonial?  If evaluated under the Bryant test, and the right circumstances exist, we think it could be.  This argument could have been made even after the Crawford decision came down, but it may be easier to point the court to the Bryant test when arguing that statements made were subject to the confrontation clause – even if there is an emergency situation taking place.

Michigan v. Bryant, 131 S. Ct. 1143 (2011)
Crawford v. Washington, 541 U.S. 36 (2004)
Davis v. Washington, 547 U.S. 813 (2006)

Dying Declaration Non-Testimonial Says the Supreme Court

Today, the Supreme Court ruled that dying declarations (classified in this case as "excited utterances") made to police officers and identifying the suspect, were admissible despite the fact that the witness did not later testify at trial.  The Court labeled the man's statements "non-testimonial" for purposes of the Confrontation Clause (and the Crawford case).  To read more about it, see CNN coverage HERE.

Read the Court's opinion in Michigan v. Bryant HERE.

Justice Scalia did not mince words in his dissent:

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.

Breaking CCA Case Regarding Crawford's Application to Sentencing

Stringer v. State, ___ S.W.3d ___ (Tex. Crim. App. 2010) Delivered April 14, 2010 (Designated for publication).

Question Presented:  Whether the Sixth Amendment Confrontation Clause and the Supreme Court holding in Crawford v. Washington were violated when the trial court in assessing punishment considered statements regarding an unadjudicated felony where those declarants were unavailable for cross examination and the Appellant had no prior opportunity to question them?

Held:

[W]hen a PSI is used in a non-capital case in which the defendant has elected to have the judge determine sentencing, Crawford does not apply. For us to conclude in Appellant’s favor would require a trial judge to hold a mini-trial for sentencing and would thwart the purpose of the PSI as a tool for the court to use in determining punishment. This holding is limited to a sentencing hearing in which the judge assesses punishment. We need not address here whether Crawford applies when a jury determines the sentence in a non-capital case.

Confrontation of Child Victim-Witnesses - A Constitutional Alternative?

So we all know that the 6th Amendment guarantees the accused, in every criminal prosecution, the right to be "confronted with the witnesses against him," and to have "meaningful and effective cross-examination."  Building on this principle, the Supreme Court more recently emphasized in Crawford that "testimonial statements" of a witness who did not appear at trial should NOT be admitted unless the witness is unavailable and the defendant has had a prior opportunity for cross-examination.  541 U.S. 36 (2004).

But do the prohibitions of Crawford apply equally to the testimony of child victims in Texas?  Well, it's hard to say.  The short answer is Yes, but there are exceptions provided for in Article 38.071 of the Texas Code of Criminal Procedure.  These exceptions are an effort to balance the defendant's right to constitutionally-required confrontation with the State's policy of protecting child witnesses in sexual assault cases (for instance) from further potential trauma that could be wrought by testifying in open court and coming face to face with the defendant.

In summary, Art. 38.071, which was drafted prior to Crawford, provides child victims (in certain cases) two alternatives to courtroom testimony (if the court makes a finding that they are "unavailable") by allowing them to testify:

• Pursuant to Section 2(b) - to a "neutral" third party (usually a child psychologist or social worker) outside the presence of a courtroom, the defendant, or the attorneys involved, so long as the testimony is videotaped.  The defendant is then allowed to submit interrogatories to be asked the child victim in the same manner as the previously recorded testimony.  Neither the defendant nor his attorney is allowed to be present when the questions are asked.  

     OR

• Pursuant to Section 3(a) - in a room other than the courtroom (outside the presence of the defendant) through the use of a closed-circuit television.

While the Supreme Court has recognized that the constitution does not guarantee the absolute right to face-to-face confrontation (see Maryland v. Craig, 497 U.S. 836 (1990)), I have to wonder if this "interrogatory"  alternative (Section 2(b) above) to cross-examination is what the Supreme Court meant by "meaningful and effective cross-examination."  While it is a way of recording testimony, it isn't really cross-examination at all.

The Texas Court of Criminal Appeals has not yet considered this issue.  The 2nd District Court of Appeals (Fort Worth) considered the issue in Rangel v. State, 22 S.W.3d 523, wherein it held that (1) a child victim's videotaped statement was "testimonial" and therefore governed by Crawford, and (2) by providing a defendant with the opportunity to submit written questions, section 2(b) of article 38.071 (i.e. the interrogatory section) serves as a constitutionally sufficient alternative to face-to-face confrontation of witnesses.  The CCA initially granted discretionary review to consider the constitutionality of Article 38.071, section 2(b), but later dismissed as improvidently granted.

The 7th District Court of Appeals (Amarillo) released an opinion last week consistent with the 2nd Court's holding in Rangel upholding the constitutionality of article 38.071, section 2(b).  See Coronado v. State HERE.  Maybe this will give the CCA occasion to consider this issue?

CCA Holds: Out-of-Court Statements by Confidential Informant Violate Crawford and Confrontation Clause

In a big case for the 6th Amendment and the ever-expanding Crawford jurisprudence, the Texas Court of Criminal Appeals released its opinion in Langham v. State yesterday.

Langham v. State, NO. PD-1780-08

In Langham, the Texas Court of Criminal Appeals reversed the 11th Court of Appeals, which previously upheld the admissibility of out-of-court statements made to a detective by a confidential informant. In so doing, the 11th Court of Appeals reasoned that "[h]ere, the primary purpose behind the [out-of-court] statements of the confidential informant was not to provide testimony but to provide information to Detective Smith in order that he could obtain a search warrant." The testimony was later offered at trial through the Detective and used substantively in the State's case.

The CCA reversed, citing the 11th Court's "flawed understanding of what the Supreme Court meant" in Crawford v. Washington. Writing for the majority (6-3), Judge Price stated, "[w]e conclude that the court of appeals erred to hold that Smith's testimony recounting the statements of the out-of-court confidential informant did not violate the Confrontation Clause." "[I]t is manifest that the 'primary purpose' of Detective Smith's communication with his confidential informant was to pave the way for a potential criminal prosecution."

This case appears very fact dependant, so I'm not positive that a bright-line rule has emerged. From my point of view, however, the State is going to have an uphill battle if it wants to introduce any statements by confidential informants.

Presiding Judge Keller dissented. While she did not denounce the rule that statements from a CI would violate the CC, she would affirm this case because the substance of the statements from the CI was slight. Judges Hervey (Keller, Keasler joined) also dissented due to "reservations" regarding whether the statements of the CI were "testimonial."

Confrontation Clause and Lab Reports???

Well I was hoping that the Supreme Court might take the opportunity in Briscoe v. Virginia to clarify its opinion from last term in Melendez-Diaz v. Massachusetts, but it passed.  Instead of articulating what exactly the confrontation clause requires of the State when offering lab reports into evidence, the Court merely stated, in a per curiam opinion,

"We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009)."

Hopefully, the Court will seize its next opporutunity to answer the question when it hears, City of Ontario v. Quon this term, but from the looks of it, I doubt it will.  So in the wake of Crawford and Melendez-Diaz, and now Briscoe, we still don't know...

• What parts of a lab report are "testimonial" triggering Crawford and the Sixth Amendment?
• If a lab report is testimonial, who from the lab must testify in order to satisfy the CC?
• Would the Supreme Court require all lab technicians who took part in operating the machinery which led to the creation of the report testify?  
• Does it satisfy the CC if a supervisor of the lab testifies alone?

These are the burning questions with which we are left.  In fact, these are questions that many of the justices asked of the counsel in both Melendez-Diaz and Briscoe.  I guess we will have to wait while the justices figure out the answers for themselves.  Much like Crawford, the law provides more questions than answers.


Thanks to the Austin Criminal Defense Lawyer Blog for alerting me to the release of the Briscoe opinion.

Waco Court of Appeals Gets One Wrong!

If you will indulge me, this post is a bit of a rant.

In a recent case, In the Matter of J.W., a Juvenile, the 10^th Court of Appeals (Waco) appears to have made a critical blunder in its reasoning and application of Texas Rule of Evidence 803(5) – the hearsay exception for past recollection recorded.

I missed this case when the opinion was handed down on Dec 30, 2009, but was alerted to it here.  I usually only monitor the criminal decisions and this one (being reported on the civil side) slipped through the cracks.

The case involved the written and signed statement of a witness to a law enforcement officer.  The witness implicates the defendant in her statement, providing an eye-witness account of the crime.  As she signed the statement the officer asked if the statement was true and the witnesses responded affirmatively.

However, between the time that the witness gave the statement and the date of trial, the witness was in a bad car accident which caused amnesia. As a result, she could not recall the events contained in the statement and could not even recall making a statement at all.  She could, however, identify her signature at the conclusion of the statement.

At trial the government sought to read into evidence the written statement of the eye-witness to the officer under Texas Rule of Evidence 803(5) as past recollection recorded.  TRE 803(5) provides:

A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document’s trustworthiness.  If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.   

The trial court allowed the statement to be read into evidence over defense objection and the juvenile defendant was convicted.  On appeal, the 10^th Court of Appeals properly identified the four predicate elements for the use of a recorded recollection:
     

1. the witness must have firsthand knowledge of the event,
2. the written statement must be an original memorandum made at or near the time of the event while the witness had a clear and accurate memory of it,
3. the witness must lack a present recollection of the event, and
4. the witness must vouch for the accuracy of the written memorandum.

 Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1996).  From the nature of the written statement and the testimony of the officer who took the statement, the first 3 prongs were clearly satisfied. However, the 4^th prong is the substance of the question presented to the appellate court.  In order to satisfy the 4^th prong, the State relied on the officer's testimony that the eye-witness declarant told him the statement was true when she wrote it.  While realizing that “ideally this evidence (voucher of the accuracy of the statement) would come from the declarant,” the Court held that “under the circumstances of this case (where the declarant cannot remember anything due to amnesia), we cannot say the trial court abused its discretion.” My question to the Court, the counsel involved, and anyone who reads this case is: 

WHAT ABOUT THE 6^TH AMENDMENT?  Does this juvenile defendant not have the right to confront the witness against her?  This eye-witness statement implicating the defendant is surely “testimonial” under Crawford.  And as a testimonial statement, the defendant has a right to cross-examine the declarant.  This declarant, while physically present at trial, was “unavailable” in a legal sense because she could not provide testimony about the facts and circumstances surrounding her statement.  More importantly, her statement could not be subjected to the “crucible of cross-examination.” 

To illustrate the critical error in this case – assume for a moment that the declarant was actually the one who committed the offense and in an effort to shift the blame, she gave a completely false statement implicating the defendant.  Normally that is something that will come to light during cross-examination (if not sooner).  However, in this case, the declarant does not remember anything about the incident, much less whether she gave an accurate account of the incident.   

In reaching its erroneous conclusion, the Waco Court of Appeals relied heavily on Johnson v. State, a case which was decided before the Supreme Court decision in Crawford v. Washington changed the landscape for confrontation clause analysis.  Before Crawford, courts used the Ohio v. Roberts (indicia of reliability) framework when considering the admissibility of hearsay statements.  I believe that a fair reading of Johnson alone dictates that this case be overturned, but had the Court considered both Crawford and Johnson in its analysis, it would have surely reached a different conclusion. 

I sincerely hope that the Supreme Court of Texas takes a look at this case.  Maybe it is ultimately a “waiver” issue because it doesn’t appear that the 6^th amendment argument was made during trial.  I hope not, because in my opinion the Waco Court of Appeals got it wrong and this case should be overturned.