Patterico's Pontifications

3/21/2006

“Justices Signal Court Testimony’s Primacy” — Or Do They?

Filed under: Constitutional Law,Dog Trainer — Patterico @ 7:38 pm



Is the Supreme Court about to ban the use of 911 calls in court when the caller doesn’t testify? Depends on which news organization you ask.

If you ask the L.A. Times, it’s virtually a done deal that such evidence can’t be used. This paper’s story is titled Justices Signal Court Testimony’s Primacy. The sub-head reads: “All but Ginsburg lean toward defendants having the right to ‘be confronted’ by accusers, even in cases of domestic violence and abuse.” And the first paragraph says:

WASHINGTON — The Supreme Court justices, with the exception of Ruth Bader Ginsburg, sounded Monday as if they were likely to bar prosecutors from using in court the words of alleged crime victims who speak to authorities but later refuse to testify.

That’s just one Justice favoring the prosecution position urged by several states and the Bush Administration.

But the Washington Post says that “at least some of the justices seemed concerned about how far to extend the new rule.” “Some” is more than “one.” Let’s read on:

The court’s newest member, Justice Samuel A. Alito Jr., a former prosecutor, also seemed to lean in favor of the states. He asked lawyers for the defendants questions that implied they were asking for too broad a rule.

“If someone calls and says ‘I just saw a blue Toyota with Ohio plates do a hit-and-run,’ is that testimony?” he asked at one point.

“Yes,” replied Hammon’s lawyer, Richard D. Friedman.

Two Justices! Ha ha ha ha. [Said in the voice of Sesame Street’s the Count.] And the AP says:

Chief Justice John Roberts appeared to give prosecutors and police the benefit of the doubt in both cases.

Roberts was skeptical when Davis’ lawyer suggested that prosecutors, armed with powerful 911 tapes, might keep “bad” witnesses off the stand to win their cases.

And the chief justice said police officers have mixed motives in trying to protect victims and build criminal cases.

Three Justices! Ha ha ha ha.

Of course, three is not five. But reading these stories leaves you feeling completely in the dark as to where these Justices really stand.

We’ll have a better idea when the oral argument transcript comes online.

9 Responses to ““Justices Signal Court Testimony’s Primacy” — Or Do They?”

  1. As long as I’m being insensitive this evening….

    The Sixth Amendment is pretty clear. It guarantees the right of the accused “to be confronted with the witnesses against him.” That allows the accused to cross-examine the witnesses to uncover bias, inability to observe, and generally to dilute the strength of the witness’s evidence. The Sixth Amendment was written to prohibit the use “hearsay” except in rare situations that have always historically been exempt.

    When minors are afraid to testify, children can testify via closed-circuit TV. The accused can see the child, but the child can’t see the accused. The child faces defense counsel who conducts the cross-examination. Was this option presented to the women in the cases now before the Supreme Court? Maybe the women would have been willing to testify that way.

    It seems especially silly to shred the Sixth Amendment if all efforts have not yet been made to stretch it as far as possible.

    Andrew (08ba2c)

  2. “Some” is more than “one.”

    Nah, “some” is at least one for count nouns, or any nonzero quantity for mass nouns – in both cases, anything more than “none.” If I ask “are some of you going to join us for lunch?” and the truth is that exactly one is, the correct answer is “yes,” not “no.”

    Xrlq (587a0b)

  3. I don’t think the Confrontation Clause is quite so clear (Crawford indicates to the contrary). The view you suggest is the “confrontation clause as a super-hearsay rule” view, which the Court has, I believe, rejected. If the Court meant what it said in Crawford–that “witnesses against” refers to statements taken from now unavailable (or unpresented) declarants in situations akin to magisterial examinations, then at the least excited utterances and present sense impression create difficult questions for the Court. Under the defendant’s view, what is a garden-variety present sense impression (to a 911 operator “my neighbor is on the lawn punching his wife in the face”) is ruled out by the confrontation clause if the declarant is unavailable for trial. That’s a pretty dramatic change, and it will be interesting to see if the Court will go that far.

    tbaugh (4b527b)

  4. That’s a good point, Tim. Longstanding exceptions to the hearsay rule should carry substantial weight in a Sixth Amendment case. Besides the “present sense impression” exception, there’s also the “excited utterance” exception. Both may be applicable in these spousal abuse cases. But, I still wonder if the women in question were given an opportunity to testify via closed circuit. I also wonder whether the framers of the Sixth Amendment were familiar with anything akin to the “present sense impression” exception or akin to the “excisted utterance” exception.”

    Andrew (08ba2c)

  5. My somewhat limited research shows that at the time of the 6th Amendment the law of evidence–including hearsay–was in its infancy. The excited utterance in some form may have existed in the catch-all “res gestae,” but it is doubtful the present sense impression was known. And thus the question–is the Confrontation Clause designed to freeze the law of evidence, or rather to preclude only a certain kind of hearsay from unpresented declarants, namely that akin to magisterial examinations (solemn statements obtained through formal questioning by the government). The Court has said that the CC is not designed to freeze the law of evidence to that existing at the time of its adoption, so its task is to identify those practices akin to magisterial examinations (at least it would so seem). I think the Court in Crawford rightly said formal interviews of witnesses/codefendants, even though not under oath, fall within the CC. But I don’t think this means everything said to a government officer fits–such as excited utterances or present sense impression. I am not saying, however, that one must fall within one of these to fall outside of the CC. There are lots of statements that are within no hearsay exception that are also not testimonial under Crawford (at least in my view), but if a state decided to allow some of these under a new exception of some sort, if they did not fall within Crawford’s definition of testimonial—however that is going to be fleshed out in Hammons/Davis—no constitutional issue would be presented.

    I think generally the problem is not a lack of an offer for contemporaneous closed-circuit testimony (which I think Maryland v Craig says is only permissible upon a showing that the witness would be psychologically damaged or unable to speak–not just fearful or unwilling–if in the same room as the defendant), but a refusal to testify (the victim and the defendant have “made up”), or the disappearance of the victim (not generally because of foul play, but to avoid testifying). And this only in domestic violence situations. Of course the issue, though often involved in domestic violence cases, is not limited to them. My “my neighbor is punching his wife on the front lawn” present sense impression from a declarant who, for example, dies before trial, presents the issue, as do many other circumstances (one New York case precludes, under Crawford, a 911 call from a citizen who did not identify himself reporting a shooting as it was occurring on the street–such statements as “oh, he’s shooting him, he’s killing him”–though the statements were plainly both excited utterances and present sense impression).

    At least Hammon/Davis should put some parameters on the wildly divergent opinions from various courts we’re seeing now.

    tbaugh (4b527b)

  6. Well, in foul, fetid, fuming, foggy, filthy Philadelphia, Kareem Johnson and Kennell Spady were just convicted of first degree murder for the shooting of Faheem Thomas-Childs, an elementary school student who happened to get in the way when Messrs. Johnson and Spady were having a gun battle with Cassius and Jerome Broaster, rival drug gang members. The “associates” of Messrs. Johnson and Spady apparently got to a lot of the witnesses, because half a dozen of the prosecution’s witnesses “went South,” and testified that they “couldn’t remember” the events of that day.

    The prosecution then put the police officers who had taken the initial statements from the witnesses on the stand, and the officers testified to the statements the witnesses made in their previous statements. In a non-jury trial (the defendants waived their rights to a trial by jury, against the advice of their attorneys), Judge Jane Cutler Greenspan convicted them of first-degree murder.

    I have to wonder if what was written above means that Messrs. Johnson and Spady will have their convictions reversed, because they were convicted on the basis of prior statements, not testimony in court, along with ballistics evidence.

    Dana (71415b)

  7. No. The defendants had the chance to confront the witnesses in court.

    Patterico (de0616)

  8. Well, there could be a hearsay issue (I’d need to know more facts), but as long as the witnesses/declarants took the stand, there can’t be a confrontation clause/Crawford issue.

    tbaughman (c03bf0)

  9. Per Patterico in comment 7, the 911 tapes come in if the witness is brought into court. Put the witness on the stand, play the tape, ask “Is that your voice?”, then sit down. Isn’t that the best way to search for the truth?

    TomHynes (36cb4e)


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