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March 2, 2011

Michigan v. Bryant- Justice Scalia's Ongoing Emergency

Justice Scalia has been the US Supreme Court's driving intellectual force behind a series of Sixth Amendment Confrontation Clause interpretations that have made life difficult for prosecutors.  Begininning with Crawford v. Washington in 2004, these decisions make "testimonial" hearsay statements from non-testifying witnesses inadmissible in evidence against criminal defendants at trial.  The Court is developing the contours of the term "testimonial" as it hops from one case to another.  At the moment, hearsay statements are NOT testimonial (and therefore are admissible against defendants) if witnesses make them to police officers, 911 operators, etc. in the course of an "ongoing emergency."  But hearsay statements ARE testimonial if an emergency has passed and government agents are gathering information about a "past crime."

When he outlined the Crawford approach in 2004, Justice Scalia bragged that it was both historically accurate and an easy bright-line rule for later courts to follow.  But the Court's 2011 decision in Michigan v. Bryant has shoved the bright-line into the dark shadows.  Justice Scalia, suddenly finding himself in a 2 person minority dissenting position, went apoplectic.   

To briefly recount the facts in Bryant, police officers interviewed a fatally-wounded shooting victim.  Close to death, the victim told the police the name of the shooter and the location where he'd been shot.  A police officer testified to the victim's statements at Bryant's trial.  To Scalia, this was an easy example of testionial hearsay.  The shooting had already occurred, and the police were gathering information about a past crime. 

But the 6 other Justices (Justice Kagan had to recuse hereself) didn't see it this way.  Looking at the context as a whole, an ongoing emergency existed when the police interviewed the victim.  The shooter's whereabouts were unknown, the victim was near death, and the questioning was loose and unstructured.  The majority lectured Scalia in his own "house" writing that "We are unwilling to sacrifice simplicity for accuracy.  Simplicity is not always better."  Ouch!

Justice Scalia's bitter and caustic dissent may have been a strategic error.  He wrote that the majority had "demeaned" the Court, reached a "patently incorrect conclusion" and left the Confrontation Clause in a "shambles."  And there's lots more bitterness- read it for yourself.  I think it's possible that Justice Scalia's nasty dissent might backfire on him.  His anger sends a clear signal to future judges that Michigan v. Bryant has liberalized the meaning of "ongoing emergency."  If the case is read this way, the doctrinal mansion that Justice Scalia had erected so carefully on the grounds of the Confrontation Clause might crumble. 

February 28, 2011

Michigan v. Bryant Breathes Life Into Dying Declarations

In Michigan v. Bryant (Feb. 2011), the US Supreme Court ruled that a type of hearsay known as a "dying delcaration" was admissible in evidence to prove a defendant guilty of murder. The big legal issue in the case was the application of the Confrontation Clause to a murder victim's last words. 

In Crawford v. Washington (2004), Justice Scalia began to erect his Monument to the Confrontation Clause.  He was the guiding robed hand that led a majority of the justices to agree that hearsay evidence was inadmissible against a defendant in a criminal trial unless the defendant had a chance to cross examine the person making the statement.  In later cases, the Court ruled that hearsay statements are admissible if they are made during "ongoing emergencies," but not if they are made after an emergency has passed and the police are investigating a prior crime.

In Michigan v. Bryant, Detroit police officers talked to a fatally-wounded gas station attendant who told them that "Rick" (Bryant) had shot him and where the shooting took place. The victim died shortly afterward. The Court ruled by a 6-2 majority that the police were investigating an ongoing emergency when they talked to the victim. Thus, the shooting victim's statement to the police officer was admissible in evidence even though Bryant had no chance to cross examine the victim. 

The outcome demonstrates the fuzziness of the line separating an "ongoing emergency" from a "past crime."  Oddly, in Crawford, Scalia bragged that his new interpretation of the Confrontation Clause was better than the former interpretation because Crawford would provide greater certainty.

Scalia's dissenting opinion essentially dropped an f-bomb on the majority, though he used somewhat more polite terms like "gross distortion of the law" and "shambles of the Constitution."   Scalia sounded a bit like a drowning man who sees the Confrontation Clause passing before his eyes.  For now, Dying Declarations have been given a shot at life. 

June 26, 2009

Melendez-Diaz Raises the 6th Amendment's Price Tag


Melendez-Diaz v. Massachusetts, decided by the U.S. Supreme Court on June 25, 2009, is the latest salvo in the Sixth Amendment Wars.  Since 2004, one of the most divisive issues the Court has faced has concerned the meaning of the 6th Amendment's "Confrontation Clause."  So far, the Scalia-led majority insisted that the prosecution produce live witnesses instead of hearsay, and Scalia carried the day again in Melendez-Diaz.

The case involved the admissibility of certificates prepared by government lab technicians and stating under oath that the powder that police officers had seized was cocaine.  The prosecutor offered the certificates into evidence in lieu of calling the lab technician who had performed the test, and the Court ruled that doing so violated the 6th Amendment and invalidated the conviction.

The decision has the potential to make drug prosecutions too costly to pursue.  Many testing labs are already hard-pressed to keep up with the demands for test results.  If the technicians who carry out the testing also have to sit around courthouses waiting to testify, the backlogs will grow longer. The costs of the decision may be prohibitively high in rural states, where only one or two labs run tests for the entire state.  And when substances are sent to the FBI in Washington, D.C. for testing, Melendez-Diaz requires technicians to travel all over the country to testify regarding test results that they probably can't recall -- other than by looking at their certificate, anyway. 

A spokesperson for a national DIstrict Attorneys organization calls the decision a "train wreck" for prosecutors, and he may be right.  However, Justice Scalia has the mind-set of a junkyard dog when it comes to the protection of his 2004 Crawford decision To paraphrase an old homily, Scalia seems to believe that it is better that 99 defendants go free than one bit of hearsay escapes the 6th Amendment.              

December 10, 2008

The U.S. Supreme Court Considers Whether the Constitution Requires Forensic Lab Experts to Testify at Trial

In the 2004 "Crawford case", the U.S. Supreme Court interpreted the Sixth Amendment's Confrontation Clause to require prosecutors to present live witnesses rather than hearsay whenever the hearsay was "testimonial." The decision has given rise to lots of commentary and court opinions (many of them conflicting) about whether particular types of hearsay are testimonial.  For example, if a domestic violence victim makes an emergency call to a 911 operator, the victim's statements are likely not to be testimonial, meaning that prosecutors can, if necessary, offer a transcript of the call into evidence if the victim refuses to come to court and testify.  On the other hand, if the domestic violence victim talks to a police officer once the emergency is over, the victim's statements are testimonial. If the victim refuses to testify, the prosecutor cannot call the police officer as a witness to testify to what the victim said.

One of the elephants in the Confrontation Clause room is whether lab reports are testimonial.  Every day, hundreds of doctors and other technicians conduct autopsies, test substances to determine whether they are illegal drugs, determine the alcohol context of blood or urine, etc.  They prepare reports of their findings and before Crawford most courts routinely admitted these reports into evidence at trial under long-established hearsay exceptions for business or official records. But if these reports are testimonial, defendants would have the right to insist that the report preparers testify in person.  The ramifications of such a result are potentially huge. If forensic experts have to testify, at the very least trials become longer and lab backlogs will continue to grow because experts who are testifying (or, more likely, waiting to testify) are not conducting tests.

Sometime in early 2009, the U.S. Supreme Court will likely issue an opinion addressing these issues.  The case is Melendez-Diaz v. Massachusetts, and the Court heard arguments in the case in November 2008.  Forensic lab reports certainly look testimonial in that they are prepared by government officials who usually are aware that they may be offered into evidence at trial.  Prosecutors counter that lab reports are not testimonial because they are objective, especially since many of them are simply machine-generated.  Prosecutors also argue that if defendants really want report preparers to testify, the defendants can call them as their own witnesses.

The outcome of Melendez-Diaz is likely to have a huge impact on the day-to-day functioning of the criminal courts.  My prediction: Since the Supremes have been Confrontation Clause-happy, they will rule that most lab reports are testimonial.