March 21, 2006

"Maybe we should just suspend the Confrontation Clause in spousal abuse cases."

Said Justice Scalia, sarcastically, at oral argument yesterday. The case, Davis v. Washington, is about about whether 911 recordings can be used at trial in place of the testimony of a witness who no longer wants to cooperate with the prosecution, as often happens in domestic violence cases. Linda Greenhouse reports:
Two years ago, however, the Supreme Court issued an unmistakable warning that these efforts were likely to collide with the Sixth Amendment's Confrontation Clause, which guarantees to a criminal defendant the right "to be confronted with the witnesses against him."

In Crawford v. Washington, the court laid down a new rule: a "testimonial" statement made out of court cannot be used at trial unless the person who made the statement is available for cross-examination....

[Adrian M.] Davis's lawyers argued on appeal that the admission of the 911 tape violated his right to confrontation, but the Washington Supreme Court said the call was not testimonial. It was, the court said, a request for "help to be rescued from peril."...

Mr. Fisher, a Seattle lawyer who successfully argued the Crawford case, said the purpose of the Confrontation Clause was "to bring the accuser and accused face to face and require the accuser to deliver the accusation in court."

But the 911 call was "not just a call," Justice Ruth Bader Ginsburg objected. It was also "a cry for help." Was it not a "practical reality," she asked Mr. Fisher, "that many women in this situation are scared to death?" She added, "Your neat legal categories don't conform to real lives."

Mr. Fisher responded carefully. "I don't mean to be insensitive," he said. He offered a solution: under a rule known as the "forfeiture doctrine," he observed, a defendant who intimidated a witness lost the right to object to the use of that witness's out-of-court statements.

Justice Antonin Scalia interjected: "Maybe we should just suspend the Confrontation Clause in spousal abuse cases."

The other justices undoubtedly took his point, a reminder that he was the author of the Crawford decision, and that he had persuaded six of his colleagues in that case, including Justice Ginsburg, that the Confrontation Clause should be interpreted literally.
Interpreted literally! That textualist! And yet somehow he persuaded six of his colleagues. Are we to abandon the imaginative interpretative moves that usually work so well to make rights mean whatever we really need them to mean?

In fact, Crawford is no simple-minded literal take on the 6th Amendment. It is an elaborate discussion of text, history, and principle.

26 comments:

Simon said...

Is Crawford considered as having overruled Maryland v. Craig, 497 U.S. 836? Craig said that the confrontation clause did not require actual, physical confrontation as long as the jury could see the reactions of the witness at cross-examination; Crawford said that testimonial hearsay where there is no opportunity for cross-examination is barred by the confrontation clause. It seems to me that these cases can live together (albeit uncomfortably), but Scalia has said that the Court overruled Craig, and as far as I know, Crawford is the only case on-point in recent years.

anonlawstudent said...

I don't understand why the refusal of a witness to a crime to testify should exclude other relevent evidence, like a 911 tape or police testimony. If the defendant has committed the assault in public, and the victim refused to testify, police testimony wouldn't be excluded; nor would survellance video or other such relevent evidence. Why is domestic violence being treated differently?

The accuser for a criminal trial is not the victim of the crime, but rather the State. The sixth ammendment is meant to allow the defendant to confront any and all evidence offered against him; if the victim of domestic violence cannot testify, perhaps it is just that her testimony be excluded from a trial. To exclude other evidence doesn't seem to make sense.

THe way I see it, we're trying to balance the needs of the victim of a violent crime, with the intitutional checks on State power. The sixth amendment is a check on the power of the State to deprive citizens of their liberty. It is not some kind of psycho-social test to see if witnesses are poised and confident. the victim of the crime needs the protection of a strong State police power; society (as represented by the defendant) needs to maintiain our intitutional checks on government power. Where does the balance fall?

What would be the problem of allowing the victim to testify in deposition -- with the opportunity for defense to cross-examine -- but without the threatening presence of the defendant? Or even in open court, but without the defendant present? Does it undermine the notion that the defense attorney is merely the agent of the defendant, to have the attorney acting on the record without the defendant present?

Simon said...

"What would be the problem of allowing the victim to testify in deposition -- with the opportunity for defense to cross-examine -- but without the threatening presence of the defendant?"

This is exactly the problem that Craig confronted (no pun intended). The answer, on some level, not a great deal; but, as spelled out in Scalia's dissent in that case, the correct answer, of course, is "that's what the Sixth Amendment says." The Sixth Amendment says that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him" (emphasis added). "The" unmistabably means all in this context, just as it must in Art.I §1, Art.II §1 and Art.III §1. Moreover, the Sixth Amendment also gives the accused the right to counsel, which, for obvious reasons, means the idea of letting counsel be confronted with the witnesses against the accused is a non-starter.

You have to start with the law, and come to an understanding of what it says, and therefore what it permits. To do it any other way invites corruption of the process; if you work out what seems reasonable and then ask "why can't this be the result?" then you are emotionally invested in your conclusion. The process has to work the other way around: in my view, having identified the question, you ask what the law says, and how it should apply to the case, even if that result is unpalatable.

SippicanCottage said...
This comment has been removed by the author.
Pogo said...

Is a 911 emergency call automatically to be considered truthful? Are there not fake 911 calls to, for example, establish an alibi or set a stage for a falsified story?

No lawyer, I, but being unable to confront an accuser whose accusation may be the very tape being played is not the same as refusing to admit videotape into evidence. I know sometimes there is in fact useful evidence from the tape itself, but a 911 call can be simply an uncorroborated complaint meant to unjustly accuse.

I hope they tread carefully.

John Jenkins said...

The particular exemption to hearsay rules for the tape in the murder case (unavailability of the witness) doesn't apply when the witness merely chooses not to testify.

teddy_kgb said...

I sincerely hope that the Justices are mindful that most law school exams end around the middle of may. Issuing a ruling before then and further changing the laws of hearsay vis-a-vis the confrontation clause would be cruel and unusual punishment.

anonlawstudent said...

Depositions are quite different from police interviews. In a deposition, the defense attorney is present and has the opportunity to cross examine. Depositions are under oath and recorded by a court reporter. In Crawford what was submitted was a police interview. None of the above apply.

Reading the text of the 6th Am. I find it evokes a protection against a sort of Kafka-esque situation where the defendant doesn't even know what he's being accused of. But it seems as though as long as all of the evidence that is offered to the jury is also available to the defense to rebut, then the concerns are met. When the framers drafted the 6th Am. there was no such thing as a recording device; they articulated the rule in such a way as to prevent the State from showing secret evidence to the jury that the defendant couldn't know about; like I said before, I don't think the focus is on the psycho-social confrontation in open court; that seems to capricious to be a constitutionally protected right. I think the protection is to know the case and the evidence against you, and to be allowed to argue against it. Depositions and recordings will allow this.

gj said...

Why not allow the 911 recording and let the spouse testify for the defense if she wants to? Then the jury gets to decide whether they believe what she was saying on the phone, or what she's saying in court?

Goesh said...

For what it is worth - so much Court time and so many tax dollars are at play here...it has to be settled one way or another. Though I like to think of Ruth as being a bit prunish, she is right,we do have real victims usally identifying themselves and technology confirming the origin of such calls often with lots of commotion, followed by police establishing evidence as they usually respond and often make warrantless arrests at the scene of the reported crime. To my non-lawyer brain, these calls seem just a part of the chain of evidence. Victims often display some type of injury and there is usually disarray in the home and statements by others present, all fostered by a recorded call to the police.

Tom C said...

This issue seems closely aligned (to my untrained eye) to the issues surrounding abused children testifying under special conditions. In the 90's there was a well-regarded movement to consider all testimony from people who claimed abuse to be true ("No child will ever lie about abuse") and thus not subject to cross-examination. This position was dealt some heavy blows, but there are still many protections that such a witness gets that others may not.

I'm not suggesting that abused partners get the same treatment as children, I'm just saying that the 6th amendment is not given absolute sway in all circumstances.

anonlawstudent said...

Simon wrote --> "In my view, having identified the question, you ask what the law says, and how it should apply to the case, even if that result is unpalatable."

It has always been the case that the courts have encountered situations wshere the law can be read two different ways -- a physical face-to-face confrontation or the right to know and rebut evidence? -- and the courts have decided what the law is by a number of different mechanisms, not the least of which is the practical consequences of one interpretation or another.

I've heard conservative commentators say about the expansion of executive power in the war on terror, that the Constitution is not a "suicide pact," meaning it should be interpreted with the practical consequences in mind. Likewise, it is not a liscence to beat your wife. If one interpetation means that domestic violence cannot br prosecuted, and another means that the power of the State is expanded, we need to look at these two situations and make a policy judgment about how to balance these needs.

I don't think that allowing sworn depositions and 911 tapes tips the policy balance to far to the expanded power of the state; I could be convinced otherwise if someone could show that the consequences were notable. I don't think they are though. Sixth Am protections allow the defendant to know the case against him and ro rebut it; I don't think there's any practical value in face-to-face confrontation that is crucial in keeping the state in chack.

Simon said...

Tom C - again, that is exactly the issue that Craig considered.

AnonLawStudent:
"Reading the text of the 6th Am. I find it evokes a protection against a sort of Kafka-esque situation where the defendant doesn't even know what he's being accused of. But it seems as though as long as all of the evidence that is offered to the jury is also available to the defense to rebut, then the concerns are met."

Well, purposivism is all fine and good, but only to an extent. I don't object to asking what the principles that undergird the text are (indeed, it's often absolutely necessary to look to structure and principles, because the text is often ambiguous) for the purpose of shedding light on what the text might mean. And I don't object to using purposivism as a guide to construction (for example, a case like Kyllo: the text obviously doesn't mention electronic surveillance devices, so the court is asked not only for interpretation but construction: what does the fourth amendment say, and what do its principles say to the case at bar? For this, we can look, inter alia, at its purpose). But I do strongly object to using purposivism to trump the text, as Justice Breyer et al urge us to do. The text says - and there is no evidence to suggest a more subtle meaning was envisioned - "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Now, we might use purposivism to answer a question like "in this case, does the term 'witnesses' encompass video surveillance footage, and if so, what constitutes meaningful confrontation of that evidence?" But what we can't do is get around the fact that the Sixth Amendment inescapably says "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." There is no question about what "confrontation" meant in 1791 (or for purposes of the states, in 1868); no one disputes that confrontation meant confrontation. The debate, then, as it so often does, turns on whether Judges should expound the law or make it. In my view, even if the confrontation clause is inconvenient, even if it means that sometimes criminals will go free, even if it makes life extremely uncomfortable for victims, the Sixth Amendment says what it says. We can use purposivism to refine its meaning, but not to trump it.

Richard Dolan said...

"Why not allow the 911 recording and let the spouse testify for the defense if she wants to? Then the jury gets to decide whether they believe what she was saying on the phone, or what she's saying in court?"

You are missing the context. This is a prosecution in state court. Rules of evidence and exceptions to the hearsay rule are for the states to devise, and in doing so the states generally have all of the prerogatives to fashion evidentiary rules and policy as they deem best. The issue in the SCOTUS is whether the federal constitution imposes limits on the state's policy choices, in that in criminal prosecutions the 6th Amendment specifies formalities that must be observed in offering certain evidence against the accused.

As Simon pointed out earlier, the Sixth Amendment says that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The key words -- "all," "shall" and "confronted" -- are quite clear in their meaning here. This is a case where you just have to accept the idea that sometimes the Constitution really does mean what its text clearly says.

Bear in mind that the issue here is mainly a matter of the form in which certain evidence must be presented -- live, and in the presence of the accused. Anything less is not a "confront[ation]" between the accused and the witnesses against him. Many may think, perhaps rightly, that there is little value in that formalism, but there's no getting around the fact that the 6th Amendment adopts it as the constitutional touchstone. Despite that, in Craig, involving a child witness, the Court took a different route. In Crawford, the Court went back to the text. It's hard to see how anything of significance bearing on the outcome has changed since Crawford.

Simon said...

anonlawstudent said...
"It has always been the case that the courts have encountered situations wshere the law can be read two different ways -- a physical face-to-face confrontation or the right to know and rebut evidence?"

Well, here we have a point illustrative of the difference between interpretation and construction, and of where I think purposivism is okay and where it isn't. Note that you said "evidence." The Sixth Amendment doesn't say anything about evidence, it says witnesses. Applying the confrontation clause to evidence is construction: whatever else the confrontation clause means, it means that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him, because that's what it says. The original understanding of the individual terms - "witness," "accused," "confront" - is not in serious doubt, and neither is the orignal understanding of the clause taken in toto. But what about evidence? Is a bloody knife with the accused's fingerprints all over it a "witness" for the purpose of the confrontation clause? Well, by longstanding tradition, we know that the answer to that is "duh," but push on past the obvious. To answer the question of whether evidence counts as a witness, you have to not only interpret the Sixth Amendment (that is, know what it says), but place a construction upon it (what does it say to this case). In this example, the construction is fairly obvious, but if it were not, one can easily imagine that it stands to reason that for the range of permissable constructions, one can turn not only to the text, but to its purpose and animating principles, which I think you've probably identified correctly. For a construction, this is fine. For interpreting unclear textual provisions, also fine. But never for trying to get around the text, or as an excuse to ignore something that now strikes us as inconvenient.

Incidentally, the "constitution is not a suicide pact" line is from Mr. Justice Jackson - certainly a hero to many conservatives, but not exactly what you'd think of as a conservative jurist himself, I would think. Mark Tushnet illustrates Jackson's position beautifully: Jackson arrived on the court with the other new deal Justices, and that group was confronted with a thorny problem: for years, conservative judicial activists had used invalid doctrines like substantive due process to strike down laws that they thought unjust or inexpedient. Now the new dealers had taken the enemy's keep, they had a choice: destroy those weapons, or turn them on the enemy. Most of the court, as we can see, decided the latter was the better course; Jackson disagreed, and it's for this reason, I suspect, that he is a hero to many conservatives.

Goesh said...

Indicted child molestors choose via Counsel to not directly confront a witness by turning their backs in Court when the child testifies. Out of sight but not out of evidence? That seems as odd as confronting a child witness who sits in another room conveying testimonial evidence to a jury via video. Given the precise wording of Amendment 6, it seems to me Constructionism already has a big foot in the door when it comes to domestic assault. I think the Court would want clear demarcation between the dynamics of child victimization V spousal victimization. Most experts find no such distinguishing borders.

Legally Intoxicated (Retired) said...

At oral argument in Crawford, the petitioner conceded that 911 calls would typically be admissible because they aren't testimonial. If they're admissible as excited utterances, then the declarant lacked the mental capacity for reflection at the time (at least, that's the theory for admissibility). Therefore, the declarant could not have been making the sort of solemn, conscious statement that's akin to testimony.

Also strange is that Scalia himself noted the vitality of forfeiture by wrongdoing in a footnote.

Simon said...

Goesh said...
"Indicted child molestors choose via Counsel to not directly confront a witness by turning their backs in Court when the child testifies. Out of sight but not out of evidence?"

Well, it says "the accused shall enjoy the right . . . to be confronted," not "the accused shall be confronted. If the accused waives their right to confront, the Sixth Amendment is satisfied.

What is "Constructionism"? It seems to me that construction is an inescapable part of the judicial power, a necessary tool for applying general law to specific cases. Do you mean strict constructionism? I don't think that's really implicated here so much. Indeed, if we were to strictly construe the confrontation clause, we might have to say that it only applies to witnesses, not evidence. As Scalia put it, "I am not a strict constructionist, and no-one ought to be [since it is] a degraded form of textualism that brings the whole philosophy into disrepute."

Simon said...

Legally Intoxicated said...
"If they're admissible as excited utterances, then the declarant lacked the mental capacity for reflection at the time (at least, that's the theory for admissibility)"

When in the res gestae category, it is said that it is the event speaking through the statement, [and thus] an 803 exception gets it in! ;)

teddy_kgb said...

The problem with using the forfeiture by wrongdoing exception here is that, generally speaking, it must be proven by a preponderance of the evidence that the defendant wrongfully procured the unavailability of the witness (at least, that's what the advisory committee says in re the federal rules).

In your average domestic violence case, I don't see how the hearsay gets in under the forfeiture by wrongdoing exception without bootstrapping it to the cause of action.

WisJoe said...

For those here who seem to be advocating the use of depositions at trial to obviate the confrontation clause issue, I would note that the 6th Amendment (and many state constitutions) provides an accused the right to a speedy AND PUBLIC trial - I do not think a trial by the reading of a dry deposition transcript would comport with the 6th amendment and nor should it.

Tom T. said...

Remember that an accused individual has a constitutional right to represent himself in court. All of the suggestions about depositions and indirect confrontation run into obstacles when the defendant is his own attorney.

Wickedpinto said...

I don't understand why the refusal of a witness to a crime to testify should exclude other relevent evidence, like a 911 tape or police testimony. If the defendant has committed the assault in public, and the victim refused to testify, police testimony wouldn't be excluded; nor would survellance video or other such relevent evidence. Why is domestic violence being treated differently?

I liked this statement.

In affect/effect (always screw those up) isn't the witness, in this case the accuser/victim, putting statements into the public record? Seems like that there is no assumption of privacy for a 911 tape, and while in truth the accuser isn't exactly a person but rather the state, can't the state offer up information contained within the public record? If the voice behind the tape wants to refute the tape, that is up to them, but there are a lot of times when crimes are committed without any specific "accuser" attendant.

The Accuser is the laws and norms of the state, not the individual who was on the recieving end of the criminal action, in fact sexual harrassment cases work this way in some cases, a third party witness could feel that THEIR sensitivities and opinions are threatened, so if there is a need to face an "accuser" then it could be treated as the 911 operator is the accuser, since the operator would have to be called for substantiation of the validity of the call? This seems like a useful tool for the zero tolerance minded people, but it is also kinda confusing, as you pointed out. Then again, deconstruction is the tool of everyone, though I think Scalia being snide (if he in fact was) is a little out of line. Maybe the lawyer just sucked.

Ann Althouse said...

Wicked Pinto: "Seems like that there is no assumption of privacy for a 911 tape, and while in truth the accuser isn't exactly a person but rather the state, can't the state offer up information contained within the public record?"

You're confused about several things:

1. Expectation of privacy is not what the Confrontation Clause is about. You're mixing it up with he 4th Amendment. You don't seem to understand that the prosecution has the burden of proving guilt and living up to a whole set of rights, including the right to be confronted with the witnesses against you.

2. Your reference to "nformation contained within the public record" seems to relate to the hearsay rules, which don't exactly track the Confrontation Clause.

3. As a hearsay problem, it's double hearsay, and the public records exception would only solve half of the problem, that is, the part that relates to whether the statement was made at all. You still hae the problem of the truth of the statement.

rafinlay said...

IANAL, but I think that if someone knew that 911 tapes would be admissable as evidence, and that he could not be required to testify, the temptation to make a false or misleading 911 call would be increased. Stated another way, if the caller cannot be cross-examined, demonstrating the falsity of a false call would be made more difficult. This seems problematic to me.

abogado said...

When or where did Justice Scalia say that the Court had overruled Craig? I did not see that expressed in the holding in Crawford although I think there is little doubt that they will expressly do so in the future. Did he make that comment at a lecture or forum somewhere? I would like to know more about this.