And the hits keep coming for the Confrontation Clause....one of my favorite clauses of all the clauses.
Today’s United States Supreme Court decision in Ohio v. Clark is another of the now, all-too-common, blows to the Confrontation Clause. The Confrontation Clause isn’t mysterious – the name says it all – it is the right to confront one’s accuser. And it’s a right that resonates with just about everyone: should you be able to ask questions of the person that is making accusations about you (especially if there is no corroborating evidence that you’re the villian)? Most people answer with a resounding, “YES! Absolutely!”
Unfortunately, a case like Ohio v. Clark, is bad news for folks that like that right. The case doesn’t have the best facts. It’s easy to wonder if the outcome might have been different if the first line of the opinion wasn’t, “Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town…” but instead, “Darius Clark sent his girlfriend hundreds of miles away for a relaxing, spa retreat and agreed to care for her two young children while she was out of town because he was staying at home to work on his acceptance speech for the Nobel Peace Prize…”
Nevertheless, the facts are what they are, and Clark was his girlfriend’s pimp, sending her to D.C. on a different type of business trip. (He is the worst kind of man – an abuser of women and children.) The children, ages 3 years and 18 months, went to school the next day. A teacher noticed the three year-old (L.P.) had a bloodshot eye, and after initially saying he “fell” she noticed whip marks on the child’s chest and back. The child “seemed bewildered” and “said something like Dee, Dee” and that “Dee is big.” As required by law, the teacher called a child abuse hotline. Clark picked up the children from school and denied the abuse.
The next day a social worker took that the 18 month-old had two black eyes, a swollen hand, a pigtail ripped out of her head, and a burn on her cheek. (Remember, Clark is the worst kind of man.)
At trial, the child did not testify. Ohio Law deems children less than 10 incompetent to testify if they are “incapable of receiving just impression of the facts and transactions…” and L.P. was deemed incompetent. However, his statements to the teacher were admitted due to an Ohio rule of evidence allowing reliable hearsay of children. (Come ON, OHIO!) The Ohio Supreme Court held in a 4-3 decision that L.P.’s statements to his teacher were testimonial in nature, and his lack of testimony violated the Confrontation Clause. According to the state supreme court, L.P. was “doing precisely what a witness does on direct examination,” – making an in-court identification.
SCOTUS has already said statements given to law enforcement officers by victims of domestic abuse were testimonial. The deciding factor is whether those statements are giving for the purpose of meeting an ongoing emergency (non-testimonial) or whether they are “to establish and prove past events potentially relevant to later criminal prosecution.” See Hammon and Davis. Later in Michigan v. Davis, the factor of “the informality of the situation and the interrogation” was added as another factor in the testimonial v. non-testimonial debate. Was the primary purpose of the conversation to “create an out-of-court substitution for trial testimony?”
While the Court says it’s not making a categorical rule about whether statements to non-law enforcement members would be testimonial (thereby falling under the shield of the Sixth Amendment), it sure feels pretty categorical to me. And that's my problem with this case - I fear the floodgates of child-witness hearsay are about to be opened. Here, the question is where L.P.’s statements to his preschool teacher - someone required to report child abuse - are subject to the Confrontation Clause. “… Such statements are much less likely to be testimonial than statements to law enforcement officers.”
The USSC easily concluded that the primary purpose of L.P.’s statements was not to create evidence for Clark’s prosecution and that the statements were made in the ongoing emergency of suspected child abuse. The court cited the informal questioning by the teacher as “nothing like the formalized station-house questioning in Crawford.” The Court also says, “Statements by very young children will rarely, if ever, implicate the Confrontation Clause.” (I’d like to confront the USSC about how alarming I find this statement.) The Court concluded that three year-old L.P. didn’t intend for his statements to be used at trial – he didn’t think they would be used as testimony and a three year-old “would simply want the abuse to end, would want to protect other victims, and would have no discernible purpose at all.” (Clearly these justices know some very thoughtful, talented kids.)
Finally, Scalia writes a lovely concurrence, where he agrees with the holding, but adds:
I write separately, however, to protest the Court’s shoveling of fresh dirt upon the Sixth Amendment right to confrontation so recently rescued from the grave in Crawford v. Washington. For several decades before that case, we had been allowing hearsay statements to be admitted against a criminal defendant if they bore “indicia of reliability.” Prosecutors, past and present, love that flabby test…
Crawford remains the law. But when else has the categorical overruling, the thorough repudiation, of an earlier line of cases been described as nothing more than “adopting a different approach,” as though Crawford is only a matter of twiddle-dum twiddle-dee preference, and the old pre-Crawford “approach” remains available?
AND ALL THE PEOPLE SAY AMEN. (Including Ginsburg.)
If you missed it above, here's the link.
Last week, the Tennessee Supreme Court published the opinion in State v. Davis, a case that brought up two distinct issues:
1. What happens when a witness at trial can't remember anything, but they testified during the preliminary hearing and gave a written statement days after the incident; and
2. Inconsistent verdicts - does it matter if the jury convicts a defendant of two crimes with different mens rea requirements (i.e. second-degree murder and reckless homicide)?
(Spoiler alert: the Court upheld Davis's conviction.)
For now, I'm only dealing with the first issue - the forgetful witness. Like so many cases, this was one dragged through the system, but at a truly glacial pace - the murder occurred in 2006, the trial in 2011. At the time of trial, the witness (Spencer) was fifteen years-old, which means he was around the tender age of ten when he first made statements to the police in 2006. Spencer was the one witness that definitively put the gun in Marlo Davis's hand. During the initial investigation, the witness completed a written statement, and after the Defendant's arrest, testified at the preliminary hearing. However, when 2011 rolls around, the witness can't remember anything on the witness stand. He can't remember walking home from school that day, seeing someone get shot, or even testifying at the preliminary hearing in court. The defense argued the witness was faking his memory loss and objected to the admission of his preliminary hearing testimony and written statement to police. The trial court admitted both pieces of evidence and the Tennessee Supreme Court upheld that decision.
- there was no doubt about it, both the written and recorded oral testimony were hearsay.
- the written statement was admitted as exceptions to the Hearsay Rule as recorded recollection and a prior inconsistent statement (pursuant to Rule 803(5) and 803(26).
- the recorded preliminary hearing testimony was admitted as exceptions to the Hearsay Rule as a prior inconsistent statement and testimony from an unavailable witness (pursuant to Rule 803(26) and Rule 804(b)(1)).
- the Supreme Court ignored the defense argument that the witness was just faking his forgetfulness. They found that, while it is nearly impossible for a judge to tell if a witness's memory has failed due to time, or due to a fear of reprisal, or for some other reason, the judge can access the reliability and trustworthiness of the recorded recollection. In other words, a judge may not know why the witness is unable to testify at trial, but they are able to tell whether the recorded statements are reliable enough for a jury to hear. There was no reason to believe that Spencer's statements to police following the murder were inaccurate.
- the Supreme Court also held, "for the purposes of Tennessee Rule of Evidence 803(26), a prior statement about events that a witness claims at trial to be unable to 'remember' is inconsistent with the witness' trial testimony."
- here, the trial judge really laid into the forgetful witness, and it didn't matter who asked him the questions - he claimed not to remember anything. The Tennessee Supreme Court found that this met the requirement that a trial court instruct a forgetful witness to testify if there are concerns that the witness is faking his memory loss. Spencer was deemed unavailable and his prior testimony admissible.
The most disappointing aspect of this decision (from the defense perspective) is that the Tennessee Supreme Court didn't carve out any protection under the Confrontation Clause. Following prior decisions, the Court held that Marlo Davis's right to confront the witness was not violated, because the witness was physically present at the trial - even if he had zero recollection of any of his substantive testimony.
The take-away: As attorneys, every single hearing is critical, because we never know if we'll have an opportunity to cross-examine the witness again. And, as Justice Lee points out in her concurrence: memories fade. Cases like this emphasize the importance of being fully prepared before proceeding with a preliminary hearing - it may be your client's only chance at confrontation.
One of my current (and most time-consuming) cases is an appeal, where the State of Tennessee brought in a "gang expert" to testify in detail about the habits and vernacular of gang members. While I've been working on this appeal, this article from the NYT Magazine caught my eye. It's interesting, and not just from the legal perspective (although getting a former gang member to testify as an expert, thereby trumping the law enforcement expert would be pretty great). Here's an excerpt, quoting Raju, a PD in San Fransisco:
"According to Raju, weak cases can seem stronger when prosecutors introduce gang enhancements. Instead of concrete evidence related to the criminal charge, gang allegations permit prosecutors to introduce potentially inflammatory information that might otherwise be legally irrelevant. “Now we’re looking at: what did some other person do six months earlier or six years earlier,” Raju said. “Your client may not have anything to do with them, but they both have some connection to some name or symbol.” In other cases, the very threat of the gang enhancement can often be enough to persuade a defendant to accept a plea bargain. Given the lengthy sentences that can result, a trial might not be worth the risk."
I'm not currently dealing with the gang enhancement, which became part of Tennessee law in 2013, but my research of the topic revealed several interesting cases - like the East Tennessee prosecutor that was permitted to introduce evidence of the the Defendant's affinity for Insane Clown Posse and his status as a "juggalo." Under 40-35-121, a defendant's felony classification is enhanced by one grade - so a C felony aggravated assault becomes a B felony (keeping in mind that an aggravated assault "in concert" begins as a B felony).
I think the take-away is that there are some crimes that are, unequivocally, gang-related. But the real question is, "at what point does all the scary gang information go from probative of whether the defendant committed the crime to extremely and irrevocably prejudicial?"
There are always collateral consequences to guilty convictions, and for non-United States citizens, one of those consequences can be deportation.
Today, in Mellouli v. Lynch, the United States Supreme Court held that the Defendant's Kansas conviction for misdemeanor possession of four, unknown, orange pills did not trigger removal under Federal statute. In analyzing the case, the Court disregarded BIA policy (finding it inconsistent), and held that "controlled substance" should be defined exactly as it is outlined in Section 802. Read the full opinion HERE.
The Court summarized,
"Construction of §1227(a)(2)(B)(i) must be faithful to the text, which limits the meaning of “controlled substance,” for removal purposes, to the substance controlled under §802. Accordingly, to trigger removal under§1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug “defined in [§802].”
It is incredibly important to obtain representation if you are not a United States citizen and charged with a crime. A few words and small details could make a world of difference - the difference between remaining in the United States and being deported.
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