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Univ. of South Carolina School of Law

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Saturday, June 4, 2011

Read My Lips, No Lip Reading Testimony?: Court Of Appeals Of Indiana Opinion Poses Question About Lip Read Statements

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial."

The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana, finding that 

Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

In every post-Davis/Hammon ongoing emergency case that I've seen, the statement at issue has been a classic verbal statement by the declarant. In Sandefur v. State, 945 N.E.2d 785 (Ind.App. 2011), however, the Court of Appeals of Indiana applied the Davis/Hammon to nonverbal conduct: mouthed bu unspoken words by a declarant. And that raises an interesting question.

In Sandefur,

While on patrol, an officer came across a disturbance involving Gerald Sandefur and Angel Vanarman. Sandefur told the officer that someone else had "jumped" Vanarman, but Vanarman pointed at Sandefur and mouthed words that the officer understood to be, "He hit me."...Sandefur was arrested and charged with battery and invasion of privacy, both as class A misdemeanors. The State also charged Sandefur with battery as a Class D felony based on the same allegations, but enhanced due to a previous conviction. Vanarman did not testify at trial, but the court admitted, over Sandefur's objection, the officer's testimony that Vanarman appeared to mouth, "He hit me."...Sandefur was convicted on all three charges. 

After he was convicted, Sandefur appealed, claiming, inter alia, that Vanarman's "statement" was inadmissible hearsay and violated the Confrontation Clause. The Court of Appeals of Indiana began by laying out the relevant definitions: 

Indiana Rule of Evidence 801(c) defines "hearsay" as 

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

In turn, Indiana Rule of Evidence 801(a) defines a "statement" as 

(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

The court then found that Vanarman's mouthing of the words was this second type of "statement" because the officer's "testimony told the jury what Vanarman communicated to him by mouthing words; thus, he testified about non-verbal assertive conduct." 

Because the prosecution admitted Vanarman's statement to prove the truth of the matter asserted in it -- that Sandefur hit her -- the court concluded that it was hearsay but found that it qualified for admission under Indiana Rule of Evidence 803(2), which provides an exception to the rule against hearsay for 

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

According to the court, it so qualified because

Vanarman's statement was made soon after she was injured, yelled at, and cornered. Her demeanor showed that she was still under stress, and her statement related to the startling event.

These same facts also led the court to conclude that Vanarman's statement was made under circumstances objectively indicating that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency, meaning that it was nontestimonial and presented no Confrontation Clause problem.

All of this is pretty standard hearsay/Confrontation Clause analysis. So, what is the interesting question? Well, in trying to get around the rule against hearsay, "[t]he State seem[ed] to suggest that [the officer's] testimony was not hearsay because he could not be completely certain what Vanarman meant to say and therefore was offering only his interpretation of her conduct." The court, however, rejected this argument, finding that "the lack of certainty bears more on the credibility of the testimony than whether it is hearsay."

I also think that it bears on the issue of whether the testimony is admissible. Sandfur apparently didn't argue that the officer was unqualified to testify about what he thought Vanarman was trying to communicate to him, but I think that the argument could have been successful. On what ground?

Indiana Rule of Evidence 104(a) provides that

Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the Court, subject to the provisions of subdivision (b). In making its determination, the Court is not bound by the Rules of Evidence, except those with respect to privileges. Where a determination of admissibility under this paragraph requires resolution of a question of fact, the question shall be resolved by the preponderance of the evidence.

When presented in Manasco v. Rogers, 2009 WL 2251425 (3rd Cir.2009), with an objection to the testimony of a witness who claimed that he read the lips of a declarant, the Third Circuit held that

We realize, of course, that the admissibility of the evidence of the "lip-read statement" is a legal issue that must be resolved. Under Rule 104(a) of the Federal Rules of Evidence, it is for the district judge to decide whether there is any foundation at all for Manasco's claim that he has the ability to read lips and hence is competent to testify as to the meaning of lip movements he claims to have observed. It is also possible that this evidence would be barred by the hearsay rule. However, those determinations can best be made after the parties have had an opportunity to introduce more evidence of the circumstances surrounding the "statement" and of Manasco's competence to testify as a lip-reader. Accordingly, we think it best to allow the district court to resolve the issue of the admissibility of that evidence in the first instance, on a more developed record.

Okay, so Indiana Rule of Evidence 104(a) and its federal counterpart could lead to the exclusion of lip reading testimony, but what about Indiana Rule of Evidence 701? It provides that

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.

Lip reading testimony is pretty clearly opinion/inference testimony. As the state argued, the officer in Sandefur was not certain of what Vanarman meant to say and was simply making an inference. So, is lip reading testimony by lay witnesses rationally based upon the perception of the witness and helpful to a clear understanding of his testimony? Well, after reading Sandefur, I asked my wife to read my lips on several different phrases. She got none of them right, except for "I love you." I then had her do the same, and I got none right. This anecdotal data is backed up by the empirical data. Studies have shown that "[n]o more than twenty to thirty percent of spoken English is visible on the lips," the rest being formed in the mouth and throat. Michele LaVigne, An Interpreter Isn't Enough: Deafness, Language, and Due Process, 2003 Wis. L. Rev. 843, 855 (2003).

Now, you might say that context matters, but might it matter in the wrong way? An officer responding to a crime scene might expect a declarant to mouth words relating to a crime and reach inappropriate conclusions. The officer in Sandefur thought that Vanarman said, "He hit me." But maybe she said, "He hate me." Or maybe, it was, "Please wait here." Or maybe, it was something else.  

So, how about lip reading experts? Should they be able to testify? The empirical data still seemingly points to the question being answered in the negative. "Even the best lip-reader, under the perfect set of environmental circumstances (with optimal lighting, no visual distractions, a calm emotional state, and no obstructions to the speaker's mouth or face), can only understand about 30 percent of verbal speech." Cat Dvar, Note, Remedies--The Appearance of Access: Deaf Defendants and the Massachusetts Judiciary- Justice?, 29 W. New Eng. L. Rev. 915, 928 (2007).

Courts exclude hearsay primarily because it is unreliable. Even if lip read statements meet an exception to the rule against hearsay, doesn't this data suggest that testimony concerning such statements should be deemed inadmissible because it lacks reliability?

(Hat tip to my colleague Marc Ginsberg for the link).

-CM

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