EvidenceProf Blog

Nothing's Shocking: Court Of Appeals Of Minnesota Finds Expected But Emotional Event Not Startling For Excited Utterance Purposes

I remember serving as an extern at the Supreme Court of Virginia back in 2002. One of the justice's clerks told me that the justices were deciding whether to hear an appeal in Esser v. Commonwealth, 566 S.E.2d 876 (Va.App. 2002), and asked me to write a memo on the case. The clerk knew that I was interested in evidentiary issues, and Esser presented a juicy one: Can an excited utterance follow a subsequent startling event or condition? Specifically, in Esser, a mother was about to leave her daughter at home with the mother's live-in boyfriend when the daughter emotionally told her mother than the boyfriend had raped her a few days ago. The Court of Appeals of Virginia found that this statement was an excited utterance, concluding that the startling event was not the rape but the daughter being told that she would be left home alone with the boyfriend. In my memo, I noted that courts, and especially Texas courts, were split on the issue, but that I thought that the Court of Appeals' analysis was correct. The Supreme Court of Virginia denied the appeal.

Later, I used the memo to write, A Shock to the System: Analyzing the Conflict Among Courts over Whether and When Excited Utterances May Follow Subsequent Startling Occurrences in Rape and Sexual Assault Cases, 12 Wm. & Mary J. Women & L. 49 (2005). Thereafter, I was happy to report that the Court of Criminal Appeals of Texas eventually agreed with my analysis and found that excited utterances can follow subsequent events and conditions in McCarty v. State, 2008 WL 2512818 (Tex.Crim.App. 2008). In its recent opinion in State v. Goodwin, 2011 WL 1833012 (Minn.App. 2011), the Court of Appeals of Minnesota also agreed with me in theory although it seemingly placed on odd limitation on it as well as the excited utterance exception in general.

In Goodwin, Collin Goodwin was convicted of second-degree assault after allegedly shooting C.G. outside of a bar in MInneapolis, Minnesota. 

C.G. testified that after the shooting, he was taken to the hospital where he underwent surgery for the gunshot wound. Testimony revealed that the bullet fractured C.G.'s left hip bone and that C.G. had two or three small holes in his small intestine and a larger hole in his large intestine. After the surgery, Ralph visited C.G. at the hospital. According to C.G., Ralph was upset and crying and claimed that he and [Goodwin] had been arguing over a girl and that C.G. had taken a bullet meant for Ralph. [Goodwin] objected to this testimony, but the district court admitted Ralph's statement to C.G. as an excited utterance.

After he was convicted, Goodwin appealed, claiming, inter alia, that Ralph's statement was improperly admitted as an excited utterance. The Court of Appeals of Minnesota noted that the issue was governed by Minnesota 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.

Now, it was beyond dispute that Ralph was not still under the stress of excitement of the shooting when he made his statement to C.G., but "in admitting Ralph's statements as an excited utterance, the district court clarified that the startling event was not the shooting, but rather seeing the victim 'in the condition that the person was in[:] bedridden having recently come out of surgery." Goodwin countered "that such an event does not qualify as a startling event because it was not a situation where Ralph 'unexpectedly ran into [C.G.] at the hospital and learned about [C.G.'s] condition.'" And, in response, the State cited Esser for the proposition "that the district court properly characterized the event as an excited utterance because cases from other jurisdictions have recognized that a startling event need not be the crime itself." 

According to the Court of Appeals, however, Goodwin did

not challenge the theory on which the court made its conclusion; rather [Goodwin] argue[d] that this particular instance cannot be a startling event. We agree. The record indicates that Ralph consciously chose to visit C.G. in the hospital and that Ralph knew C.G. had been shot. Based on his knowledge of the events, seeing C.G. in a hospital bed following a surgery is not a startling event that would prompt a statement made under the stress of the event. Although Ralph may have been emotional when he saw the victim, an emotional statement is not in and of itself an excited utterance. Therefore, we conclude that the district court abused its discretion in admitting the statement as an excited utterance.

(Ultimately, however, the court found that the admission of Ralph's statement was harmless error)

Okay, so the court held that excited utterances can follow subsequent startling events and conditions other than the crime itself, but it also found...what? That an expected event or condition cannot be startling? That a conscious choice to perceive an event or condition means that the event or condition cannot be startling? With William present, Dan says to Vince on Monday, "If you don't have my money by Friday, I'm coming back to your house and shooting you." If William goes to Vince's house on Friday, sees Dan shoot Vince, and says, "Oh my god! Dan just shot Vince," is that not a startling event because it was expected and/or William consciously chose to perceive it?

-CM

Article of Interest: “Waiving” Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation, by Jane Campbell Moriarty & Marisa Main

Similar to most state counterparts, Federal Rule of Evidence 410(4) states that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:...

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

So, when a defendant enters into plea discussions, any incriminatory statements that he makes during the plea bargaining process will be inadmissible against him at trial should a plea agreement not be reached, right? Wrong. Since the Supreme Court's 1995 opinion in United States v. Mezzanatto, 513 U.S. 196 (1995), courts consistently have held that prosecutors can force defendants to waive the protections of Rule 410 (as well as other evidentiary and constitutional protections) to get to the plea bargaining table. Moreover, as noted in the excellent forthcoming article, “Waiving” Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation, "the law of waiver has expanded exponentially in the last few decades, necessitating a change in the current" ABA Standards for Prosecution and Defense Function. The article was co-authored by Jane Campbell Moriarty, a professor at The University of Akron School of Law (and soon to be the Carol Los Mansmann Chair at the Duquesne University School of Law), and Marisa Main, a Professor Moriarty's RA, who will soon by a federal judicial clerk.

Queen for (Just) a Day

In part one of their article, the authors start by noting the holding of Mezzanatto. In Mezzanatto, the prosecution forced the defendant to waive the protections of Rule 410 to the extent that if a plea bargain were not reached and the defendant testified at trial, the prosecution could impeach him with any inconsistent statements that the defendant made during plea negotiations. The Court deemed this waiver valid, finding that Rule 410 "expressly contemplate[s] a degree of party control that is consonant with the presumption of waivability." 

That said, Justices Stevens and Souter dissented, cautioning "that the inevitable result of the reasoning used by the majority would, in time, come to function as a waiver of trial itself." The authors note that this fear has largely come to fruition as they include an appendix revealing the rapid rise in the percentage of criminal cases resolved by guilty pleas ("In 2007, 2008, and 2009, the percentage of defendants pleading guilty was 95.8%, 96.3%, and 96.3%, respectively.") 

Combine this trend with the rise in the use of the "queen for a day" agreement approved in Mezzanatto, and you start to see a picture of defendants being railroaded into guilty pleas. The authors note that in the wake of Mezzanatto prosecutors have come to insist on these waiver before beginning the plea bargaining process, but it is not just the quantity of these waivers that have expanded. The Court in Mezzanatto merely approved of an "impeachment waiver." As noted, the waiver in Mezzanatto only allowed the prosecution to impeach the defendant with his statements during plea negotiations if he testified inconsistently at trial. If the defendant did not testify or testified consistently with his plea bargaining statements, those prior statements would remain inadmissible.

As the authors note, however, courts consistently have approved of "rebuttal waivers" in the wake of Mezzanatto, which allow a prosecutor to present a defendant's plea bargaining statements as long as the defendant presents any evidence, arguments, or testimony (by any witness) that contradicts those statements. Moreover, courts have begun to approve of case-in-chief waivers, under which the prosecution can introduce a defendant's plea bargaining statements at trial as part of its case-in-chief, even if the defendant plans to present no evidence or witnesses of his own.

Given the general recognition that defendants fare better during plea bargaining than at trial (the so-called trial penalty), it is easy to see why defendant continue to sign these waivers, and it is equally easy to see why defendants continue to accept plea bargains, given that the concessions that they made during plea bargaining can be aired out in open court should they proceed to trial (and given that they can't present evidence that they rejected a plea bargain as evidence of their consciousness of guilt). And while the prosecution can use a defendant's plea bargaining statements at trial pursuant to such waivers, as the authors note, pursuant to United States v. Ruiz, 536 U.S. 622 (2002), the prosecution is under no obligation to disclose to the defendant material impeachment evidence before reaching a plea agreement. Moreover, many courts have held that the prosecution does not even need to disclose to the defendant material substantive evidence before reaching such a bargain.

Between a Rock and a Hard Place

In Part II, the authors focus upon the dilemma faced by defense counsel (often a public defender) in representing the defendant during the plea bargaining process. As the authors note,

The defense dilemma is thus: The attorney has little time or ability to investigate or discover what evidence the prosecution has against his client, is entitled to little discovery, knows the client risks decades of prison time if she loses at trial (which, statistically, is overwhelmingly likely to happen), and yet must advise the client on the best strategy, often without a sound, fact-based foundation. The dilemma posed has both constitutional and ethical implications related to competence...

Without solid knowledge of the case the government has against the defendant, the defense attorney cannot know whether a plea offer would really benefit the defendant, whether she has grounds to bargain for a better plea offer, or whether she should simply go to trial. Moreover, requiring defendants to waive virtually all rights before even discussing a plea needs to be reconsidered. The current climate of plea bargaining is at odds with those ethical and constitutional requirements, adversely affecting the lives of defendants and the workings of the justice system as a whole.

New and Improved

Finally, in Part III, the authors focus upon the Proposed Changes to the ABA Standards for Prosecution and Defense Function and how several of them have the capacity to fundamentally change the plea bargaining process for the better. Here they are the proposed changes in  bullet-pointed form:

Prosecution Function

The Proposed Changes to the Prosecution Function:

•require specific proof of knowledge of guilt before accepting pleas;

•require full disclosure of exculpatory information before entering plea discussions;

•require admonitions against routine waivers of rights and the use of coercive tactics (such as unreasonably short deadlines).

•counsel against making false representations

•urge prosecutors to remember the importance of actual innocence in their handling of cases;

•command prosecutors not to engage in discussions with defendants without either counsel present or counsel’s approval to proceed; and

•indicate that prosecutors should not condition acceptance of pleas on waiver of all rights, particularly those that would cause a manifest injustice.

Defense Function

The Proposed Changes to the Defense Function:

•defense counsel is obligated:

•to obtain evidentiary discovery material;

•to create an investigative and defense strategy;

•and to take steps to protect the client’s interest, include preservation of evidence, seeking pretrial release, hiring investigators and experts, and so forth;

•in conducting plea bargaining, the Standards ask the defense attorney not to accept plea deals that contain waivers of constitutional rights (such as the right to appeal) and to challenge the inclusion of such a waiver even where the client is agreeable to the plea offer.

Conclusion

As the authors note, the real value of these Proposed Changes is that they "[t]hey provide a 'collective' view of appropriate behavior that should become the prevailing norm and provide individual attorneys with support for refusing to waive clients’ rights and enter plea agreements without a sufficient foundational knowledge to provide competent advice." I think that this is fundamentally right. The current plea bargaining model is like a business contract between parties with unequal bargaining power. And when the plea bargaining process is more about driving a hard bargain than the defendant actually acknowledging what he did wrong and the damage he caused, is it any surprise that we have high recidivism rates and low satisfaction with the criminal justice system? The Proposed Changes ask prosecutors to treat defendants with dignity, to focus on the possibility of defendants' actual innocence, and to make disclosures to defendants when they have evidence of their guilt. They ask for defense counsel to try to make cases for their clients rather than merely trying to determine what counteroffer to the prosecution's plea offer will lead to the best result. I asked Professor Moriarty what led her to write the article, and she responded:

Bruce Green at Fordham invited me to work on a roundtable presentation for the ABA prosecutorial and defense function standards (which are being revised) & to write an article for a symposium on the subject of waiver of rights related to the Proposed Standards.

I am distressed at how easy it is to waive virtually all rights and how low the standards are for knowing waiver; how willing courts are to permit case-in-chief waivers for the mere privilege of  discussing a plea (pre-conditional plea waivers);  how much the balance of power in criminal matters had shifted over the past 15 years away from the judiciary and toward federal prosecutors;  how the administration of criminal cases has become nearly trial-less; and how little evidence (both inculpatory & exculpatory) many prosecutors disclose.  Pleas are really just capitulating to the government's best offer.

In addition to the fundamentally unfair situation this places defendants in, it also puts  defense counsel in the unenviable position of giving advice often without sufficient knowledge or a guaranteed plea agreement.  To reject the prosecution's plea means possible decades of prison that could have been avoided.  No matter what, the defendant loses the benefit of truly competent representation.

I think the proposed standards are a helpful start in correcting some of the unfairness and imbalances that have developed.

-CM

Resource of Interest: The National Clearinghouse for Science, Technology, and the Law (NCSTL) at the Stetson University College of Law

Today, I wanted to shine a light on a truly terrific resource that I use in preparing for classes, researching and writing scholarship, and updating this blog: The National Clearinghouse for Science, Technology, and the Law (NCSTL) at the Stetson University College of Law. The vision statement of the Clearinghouse is "[t]o foster communication between the scientific, technological and legal communities, resulting in awareness and understanding of the policies, interests and concerns affecting those communities." Meanwhile, its mission statement is "[t]o provide comprehensive scientific, technological and legal information, which will promote justice based on sound science and technology."

So, how does it accomplish these goals? Well, it

assembles the available scientific, technological, and relevant legal resources into a comprehensive "one-stop" searchable database with equal access for all. There are no subscription fees which makes the NCSTL database the only free compilation of forensic resources in the world.    

NCSTL seeks to promote justice by developing resources for the legal and scientific communities to provide timely, accurate and useful information. Current projects include distance education programs and training modules and primers with an emphasis on distance delivery, in-person trainings, and extended partnerships with law schools, professional agencies, and federal and state agencies.

NCSTL provides a searchable database of legal, forensic, and technology resources; a reference collection of law, science, and technology material; content-specific bibliographies; national conferences on science, technology, and the law; community acceptance panels; and training for defense counsel who are handling cases involving biological evidence on the applications and limitations of DNA evidence as stated in the President’s DNA Initiative.

In the rest of this post, I will highlight the NCSTL resources that I regularly use and some of the fine folks responsible for the NCSTL's accomplishments.

Resources:

Here are some of the NCSTL resources I regularly rely upon:

•The forensic research database: Let's say that I want a case involving fingerprints to use in my Evidence class. Or, what if I want to do a blog post about recent legislation regarding fingerprint evidence? How about some articles on fingerprint evidence to use in upcoming scholarship? The forensic research database is the best resource out there. Forget Westlaw or Lexis. With the database, there are three steps to searches: (1) Choose the topic(s) you want to search (e.g., Digital Evidence, Fingerprints, Voice Analysis); (2) Choose the resource(s) you want to search (e.g., Cases, Dissertations, Radio/TV shows); and (3) Enter keywords. You can also save your searches for later reference. This blog wouldn't be what it is without this database;

•NCSTL's Quarterly e-Newsletter: What's new and now in expert evidence? You can easily find out with NCSTL's Quarterly e-Newsletter. For instance, in this month's newsletter, NCSTL has (1) Skinner v. Switzer: The Peculiar Problem of Post-Conviction Access to DNA Evidence; (2) California's Crime Lab Problems; (3) NCSTL Hosts DNA for Defense Seminar; and (4) Crime Laboratories Nationwide Feel the Pinch;

•NCSTL's Forensic Conference & Seminar Calendar: Want to know when and where there are upcoming conferences and seminars on forensic science? You need look no further;

•NCSTL's Resource Pages: Here are just a few of the many examples of the excellent resources you can access on NCSTL's Resource Pages: (1) hyperlinks to forensic science journals; (2) a hyperlinked list of innocence projects by state; and (3) a hyperlinked list of resources for expert witnesses; and

•NCSTL's Education & Training Page: On this page, you can, inter alia, (1) spice up one of your classes with a lecture by an expert; (2) access a variety of teaching resources; and (3) find a variety of media links.

And that's just the tip of the iceberg. There's a seemingly bottomless repository of resources on the NCSTL site, and I seem to find something new each time that I visit.

The NCSTL Team:

NCSTL has a distinguished Advisory Council and a crack team of researchers. The Clearinghouse is helmed by Director Carol Henderson, a professor at the Stetson University College of Law. 

Professor Carol Henderson is a recognized authority in scientific evidence, law and ethics. She has presented more than 250 lectures and workshops to thousands of forensic scientists, attorneys, judges and law enforcement personnel worldwide on the topics of scientific evidence, courtroom testimony, and professional responsibility. She has lectured in Argentina, Australia, Canada, Finland, Germany, Hong Kong, Italy, Japan, Scotland, Spain and Taiwan. Professor Henderson has written four books and more than 45 articles and book chapters on scientific evidence, law and ethics. 

NCSTL's Director of Research is Diana Botluck.

A legal information professional for over 20 years, Ms. Botluk is also the author of The Legal List: Research on the Internet, a book published annually by West Group. Named one of the top eight online legal researchers in T.R. Halvorson’s book, Law of the Super Searchers: The Online Secrets of Top Legal Researchers, she is an innovative information professional with a focus on online, legal, and forensic resources.

NCSTL's Director of Outreach is Anjali Swienton.

Ms. Swienton received her M.F.S. from the George Washington University in 1992 and her J.D. (Cum Laude) from The American University, Washington College of Law in 2002. She is President and CEO of SciLawForensics, Ltd. which provides litigation support and facilitation for the development of specialized training and education tools and publications to the criminal justice and law enforcement communities. 

Finally, NCSTL's Director of Technology & Distance Education is Susan Zucker.

Dr. Susan Zucker has twelve years’ experience directing educational programs. Her areas of expertise include instructional technology integration, web course development and online applications, curriculum design and delivery, and faculty and staff development. She teaches web-based distance delivery graduate courses for the University of South Florida’s (USF) College of Education where she holds a courtesy faculty appointment.

With these great minds (as well as others) helming NCSTL, it is easy to see why the Clearinghouse is such a great success.

-CM

Article of Interest: E. Lea Johnston's Representational Competence: Defining the Limits of the Right to Self-Representation at Trial

When should a defendant be allowed to represent himself at trial? This is a pretty fundamental criminal justice question because the denial of the right of self-representation is a structural error necessitating a new trial without a showing of actual prejudice. As the Supreme Court noted in McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984), "The right is either respected or denied; its deprivation cannot be harmless."

And yet, how are trial courts to decide whether a defendant is sufficiently competent to represent himself at trial? In Dusky v. United States, 362 U.S. 402 (1960), the Supreme Court held that the Constitution does not permit the trial of a person who lacks mental comepetence and then defined the competency standard as including both (1) "whether" the defendant has "a rational as well as factual understanding of the proceedings against him;" and (2) whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding."  28 years later, in Indiana v. Edwards, 554 U.S. 164, 177 (2008), the Court held that  "the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves."

But under what circumstances should a court find that a defendant is competent to stand trial but not competent to represent himself? The Court in Edwards did not do much to answer this fundamental question, merely finding that the defendant's condition in the case before it fell "in a gray area between Dusky's minimal constitutional requirement that measures a defendant's ability to stand trial and a somewhat higher standard that measures mental fitness for another legal purpose." But don't take my word for it. Instead, consider the recent opinion in United States v. Saba, 2011 WL 202086 (W.D.Mich. 2011), in which the United States District Court for the Western District of Michigan concluded that "[t]he skeletal guidance of Edwards suggests that a case-by-case analysis is to be employed requiring, a review of the specifics of this case." This language suggests that the gray area between competence to stand trial and competence to self-represent is actually gray matter and that courts must probe the brain of each individual defendant to ascertain whether he can take the lead role in his trial instead of playing the understudy.

In her excellent forthcoming article, Representational Competence: Defining the Limits of the Right to Self-Representation at Trial (forthcoming, Notre Dame Law Review), E. Lea Johnston, a professor at the University of Florida Levin College of Law, argues that Edwards' skeletal frame is insufficient to support the enormity and complexity of the self-representation question. Instead, she argues that courts need to flesh out a test of representational competence, and she puts forward a test based upon social problem-solving theory.

I, I Want You Autonomy

After a vigorous discussion of Indiana v. Edwards in Part I of her article, Professor Johnston notes that in Faretta v. California, 422 U.S. 806, 834 (1975), the Supreme Court pinpointed autonomy as the fundamental principle served by self-representation. Professor Johnston then posits that "[r]eccognizing a criminal defendant's autonomy is justified on both deontological and utilitarian grounds." Why? Well, here are a few of the examples given by Professor Johnston:

•A court-appointed attorney may well have different goals, values, and priorities than the defendant, especially given their likely very different social, economic, and perhaps cultural or racial backgrounds;

•By foisting a lawyer on an unwilling defendant, we not only force a defendant to put on his case through counsel, but we also eliminate his ability to make strategic and tactical decisions concerning his defense;

•Deciding how to respond to the State’s charge—with the public watching—may be of profound personal value to the defendant;

•Allowing criminal defendants to exercise self-determination may enhance an individual’s happiness and maximize societal utility in several ways; for instance,

•Cognitive and social psychological theory suggests that self-determination also amplifies an individual’s ability to recognize and achieve his goals by increasing his motivation and effort; and

•Allowing a defendant to govern his defense may also reduce feelings of alienation from the legal process and result ultimately in individuals gaining greater respect for the rule of law.

At the same time, Professor Johnston acknowledges that 

While the interest of autonomy is paramount to self-representation, the U.S. Supreme Court in Edwards recognized that competing values may warrant overriding a defendant’s decision to proceed without counsel. In particular, the Court suggested that a trial court could deny a motion for self-representation when "a defendant’s lack of capacity threatens an improper conviction or sentence" or the provision of a fair trial. The Court also noted that "proceedings must not only be fair, they must 'appear fair to all who observe them.'"

So, how should we balance those competing values? According to Professor Johnston, we should do so by applying a two criteria test for representational competence:

First, representational competence should require those functional abilities necessarily present for the exercise of meaningful autonomy. Second, a representational competence standard should include a particular functional ability if its absence poses a grave threat to the reliability or the actual or apparent fairness of the adjudication. 

Bet You Thought You'd Solved All Your Problems

Now, how do we go about fleshing out this two criteria test for representational competence? Professor Johnston argues that we need to look at social problem-solving theory, which I think makes a great deal of sense. Again, we're trying to fill in the gray area between competence to stand trial and competence to self-represent. The logical starting point, then, is to consider the nature of these two competencies. Let's first look at the competency required to stand trial:

A represented defendant is authorized to make only a few decisions within the context of a criminal adjudication: whether to plead guilty, waive the right to a jury trial, waive the right to counsel, testify and be present at trial. As a matter of basic ethics, for each of these decisions counsel will identify for his client the decision point, clarify the issue, distill the possible options, gather relevant information, perform key analysis, and present his recommendation. The task left to the defendant is to select among the options outlined by counsel.

Conversely,

A pro se defendant...faces a markedly different and more challenging decisional context than his represented counterpart. To defend himself from prosecution, a pro se defendant will be called upon to make a multitude of decisions in short succession: which defense, if any, to exert and how to establish it, which witnesses to call and what to ask them, whether to testify and what to say, what evidence to introduce and how to introduce it, whether and how to cross-examine unfavorable witnesses, whether and how to object to incompetent evidence, what information to include in opening and closing statements, and which jurors to strike and on what basis. The list goes on and on. For each of these decisions, a pro se defendant must—often unassisted—identify the relevant decision point, gather information to understand the situation, brainstorm alternative responses, evaluate these alternatives, and select an alternative. He will need to make decisions extemporaneously, during the course of trial, often while an impatient decision maker (the judge or jury) is waiting. Finally, a pro se defendant must, unless assisted by standby counsel, translate his decisions into courtroom-appropriate action.

In other words, a represented defendant is like a patron at a restaurant with a menu. Sure, this patron must make several decisions: What item(s) to select, whether to order an appetizer and/or dessert, how his meat should be cooked, etc. On the other hand, a pro se defendant is like a Top Chef contestant given a series of challenges without immediately apparent responses (e.g., whip up a dish made entirely out of items from the vending machine down the hall) and forced to come up with on the spot solutions. According to Professor Johnston,

Self-representation, at its core, is an exercise in problem solving, where the "problem" is the prosecution of one or more criminal charges and the "solution" is the selection and implementation of an effective defense. To identify the range of decisional abilities potentially necessary for self-representation, our initial inquiry should focus on disaggregating the problem-solving process. This disaggregation will illuminate abilities necessary for making decisions worthy of deference at a criminal trial, without the assistance of counsel.

This begs the question of which problem-solving theory is most suitable to the self-representation analysis, and Professor Johnston finds the best match to be social-problem solving theory, with social problem-solving

defined as the self-directed cognitive, behavioral, and affective process by which an individual attempts to identify effective solutions for specific problems encountered in the natural environment. [The theory] define[s] a problem as "any life situation or task (present or anticipated) that demands a response for adaptive functioning but no effective response is immediately apparent or available to the person or people confronted with the situation because of the presence of one or more obstacles." Obstacles may include novelty, ambiguity, deficiency of performance skills, or lack of resources. A problem is thus a particular person-environment relationship marked by a perceived imbalance between demands and adaptive response availability.

By definition, social problem-solving theory applies to problems in everyday life. Social problem solving is intended to encompass impersonal problems such as insufficient finances, personal or intrapersonal problems such as cognitive or health problems, interpersonal problems such as marital conflicts, and broader community and social problems such as crime and racial discrimination. Thus, social problem-solving theory should be relevant in analyzing the decisionmaking process of a pro se defendant in a criminal trial.

Professor Johnston then breaks down which problem solving domains and associated abilities should (and should not) be included in the representational competence standard. Here is brief sketch of some of the arguments, and I would recommend that readers check out her article for her full analysis:

Problem Orientation

•Problem orientation...is a motivational process that involves the general cognitive, behavioral, and affective response of an individual when confronted with a specific problem....From a normative standpoint, three aspects of problem orientation are appropriate and important to include in a representational competence standard. 

•Capacity to Perceive Problematic Situations: First, a defendant should possess some degree of problem perception, or the ability to recognize the presence of a problem or decision point. If a defendant is unable to recognize a decision point, then his reaction at that moment cannot stand for a deliberate exercise of autonomous decisionmaking. In the context of self-representation, a defendant should be capable, to the extent he possesses necessary procedural and evidentiary knowledge (an important caveat), of recognizing points at trial at which he could advance his defense.

•Ability to Identify Plausible Source for the Prosecution: Second, a defendant should be capable of ascribing a problem to a rational, non-delusional source. If a defendant is unable to engage in a reality- based search for the cause of a stressful situation, then he will be incapable of accurately appraising the problem and setting realistic goals for remedying the situation. A court should hold a defendant incompetent to represent himself if he attributes the underlying offense or the origin of the prosecution to a source that is impossible, either absolutely or as to the individual.

•Willingness to Attend the Prosecution: Third, the defendant’s approach/avoidance style should be one in which he possesses a willingness to tackle problems. This element implicates the defendant’s personal control beliefs, or beliefs about his ability to address problems adequately. If a defendant believes himself incapable of solving problems and thus persistently avoids and evades decision points, then he will be incapable of making the host of decisions (often in quick succession) that trial demands. For the defendant who opts to go to trial, an unwillingness to challenge the prosecution’s case because of mental illness or disability may signal an inadequate approach/avoidance style.

Problem Definition and Formulation

•Ability to Gather Information to Evaluate the Prosecution's Case: Of primary importance at the problem formulation stage, according to social problem-solving theory, is to gather relevant information about how and why a situation is troubling or why action is necessary....To satisfy minimal standards of reliability, a defendant should be capable of selecting and building his defense in response to the government’s case. Assessing the "problem" of the prosecution prior to trial involves gathering information on the government’s likely prosecution theory and assessing the likely evidence to be introduced against the defendant. To this end, a criminal defendant should be capable of understanding the elements of the charged offense, identifying facts (including physical evidence and likely witness testimony) helpful to the State, and roughly evaluating the significance of that evidence for the government’s case. As the trial unfolds, the defendant should be able to comprehend the course of the proceedings and the substantial effect of the government’s evidence. He should be able to examine the government’s case and discern potential deficiencies in the evidence. Finally, he should be capable of identifying favorable evidence and understanding its legal relevance.

Generation of Alternative Solutions: 

•Ability to Generate Alternative Courses of Action: A representational competence standard should not require a criminal defendant to exercise optimal strategies for generating alternative solutions, but it probably should encompass the basic ability to generate more than one option in response to a given problem. By definition, one cannot solve a problem without generating at least one possible solution. It is also likely true that one’s ability to generate an adequate response depends on the capacity to brainstorm multiple options. In the context of a criminal trial, generating alternative approaches at a given decision point—whether what defense to exert, how to build that defense, or how to respond to a witness called by the State—is a function normally served by counsel. Given the centrality of this process to problem solving in general and criminal litigation in particular, it seems reasonable to require a defendant seeking to represent himself at trial to possess the ability to generate alternative strategies for solving a problem at a given decision point. 

Decisionmaking

•Ability to Justify Key Decisions With a Plausible Reason: To honor the preference for autonomy, I suggest that a defendant possesses adequate reasoning ability if he is capable of justifying his selection of a defense with a single reason that has a plausible grounding in reality. Justifications with a plausible grounding in reality would include reasons enjoying a modicum of evidentiary support and those capable of evidentiary support in the world as we understand it. In contrast to the requirement that a defendant demonstrate the capacity to engage in a logical, probability-laden decisionmaking process, this standard would accommodate individuals' differing decisionmaking styles. The standard would also respect variation in defendants’ beliefs, values, and preferences. It has the added benefit of providing a fairly objective measure of plausibility, which would serve to constrain a court’s ability to find "incompetent" those decisions that a court believes to be unwise.

Solution Implementation

•The final stage of problem solving involves solution implementation, or carrying out the chosen solution....While representational competence should not include a robust communication or performance element, several elements of solution implementation may be appropriate for inclusion in a representational competence standard.

•Ability to Maintain Mental Organization and Ability to Withstand the Stress of Trial: In particular, a defendant should be able to make decisions within the context of trial. This requires the ability to sustain mental organization, maintain concentration or attention, make decisions within a short timeframe, and withstand the stress likely to accompany trial participation. Trial is stressful and necessitates the ability to make decisions within a short period of time before an impatient, potentially hostile audience. Often within the span of a few minutes, a defendant will need to decide, for instance, whether to object to arguably prejudicial or irrelevant questions in the direct examination of a witness, whether to cross-examine the witness, and what lines of inquiry to pursue. A representational competence standard should not require the ability to make numerous decisions under stress consistently....But a defendant arguably should have the capacity to make a decision without protracted delay, remember that decision, and act in general accordance with that decision as the trial proceeds.

•Ability to Communicate Decisions to a Functionary of the Court: In addition, a defendant should be able to communicate his decisions to a functionary of the court. To satisfy the Dusky standard to stand trial, a defendant must be able to communicate pertinent information to counsel and express a preference as to fundamental decisions within his decisional domain. Self-representation may, depending on the support provided to the defendant, require communicative abilities of a different degree. 

Effect and Cause

In the final part of her article, Professor Johnston addresses an ambiguity created by the Court in Edwards. As noted, in Edwards, the Court held that "the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Based upon this language, it appears that a court cannot deem a defendant competent to stand trial incompetent to represent himself unless this incompetence is caused by mental illness (or mental disability). Professor Johnston, however, notes that other language is less clear and leaves open the door for courts possibly deeming defendants incompetent to represent themselves based, inter alia, upon temporary functional disabilities and functional disabilities due solely to physical limitations...."

Professor Johnston closes this door, noting that "[c]ausation is one of the defining hallmarks of legal competency standards in civil and criminal contexts" and that "[m]ost competency standards require that legally recognized deficiencies originate from mental illness or mental disability." She then concludes that

Limiting the legal recognition of a functional disability to those disabilities caused by mental illness or disability would help ensure that courts do not deprive individuals of their constitutional right to represent themselves merely because their choices are odd or different. A fundamental tenet of mental health law is that "the legally relevant behavior of mentally disordered persons is a product of their mental disorder and not of their free choice." A state’s power to deprive an incompetent defendant of his Sixth Amendment right to self-representation—and to impose a substitute decision maker on the defendant—extends from its parens patriae authority. Therefore, the justification for a state’s intervention should be to protect the defendant from decisions that stem from illness or disability rather than from those that are the product of the individual’s free will. Put simply, individuals capable of rational, autonomous decisionmaking should not have to suffer the state’s "protection" or the abdication of their ability to make choices. 

Conclusion

As I said at the start, the question of whether a defendant should be able to represent himself at trial is fundamental to the criminal justice system, and yet, the Supreme Court has not equipped lower courts with the tools to be able to answer that question. All the Court has provided is a skeletal framework, leaving lower courts to perform something akin to the game Operation, hoping that they don't set off the buzzer in the form of a constitutional violation. I think that the great value of Professor Johnston's proposal is that it sets forth a logical approach to the question that judges could smoothly incorporate into the existing case law. I asked Professor Johnston what led her to write the article, and she responded:

I wrote the piece in response to what I perceived as a large gap in the law -- the Supreme Court approved a higher standard of competence to represent oneself than to stand trial without delineating the essential features of that standard.  I worried, in particular, about how this standard could be applied to individuals with serious mental illnesses.  I therefore tried to identify a framework for identifying capabilities that every person should possess before she is permitted to represent herself.  For that, as you know, I drew on social problem-solving theory, after developing a normative framework to assess each capability suggested by that theory.  I received a call from a federal judge interested in implementing my proposed standard several months ago -- I hope it will ultimately have broad appeal.   

Representational Competence builds upon an earlier article, titled Setting the Standard: A Critique of Bonnie's Competency Standard and the Potential of Problem-Solving Theory for Self-Representation at Trial (43 U.C. DAVIS L. REV. 1605 (2010)).   

-CM 

Eyewitness Account: Court Of Appeals Of Washington Practically Begs Supreme Court Of Washington To Approve Jury Instruction On Cross-Racial Identifications

Should defendants be able to present expert testimony and/or jury instructions about the inaccuracy of cross-racial identifications? I find this to be a fascinating question (see my posts here, here, here, here, here, and here), and it is one that has divided the courts. As the recent opinion of the Court of Appeals of Washington, Division 1, in State v. Allen, 2011 WL 1745014 (Wash.App. Div. 1 2011), makes clear, Washington courts do not allow instructions about the inaccuracy of cross-racial identification but they can in their discretion allow expert testimony on the subject if certain factors are present. But here's the interesting thing about the court's opinion in Allen: The Court of Appeals seemed to say that such instructions should be given, and it seemingly laid out a strong case for the giving of such instructions. And, in effect, the Court of Appeals seemed to be begging the Supreme Court of Washington to agree with it.

In Allen, Bryan Allen was convicted of felony harassment after a trial in which a witness for the prosecution made a cross-racial identification. Allen thereafter appealed, claiming, inter alia, that the trial court erred by not giving the jury one of two proposed alternative jury instructions regarding the inaccuracy of cross-racial identifications. The first proposed instruction stated:

"In this case, the identifying witness is of a different race than the defendant. In the experience of many, it is more difficult to identify members of a different race than member's [sic] of one's own [race]. Psychological studies support this impression. In addition, laboratory studies reveal that even people with no prejudice against other races and substantial contact with persons of other races still experience difficulty in accurately identifying members of a different race. Quite often people do not recognize this difficulty in themselves. You should consider these facts in evaluating the witness's testimony, but you must also consider whether there are other factors present in this case."

And, the second proposed instruction stated:

“In this case, the defendant, Bryan [Allen], is of a different race than Gerald Kovacs, the witness who has identified him. You may consider, if you think it is appropriate to do so, whether the fact that the defendant is of a different race than the witness has affected the accuracy of the witness'[s] original perception or the accuracy of a later identification. You should consider that in ordinary human experience, some people may have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race. You may also consider whether there are other factors present in this case which overcome any such difficulty of identification." of identification.”

According to the court, the trial court's refusal to give either instruction denied him his due process right to a fair trial and his right to present a defense. After doing a nice job of laying out the different approaches taken on the issue by various jurisdictions, the Court of Appeals of Washington noted that

(1) the Supreme Court of Washington previously found that a trial court did not err in refusing to give a jury instruction on the inaccuracy of cross-racial identifications in State v. Laureano, 682 P.2d 889 (Wash. 1984); and

(2) the Supreme Court of Washington previously found in State v. Watkins, 766 P.2d 484 (Wash. 1989), that Washington courts cannot give general jury instructions on the inaccuracy of eyewitness identifications.

So, what was the basis for the court's conclusion in Watkins? It was Article IV, Section 16 of the Washington Constitution, which provides that "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." The problem, then, with jury instructions is that witness credibility is a factual question, meaning that such instructions constitute improper judicial comment on an issue that jurors should decide for themselves based upon direct testimony and cross-examination. 

The court in Allen then noted, though, that

Allen argues this rationale has been challenged by subsequent research. Traditional trial protections of suppression hearings, voir dire, cross-examination of witnesses, closing arguments, and general jury instructions on the credibility of witnesses do not adequately address the special recognition impairments present in cross-racial eyewitness identification. Criminal Justice Section Report at 7. "Although cross-examination is a powerful tool for exposing lies, it is not particularly effective when used against eyewitnesses who believe they are telling the truth." Jacqueline McMurtrie, The Role of the Social Sciences in Preventing Wrongful Convictions, 42 AM.CRIM. L. REV. 1271, 1277 (2005)...The additional protection of a cross-racial jury instruction is needed, "because the own-race effect strongly influences the accuracy of identification, because that influence is not understood by the average juror, because cross-examination cannot reveal its effects, and because jurors are unlikely to discuss racial factors freely without some authorization to do so." Sheri Lynn Johnson, Cross–Racial Identification Errors in Criminal Cases, 69 CORNELL L. REV. 934, 982 (1984).

At present, the existing alternative to permitting a jury instruction is to allow expert testimony on the issue. Under Washington law, expert testimony may be admitted, at the discretion of the trial court, to discuss the reliability of eyewitness testimony, but only if certain factors are present. Cheatam, 150 Wash.2d at 649, 81 P.3d 830. But, even if admitted by the trial court, expert testimony is not always available, as it is expensive and there are a limited number of experts available. Criminal Justice Section Report, at 3. And, expert testimony may not explicitly permit juries to raise race-related issues in the jury room to the extent necessary to combat the undue reliance on eyewitness testimony.

The import of this language is clear: The Court of Appeals wanted to find that the trial judge should have given one of Allen's proposed jury instruction, but it felt constrained by the Washington Constitution and prior precedent by the Supreme Court of Washington. Indeed, the Court of Appeals then proceeded to set forth a laundry list of instructions that Washington courts have found permissible. Specifically, the court cited to the Supreme Court of Washington's opinion in State v. Carothers, 525 P.2d 731 (Wash. 1974), in which it found no problem with an accomplice liability instruction, concluding that

An instruction to view the testimony of an accomplice with caution is an indication not of the judge's attitude toward the testimony of a particular witness, but of the attitude of the courts generally toward the testimony of witnesses of this type. It is an attitude which has been garnered from many years of observation of the prosecutorial process. The courts have an expertise upon this subject which the ordinary citizen cannot be expected to have. They have observed that innocent persons may be sent to prison or to death upon the testimony of an accomplice. At the same time such testimony is not invariably false and it may be the only proof available.

According to the Court of Appeals,

The rationale applied in Carothers could apply in equal force to a cross-racial eyewitness identification instruction, which is not invariably false and at times is the only proof available to the State but has resulted in the convictions of innocent people. However, it is for the Supreme Court to consider whether there truly has been a showing that the cross-racial identification instruction "impedes the administration of justice."...At present, it has not provided approval of any pattern jury instruction on the subject.

Therefore, we follow the Supreme Court's lead in Loreano. We also follow our prior cases holding that an instruction about the reliability of eyewitness evidence risks violating the constitutional prohibition against comments on the evidence....We conclude that Allen's due process rights were not violated. We hold that the trial court did not err by refusing to instruct the jury on cross-racial eyewitness identification.

In other words, the Court of Appeals clearly wanted to find that the trial court could have, and should have, given a jury instruction, and it practically served up the rationale for allowing such an instruction on a silver platter to the Supreme Court of Washington. Will the Washington Supremes take the bait? I guess that we will have to see.

-CM

One Track Bind: Brady, Melendez-Diaz, and Remedial Rationing

Last week, I posted an entry about Cynthia Jones' A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, 100 J. Crim. L. & Criminology 415 (2010). Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. But what's the sanction for a Brady violation? Well, typically, it is merely the prosecution disclosing the exculpatory evidence. And, as Professor Jones noted, "Simply ordering the prosecutor to disclose the Brady evidence is, of course, more of a directive than a sanction, because the prosecutor is not required to do anything above and beyond that which was already constitutionally mandated."

This is why I thought that Professor Jones' proposal for additional sanctions for Brady violations (giving a Brady instruction similar to the adverse inference instruction and/or instructing jurors that that a Brady violation supports the inference of consciousness of a weak case) could cause a sea change in Brady because it would deter prosecutors from failing to disclose material exculpatory evidence. And the reason that such sanctions would be so important is that it is virtually impossible for defendants to turn around and bring successful civil actions based upon Brady violations, especially given the Supreme Court's recent opinions in Van de Kamp v. Goldstein, 555 U.S. 335 (2009) and Connick v. Thompson, 131 S.Ct. 1350 (2011).

In this regard, the right created by Brady is similar to many criminal procedure rights in that it is  subject to what Jennifer E. Laurin, a professor at The University of Texas School of Law refers to as "remedial rationing" in her essay Melendez-Diaz v. Massachusetts, Rodriguez v. City of Houston, and Remedial Rationing, 109 Colum. L. Rev. Sidebar 82 (2009). According to Professor Laurin, remedial rationing is the process by "which enforcement of a given criminal procedure right is committed either to the criminal or the civil realm." And, the argument in her article is "that remedial rationing is misguided both in underestimating the structural limitations of criminal and civil litigation to achieve regulatory goals, and in disregarding potential synergies that may be generated by recursive criminal procedure remedies." So, let's see how this plays out with the example of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).

To understand Melendez-Diaz, we need to understand Crawford v. Washington, 541 U.S. 36 (2004), in which the Supreme Court held that the Confrontation Clause 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.

Thereafter, in Melendez-Diaz,

Police arrested Luis Melendez-Diaz, took what was apparently cocaine from him, and charged him with distributing cocaine and trafficking in cocaine in an amount between 14 and 28 grams. At trial, the police introduced into evidence three "certificates of analysis" showing the results of the forensic analysis performed on the seized substances.  The certificates reported the weight of the seized bags and stated that the bags “[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine."...The certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Health.

Melendez-Diaz argued that these certificates/affidavits were "testimonial" and that their admission thus violated the Confrontation Clause because the analysts did not testify at trial, and the Court agreed, concluding that

not only were the affidavits "'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,'"...but under Massachusetts law the sole purpose of the affidavits was to provide "prima facie evidence of the composition, quality, and the net weight" of the analyzed substance....We can safely assume that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose—as stated in the relevant state-law provision—was reprinted on the affidavits.

So, why was the Court's ruling so important? Well, take a look at the report, Strengthening Forensic Science in the United States: A Path Forward, to see what's really going on in crime labs across the country and why it is so important for defendants to be able to cross-examine analysts about how they reached their results. But let's contextualize Melendez-Diaz in the larger criminal justice picture. Melendez-Diaz was denied his Confrontation right, so his conviction was reversed. Prosecutors in the future will undoubtedly be deterred from introducing similar evidence without the accompanying testimony of the person producing that evidence (especially if the Court rules the way that I think it will in Bullcoming v. New Mexico). But will Melendez-Diaz actually deter bad practices in forensic medicine?

Professor Laurin notes that there are two types of deterrence that precedent can effectuate:

Specific deterrence operates at the level of individual prosecutions: The right of confrontation might deter prosecutors from introducing weak or faulty evidence at any given trial; threat of cross-examination may deter a given analyst's impetus to falsity or even negligence. General deterrence concerns the impact of the confrontation right beyond a specific criminal case: Prosecutors anticipating cross-examination might increase their vetting of forensic science evidence and witnesses; discredited forensic methodologies vulnerable to cross-examination (for example, bullet-lead analysis) might fall into disuse.

She then points out, though, that

deterrence of any sort depends upon enforcement's adequacy and effectiveness. The right of confrontation must be invoked frequently enough to affect incentives, and the enforcement mechanism--cross-examination, or loss of a prosecution--must effectively expose poor science or spur better forensic science practices. The ability of criminal adjudication to deter bad forensic science practice is hampered on both scores.

So, let's look first at adequacy. According to Professor Laurin,

As for adequacy, confrontation can only occur at trial--an increasingly rare occurrence. In addition, the right will not always be invoked--either for tactical considerations by the defense or as a symptom of poor or underfunded defense advocacy. Some deterrent effects might nevertheless be generated. Prosecutors want to win those cases that are tried, and the lack of ability to predict ex ante when confrontation rights will be invoked might prompt wholesale efforts to improve analytical and testimonial practices. Or the defense bar, armed with the confrontation right, might devote more attention to training or information sharing on cross-examination of forensic scientists. Perhaps. But perhaps more likely is that, instead of investing time and political capital in greater oversight of crime laboratory practices and testimony, police and prosecutors will simply reduce reliance on scientific evidence altogether. In a universe of more crime than there is time to investigate and prosecute, law enforcement might swap low-science (think property crimes) for high-science (think DUI) cases. Prosecutors might also sweeten plea deals in drug cases to avoid trials. Whether such responses would be "good" or "bad" is debatable. But certainly, they thwart Melendez-Diaz's potential to generate systemic incentives for improved forensic science.

(Indeed, a similar argument could be made in the Brady context because the vast majority of cases are resolved by plea bargain, and courts have not done a good job at all of explaining if and to what extent the Brady doctrine applies to plea bargaining. See, e.g., John Douglass, Fatal Attraction? The Uneasy Courtship of Brady and Plea Bargaining, 50 Emory L. J. 437 (2001)).

Professor Laurin then notes that

These substitution effects also, of course, hamper "effectiveness" to the extent that the right of cross-examination triggers work-arounds rather than changes in forensic science practice. Additionally, where cross-examination does occur, its actual utility as a mechanism for exposing flaws in forensic science is suspect. Consider the anecdotal data. The Melendez-Diaz dissent pointed to six jurisdictions that already required "confrontation of the results of routine scientific tests or observations." Two, Texas and Mississippi, have seen some of the most serious instances of forensic science fraud. In Texas, Houston's police crime lab suffered decades-long deficiencies which were finally uncovered in an independent investigation commissioned by the city in 2005, long after the Texas Court of Criminal Appeals mandated confrontation. And in Mississippi the controversial "bite mark"opinions of the forensic dentist Michael West were given subject to the scrutiny of cross-examination.

So, the Confrontation right, like many criminal procedure rights, is subject to remedial rationing in that enforcement of the right is committed to the criminal realm. And based upon the way that defendants enforce the Confrontation right, Professor Laurin is able to preliminarily extrapolate

that criminal litigation, while perhaps unlikely to generate predictable general deterrence, possesses comparative advantages over civil litigation in the realm of specific deterrence: Constitutional violations are remedied relatively contemporaneously, and the consequences of the remedy are fairly likely to fall directly on the actors most immediately involved in the deprivation. Additionally, in the aggregate, criminal adjudication of criminal procedure guarantees is a relatively cheap mechanism for generating data about law enforcement conduct in a given jurisdiction.

Conversely,

we might plausibly suppose that civil litigation provides a superior mechanism for general deterrence. Even setting aside questions about the economic incentives actually created by civil damages, civil rights suits have the capacity to generate political incentives for prospective reform. Significant verdicts or settlements have the potential to generate media and public interest; the fact that the litigant is a civil plaintiff with a plausible claim to victimization rather than a criminal defendant obtaining relief on a "technicality" only enhances the comparative advantage of civil rights litigation in resonating with popular sentiment. The process of litigation often generates public data, sheds public light on government practices, or...generates a roadmap for reform. Indeed, even the threat of litigation may be seen as a political pressure point: Municipalities subject to suit might proactively address questionable practices in the aftermath of alleged misconduct in order to recapture a moral high ground or prevent current policymakers from exacerbating liability through ongoing "deliberate indifference" to constitutional violations.

Professor Laurin thus concludes that "criminal and civil remedies potentially generate coordinate advantages. But they are also interdependent in critical respects that are defeated by remedial rationing." Thus, "rationing overlooks the structural limitations of each remedy for generating systemic incentives in isolation, and that it diminishes the potential for positive synergistic effects between the criminal and civil remedial realms."

So, what's the solution? Well, Professor Laurin acknowledges at the end of her essay that her essay "has not touched on institutional and constitutional issues raised by the Court's cabining of congressionally created civil rights remedies, nor has it considered what principles, if any, should guide a court in limiting adjudication to one or another remedial regime." But, it seems to me to be a very important first step in addressing an issue that lies at the heart of our criminal justice system. Remedies define rights. So, how we define remedies is essential to how we define rights, and I look forward to seeing where Professor Laurin next takes her analysis. For interested readers, the next place to look is her recently published essay, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, 111 Colum. L. Rev. 670 (2011).

-CM

Dead Again: Supreme Court Of Wisconsin Opinion Prompts Questions About Nature Of Dying Declaration Exception Under Common Law

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. As I have noted previously on this blog, however (see, e.g., here), the Court strongly implied that even testimonial dying declarations can be admitted without the defendant being previously able to cross-examine the declarant. At footnote 6 of its opinion in Crawford, the Court noted that 

Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are....We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.

Later, in its opinion in Giles v. California, 554 U.S. 353 (2008), the Supreme Court noted that

We have previously acknowledged that two forms of testimonial statements were admitted at common law even though they were unconfronted....The first of these were declarations made by a speaker who was both on the brink of death and aware that he was dying.

Since Crawford, no state court has found that the admission of a testimonial dying declaration violated the Confrontation Clause, and the Supreme Court of Wisconsin recently joined these ranks with its opinion in State v. Beauchamp, 2011 WL 1681413 (Wis. 2011), holding:

We therefore, like every state court that has considered the dying declaration exception since Crawford, take a position consistent with the language of Crawford and Giles and decline to hold that the constitutional right to confront witnesses is violated by the admission of statements under the dying declaration hearsay exception. As the State notes, no published decision of any state court in the country has eliminated the dying declaration hearsay exception based on the reading of selected language of Crawford. We concur with the courts that have addressed this question after Crawford: a hearsay exception as long-standing, well-established and still necessary as this one, as indeed this case illustrates, cannot be lightly dismissed. Regardless of the religious justifications that have been articulated for dying declarations over the centuries, this hearsay exception is a crucial one, and it retains its vitality. We disagree with Beauchamp that scientific advances have changed criminal law such that there is always sufficient evidence without admitting the inculpatory words of a dying victim to fairly try a defendant accused of murder.

So, testimonial dying declarations can be admitted consistent with the Confrontation Clause because they were admitted under the common law. But what types of dying declarations were admitted under the common law? And which common law are we talking about? Moreover, what is the origin story of the dying declaration?

These are some of the questions addressed by University of Washington School of Law Professor Peter Nicolas in his terrific recent article, 'I’m Dying to Tell You What Happened': The Admissibility of Testimonial Dying Declarations Post-Crawford, 37 Hastings Const. L.Q. 487 (2010). But let's start with Beauchamp. In Beauchamp, the defendant claimed that the original justification for admitting dying declarations was religious: a declarant would not want to die with a lie on his lips and face eternal damnation. According to the defendant, this way of thinking was outmoded, meaning that dying declarations should be excluded because we live in "a society more secular than the one in which the exception originated."

So, is the dying declaration exception grounded in religion? The Supreme Court of Wisconsin wasn't sure. According to the court,

The hearsay exception has sometimes been justified on the grounds that a dying person was presumed under the common law to have, due to commonly held religious beliefs concerning the afterlife, such a fear of dying without the opportunity to expiate a lie that the reliability of any statement made in those circumstances was deemed equivalent to that of sworn testimony. As one commentator noted, "The original premise of this assumption was that the fear of divine judgment for lying provided religious assurance that the dying person would speak the truth." As early as 1860, however, a treatise writer disputed the notion that the doctrine's underpinnings were religious: 

[A dying declaration] is not received upon any other ground than that of necessity, in order to prevent murder going unpunished. What is said in the books about the situation of the declarant, he is being virtually under the most solemn sanction to speak the truth, is far from presenting the true ground of the admission....[T]he rule is no doubt based upon the presumption that in the majority of cases there will be no other equally satisfactory proof of the same facts. This presumption and the consequent probability of the crime going unpunished is unquestionably the chief ground of this exception in the law of Evidence.

Now, you may be asking yourself why the origin story of the dying declaration is important. Well, let's backtrack to Giles. As noted, in Giles, the Court held that there were two types of testimonial hearsay that were admitted at common law even though they were unconfronted. The first was the dying declaration. The second was the statement by a potential witness who was unavailable at trial due to the wrongdoing of a party (forfeiture by wrongdoing). And what the Court in Giles did was to explain the nature of this second exception under the common law. Specifically, the Court held that, under the common law, it was not enough that the party's wrongdoing caused the unavailability of the prospective witness at trial; instead, the party must have intended for his behavior to cause the unavailability for the prospective witness' statement to be admissible for him. Thus, states such as California and Wisconsin which applied the doctrine of forfeiture by wrongdoing without a finding of intent by a party had to limit the application of the doctrine.

This takes us back to Beauchamp. If the dying declaration exception is of religious origin, and courts under the common law only admitted dying declarations by religious declarants, then this would mean that testimonial dying declarations by atheists could not survive Confrontation Clause scrutiny after Crawford.  

But Professor Nicolas doesn't see it that way. Instead, he notes that

At common law in both the United States and England and well into the twentieth century in the United States, a person who did not believe in a Supreme Being was deemed incompetent to testify as a witness based on the theory that without such a belief, the oath was meaningless (and, by extension, so was any testimony that the witness might give). Under this theory, if the deceased would have been "incompetent" to testify had he survived (due to, inter alia, the absence of religious belief), it followed that the declarant's dying declarations likewise should not be received into evidence and was thus inadmissible.

Yet rather than being an element of the dying declaration exception itself, this is best viewed as falling within a broader rule that dying declarations (and hearsay generally) are inadmissible under any circumstances in which the declarant himself would have been incompetent to testify had he appeared and testified as an ordinary witness. So construed, the Confrontation Clause should not be construed to require that the declarant satisfy the specific witness competency rules extant at common law. Rather, the declarant's dying declaration should be admissible so long as he would be competent to testify as an ordinary witness under the then-existing competency rules.

Interestingly enough, Professor Nicolas cites the aforementioned excerpt from the 1860 treatise for another purpose. That 1860 treatise was written by Judge Isaac F. Redfield, who took over for Simon Greenleaf, the previous author of the treatise. Professor Nicolas notes that

According to nearly all respected modern evidence treatises and numerous twentieth century judicial opinions and other reputable sources, early common law decisions (those through around 1800) did not, in fact, limit the admissibility of dying declarations to homicide cases in which the death of the declarant was the subject of the charge. Rather, so long as the declarant was dead and believed his death to be imminent when he made the statement, the statement could be admitted in any case, civil or criminal. Rather, it was only in the early 1800s that common law decisions in both the United States and England narrowed the exception's applicability to homicide cases in which the death of the declarant was the subject of the charge.

For instance, Federal Rule of Evidence 804(b)(2), the modern dying declaration exception, provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

So, what led to the change? Well, as Professor Nicolas notes, John Henry Wigmore lays the blame at the feet of Judge Redfield, claiming that he created this homicide limitation out of cloth when he updated Greenleaf's treatise. Now, Professor Nicolas questions this conclusion, but whether WIgmore is right or wrong is not really the point.

According to Professor Nicolas, the point is that there is currently a lack of clarity of the exact nature of the dying declaration exception under the common law and that courts need to sort out its exact nature, just as the Court did with the doctrine of forfeiture by wrongdoing in Giles.

Interested readers can check out Professor Nicolas's article for his full analysis, and here I will simply post the first two paragraphs of his conclusion, which nicely lay out the issues that courts must address in this regard:

Assuming that the Supreme Court confirms that there exists a dying declaration exception to the Confrontation Clause, there are at least three additional constitutional questions for the Court to resolve. First, whether the exception can be invoked only in homicide cases (and, more narrowly, those in which the death of the declarant is the subject of the charge), or whether it can be invoked in other types of criminal cases as well. Second, whether it only encompasses statements concerning the cause or circumstances of the declarant's impending death (or what he believed to be his impending death), or whether it can be invoked to admit unrelated statements. Third, whether the declarant must die, or whether it suffices that he is merely unavailable.  

The answers to each of these constitutional questions hinges upon how the Supreme Court resolves three additional issues: choosing among competing versions of history; choosing among competing points in history that matter (1791 versus 1868); and deciding whether to characterize the historical elements of the dying declaration exception in narrow or broad terms for Confrontation Clause purposes.

-CM