CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, September 21, 2018

Graham on Evidence

Michael H. Graham (University of Miami - School of Law) has posted three articles on SSRN. The first is Autopsy Reports Under the Confrontation Clause: 'Significant Confusion' Indeed!!! (Vol. 53 Crim.L.Bull. 1041 (2017)). Here is the abstract:
The admissibility of an autopsy report against the criminal defendant at trial either substantively or as reasonably relied upon under Fed.R.Evid. 703 has resulted in a myriad of approaches being employed to apply the confrontation clause analyses as developed by the United States Supreme Court in Crawford to Williams/Clark. This myriad of approaches exemplifies the “significant confusion” Justice Kagan dissenting in Williams accurately predicted. Unfortunately, it isn’t the 4 to 1 to 4 opinion in Williams alone that has led to the substantial disagreement amongst courts in applying the confrontation clause to autopsy reports as many of the approaches taken by lower courts represent overall unhappiness with the clear mandate of Melendez-Diaz/Bullcoming requiring the testimony of an expert possessing sufficient personal knowledge whenever an autopsy report is employed against the accused in a criminal trial.

As Justice Kagan in ending her dissent opinions, Williams in fact leaves forensic laboratory reports and autopsy reports governed by Melendez-Diaz and Bullcoming. Pursuant to the crystal clear holding of Bullcoming, in the case of an autopsy report concluding that the deceased died through unlawful means, only the live testimony of a qualified expert witness who signed the autopsy report or who performed or observed the autopsy satisfies the confrontation clause. Such a result, however, as detailed in the dissents to Melendez-Diaz and in Bullcoming, where Justice Kennedy referred to the right to cross-examine a personal knowledge participant expert as a “hollow formality”, is both costly and administratively inconvenient In addition, if a Melendez-Diaz/Bullcoming qualified expert witness is not available, critical evidence will be lost possibly to the extreme detriment of the criminal prosecution.

Many, if not maybe even most lower courts, not pleased in many respects with the line of cases from Crawford to Williams/Clark have seized upon different rationales to justify the employment of an autopsy report in a criminal prosecution in the absence of the testimony of a Melendez-Diaz/Bullcoming complying expert. Autopsy reports do not represent the first area where lower courts unhappy with United States Supreme Court jurisprudence simply by hook or by crook find a way to avoid an undesired result.

Crawford to Williams/Clark is likely to remain the United States Supreme Court’s interpretation of the confrontation clause for many years. Accordingly, the variety of approaches adopted by lower courts to avoid the mandate of Crawford to Williams when applied to autopsy reports will continue to flourish as well.

The second is Inconsistent Statements As Substantive Evidence: A Critical Review and Proposed Amendment to Federal Rule of Evidence 801(d) (1) (A); Lack of Recollection’s Impact Upon Substantive Admissibility (54 Crim.L.Bull. 215 (2018)). Here is the abstract:

The proposed Federal Rules of Evidence as drafted by the Advisory Committee and approved by the Supreme Court, dealt in a comprehensive manner with a party’s impeachment of his own or his opponent’s witness by means of prior inconsistent statements. Proposed rule 801(d)(1)(A), advocating a significant departure from the common law, provided that all prior statements inconsistent with the testimony given by a witness during trial were not hearsay.

Congress, motivated by concerns over the reliability of prior inconsistent statements, amended proposed rule 801(d)(1)(A) to provide that only prior inconsistent statements "given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition" were admissible as substantive evidence. Thus, under Rule 801(d)(1)(A) of the Federal Rules of Evidence as enacted, a party may introduce a prior inconsistent statement as substantive evidence only if it was originally made in testimonial form.

This article maintains that Fed.R.Evid. 801(d)(1)(A) unduly restricts the types of prior inconsistent statements substantively admissible thereunder. Accordingly, it proposes an amendment to Fed.R.Evid. 801(d)(1)(A) that expands the substantive admissibility of prior inconsistent statements while seeking to preserve the guarantees of reliability that Congress has seen fit to impose.

Lack of Recollection: Subject to Cross-Examination

Interestingly, the same witness “unavailable” for hearsay exception purposes under Fed.R.Evid. 804 because of lack of recollection is “available” for purposes of cross-examination under Fed.R.Evid. 801(d)(1), i.e., “subject to cross-examination” about a prior statement as well as “subject to cross-examination” for confrontation clause purposes. “Subject to cross-examination” requires solely that the witness be placed on the stand, under oath, and respond willingly to questions.

The third is Prior Inconsistent Statement Impeachment, Fed.R.Evid. 613(B): Current Practice and Proposed Changed Foundation Requirement (Vol. 54 Crim.L.Bull. 676 (2018)). Here is the abstract:

Requiring a Foundation on Cross Examination.

As the Advisory Committee's Note to Fed.R.Evid. 613(b) indicates, "[t]he traditional insistence that the attention of the witness be directed to the statement on cross examination is relaxed in favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine on the statement, with no specification of any particular time or sequence." The Advisory Committee's Note suggests that Fed.R.Evid. 613(b) facilitates the questioning of collusive witnesses by permitting several such witnesses to be examined before disclosure of a joint prior inconsistent statement. That rather infrequent benefit hardly explains Fed.R.Evid. 613(b) dispensing with the requirement that a foundation be laid on cross examination. The rationale for Fed.R.Evid. 613(b) in fact derives from a combination of two factors: (1) that Fed.R.Evid. 801(d)(1)(A) as proposed by the Advisory Committee and the Supreme Court gave substantive effect to all prior inconsistent statements, and (2) perceived lawyer incompetence.

In practice, the traditional foundation is generally laid by counsel on cross examination regardless of the text of current Fed.R.Evid. 613(b). Juxtaposition is the most effective form of impeachment. Counsel desiring primarily to impeach and not to highlight the prior statement to encourage substantive use by the trier of fact opts in favor of confronting the witness with the prior inconsistent statement on cross examination. Custom and lack of appreciation of the change brought about by Fed.R.Evid. 613(b) undoubtedly also play their part in maintaining the status quo.

Proposed Fed.R.Evid. 613(b) Witness’s Prior Statements

* * *

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is first afforded an opportunity to explain or deny the same and the opposing party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Fed.R.Evid. 801(d)(2).

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