More on Davis/Hammon
Mark Dwyer, Chief of Appeals and Counsel to the District Attorney in New York City, has this to say about Davis/Hammon.
May I begin with a short moment of what may be viewed as prosecutorial sour grapes? As I see it, Crawford and Davis in combination represent a remarkable exercise in judicial activism. The Court is making up Sixth Amendment law on the fly. In Davis, for example, the Court has cancelled more than a century’s worth of lower court development of the “excited utterance” exception to the hearsay rule, effectively restoring the “res gestae” limits on that rule, at least where statements are made to the police. And all that has been done in the name of the now-triumphant “testimonial hearsay” principle, which until recently did not exist, and the contours of which remain generally “to be announced.”
Is that good, or bad? I will concede, some of the cases in which the expanded “excited utterance” rule was applied could fairly cause discomfort, and I count Hammon as one of them. In any event, as always, most will applaud judicial activism, or condemn it, depending on whose ox has been gored. I think it should be criticized on principle.
Beyond that, let me note an interesting problem which the Crawford cases will create for the lower courts. In the Roberts era, with fairly few exceptions, both sides in a criminal case effectively operated under the same rules. If the confrontation clause barred a prosecutor’s use of a kind of hearsay, the rules of evidence almost always prevented the defendant from introducing that kind of hearsay as well. Moreover, for the most part, it was in prosecutors’ interest to argue for expanded interpretations of hearsay exceptions, since prosecutors usually have the most evidence to offer.
The new doctrines are upsetting that balance. In New York, for example, the Court of Appeals has reversed a conviction because a prosecutor’s expert witness recited third-party statements that helped form the basis of her opinion about the defendant’s mental condition, on the ground that those statements were effectively admitted for their truth and were “testimonial.” But defendants offer expert testimony as well, and will face no Constitutional limits on the introduction of out-of-court statements that are “testimonial.” As a result, either the defense will be much advantaged in the presentation of expert testimony, or hearsay rules will suddenly be read to prevent any party from presenting such background statements through the expert. And it will now be the prosecution that will argue for a narrower hearsay rule.
I suppose judicial activism, like many things, is in the eye of the beholder.
As for the other issue, I have also wondered how the lower courts will grapple with the inherent defense bias of overturning much of traditional hearsay law based on the Confrontation Clause. I think that most trial judges will initially be open to arguments about fundamental fairness in rulings about defense-offered hearsay. But the appellate courts will face a difficult test as they try to square the Confrontation Clause underpinnings of the Supreme Court’s jurisprudence on this issue with the idea that there should be an even playing field in the courtroom. Interesting times ahead.
Comment by NCProsecutor — June 26, 2006 @ 12:03 pm
NC prosecutor: we all know that in practice, there is a different set of hearsay exceptions when offered by the defense, but I do not see how the Confrontation Clause rule would change whatever bias that existed in favor of the defendants prior to the Davis decision. In a criminal case, the government does not have a constitutional provision which guarantees confrontation, or even “fair play” for the prosecution. In practical terms, these decisions had absolutely nothing to say about a defendant’s offer of exculpatory hearsay, which I bet most judges would allow in. On the flip side, if a judge does not let it in, my guess is that on appeal, a defendant who complains about the exclusion of exculpatory hearsay statement he offers will be subject to the abuse of discretion and the harmless error rule, like it has before the Davis decision.
I do agree with Mark Dwyer that the excited utterance exception has been limited, as far as 911 calls go.
Comment by percuriam — June 26, 2006 @ 5:17 pm
Because the new line on testimonial hearsay seems to be drawn very tight for the prosecution, it will be difficult to get very much hearsay passed the confrontation clause. However, the good news is that is possible to have non-testimonial hearsay to a police officer at least when emergency services are requested.
However, the court indicates that not all of the 911 call would have survived Crawford. I have begun to think of the testimonial exception as an episode of the long-running television show “Cops.” If it would have made it on the screen, it is non-testimonial. It is boring enough to wind up on the cutting room floor, it is testimonial.
There is another key area which prosecutors must learn to use: “We reiterate what we said in Crawford: that “the rule of forfeiture by wrongdoing … extinguishes confrontation claims on essentially equitable grounds.” 541 U. S., at 62 (citing Reynolds, 98 U. S., at 158–159). That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation” (slip op. at 18). The court further indicates that this forfeiture can be proven by hearsay evidence at a hearing decided on a preponderance of evidence standard.
Imagine the domestic violence case where the victim has told the police or her advocate that the defendant threatened to kill her if she went to police. That may be enough under the existing case law to forfeit the defendant’s right to confrontation.
Comment by kilbourne — June 28, 2006 @ 2:08 pm