Confrontation Clause update by Professor Ron Bretz at Criminal Section Meeting

By Roberta M. Gubbins Legal News In 2004, the United States Supreme Court, in the matter of Crawford v Washington, held that "the hearsay rule and the right of confrontation are separate and distinct issues. Even if a hearsay exception is satisfied, out of court statements from unavailable witnesses must be excluded if they violate a defendant's right to confront witnesses. Secondly, only testimonial statements are barred by Crawford. Non-testimonial statements are admitted if the hearsay exception is met. Prior testimony at a preliminary hearing, before a grand jury or at a former trial are testimonial and thus barred," wrote Professor Ron Bretz in the materials given to the members of ICBA's Criminal Law Section at the monthly section meeting on February 9th at the State Bar of Michigan. "When the Crawford case came out, it was a big puzzle," said Professor Bretz . "They (the Supreme Court) left open a number of things, for example --what is testimonial? Davis (Davis v Washington) and Hammon (Hammon v Indiana) help decide what is testimonial." "The rules of evidence have nothing to do with confrontation. Crawford separated those two issues. The evidence has to be admissible on both basis--the hearsay exception and the confrontation clause. If the witness or victim is talking to the police, reporting a crime, giving facts, relaying information that is going to be used to prosecute the defendant, then it is probably testimonial. The one clear exception is the 911 call or 'help' call." In Whorton v Bockting, the court held the Crawford decision was not retroactive, however, states are free to do so if they want. Does admission of a dying declaration where the defendant has not had an opportunity to cross-examine the dying witness violate the right of confrontation? "The answer is unclear. Justice Scalia, in a footnote, suggests that a dying declaration may be an exception to the right." People v Walker, "is my favorite" of the Michigan cases. The facts are: The victim "runs to her neighbor, tells her about the assault, the neighbor memorialized the victim's statement in writing and then called 911. The police arrived and obtained a statement from the victim that her boyfriend had beaten her up. The victim did not appear at trial and all three statements were admitted. The Supreme Court held that the 911 call was not testimonial, but the other statements were and were admitted in violation of the defendant's right to confrontation." "The other big issue is the lab reports and that was decided in Melendez-Diaz v Washington," which held that failure to produce the analyst who created the report used at trial violates the confrontation clause unless the defendant had a prior opportunity to cross-examine and the analyst was unavailable. "It seems to me that the defendant now has the right to cross-examine everyone who worked on the case. I've seen lab reports where a part of the report was x'ed out. Another analyst had made a call that was inconsistent with the defendant--his superior x'ed it out and wrote his initials in the margin and that information was never given to the defense attorney prior to trial. Defense attorneys should ask for the lab notes," he said. After that was Briscoe v Virginia, where the US Supreme Court granted cert to decide if Virginia's statutory procedure permitting introduction of the lab report alone unless the defendant demands production of the analyst violates the right of confrontation. The Court remanded for "proceedings not inconsistent with the opinion in Melendez Diaz." The other big issue is waiver of the right to confrontation--"forfeiture by wrong-doing." The fact pattern would be a defendant who kills a witness making him unavailable for trial believing the prosecution can't use the witnesses previous statements against him. "Yes, they can," said Prof. Bretz. The US Supreme Court in Giles v California, written by Justice Scalia, "narrows the forfeiture by wrong-doing exception to the confrontation clause to only those situations where it is established that the defendant got rid of the witness. It doesn't have to be death--the witness can be so frightened that she refuses to testify. The prosecution has to prove that the defendant's purpose in harming or frightening the victim was designed to prevent the witness from testifying." "The Court does not tell us what the burden of proof is" in those cases. "What is the prosecutor's burden of proof? Federal courts have generally held to a preponderance of the evidence standard. I suspect that is the standard but the lower courts have used two different standards--preponderance and clear and convincing." The last issue is the testimony of the DNA analyst via 2-way video considered in People v Buie, a 2009 case. The court said that such testimony violates the right to confrontation "unless the trial court hears evidence and makes case-specific findings that the procedure is necessary to further a public policy or state interest important enough to outweigh the defendant's constitutional right of confrontation. The whole point of the confrontation clause is that you can't lie when the person you are lying about is looking you in the eyes," he concluded. Hon. David Jordan, 54B District Court will talk on the Veteran's Court at the next meeting of the ICBA Criminal Law Section on March 9th at the State Bar of Michigan in Lansing. To register, contact Kris Kemp at kkemp@inghambar.org. February 17 Luncheon Lecture will feature the Campaign for Justice. Published: Thu, Feb 18, 2010

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