Wednesday Writs: Say It to My Face Edition

James Earle Fraser’s statue The Contemplation of Justice, which sits on the west side of the United States Supreme Court building, on the north side of the main entrance stairs. The sculpture was installed in 1935 is in the public domain

L1: The confrontation clause — the right to face one’s accuser — is among the most well-known of our constitutionally guaranteed rights. It is the reason why hearsay is generally not permitted as evidence (well, except for a laundry list of circumstances in which it is, but that’s for another day.) However, there was a time not so long ago when the hearsay rules were becoming unmoored.

In 1975 in Ohio, Herschel Roberts was arrested on felony forgery and theft charges for allegedly using a check and credit cards belonging to the parents of his girlfriend, Anita. At his preliminary hearing (a hearing typically held within a few weeks of a felony arrest in which the prosecution must show probable cause for the arrest), Anita was called to the stand by the defense. She testified under oath that she had allowed Roberts to stay at her apartment while she was away. However, she refused to admit, under direct questioning, that she had told Roberts it was ok to use the check and cards. The prosecution asked no questions of Anita at the hearing. Probable cause was found and Roberts was eventually tried on the charges.

The prosecution intended to call Anita as a trial witness; however, five attempts to serve her a subpoena at her parents’ home were unsuccessful. Her parents told the process servers Anita had left home. At trial, Roberts took the stand and testified that Anita had given him the check and credit cards to use, without telling him she did not have permission to do so. On rebuttal, the prosecution introduced the transcript of Anita’s preliminary hearing testimony as evidence to contradict Roberts’ claim. The defense objected on the grounds that since a transcript cannot be cross-examined, its introduction into evidence violated Roberts’ right to confront his accusers.

After a short hearing out of the presence of the jury, Anita’s mother testified that Anita left town shortly after the preliminary hearing, and her last known whereabouts were in San Francisco, a year prior to trial. The trial judge ruled that the transcript was admissible, based upon an Ohio Rule of Criminal Procedure that allows the use of a witness’s preliminary hearing testimony at trial if that witness “cannot, for any reason, be produced at trial.” The reasoning behind the rule is that preliminary hearing testimony is presented under oath, and the defendant has an opportunity to cross examine at that point.

Roberts was convicted. The Ohio intermediate appeals court reversed the trial court, finding that the state had in fact made no showing at all that Anita was unavailable, nor did they show any good faith effort to locate her. At the state’s Supreme Court, the intermediate court was affirmed, but on different grounds. The state high court disagreed with the lower appeals court’s finding that Anita was not unavailable; It found that her whereabouts were entirely unknown, and that the trial judge could have found that diligent efforts by the state would have failed to locate her. However, the Ohio Supreme Court nevertheless found that the transcript should not have been admitted, because the court did not feel that the limited scope of a preliminary hearing adequately satisfied the requirements of the confrontation clause. Furthermore, the court ruled, Anita had not been cross examined at the prelim at all.

A moment here to interject a ‘splainer about direct and cross-examination: “Direct examination” refers to the questioning of a witness by the party who calls the witness, while “cross examination” refers to the questioning by the other party. They are subject to different rules and restrictions; in general, lawyers may not ask “leading” questions during direct, but they can on cross. A leading question is one which suggests the answer, such as “and then you saw the defendant leave the bank, right?”  However, there is an exception to the rule: when a party calls a witness to testify and the witness is generally unfavorable to the cause of the party calling him or her, the lawyer may ask the judge for permission to question the witness as though it were a cross- examination. This is what is happening in movies and TV shows when a lawyer asks for “permission to treat the witness as hostile” (not to be confused with “permission to treat the witness hostilely.”)

At the preliminary hearing in this case, Roberts’ attorney called Anita to the stand to try to establish certain facts, particularly about allowing Roberts to stay at her home and giving him permission to use her parents’ checks and credit cards. However, even though Anita did not give the answers the lawyer expected, he did not ask the preliminary hearing judge to permit him to treat Anita as hostile. The prosecution had no questions for her, a sure sign that the defense had failed to elicit from her anything helpful to his case. Therefore, the Ohio Supreme Court ruled that the transcript should not have been admitted in lieu of Anita appearing at trial because she had not been cross-examined. Notably, the state’s justices were not unanimous; three of them dissented, pointing out that failure to exercise one’s right to cross is not the same as having been denied that right.

The State of Ohio appealed to the US Supreme Court in our Case of the Week, Ohio v. Roberts.  Justice Blackmun wrote for the majority, joined by Chief Justice Burger and Justices White, Powell, Stewart, and Rehnquist.

The Court did not agree with the state court’s assessment that Anita had not been cross-examined. Although the defense did not ask for permission to treat the witness as hostile, the transcript nonetheless appeared rife with leading questions, which were permitted without objection.

Anita’s unwillingness to shift the blame away from respondent became discernible early in her testimony. Yet counsel continued to explore the underlying events in detail. He attempted, for example, to establish that Anita and respondent were sharing an apartment, an assertion that was critical to respondent’s defense at trial and that might have suggested ulterior personal reasons for unfairly casting blame on respondent. At another point, he directly challenged Anita’s veracity by seeking to have her admit that she had given the credit cards to respondent to obtain a television. When Anita denied this, defense counsel elicited the fact that the only television she owned was a “Twenty Dollar . . . old model.”

The Court articulated the requirement that prior testimony show an “indicia of reliability.” If a prior statement falls into an established hearsay exception, that test is met; otherwise, it requires “a showing of particularized guarantees of trustworthiness.” Roberts argued that because Anita had motivation to lie at the hearing – to avoid her own criminal liability or reproach from her parents – the state had failed to show that her testimony was trustworthy. The Court rejected the argument, finding that the “accouterments of the preliminary hearing itself”–sworn testimony subject to cross-examination or, in this case, its equivalent– was basis enough on which to base reliability, without subjective analysis of the individual witness.

Turning to Roberts’ next argument, that the state failed to establish that Anita was truly unavailable, the Court was still unpersuaded to see it Roberts’ way. The state had given a good faith effort, in the Court’s opinion; Anita’s family could not at that point find her even in case of an emergency, and it was unlikely the prosecution could have better luck:

Given these facts, the prosecution did not breach its duty of good faith effort. To be sure, the prosecutor might have tried to locate by telephone the San Francisco social worker with whom Mrs. Isaacs had spoken many months before, and might have undertaken other steps in an effort to find Anita. One, in hindsight, may always think of other things. Nevertheless, the great improbability that such efforts would have resulted in locating the witness, and would have led to her production at trial, neutralizes any intimation that a concept of reasonableness required their execution…  the service and ineffectiveness of the five subpoenas and the conversation with Anita’s mother were far more than mere reluctance to face the possibility of a refusal. It was investigation at the last-known real address, and it was conversation with a parent who was concerned about her daughter’s whereabouts.

The Court therefore reversed the Ohio Supreme Court and affirmed the verdict of the trial court.

Justice Brennan dissented, joined by Justices Marshall and Douglas. Brennan did not agree with the majority’s accepted premise of Anita’s unavailability. In his view, five subpoena attempts at the same address where the witness had been proven to no longer live was not a good faith effort. For instance, Anita’s mother had known several months prior that Anita had been in San Francisco, having spoken to a social worker who called about Anita. The prosecution undertook no investigation to inquire further than the attempted service of subpoenas. Brennan speculated that, had the prosecution not had Anita’s favorable prior testimony to rely on, they would have undertaken a greater effort to find her.

The takeaway holding of the Roberts opinion was that out-of-court statements can be admissible if they bear an adequate “indicia of reliability,” even if the witness is unavailable to testify in court. Reliability could be assumed in cases where the evidences falls “within a firmly rooted hearsay exception,” and in other cases in which “particularized guarantees of trustworthiness” can be shown. This was a great development for prosecutors, and the admission of out-of-court statements in lieu of live testimony became a staple of so-called “victimless prosecution”, especially in domestic violence cases involving reticent and uncooperative witnesses. The statements were usually those given to law enforcement in the aftermath of arrest.

In 2004, just as I was beginning my law career in my first job as an assistant prosecutor, things changed. Crawford v. Washington overturned Roberts. Crawford solidified what Roberts fell short of articulating: Out of court testimony of an unavailable witness is not admissible without a chance for prior cross-examination. Though the Court failed to clearly define “testimony”, the statement at issue in Crawford was not given in a courtroom hearing but in a statement to police. The Court considered it “testimony” for the purposes of determining admissibility, and since there is no cross-examination of a statement to police, it was inadmissible.  The decision caused outcry from advocates of domestic violence victims, who could no longer be shielded from facing their alleged abusers in court.

It is a tug of war between a bedrock constitutional principle and the need to protect vulnerable witnesses, but generally the Constitution wins the day. Prosecutors and law enforcement are “forced” to come up with other ways to proceed in a victimless or “evidence based” prosecution. This can mean things like 911 calls (sometimes admissible as excited utterances), photographs of the victim or of signs of struggle on the scene.  And if that means officers must do more investigation than simply taking a statement from a distraught and traumatized victim, that’s not a bad thing.

L2: Abuses of the Americans with Disabilities Act are not unusual, as has been seen with the use of various exotic “emotional support” animals. Now the ADA is being used by those who do not want to wear a face mask, who claim they are exempt by the ADA and that no, they do not have to tell you why.

L3: The NCAA is an anti-trust law violating cartel, per the Ninth Circuit Court of Appeals.

L4: Trump’s other daughter graduates from law school at Georgetown University. Did you know he had another daughter? Let me just see what Trump had to say about- oh. Well… Congratulations Tiffany! UPDATE: Someone finally told him.

L5: When his client left a bad review online of his legal services, this lawyer decided to tell the world about his client’s criminal record. The state of New Jersey decided to suspend his law license. Though criminal history is a public record, it is not considered so “widely known” as to mitigate the lawyer’s unethical use of the information to disadvantage his client. Oh, by the way? The service complained of by the client was her lawyer’s success in obtaining for her full custody of her children, after she had left the state with them without permission. No good deed, something something.

L6: This is a five year old story, but it’s making the rounds again. By popular demand: the woman who sued all gays, in her capacity as an ambassador of God and his son, Jesus Christ.

L7: How’d that work out for her? About as well as you would expect.