Wednesday, August 31, 2005

Can Defense Counsel Ethically Breach a Plea Agreement?

Expanding Crawford v. Washington: The Need for An Absolute Confrontation Clause

Last term, the United States Supreme Court announced its decision in Crawford v. Washington,2 which overruled the "Roberts framework"3 as a means to determine the admissibility of an out of court statement in which the declarant was unavailable to testify at a criminal trial.4 The "Roberts framework" allowed the admission of out of court testimony if the statement bore "adequate 'indicia of reliability'", 5 which meant that the evidence must either fall within a "firmly rooted hearsay exception" or bear "particularized guarantees of trustworthiness."6

Lower courts struggled with the application of Roberts, 7 and the U.S. Supreme Court finally abandoned it in Crawford v. Washington. Justice Scalia's opinion looked to the historic context of the Sixth Amendment and created a test based on the nature of the statement.8 The new test requires a trial court to first determine whether a statement is "testimonial" or "non-testimonial". If the statement is found to be "testimonial" then the out of court statement is not admissible at trial unless the declarant is unavailable and the defendant had "a prior opportunity for cross-examination". If "non-testimonial", then the statement is admissible without requiring the declarant to be available for cross-examination at trial (or an earlier proceeding). This begs the question left unanswered by the Court, what does "testimonial" mean?

The Court provided some guidance by indicating that, while "leav[ing] for another day any effort to spell out a comprehensive definition of 'testimonial'", "at a minimum [testimonial statements include] prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations". 9 The use of the "testimonial" test was favored by amici (including NACDL, the ACLU, and a distinguished group of criminal law professors) and on its face appeared to be a step toward strengthening the Confrontation Clause, but it has unfortunately quickly created confusion among the lower courts 10 and at least one instance where the trial court seems to avoid the Crawford ruling. 11

The major reason for the inconsistency in the lower courts is the lack of a uniform definition of "testimonial," so courts can clearly and uniformly determine if statements are testimonial or nontestimonial. A comprehensive definition would remedy a great deal of the inconsistency in the application of the Supreme Court's test. For example, the 6th Circuit Court of Appeals has adopted Professor Robert Friedman's logical approach that a statement is "testimonial" if it was "made in circumstances in which a reasonable person would realize that it likely would be used in investigation and prosecution of a crime."12

The other concern arising from the Crawford opinion is that Justice Scalia has arguably invited inconsistent results in applying the Confrontation Clause in cases of nontestimonial hearsay. Given the undefined nature of the term "testimonial", that concern extends to the application of the Crawford test in any instance other than those circumstances specifically described in the Supreme Court opinion. In Crawford, Justice Scalia wrote that "[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." 13

Justice Scalia's language appears to invite State court's to create their own hearsay rules for nontestimonial statements. It opens the door for an interpretation that the Confrontation Clause would not provide an accused with any right to confront a hearsay statement deemed to be non-testimonial. 14 The undefined nature of "testimonial" places discretion with the trial courts to make a determination that can avoid the Confrontation Clause altogether for testimony that they characterize as "non-testimonial." This gives judges, like Judge Greenberg who found that a 911 call was "nontestimonial" apparently under any circumstance, 15 the ability to craft a desired result simply by determining a statement is "non testimonial."

In order to correct these results, at the minimum, a clear standard for testimonial statements should be laid out by the United States Supreme Court. The inconsistencies under both the Roberts framework and the Crawford test support the assertion that, in order for the rights of the Confrontation Clause to be secure, it should apply to all statements to be used in court against a defendant. The Confrontation Clause should be interpreted to provide the right of the accused to cross-examine all statements introduced by the prosecution without the use of a "testimonial"/"nontestimonial" inquiry.

The danger of Justice Scalia's invitation to state court judges's to define types of statements as non testimonial is more than the just lack of consistency in the law. The impact of the Supreme Court's lack of guidance has already been dramatically felt in People v. Moscat. Unfortunately, it is not difficult to imagine even more severe results.

For example, picture a scenario where the prosecution seeks to introduce a statement from "an ancient text" in trying an individual accused of possession of child pornography. The document is a 20 year old article from a poorly-circulated tabloid newspaper which includes a statement that your client "likes them young" and that the commentator "wouldn't leave [your client] alone with her children".

Your client informs you that the individual providing the statement was a former romantic interest, who made negative comments to the press in retaliation to their break-up. Your client has no idea where this individual currently resides. You employ an investigator but are unable to locate the individual. The prosecutor intends to use the statement, and the matter comes before the court. Despite diligent efforts, you inform the court that the person providing the quote to the newspaper can not be located for service.

The trial judge reviews the statement and analyzes it under the Crawford test. The judge finds correctly that the statement was not made in circumstances in which a reasonable person believed would lead to investigation of a crime, focusing on the lack of any investigation at that time, the low circulation of the document, and that the statement did not refer to any specific act. The court finds that the statement was "nontestimonial" in nature, and rules that it will be admissible at trial.

The result does not allow for your client to confront and cross-examine the statement, which can lead to damaging results at trial. It does not provide the defendant with the opportunity to inform the jury as to the rationale behind the statement or to explore or dispute the statement through cross-examination. The jury can not gauge the credibility and truthfulness of the declarant. There is a lack of assurance as to openness of procedure to show that the statement was not coerced earlier. Finally, the lack of open testimony can create doubt as to the accuracy of the declarant's position.

In sum, the statements by Justice Scalia provide an opportunity for courts to void the result of Crawford by characterizing a statement as nontestimonial and creates the opportunity for result-oriented judging disregarding the Sixth Amendment's Confrontation Clause protection, just like it created that opportunity under the Roberts framework. The reality is that the result that Justice Scalia indicated that he sought to avoid, though the Crawford decision, has already reared its head.16

While the majority opinion rightly points out that the Crawford framework can "hardly be any worse than the status quo [under the Roberts framework]", it left to the state courts, provided with no definition of "testimonial", to determine whether the new framework will be any better.

Civil libertarians should advocate for a standard in which the Confrontation Clause requires that statements sought to be introduced by the prosecution at a criminal trial are inadmissible unless the prosecution is able to provide the author of that statement at trial. The only exceptions to that rule would be in circumstances where the accused caused the unavailability of the witness,17 or waived objection to the statement. This would eliminate the ability to introduce statements in which the defendant had a prior opportunity to cross-examine that statement but the witness was not available at trial (since this would not allow the jury the opportunity to observe the demeanor of the witness and make credibility determinations) and also not allow the admission of dying declarations in a criminal trial (since the defendant can have no opportunity to cross-examine the declarant for possible animus in making the statement or other bias).

Instead of courts subjectively attempting to interpret the rationale behind an individual providing a statement, as required under Crawford, the Confrontation Clause should be given its proper meaning and require that the defendant have the opportunity to cross-examine any statement used by the prosecution, whose intent to prosecute is clear. Only under this absolute framework, can "the accused enjoy ... the right ... to be confronted with the witnesses against him" as provided for under the Confrontation Clause of the Sixth Amendment.


This article is based on a portion of the materials the author prepared as part of the "Wisconsin Criminal Litigation Update" seminar panel hosted by the Professional Education Systems Institute, LLC.
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Crawford, 124 S.Ct. at 1378 (Rehnquist, C.J., concurring). As discussed in this article, it is unclear whether the Roberts framework will be applied to nontestimonial statements consistently by lower courts. However, thus far two reviewing courts have concluded that the Roberts analysis is still valid for nontestimonial statements. State v. Rivera, 844 A.2d 191, 202 (Conn. 2004)("because this statement was nontestimonial in nature, application of the Roberts test remains appropriate"); State v. Blackstock, 598 S.E.2d 412 (N.C. App. 2004) (holding that a nontestimonial statement was still barred by Roberts).
Ohio v. Roberts, 448 U.S. 56 (1980).
Id., at 65.
Id., at 66.
Crawford, 124 S.Ct. at 1371.
The majority opinion was unanimous as to the result, and garnered a 7-2 vote as to overruling Roberts.
Crawford, 124 S.Ct. At 1374.
For example, 911 calls, statements to police officers responding to 911 calls and statements to private victim services organizations have been found to be "testimonial" and also "nontestimonial" by lower courts.
In People v. Moscat, 777 N.Y.S.2d 875, 2004 N.Y. Slip 24090 (N.Y. City Crim. Ct. 2004), a Bronx man was accused of threatening and punching his girlfriend, who refused to testify. Bronx Criminal Court Judge Ethan Greenberg issued an opinion on March 25, 2004, allowing in a 911 call believed to be of the girlfriend to be played to a jury without the defendant having an opportunity to cross-examine the statement in disregard of Crawford. His opinion appeared to be that 911calls are simply not testimonial under any circumstance. This judicial grandstanding ended up coming back to haunt Judge Greenberg and provide a lesson as to the rationale behind the Confrontation Clause. It turns out the caller was not the alleged victim and the call was made roughly nine hours after the incident. Prosecutors abandoned the case. See Sabrina Tavernise, Legal Precedent Doesn't Let Facts Stand in the Way, N.Y. Times, Nov. 26, 2004, p. A1. However, Moscat has been cited approvingly by other courts, and at least one court has extended the rationale to statements made to officers responding to 911 calls. People v. Aubrey, 2004 WL 2378400 (Cal.App. 4 Dist. Oct. 25, 2004).
U.S. v. Cromer, 2004 WL 271130 (November 30, 2004).
Crawford, 124 S.Ct. at 1374.
This interpretation was already suggested by at least one Wisconsin commentator. See Steven M. Biskupic, Hearsay and the Confrontation Clause, Wisconsin Lawyer, May 2004, at 19.
See note 12, supra.
Justice Scalia wrote that "judges, like other government officers, could not always be trusted to safeguard the rights of the people...". and that "[the Framers] were loath to leave too much discretion in judicial hands". Crawford, 124 S.Ct. at 1373.
This is referred to as the "forfeiture by wrongdoing" exception. United States v. Dhinsa, 243 F.3d 635, 651 (2nd. Cir. 2001). In order for the prosecution to admit testimony based on this exception they should be required to show "beyond a reasonable doubt" that the defendant caused the inability of the witness to testify. The prosecution should not be able to show that defendant's complicity through only the lower "preponderance of evidence standard" which has been applied by some courts. See White v. United States, 116 F.3d 903, 911-913 (App. D.C. 1997).

Tuesday, August 30, 2005

ACLU, Flint battle on in nightclub case ACLU says patrons' rights were violated - ABC 12

A decision in the Flint, MI, dance club raid is expected on September 8th...

ACLU, Flint battle on in nightclub case ACLU says patrons' rights were violated
By Josh DeVine

Flint - (08/30/05)--The back and forth continued Tuesday between the American Civil Liberties Union and the city of Flint.

The ACLU says the city's police force crossed the line during a drug bust back in March. Both sides argued it out Tuesday afternoon in front of a judge.

There's still no final decision in the case. It all has to do with a bust at Club What's Next in March.

Police arrested 117 people, charging most with frequenting a drug house. That's a misdemeanor.

But ACLU attorneys say police handcuffed and strip searched those people. They say that further violated their rights and they want their charges thrown out.

The courtroom was again packed before Chief Judge Ramona Roberts.

In arguments Tuesday, the city's attorney said undercover officers smelled marijuana and witnessed several drug deals inside the club that night.

But they argue everyone there knew some people at the club were doing drugs. The ACLU disagrees. Their attorneys say police did not have a right to arrest every person there.

Attorneys for the city say officers had the legal grounds to do what they thought it took to stop the deals. Several people do face felony charges in connection with the night's bust. They're not part of this case.

Roberts will issue her decision on those misdemeanor charges Sept. 8. Either side could appeal from there.

Monday, August 29, 2005

Group arrested at club cries foul - WWW.ABC12.COM

ACLU asks judge to throw out charges
By Joel Feick
Flint - (08/29/05)--When Flint police busted a so-called rave party back in March, more than 100 people were arrested. Now lawyers for those defendants are crying foul.

The American Civil Liberties Union is asking a Flint judge to throw out the charges against 93 men and women who were arrested in the spring at the "What's Next" dance club.

The suspects packed Judge Ramona Roberts courtroom Monday, many of them represented by counsel.

Flint police say there was open drug use at the club that night and that drugs like ecstasy, GHB and cocaine were confiscated from patrons.

Of the 118 arrests, 17 were felonies. Flint police will present evidence to show they feel the arrests were justified.

But an ACLU attorney says the cops went overboard, arresting people who weren't using or possessing drugs. One of those arrested says she was violated.

Roberts' decision on whether to throw out the case was not reached Monday. The case was adjourned until Tuesday at 2 p.m.

A Flint police lieutenant says promoters of similar rave parties beat tickets in other jurisdictions with the help of the ACLU.

ACLU Defends Club-Goers - NBC 25

Reported by Dan Armstrong, darmstrg@nbc25.Net

Humiliated and violated. That's how more than 100 Flint club-goers feel after being arrested for something they say they didn't do.

Dozens of young people were arrested at club What's Next in March. Police said the young people were guilty of "frequenting a drug house," and that drug deals were going down there.

But these young people said they weren't a part of it.

Jennifer Thompson of Taylor was one of the people arrested.

"It was a very traumatizing experience, especially since I'm not a drug user. I've never been," she said. "It's terrible. I got arrested for something I never think of doing."

Attorneys from the American Civil Liberties Union tried in court Monday to get charges against the club-goers dropped.

Attornies for the city of Flint are withholding comment until they present their case Tuesday at 2 p.m. Judge Ramona Roberts said she won't make a decision until all of the attorneys are heard.

ACLU Defends Flint Dance Club Patrons After Mass Arrests and Searches - ACLU OF MICHIGAN

I assisted the Michigan ACLU in the briefing of the motion to dismiss involving a raid of an electronic music concert in Flint, Michigan. We are awaiting the decision of the trial court judge.

Date: Monday, August 29 @ 09:23:17 EDT
Issue: Search and Seizure

August 29, 2005 - Press Release

DETROIT - The American Civil Liberties Union of Michigan will ask a Flint judge to dismiss charges against 93 young men and women who were arrested, strip searched and/or cavity searched by the police last March at a Flint dance club. Although all the ACLU clients were drug free, they were arrested because some other patrons in the bar possessed drugs.

"Our clients, like thousands of people across the country, went to a licensed and legal club on a Saturday night to listen to music, dance and socialize," said Michael J. Steinberg, ACLU of Michigan Legal Director. "The mass arrests and searches are both shocking and unconstitutional, not to mention offensive to anyone with a sense of privacy or their rights."

On March 20, undercover officers from the Genesee County Sheriff's Department and the Flint Police Department, entered Club What's Next, a Flint dance club, to investigate possible drug activity. While the undercover officers reportedly bought drugs from certain individuals in the bar, nobody represented by the ACLU possessed drugs or drug paraphernalia. Nonetheless, a team of police officers raided the club and charged all patrons who did not possess drugs with a misdemeanor for "frequenting a drug house."

"Had the officers in this case merely unconstitutionally arrested all persons present at the club, their conduct would have been sufficiently outrageous to require dismissal of these cases. Unfortunately, however, the dragnet arrests were merely the first humiliation these people were compelled to endure," said Ken Mogill, the ACLU cooperating attorney leading the 10 person legal team.

During the raid, the dance club patrons were handcuffed and divided into two groups - males and females. Most men were taken into a men's bathroom and searched, sometimes two at a time, and told to raise their shirts, drop their pants and underwear, and to bend over and cough. Some were told to put a finger into their anus. Those who were still handcuffed had their pants and underwear pulled down to around their knees by officers. One man was reportedly stripped on the side of the road after he had left the club.

Women were taken into a women's bathroom and searched, at times in the presence of others. Some were told to lift their shirts and bras in front of eight male officers. An officer commented to one woman about the size of her breasts and asked if they were "real." Several women have reported that they were subjected to cavity searches. One woman reported that the officer did not change the latex glove in between searching her vagina and anus.

"If a person is guilty of a crime for enjoying music at a legal venue where strangers are in possession of drugs, then the police could arrest every law-abiding person attending almost any concert in the United States," said Gregory Gibbs, ACLU-Flint Branch president and one of the attorneys in the case. "Such a policy would have a tremendous chilling effect on free expression."

In addition to requesting the court to dismiss the charges, the ACLU is asking for a hearing on the claims of the outrageous police conduct involved in these arrests, and to direct the arresting agencies to return to all records of each arrest, including arrest and description case, photographs and photographic negatives and any other records in this incident to each its clients.

This case is the latest of several incidents involving law enforcement misconduct that the ACLU is investigating. Most recently, a lawsuit was filed against the Saginaw County Jail for the egregious conditions where pre-trial detainees are forced to strip and are held naked in a segregated cell. Last year, the ACLU successfully resolved a class action filed on behalf of approximately 250 women who alleged privacy violations in the Livingston County Jail. The county agreed to implement policies to correct the longstanding privacy violations.

The hearing on the ACLU motion to dismiss the charges will be held at 2 p.m. on Monday will be held before 68th District Court Chief Judge Ramona M. Roberts, 630 South Saginaw Street in Flint.

In addition to Mogill and Gibbs, other ACLU volunteer lawyers on the case include: Elizabeth Jacobs, Jeanmarie Miller, Glenn Simmington, Dean Yeotis, Chris Pianto, Matthew Abel and Michael Segesta.