Another loss for the Confrontation Clause: the Supreme Court's decision in Michigan v. Bryant

April 28, 2011 by Paul Kish

In criminal trials throughout the United States, whether here in Atlanta or elsewhere, the Sixth Amendment's Confrontation Clause protects defendants from being convicted based on out-of-court statements by people who never show up to testify. The Confrontation Clause means what it says, our clients can "confront" the evidence against them and prosecutors should not be allowed to put up one person to say what some other person told him or her. However, the Supreme Court's relatively recent decision in Michigan v. Bryant is a step backward and lets prosecutors get convictions even when the accuser never gets on the witness stand.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court ruled that the Confrontation Clause is violated when a prosecutor uses hearsay which is "testimonial," the hearsay is admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial. The Court in Crawford used various formulations of the term "testimonial." Now, the most commonly adopted version defines a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), finding that "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."

The basics facts in the recent Bryant case are that police found Anthony Covington in a gas station parking lot. Covington claimed he had been shot by Richard Bryant outside Bryant's house. Covington's story was that he had then driven himself to the parking lot. Covington died as a result of his wounds, and the prosecution introduced his statements concerning his shooting at Bryant's murder trial.

The Supreme Court used the "primary purpose test" to decide whether Covington's statements were testimonial or nontestimonial. If the "primary purpose" was to investigate a crime, then the statements are "testimonial" and thus inadmissible, unless the declarant gets on the witness stand. On the other hand, if the "primary purpose" of the session was to respond to an emergency, then the statements are nontestimonial, and can later be used by a prosecutor even if the declarant is unavailable.

In applying this test that looks for the "primary purpose", the Court first decided that an objective, and not a subjective view, should be used by judges who are deciding whether a prior statement was testimonial or nontestimonial. According to the Court, it doesn't matter what the officer (or the dying Mr. Covington) thought they were doing. Instead, judges should take an "objective" view of what was going on. Here, the majority decided that the police were responding to an emergency, and not merely trying to investigate a crime. Justice Scalia in his dissent calls this view of the facts a "transparently false ...tale", because in fact the cops and the dying Mr. Convington all were concerned about the same thing: making a case against the guy who had just plugged Covington with bullet holes.

Next, the Court ruled that judges should look to both the Declarant (here, the dying Mr.Covington) and the Interrogator (the 5 cops who kept asking questions like, "Who" "Where" "When" and "How long ago?") when deciding the "primary purpose" of the session. The Supreme Court decided that judges should not look merely to what the person said, but should also see what the questioners did or did not do.

The bottom line here is that the Court's decision in Michigan v. Bryant made it a lot easier for prosecutors to get around the Confrontation Clause. While the decision somewhat reduces the protections offered by the Sixth Amendment, we hope that judges everywhere will zealously guard our rights and not allow wholesale use of out-of-court statements in criminal trials.

Childers: Eleventh Circuit Will Decide En Banc Whether Exclusion of Evidence on Cross-Examination Denied Defendant Sixth Amendment Rights

November 24, 2010 by Kish & Lietz

Last Wednesday, the Eleventh Circuit Court of Appeals, which hears appeals from Georgia, Alabama, and Florida federal cases, voted to rehear Childers v. Floyd en banc. The Court vacated a panel opinion holding that Childers’s Confrontation Clause rights had been violated when the trial court refused to allow certain credibility evidence regarding the prosecution’s star witness.

This June, an Eleventh Circuit panel majority granted Mr. Childers § 2254 habeas relief. In a previous case stemming from the same activities, in which another defendant was acquitted, the star witness gave confusing and inconsistent testimony. The trial court refused to allow the jury to hear evidence that the prosecution had unsuccessfully tried to revoke the witness’s plea deal due to those inconsistencies. The Eleventh Circuit held that this refusal was a violation of the defendant’s sixth amendment right to confront witnesses against him.

This case is an important reminder of the value of effective cross-examination and the necessity to continue litigating on behalf of clients. We will watch for the en banc decision in Childers. The vacated panel opinion is available here.

Villarreal: Eleventh Circuit Court of Appeals Denies Speedy Trial Claim Where Ten Years Elapsed Between Indictment and Arrest

August 17, 2010 by Kish & Lietz

The Eleventh Circuit Court of Appeals held last week that a ten-year delay between indictment and arrest did not deprive Victor Garcia Villarreal of his constitutional right to a speedy trial. The Court employed a four-factor balancing test, holding that although the length of the delay gave rise to a presumption of prejudice, the reason for the delay, failure to promptly assert the right, and lack of actual prejudice showed that Villarreal was not denied his right to a speedy trial. In weighing the final three factors, the Court gave substantial deference to the district court’s factual findings that Villarreal had evaded arrest and the delay had caused the government actual prejudice, rather than the defendant.

The full opinion in United States v. Villarreal is available here.

Cunningham: Eleventh Circuit Joins Other Courts of Appeals in Holding That Alleged Violations of Supervised Release Do Not Implicate Jury Trial and Evidentiary Standards as Applied by Apprendi and Blakely

July 8, 2010 by Kish & Lietz

In late May, the Eleventh Circuit Court of Appeals, which hears appeals from federal cases in Florida, Georgia, and Alabama, decided U.S. v. Cunningham. The Court held that the federal statute that provides for revocation of supervised release is constitutional under the Fifth and Sixth Amendments, despite its provision for reimprisonment of a criminal defendant based upon conduct that is not proven to a jury beyond a reasonable doubt.

The supervised release revocation statute is at 18 U.S.C. § 3583(e)(3). It permits a district court to “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release” upon a finding “by a preponderance of the evidence that the defendant violated a condition of supervised release.”

In 2000, in Apprendi v. New Jersey, the Supreme Court held that, other than prior convictions, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In 2004, the Supreme Court explained in Blakely v. Washington that the “statutory maximum” is the maximum sentence a judge may impose based upon the facts reflected in the jury verdict or admitted by the defendant.

The Eleventh Circuit distinguished the revocation of supervised release from Apprendi and Blakely. The Court reasoned that the defendant was already convicted of the underlying offenses and was granted only conditional liberty, depending upon his obeying the limits of his supervised release. In holding that a violation of supervised release need only be proven to a judge by a preponderance of the evidence, the Court joined six other circuits.

The Cunningham opinion is available here.