The question in the title of this post is prompted by a new student note by Amanda Harris, which is titled “Surpassing Sentencing: The Controversial Next Step in Confrontation Clause Jurisprudence” and is available here via the Florida Law Review. Here is the abstract: After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation. One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and federal courts continue to hold that no right of confrontation during sentencing exists, many other courts have chosen to apply a right of confrontation in both capital and non-capital sentencing. This Note takes two new approaches to the Confrontation Clause at sentencing debate. First, this Note addresses both the text of the Sixth Amendment and the history surrounding the Confrontation Clause to conclude that the right of confrontation should apply during sentencing, or at least during capital sentencing. Second, this Note rejects the rationale that Williams v. New York is the controlling precedent in the confrontation at sentencing debate. Under this approach, applying the Confrontation Clause at sentencing may be the next logical step in Confrontation Clause jurisprudence.

Quoting Prof. Berman TG.

AS THE NOTE POINTS OUT, THIS IS AN ISSUE UNDECIDED BY THE SUPREMES, but that there is a split among some courts.

Object. You will have to cite to McDonald and George. Unless that is done the client won’t get a (an admittedly difficult to get) shot at the Supremes.

Let’s start with my former evidence professor, Paul Gianelli (a former Army JA).

Confrontation, Experts, and Rule 703

Paul C. Giannelli Case Western Reserve University – School of Law
20 J.L. & Pol’y 443 (2012)
Case Legal Studies Research Paper No. 2012-24

Abstract:
The United States Supreme Court has decided several cases concerning expert testimony and the Confrontation Clause. This essay argues that confrontation issues are complicated by Federal Evidence Rules 703 and 705, which changed the common law rules. Altering the common law made sense in civil cases because civil rules of procedure provide extensive discovery, which ensures basic fairness. In contrast, discovery in criminal cases is quite limited, which undercuts an accused’s ability to meaningfully confront prosecution experts at trial.

And, the ever resourceful and confrontation-litigant Professor Richard D. Friedman, “Thoughts on Williams, Part I: Reasons to Think the Impact May be Limited,” blogPost, 19 June 2012.

For an interesting pre-decision discussion.

Williams v. Illinois and the Confrontation Clause: Does Testimony by a Surrogate Witness Violate the Confrontation Clause?

Ronald J. Coleman Georgetown University Law Center

Paul F. Rothstein Georgetown University Law Center
January 22, 2012

Georgetown Public Law Research Paper No. 12-007

Abstract:
This article comprises a four-part debate between Paul Rothstein, Professor of Law at Georgetown Law Center, and Ronald J. Coleman, who works in the litigation practice group at Cleary Gottlieb Steen & Hamilton LLP, on Williams v. Illinois, a Supreme Court case that involves the Confrontation Clause, which entitles a criminal defendant to confront an accusing witness in court. The issue at hand is whether said clause is infringed when a report not introduced into evidence at trial is used by an expert to testify about the results of testing that has been conducted by a non-testifying third party.
The debate, originally published on Public Square.net, includes the following parts:

• Part 1: Ronald J. Coleman: Dexter’s Dilemma: Rule 703 Does Not Violate the Confrontation Clause
• Part 2: Paul Rothstein: Surrogate Witnesses Just Won’t Cut It: A Response to Ronald Coleman
• Part 3: Ronald J. Coleman: More on Williams v. Illinois: A Response to Paul Rothstein
• Part 4: Paul Rothstein: Williams v. Illinois: Responses to Coleman’s Arguments

The U. S. Supreme Court has granted certiorari in Bullcoming v. New Mexico. Courtesy of CAAFLog here is the granted issue:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform the laboratory analysis described in the statements.

Sounds like Blazier doesn’t it. Question, will CAAF defer ruling in Blazier and several riders awaiting a decision in Bullcoming.

Here is the decision in State v. Bullcoming.

Courtesy of Prof. Friedman:

The petition for a writ of certiorari.

Respondents brief in opposition.

Reply brief of petitioner.

State v. Aragon, a companion case to Bullcoming.

Commenting on this case, Kent Schiedegger over at crimeandconsequences observes:

Should the analyst be relieved he doesn’t have to go testify or insulted he is called a “mere scrivener”?

Here is the SCOTUSBlog link.

The issue will potentially impact United States v. Blazier , 68 M.J. 544 (A. F. Ct. Crim. App. 2008) (yes, that’s the correct volume according to LEXIS), concerning whether surrogate expert testimony complies with Melendez-Diaz. C.A.A.F. partially decided some issues, but:

[W]e order briefing from the parties, and invite briefing from the government and defense appellate divisions from the other services, on the following: While the record establishes that the drug testing reports, as introduced into evidence by the prosecution, contained testimonial evidence (the cover memoranda of August 16), and the defense did not have the opportunity at trial to cross-examine the declarants of such testimonial evidence, (a) was the Confrontation Clause nevertheless satisfied by testimony from Dr. Papa? See, e.g., Pendergrass v. Indiana, 913 N.E.2d 703, 707-08 (Ind. 2009). But see, e.g., State v. Locklear, 681 S.E.2d 293, 304-05 (N.C. 2009); or (b) if Dr. Papa’s testimony did not itself satisfy the Confrontation Clause, was the introduction of testimonial evidence nevertheless harmless beyond a reasonable doubt under the circumstances of this case if he was qualified as, and testified as, an expert under M.R.E. 703 (noting that “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data [upon which the expert relied] need not be admissible in evidence in order for the opinion or inference to be admitted”)? Compare, e.g., United States v. Turner, 591 F.3d 928, 933-34 (7th Cir. 2010), and United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008), with United States v. Mejia (a.k.a. Little Chino), 545 F.3d 179, 197-98 (2d Cir. 2008). Appellant will file a brief on the above issues no later than thirty days after the date of this opinion. Appellee will file a brief no later than thirty days after the filing of Appellant’s brief. Appellant may file a reply no later than ten days after the filing of Appellee’s brief. If the government and defense appellate divisions of the other services file amicus curiae briefs on the above issues in support of a party, such briefs may be filed no later than ten days after that party has filed its brief. Pending receipt of the briefs, the case will remain on the docket for final decision.

United States v. Blazier, 68 M.J. 439, 443-44 (C.A.A.F. 2010).

The government filed its brief on the C.A.A.F. specified issues this week. NIMJ has filed an amicus brief (I have abstained on that as I was trial defense counsel), I believe NACDL may have filed an amicus, but I haven’t seen the filing.

Professor Colin Miller writes about the co-conspirator “exception” to Crawford.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause of the U.S. Constitution is violated when hearsay is “testimonial,” admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant’s trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. Thus, if a statement is not testimonial, there is no problem with its admission under the Confrontation Clause. Thus, in its recent opinion in United States v. Diaz, 2010 WL 1767248 (11th Cir. 2010), the Eleventh Circuit was able to find a statement admissible without regard for the Confrontation Clause because co-conspirator admissions are non testimonial, even if they are made to confidential informants.

On habeas review of state court convictions, the detective’s trial testimony about the statements of two non-testifying co-actors which implicated the defendant in the shooting and which were used to confront the defendant during his interview violated the Confrontation Clause and constituted plain error, in Ray v. Boatwright, _ F.3d _ (No. 08-2825).

In Melendez-Diaz v. Massachusetts, the Supreme Court recently found that certificates of state laboratory analysts are “testimonial” and thus covered by the Confrontation Clause. Thus, if the forensic analysts (or similar experts) who prepared such certificates (or similar documents) do not testify at a criminal defendant’s trial, the certificates are inadmissible. Does the prosecution, however, solve this problem by not admitting these certificates but having other experts offer their “own” conclusions based upon these certificates? That certainly seems to be the case based upon a recent opinion of the Court of Appeals of North Carolina and the recent opinion of the Eleventh Circuit in United States v, Winston, 2010 WL 1253809 (11th Cir. 2010).

This case presents the question whether the admission of drug testing reports” over defense objection violated Appellant’s rights under the Sixth Amendment’s Confrontation Clause. The antecedent question, whether certain admitted evidence was testimonial, we answer affirmatively, and contrary to the decision of the United States Air Force Court of Criminal Appeals (CCA), United States v. Blazier, 68 M.J. 544 (A.F. Ct. Crim. App. 2008). Having resolved the threshold question, and given the ubiquity of drug testing within the military, we conclude that additional briefing is warranted prior to final disposition of the case.

On habeas review of state court convictions, the detective’s trial testimony about the statements of two non-testifying co-actors which implicated the defendant in the shooting and which were used to confront the defendant during his interview violated the Confrontation Clause and constituted plain error, in Ray v. Boatwright, _ F.3d _ (No. 08-2825). Since Crawford v. Washington, 541 U.S. 36 (2004), testimonial statements are inadmissible under the Confrontation Clause unless the declarant testifies subject to cross examination. There are not many cases in which a Confrontation Clause challenge raised for the first time on appeal may result in plain error. The Seventh Circuit recently identified one case which did.

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009).

STATEMENT OF THE CASE This Court held in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), that the prosecution violates the Confrontation Clause when it introduces forensic laboratory reports into evidence without affording the accused an opportunity to “‘be confronted with’ the analysts at trial.” Id. at 2532 (quoting Crawford v. Washington, 541 U.S. 36, 54 (2004)). This case raises the question of whether the prosecution complies with that holding by introducing forensic reports through the in-court testimony of someone, such as a supervisor, who did not perform or observe the testing discussed in the reports. In this case, a bare majority of the Indiana Supreme Court upheld the practice, deepening a square conflict of authority on the issue. The Indiana Supreme Court granted discretionary review. While the case was pending, this Court issued its decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), clarifying that forensic laboratory reports are testimonial under Crawford. Three months later, a bare majority of the Indiana Supreme Court affirmed the court of appeals, adopting yet another rationale to justify admitting Powers’ forensic reports without calling her to the stand. Specifically, the Indiana Supreme Court upheld the admission of Powers’ testimonial statements on the ground that “it [is] up to the prosecutors to choose among the many ways of proving up scientific results, as long as the way chosen feature[s] live witnesses.” App. 12a (citing Melendez-Diaz, 129 S. Ct. at 2532 n.1). The court noted that State introduced two live witnesses: Lisa Black, Powers’ supervisor, and Dr. Conneally, the prosecution’s genetics expert. In the Indiana Supreme Court’s view, this “sufficed for Sixth Amendment purposes.” App. 12a-13a. The dissent accused the majority of basing its reasoning on “certain isolated passages from the Melendez-Diaz opinion” that, “taken in context,” dictated the opposite result. App. 15a-16a. In the dissent’s view, Melendez Diaz held that “a defendant has a constitutional right to confront at the very least the analyst that actually conducts the tests.” App. 19a. The opportunity to cross-examine a supervisor is “no substitute for a jury’s first-hand observations of the analyst that performs a given procedure.” App. 19a.

The petition notes a growing and deeper split over the meaning of Melendez-Diaz. And notes for example that:

In the wake of Melendez-Diaz, two state supreme courts and one federal court of appeals have held that the Confrontation Clause prohibits what might be called “surrogate” forensic testimony – that is, introducing one forensic analyst’s testimonial statement through the in-court testimony of another. In direct contrast, three state high courts have held, based on the two distinct theories the Indiana appellate courts adopted below, that introducing one forensic analyst’s testimonial statement through the in-court testimony of another does not violate the Confrontation Clause. The post-Melendez-Diaz conflict concerning surrogate forensic testimony deepens a pre-existing split over whether, as a more general matter, testimonial statements of a nontestifying witness can be introduced through the in-court testimony of an expert witness.

To illustrate the reason why it is necessary to have the actual personnel involved in testing testifying, the petition uses an issue from California. I think we can think of situations in military labs – Hastis, USACIL and its DNA testing.

Surrogate witnesses fail to address – and may actually aggravate – the problems posed by an analyst’s potential fraud, incompetence, or flawed methodology. A recent case from California vividly illustrates the point. In People v. Dungo, 98 Cal. Rptr. 3d 702 (Cal. Ct. App. 2009), rev. granted (Cal. Dec. 2, 2009) the prosecution introduced an autopsy report to prove that a certain amount of time had elapsed before the victim’s death, a hotly contested issue at trial. The medical examiner who had authored the report, however, had since been fired. He had also been forced to resign “under a cloud” from another job, and was blacklisted by law enforcement in two more counties for falsifying his credentials. Id. at 704. Finally, the examiner had been known to base his conclusions on police reports instead of forensic methods. See People v. Beeler, 891 P.2d 153, 168 (Cal. 1995); Scott Smith, S.J. Pathologist Under Fire Over Questionable Past, THE RECORD, Jan. 7, 2007, available at http://www. recordnet.com/apps/pbcs.dll/article?AID=/20070107/A_NEWS/701070311#STS=g329z7h5.134t. In light of this problematic track record, the prosecution put the medical examiner’s supervisor on the stand instead of the examiner. As the supervisor explained during the preliminary hearing, “[t]he only reason they won’t use [the examiner himself] is because the law requires the District Attorney to provide this background information to each defense attorney for each case, and [the prosecutors] feel it becomes too awkward to make them easily try their cases.” Dungo, 98 Cal. Rptr. 3d at 708 (alterations in original). The California Court of Appeal held that this surrogate testimony violated Crawford, observing that the “prosecution’s intent” had been to “prevent[] the defense from exploring the possibility that the [medical examiner] lacked proper training or had poor judgment or from testing [his] ‘honesty, proficiency, and methodology.’” Id. at 714 (quoting Melendez-Diaz, 129 S. Ct. at 2538).

So what next for court-martial cases?

PER CURIAM. We vacate the judgment of the Supreme Court of Vir-ginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massa-chusetts, 557 U. S. ___ (2009).

Supervisor expert testified about his role in the peer review process; passing reference to the testing chemist’s conclusion did not violate the Confrontation Clause; circuit also distinguishes Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S.Ct. 2527 (2009), in United States v. Turner,” _ F.3d _ (7th Cir. Jan. 12, 2010) (No. 08-3109) A recent Seventh Circuit case revisits the issue of expert testimony which refers to the analysis of another expert. Is the Confrontation Clause violated when a supervisor testifies about the peer review process, his role in confirming reviewing the test results, and the initial results of another chemist? On the fact of the case, the circuit concluded there was no constitutional violation.

Briscoe is to be decided relatively soon. The betting is that some of the justice’s may persuade others to change the M-D outcome. Justice Sotomayor seemed active during oral argument.

This 7th Circuit case seems to fit Harcrow and Magyari, and vice-versa.

While I’m not convinced the decision will have much meaning in military cases, there are others who believe it will. So it does behoove us to monitor the case.

Fifth Circuit addresses an open issue concerning admission of medical statements under the Confrontation Clause; circuit also notes that “there is no constitutional right to confront the victim of a crime” where the government elects not to call the victim at trial, in United States v. Santos, _ F.3d _ (5th Cir. Dec. 2, 2009) (No. 08-31225). On the issue of “whether out-of-court statements made during medical treatment are testimonial,” the circuit was guided by two recent Supreme Court decision. The first case involved dicta from the Court’s most recent Confrontation Clause decision in Melendez-Diaz v. Massachusetts, noting that “medical reports created for treatment purposes . . . would not be testimonial.” Melendez-Diaz v. Massachusetts, 129 S. Ct. at 2533 n.2. The second case concerned Davis v. Washington, which involved an emergency 911 telephone call. The Court concluded that statements to a 911 operator to “enable police assistance to meet an ongoing emergency” were not testimonial. Davis v. Washington, 547 U.S. 813, 828 (2006).

I have had this issue in a court-martial. The case was a spouse physical assault case. It happened overseas, the spouse refused to testify. The military judge found that the wife was not subject to or not properly subpoenaed for trial. But her “excited utterances” and statements at the emergency room were admitted as the sole evidence against the client over hearsay and Crawford objections, along with testimony of the MP who was called to the scene and saw physical injuries.

Professor Friedman notes that, “I have just served and filed the reply in Briscoe. You can read it by clicking here.”

All of the prior documents about this case can be found at SCOTUSWiki. This case is of importance to military justice practitioners. There are several cases pending within military appellate courts that might be affected by Briscoe, as well as some cases pending at court-martial. Some of my prior comments are here.