Criminal Appeal

Introduction Of Deceased Victim's Hearsay Statement Merits Reversal Of Manslaughter Conviction

California Evidence Code section 1370 creates an exception to the hearsay rule that permits the introduction of an unavailable witness' statement to a medical professional "made at or near the time of the infliction or threat of physical injury."

In this case, appellant was charged with second degree murder and spousal abuse. The prosecution's theory was that the victim died approximately nine months after the defendant twisted her neck. The victim had started seeing doctors within a week after her purported injury but specifically denied that she had suffered any trauma to her neck until almost two months after the incident in question. It was not until almost two months later that she told a doctor that the defendant had twisted her neck nearly two months earlier.

Pre-trial, the defense moved to exclude evidence of her statement to the doctor regarding the alleged neck-twisting as hearsay and violative of her Sixth Amendment confrontation rights under Crawford. The trial court admitted the statement under Evidence Code section 1370. The defendant was later convicted of voluntary manslaughter and spousal abuse.

A divided panel of Division One of the Fourth District Court of Appeal reversed the convictions. The two-justice majority concluded that "absent special circumstances, a statement about a physical injury made almost two months after its infliction does not satisfy the statutory time limit" found in Evidence Code section 1370 that the statement be made "at or near" the time of the event. The majority deemed the erroneous admission of this hearsay statement to be prejudicial because the victim may have had an incentive to fabricate the statement at issue. Because the majority decided the issue on hearsay grounds, it declined to address the constitutional Confrontation Clause issues.

In a concurring opinion, Justice Judith L. Haller disagreed with the majority's conclusion that the requirements of Evidence Code section 1370 were not met but agreed that reversal was required, finding the admission of the victim's statement to be in violation of the defendant's confrontation rights under Crawford.

Justice Haller eschewed the more rigid "at or near" test adopted by the majority and suggested that "the Legislature intended to provide a trial court discretion to admit a statement if it was made when the incident was fresh in the victim's mind and not so long after the incident to put into question the statement's trustworthiness and reliability." In her view, this test was satisfied on the facts of this case.

Nevertheless, noting that the Attorney General conceded the statement in question was "testimonial," Jutsice Haller, without any analysis, opined that admission of the statement violated the defendant's confrontation rights, thus meriting reversal.

The majority opinion was authored by Justice James A. McIntyre.

People v. Quitiquit, no. D050385 (Cal.Ct.App. (4th Dist., Div. 1) filed 9/12/07)

The People's petition for review and request for depublication in the California Supreme Court are pending as of today.

Victim Statements In Response To Police Questions Spontaneous And Not Testimonial

The trial court here admitted the victim's statement to the police as spontaneous statements. Division Four of California's Second District Court of Appeal rejected the defendant's argument that the victim's statements were not spontaneous because they were the product of detailed police questioning. While one of the officers spoke to the victim for about five minutes and asked more questions than the other officers, the Court of Appeal found that the evidence supported the trial court’s finding that the victim’s answers were nonetheless spontaneous. According to the Court, the statement remained spontaneous because the victim was having difficulty providing more than one word answers, thus necessitating more extensive questioning. In addition, the Court noted that while the victim was being questioned, "there is little doubt that the pain she experienced and the concerns she had for her wellbeing precluded any motive to give a false account of what had occurred."

The Court then evaluated the admissibility of the statements under the Sixth Amendment's Confrontation Clause and concluded that the victim’s statements were neither testimonial nor the product of a formal police interrogation. First, the officers encountered the victim during an ongoing emergency. Second, the officers’ conversations with the victim were brief and initiated to enable police assistance to meet an ongoing emergency. Third, in the Court of Appeal's view, the statements were not taken under the calm circumstances of a formal interrogation.

The unanimous opinion was authored by Justice Steven C. Suzukawa.

People v. Pedroza, no. B189682 (Cal.Ct.App. (2nd Dist., Div. 4) filed 2/13/07)

Two New (To Me, At Least) Crawford Resources.

• Crawford v. Washington: Reframing The Right To Confrontation: This is an outline prepared by Crawford's SCOTUS attorney, Jeffrey Fisher. The focus of the outline, as it currently is in the lower courts, is on the question of "what is testimonial?" But he also has sections on "unavailability" and "opportunity for cross-examination."

• The Confrontation Blog: This is the new blawg by University of Michigan Law Professor Richard D. Friedman. From Prof. Friedman's first post:  "Welcome to The Confrontation Blog. There have been so many developments related to Crawford v. Washington, 541 U.S. 36 (2004), and I am so intensely interested in the subject matter, that I have decided to start this blog in hopes of facilitating understanding and communication on the topic. I will make postings as often as I am able and as devlopments warrant. I will not attempt to go back through all of the important developments in the nine months since the Crawford decision, but as time allows I will add postings on some of them."

 

Posted by Jonathan Soglin at 06:14 AM in Confrontation Clause, Hearsay | Permalink | Comments (1) | TrackBack

September 21, 2004

Blakely & Crawford. There has been a flurry of Blakey and Crawford opinions in California this past week. See my case summaries here and here and here.

That would be six published decision since last Monday for which we can blame or thank Jeffrey Fisher.

Posted by Jonathan Soglin at 12:50 AM in Blakely/Apprendi, Confrontation Clause, Hearsay | Permalink | Comments (2) | TrackBack

July 24, 2004

Crawford Reversal for Admission of Statements to Law Enforcement By Victim of Assault (Cal.Evid.Code sec. 1370.) People v. Adams, no. C040891 (Cal.Ct.App. (3d Dist.) July 22, 2004).

Court of Appeal agreed with trial court's finding that the victim was unavailable to testify at trial, but held that her out-of-court statements to law enforcement were inadmissible because she had never been subject to cross-examination. As she was the only witness to contradict the defendant's version of the events (the defendant testified), the error was prejudicial.

Panel: Morrison (author), Blease, Raye

Posted by Jonathan Soglin at 06:22 AM in Confrontation Clause, Hearsay | Permalink | Comments (0) | TrackBack

July 17, 2004

Crawford Applied.

People v. Pirwani, no. H025395 (Cal.Ct.App. 6th Dist., June 21, 2004). Cal. Evid. Code section 1380, which creates a hearsay exception for statements made by elderly or dependent adults to law enforcement officials, is unconstitutional in the wake of Crawford v. Washington. The court of appeal also found that the trial court had erred in admitting a statement under the spontaneous declaration exception to the hearsay rule.

People v. Cage, no. E034242 (Cal.Ct.App. (4/2), July 15, 2004) (partial publ.): one of three statements of non-testifying unavailable witnesses was testimonial. Statement 1: statement made by victim to police officer at hospital prior to treatment was not testimonial because of the lack of formality of the questioning and because the officer "was still trying to determine whether a crime had been committed and, if so, by whom." Following Justice Scalia's approach in Crawford, the Court focused on whether the statement was made in a context which was the modern equivalent of a pretrial examination before a justice of the peace.

Statement 2: statement made to treating physician was not testimonial. Statement 3: statement "made during a classic station-house interview," which "featured structured police questioning and tape recording," was testimonial, but its admission was harmless error.


Posted by Jonathan Soglin at 11:36 AM in Confrontation Clause, Hearsay | Permalink | Comments (0) | TrackBack

May 27, 2004

Crawford Reversal for Admission of Statements Under Cal.Evid.Code section 1360; Videotaped Interview of Child at Forensic Facilty in Presence of Prosecutor and Prosecutor's Investigator Was Testimonial. People v. Sisavath, no. F041885 (Cal.Ct.App. (5th Dist.) May 27, 2004).

This term, the U.S. Supremes decided Crawford v. Washington (2004) ___ U.S. ___ [124 S.Ct. 1354], holding that admission of out-of-court testimonial statements without the opportunity for cross-examination is unconstitutional.

In this case, the Court of Appeal applied that rule to hold that the tirial court erred in admitting a child victim’s hearsay statements in a sexual abuse prosecution under Cal. Evidence Code section 1360. The victim made statements to a police officer. Also admitted at trial was "a videotaped interview with a trained interviewer at Fresno County’s Multidisciplinary Interview Center (MDIC). The MDIC is a facility specially designed and staffed for interviewing children suspected of being victims of abuse." The minor did not testify at trial.

The COA found both statements testimonial. There was no controversy as to the statement to the police officer. As to the MDIC interview, the court explained:

The pertinent question is whether an objective observer would reasonably expect the statement to be available for use in a prosecution. Victim 2’s interview took place after a prosecution was initiated, was attended by the prosecutor and the prosecutor’s investigator, and was conducted by a person trained in forensic interviewing. Under these circumstances, it does not matter what the government’s actual intent was in setting up the interview, where the interview took place, or who employed the interviewer. It was eminently reasonable to expect that the interview would be available for use at trial. Nor does it matter that the interview was not part of one of the proceedings the Supreme Court mentioned by name. The court made it clear that it was not giving an exhaustive list.




Posted by Jonathan Soglin at 09:58 PM in Hearsay | Permalink | Comments (0) | TrackBack

May 20, 2004

Review Grant: Unvailable Witnesses. The California Supreme Court has granted review of the Court of Appeal (2d Dist., Div. 7) opinion in People v. Seijas, COA no. B160209, S.Ct. no. S123790 (modified).

The Court of Appeal had vacated a second degree murder conviction on the ground that the trial court had erroneously found a witness unavailable and admitted his preliminary hearing testimony. The witness had asserted his 5th Amendment right against self-incrimination because of "his potential criminal liability for 'lying to the police' and the District Attorney’s refusal to grant him transactional or use immunity from this potential liability or from prosecution for the murder itself." The court of appeal found that the witness was not unavailable because "California does not recognize 'lying to the police' as a crime" and because the prosecutor had assured the witness he would not be prosecuted for lying or for the murder.

The Supreme Court's docket does not yet describe the precise question to be reviewed.

You can read my original post on Seija here.


Posted by Jonathan Soglin at 06:24 AM in Confrontation Clause, Hearsay, Review/Cert Grants, Self-Incrimination | Permalink | Comments (0) | TrackBack

May 03, 2004

Crawford Distinguished. People v. Cervantes, no. B150919 (Cal.Ct.App. (2d Dist., Div. 3) Apr. 29, 2004).

Reviewing and applying Crawford v. Washington, no. 02-9410---the Supreme Court's breakthrough confrontation clause case from earlier this term---the California Court of Appeal rejected the confrontation clause arguments of two co-defendants challenging the admission of statements made by the third co-defendant to his neighbor.

Because the court of appeal found the statement non-testimonial, the case was distinguishable from Crawford and the lack of an opportunity to cross-examine the declarant did not render the statement inadmissible.

Because the statement was non-testimonial its admission depended upon "whether the statement falls within a well-settled hearsay exception or bears sufficient indicia of trustworthiness," a determination the court reviews de novo. The court found the statement sufficiently trustworthy and further explained that because it was a statement against the declarant's interest it did not have to be redacted under Bruton.

Posted by Jonathan Soglin at 10:25 PM in Confrontation Clause, Hearsay | Permalink | Comments (0) | TrackBack

February 25, 2004

Cal.Ct.App. (2d Dist., Div. 7): Murder Conviction Reversed for Error in Finding Witness Unavailable. In People v. Seijas, no. B160209, the California Court of Appeal (2d Dist., Div. 7) yesterday (Feb. 24) vacated a second degree murder conviction on the ground that the trial court had erroneously found a witness unvailable and admitted his preliminary hearing testimony. The witness initially told the police he saw nothing, but then admitted seeing the defendant shoot the victm. At trial, he refused to testify, asserting his 5th Amendment right against self-incrimination. "The grounds for invoking the privilege were his potential criminal liability for 'lying to the police' and the District Attorney’s refusal to grant him transactional or use immunity from this potential liability or from prosecution for the murder itself." The court of appeal found that the witness was not unavailble because "California does not recognize 'lying to the police' as a crime" and because the prosecutor had assured the witness he would not be prosecuted for lying or for the murder. The court found this error to have violated the Sixth Amendment right to confront witnesses and, applying the Chapman harmless-beyond-a-reasonable-doubt prejudice standard, reversed. The prejudice discussion has an interesting and subtle discussion as to why the cross-examination at the preliminary hearing did not do the job:

Only fictional attorneys defeat a prosecution at the preliminary hearing stage. Real defense attorneys know cross-examination which might lead to an acquittal at trial where the standard is guilt beyond a reasonable doubt will rarely lead to the dismissal of an information at the preliminary hearing where the standard is merely probable cause to believe the defendant committed the crime. As the late Justice Mosk observed, crossexamination at the preliminary hearing stage is more often used to discover what the witness knows about the crime and to attempt to tie the witness down to a particular version of the facts.[Fn. omitted.] Furthermore, as Justice Mosk also observed, even if given the opportunity the defense is generally unwilling “to fire all its guns at this early stage of the proceedings.” [Fn. omitted.] Additionally, in many cases defense counsel preparing for a preliminary hearing has not even had time to conduct the sort of investigation necessary to pursue an in-depth cross examination of the prosecution’s principal witnesses. Hence the crossexamination is more a discovery tool than a canon.

Justice Earl Johnson wrote the unanimous opinion.

Posted by Jonathan Soglin at 05:18 AM in Confrontation Clause, Hearsay | Permalink | Comments (0) | TrackBack