Wednesday, May 28, 2008

Hearsay, the Sixth Amendment, and the Presumption of Innocence

In my FindLaw column today, I talk about Giles v. California, a case that the U.S. Supreme Court is currently considering. The case asks whether a murder defendant suffers a Sixth Amendment violation when the deceased victim's earlier statements (accusing the defendant of a prior assault) are admitted into evidence, given the defendant's inability to cross-examine the victim about her statements. The column's focus is on explaining the relationship between hearsay (out-of-court statements offered into evidence as proof of what the statements assert) and the Sixth Amendment right of criminal defendants to be "confronted" with the witnesses against them (a right that ordinarily includes cross-examination). The column also discusses the rigid originalism that characterizes at least four of the Justices' thinking about this relationship, as evidenced during oral argument.

In this post, however, I want to discuss a different aspect of the Sixth Amendment issue. Briefly, the case revolves around the question of whether an old common law exception to hearsay for "forfeiture by wrongdoing" applies to a defendant who complains that he cannot cross-examine the out-of-court statement of a woman whose unavailability for such cross-examination is a direct product of the defendant's having murdered her. For reasons I explain in the column, if the defendant had killed the victim with the goal of keeping her from testifying against him, then the forfeiture-by-wrongdoing exception to the Confrontation Clause would apply, and the admission of her statements would be constitutionally unobjectionable. Because this defendant killed his victim for a different reason, however, the application of the forfeiture-by-wrongdoing exception is an open question.

The issue I want to highlight here is what is called "coincidence." Coincidence refers to the situation in which a judge must determine the same facts in deciding the admissibility of evidence as those the jury will have to determine in reaching a verdict of "guilty" or "not guilty." In Giles, for example, the California judge -- in applying the forfeiture-by-wrongdoing exception -- had to (and did) conclude that the defendant, on trial for killing Brenda Avie, in fact did kill Avie, before the judge could admit the evidence over the defendant's Sixth Amendment objection. The jury then had to determine, in its own deliberations over the proper verdict, whether the defendant killed Avie. Justice Ginsburg expressed concern over this coincidence during oral argument. It has the flavor of deciding that the defendant is guilty at a time when he is still supposed to be presumed innocent.

The coincidence problem is not, however, unique to the forfeiture-by-wrongdoing exception to the Sixth Amendment. Judges regularly must make factual findings in ruling on evidentiary issues, and some of those findings are bound to coincide with those that a jury must make on the merits of the criminal charge. Application of the co-conspirator exception to hearsay is another example, where the judge has to conclude, among other things, that the defendant conspired with a third party to commit a crime, before the judge may admit the third party's out-of-court statement against the defendant, and the jury must conclude the same thing to convict the defendant on conspiracy charges.

Though perhaps somewhat troubling, "coincidence" arguably does not undermine the presumption of innocence, because jurors do not know that the judge must conclude that the defendant killed the victim before jurors may hear about the victim's prior statements (unless the jurors happen to be evidence law experts). Jurors hear only the evidence itself, not the judge's basis for admitting it, and they can therefore reach their own, independent conclusions, free of the taint of a judge's perception of the facts. It may be that this tension -- between the respective roles of evidence arbiter and ultimate fact-finder in reviewing the evidence -- may represent one of the best arguments for allocating the two jobs to two different actors, an argument, in other words, against bench trials.

Posted by Sherry F. Colb


egarber said...

Suppose a juror does indeed understand that the judge has to make a judgment on guilt to admit certain evidence. And suppose the juror spreads that information to other jurors. Would that be grounds for a mistrial?

Hamilton said...

While the fact that jurors might not know why the judge is admitting evidence, doesn't the presumption of innocence apply to the judge as well (here I am revealing my ignorance of evidence law)? It seems to me that if the defendant is presumed innocent, there could never be any admission under the forfeiture-by-wrongdoing exception until a jury verdict was in (which would of course be too late). Isn't the whole thing just an unspoken amendment to the hearsay rules to prevent the normatively bad result of excluding victims testimony? If that is the case, the real question is if we are more troubled by the violation of criminals right to confront or the seeming injustice of excluding the testimony of victims.

Sherry F. Colb said...

Both excellent questions. In response to egarber, I know of no cases in which a jurors' knowledge of the rules of evidence created grounds for a mistrial. Oddly, mistrials tend only to occur based on an error by one of the parties or by the judge, not the jurors' understanding of why the trial goes as it does (for example, many jurors know from watching TV that the reason the defendant might not take the stand is the worry about being impeached based on a prior criminal record, even though the prior record is inadmissible if the defendant doesn't testify). Unless something corrupt happens, the particulars of juror deliberations do not provide a basis for appeal (and in fact are often not known at all, because they take place in secrecy without a transcript). On Hamilton's question, the presumption of innocence only applies to the jury (or judge in a bench trial) in determining the facts to reach a verdict -- the presumption means that the jury must plan to bring in a "not guilty" default verdict unless and until the government persuades it (beyond a reasonable doubt) that the defendant is guilty. The judge, on the other hand, may be called upon to determine facts that are a prerequisite to the admissibility (or inadmissibility) of evidence, and the judge may do that, even if it means concluding (before the jury has had an opportunity to do so) that the defendant in fact did kill the victim, though that finding is precisely the sort on which the jury must ultimately pass. This is what the "coincidence" issue is all about.

Howard Wasserman said...

There also is a difference in burden of proof. The judge in making the evidentiary ruling must find the elements of the hearsay exception (including that the defendant did cause the death) by a preponderance of the evidence, while the jury must find the same fact beyond a reasonable doubt. I think that is how, theoretically, coincidence has been justified, although I agree (and so do most students taking evidence) that there is something strange about this.

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