Thursday, May 28, 2015

The Fab Six(th Amendment)

State v. Alers2015 VT 74

By Elizabeth Kruska

You know the footage of when the Beatles appeared on the Ed Sullivan Show? You know, the one with the teenage girls squealing and jumping up and down? Well, that’s how I get when I read a new appellate opinion about the Confrontation Clause. OK, maybe not exactly like that, but I get pretty excited. I teach a criminal procedure course at Vermont Law School as an adjunct professor, and I often tell my students the Sixth Amendment is really secretly the best Amendment. Sort of like how George was secretly the best Beatle.

Generally speaking, evidence admitted in a trial is governed by the Rules of Evidence. There is a set of rules about hearsay. I think of it like this: hearsay is not admissible except for when it is. That’s why Evidence is a full semester class in law school and people walk away just about as confused as when they started. In any case, one of the exceptions to the hearsay rule is the “excited utterance” exception. If someone is experiencing the excitement of a situation and says something, chances are good that the statement is reliable because he or she is still experiencing the excitement of the situation. When the teenage girls were jumping up and down screaming and crying for the Beatles, none of them were calmly saying, “I don’t fancy Paul,” partly because they were all under the excitement of seeing the Beatles, and also because Paul was the cute one. I think it’s fair to say the girls who were screaming, “I love you Paul!” pretty much really meant that.

If, however, upon reflection, one of the lucky Ed Sullivan show attendees said a week or so later, “I think I like John more than I like Paul,” it ceases to be an excited utterance. She’s retelling something, but she isn’t under the immediate excitement of the event. It is sometimes tricky to make the argument about what is or isn’t an excited utterance, especially if the statement happens some time after the event occurs. The important inquiry is whether or not the person was still experiencing the stress of the event.


This all goes out the proverbial window if the alleged excited utterance somehow runs afoul of the Constitution. Under the Confrontation Clause of the Sixth Amendment, a criminal defendant has the right to be confronted by his accuser. That means if a charge is brought and tried, the government had better pony up their witnesses to come in and testify live. What the government cannot do is prove its case through statements made by witnesses who don’t come to testify. It doesn’t matter if the statement could be explained through a hearsay exception, if it’s a testimonial statement, it runs afoul of the Constitution. The Rules of Evidence can never trump the Constitution. Never ever ever.

And that’s exactly what happened here. In Mr. Alers’s case, two men were in a gas station parking lot and saw a man drag a woman by the neck backward toward another vehicle in the parking lot. The woman was screaming and shouting, and started running toward the two men. The two men then saw Mr. Alers try to drive his vehicle in the direction of the woman, as if he was going to run her over. The woman was very shaken and upset by this.

The police were called and arrived, and collected information from the two men and the woman. Mr. Alers was charged with criminal offenses based on the alleged behavior. He had a trial, and neither he nor the woman testified at the trial. The police officer did testify, and said what the woman told him.

Mr. Alers objected on hearsay grounds and also on Confrontation Clause grounds. The trial judge admitted the statements, reasoning that since the woman was upset and shaken, that it was an excited utterance, and since it was an excited utterance, that it was not a testimonial statement. Mr. Alers was convicted and appealed to SCOV, who reversed and remanded, because you don’t mess around with constitutional violations (or with Jim, but this post seems to be about the Beatles, and not about Jim Croce but it fits and I like all the rock and roll, so it goes here).

Well, so, ok, what’s a testimonial statement? Thanks to Crawford v. Washington, 541 U.S. 36 (2004), we lawyer types get to argue about this for the next fifty years or so (and I am excited). What has emerged over the last eleven years since Crawford was decided is a start of a framework about what is or isn’t testimonial.

A pair of companion cases (found at Davis v. Washington, 547 U.S. 813 (2006)) decided about a year after Crawford dealt with this issue square-on. There, the Big Court decided that a statement is testimonial if it is made to further a prosecution. But it’s probably not testimonial if the statement is made with the aim of dealing with an immediate ongoing emergency. So, a police officer responding to a scene and collecting written statements an hour after an incident is over is probably testimonial. A person making a 911 call asking for help to deal with something happening right then is probably not testimonial. The reason is because the purpose for the 911 call is not to commence a criminal case, it’s to get help for an ongoing emergency. Shouting “Help! I need somebody,” into the telephone is different than writing an affidavit.

SCOV examined a similar situation in State v. Shea 2008 VT 114. There, SCOV examined whether at the time the statements in question were made, if it was because of an immediate physical danger, and also whether the primary purpose for the statements were to resolve an emergency or to investigate a crime. Once it’s determined that the initial emergency is resolved, subsequent statements become testimonial.

Here, SCOV finds that the trial court erred in admitting the statements the woman made to the police officer. There was no analysis done about whether the statements were testimonial in nature because the judge believed they were properly admissible as excited utterances. SCOV examined the transcript and the record of the case, and found that it wasn’t clear based on the officer’s testimony whether her statements to him were more like resolving an emergency or more like reporting a crime after the fact. It’s the State’s burden to prove that the statements are admissible, and that proof didn’t exist here. SCOV found a case from West Virginia that had some similar facts and where the statements were determined to be testimonial.

SCOV goes on to say that this error was not a harmless error. If there is a Confrontation Clause violation, the State has to show that not only was it harmless, but it was harmless beyond a reasonable doubt. This is like pole vaulting over the Empire State Building.

Mr. Alers also argued on appeal that SCOV should reverse and enter a judgment of acquittal because of insufficient evidence. This was an assault case. The woman who was allegedly assaulted didn’t testify. Mr. Alers’s argument is that since she didn’t testify, there’d be no way to determine if she felt any bodily injury or pain. SCOV says no. SCOV reminds us all that cases can be proven through circumstantial evidence. Even though the woman didn’t testify, there were two witnesses in the parking lot who saw the incident unfold. SCOV says the jury could infer from their testimony that an assault took place, based on how they’d describe what they saw. SCOV also notes that Mr. Alers didn’t preserve this argument during the trial, so they’re not going to reverse on that ground.

In any case, the case gets remanded due to the Confrontation Clause issue.

I just realized I didn’t mention Ringo, so I mention him here, with peace and love.

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