5-7 Pages Criminal Law and Procedures I

Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - CHRISTOPHER PORCO, Defendant-Appellant.

BRIEF FOR THE DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF

NEW YORK AS AMICUS CUR IAE

JANET DIFIORE

District Attorney, Westchester County President, District Attorneys Association

of the State of New York c/o New York County District Attorney’s

Office One Hogan Place

New York, New York 10013 Telephone: (212) 335-9000

MORRIE I. KLEINBART SUSAN AXELROD ASSISTANT DISTRICT ATTORNEYS Of Counsel

JULY 2011

i

Page

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................................................................................. ii

PRELIMINARY STATEMENT ......................................................................................... 1

STATEMENT OF AMICUS CURIAE.............................................................................. 3

THE RELEVANT FACTUAL BACKGROUND ........................................................... 4

POINT ..................................................................................................................................... 6

PURSUANT TO THE CONFRONTATION CLAUSE, A DECLARANT/WITNESS'S OUT-OF- COURT STATEMENT IS ADMISSIBLE FOR ITS TRUTH SO LONG AS THE WITNESS TAKES THE STAND AND IS SUBJECT TO CROSS-EXAMINATION, WHETHER OR NOT THE DECLARANT/WITNESS CAN REMEMBER THE EVENTS DESCRIBED IN THAT STATEMENT. ..................................................... 6

CONCLUSION ................................................................................................................... 28

ii

TABLE OF AUTHORITIES

FEDERAL CASES

Bullcoming v New Mexico, 2011 U.S. LEXIS 4790 ........................................................ 15

California v Green, 399 U.S. 149 (1970) ..................................................................... 8-9, 12

Carter v Werholtz, 2011 U.S. Dist. LEXIS 591 (D. Kansas 2011) ................................ 19

Crawford v Washington, 541 U.S. 36 (2004) .................................... 5-8, 14-15, 18, 20, 24

Del Toro v Martel, 2010 U.S. Dist. LEXIS 120554 (C.D. Cal. 2010) ........................... 19

Delao v Kirkland, 2009 U.S. Dist. LEXIS 23054 (C.D. Cal. 2009) ............................... 19

Delaware v Fensterer, 474 U.S. 15 (1985) ......................................................... 9-12, 22, 24

Flores v Lund, 52 Fed.Appx. 868 (8th Cir. 2002) ............................................................ 19

Gorman v Merrill, 2006 U.S.Dist. LEXIS 88774 (D.Maine 2007) ................................. 19

Gutierrez v Yates, 2009 U.S.Dist. LEXIS 64789 (N.D. Cal. 2009) ............................... 19

Hammon v Indiana, 547 U.S. 813 (2006) ............................................................................ 7

Holliday v Symmes, 2009 U.S. Dist. LEXIS 125652 (D.Minn. 2009) ........................... 19

Idaho v Wright, 497 U.S. 805 (1990) ................................................................................... 6

King v Schriro, 2006 U.S. Dist. LEXIS 42876 (D.Arizona 2006) .................................. 19

Michigan v Bryant, __ U.S. __, 131 S.Ct. 1143 (2011) ...................................................... 7

Ohio v Roberts, 448 U.S. 56 (1980) ...................................................................... 6-7, 18-19

Park v Yates, 2010 U.S. Dist. LEXIS 140585 (C.D. Cal. 2010) ..................................... 19

Salinas v Johnson, 2010 U.S. Dist. LEXIS 98257 (S.D. Tex. 2010) .............................. 19

United States v Harty, 476 F.Supp. 2d 17 (D.Mass. 2007) .............................................. 19

United States v Keeter, Park and Ahrens, 130 F.3d 297 (7th Cir. 1997) ....................... 19

United States v Knox, 124 F.3d 1360 (10th Cir. 1997).................................................... 19

iii

United States v Milton, 8 F.3d 39 (D.C. 1993) ................................................................. 19

United States v Owens, 484 U.S. 554 (1987) ................................. 11-14, 17-19, 21, 26-27

United States v Roy Spotted War Bonnet, 933 F.2d 1471 (8th Cir. 1991) .................... 19

United States v Valdez-Soto, 31 F.3d 1467 (9th Cir. 1994) ............................................ 19

West v Rapeleje

STATE CASES

, 2009 U.S.Dist. LEXIS 121409 (E.D. Mich. 2009) ............................. 19

Arizona v Real, 214 Ariz. 232 (Arizona Ct.App. 2007) ................................................... 19

People v Barber, 186 A.D.2d 483 (1st Dept. 1992) ......................................................... 23

People v Cowan, 236 P.3d 1074 (Cal. 2010) ..................................................................... 19

People v Crimmins, 36 N.Y.2d 230 (1975) ..................................................................... 3, 5

People v Ford, 69 N.Y.2d 775 (1987) ................................................................................ 17

People v James, 93 N.Y.2d 620 (1999) .............................................................................. 18

People v Montes, 16 N.Y.3d 250 (2011) ........................................................................... 17

People v Nieves-Andino, 9 N.Y.3d 12 (2007) .................................................................. 17

People v Patterson, 93 N.Y.2d 80 (1999) ..................................................................... 16-17

People v Porco, 30 A.D.3d 543 (2d Dept. 2006) ............................................................... 2

People v Porco, 71 A.D.3d 791 (2d Dept. 2010) ............................................................... 5

People v Salcedo, 304 A.D.2d 309 (1st Dept. 2005) ........................................................ 22

People v Savinon, 100 N.Y.2d 192 (2003) ................................................................... 25-26

People v Taylor, 80 N.Y.2d 1 (1992) ................................................................................. 23

People v Tsang, 284 A.D.2d 218 (1st Dept. 2001) ........................................................... 22

People v Vernace, 96 N.Y.2d 886 (2001) .......................................................................... 22

State v Juan V., 109 Conn. App. 431 (2008) ..................................................................... 19

iv

STATE STATUTES

Criminal Procedure Law Section 60.25........................................................................ 16, 23

Criminal Procedure Law Section 610.70 ........................................................................... 26

OTHER AUTHORITIES

Bourget, Whitehurst, Amnesia and Crime

Cima, Merckelbach, Nijman, Knauer, Hollnack,

, 35 J. Am. Acad. Psychiatry Law, 469, 477 (2007) ........................................................................................................................ 20

I can't remember Your Honor: Offenders Who Claim Amnesia,

J. Wigmore,

http://www.gjpsy.uni-goettingen.de ................... 21

Evidence

Reid,

§ 995 J. Chadbourn rev. (1970) .................................................... 14

Malingering,

, Journal of Psychiatric Practice, 226 (July 2000) ..................................... 21

1

COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- CHRISTOPHER PORCO, Defendant-Appellant.

BRIEF FOR AMICUS CURIAE DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK

PRELIMINARY STATEMENT

The District Attorneys Association of the State of New York ("DAASNY")

submits this brief as amicus curiae in the above captioned appeal. By permission of

the Honorable Judge Robert S. Smith, Christopher Porco appeals from an order of

the Appellate Division, Second Department, entered March 9, 2010. That order

affirmed a judgment of the County Court, Orange County (Berry, J.), rendered

December 12, 2006, convicting him of Murder in the Second Degree and Attempted

Murder in the Second Degree upon a jury verdict, and sentencing him to an

indeterminate prison term of twenty-five years to life on the murder count to run

2

consecutively to a determinate prison term of twenty-five years for the attempted

murder conviction.1

Defendant was convicted of murdering his father Peter Porco, confidential

clerk to Justice Anthony V. Cardona, Presiding Justice of the Appellate Division,

Third Department, and attempting to kill his mother Joan Porco by hitting each

repeatedly with an axe. At trial, the People introduced, over defendant's objection,

evidence of non-verbal assertive conduct of Joan in response to detectives' questions

whether defendant had been the one who had attacked her and her husband. This

conduct, a nod and a hand gesture, identified defendant as the killer. In addition, Joan

testified that she had no memory of the events of the evening or of identifying

defendant as the assailant.

INTRODUCTION

On appeal from the judgment of conviction, defendant claimed that admission

of this assertive conduct violated the rule precluding hearsay and his right to

confrontation. The Appellate Division, Second Department2

1 Although geographic jurisdiction was in Albany County, the trial was held in Orange

County after the Appellate Division, Second Department granted defendant's motion for a change of venue. See People v Porco, 30 A.D.3d 543 (2d Dept. 2006).

rejected the latter

argument, but did hold that the non-verbal assertion was inadmissible hearsay.

Nevertheless, that Court affirmed, concluding that the non-constitutional error was

2 The appeal was transferred to that court by order of the Appellate Division, Third Department, entered May 10, 2007.

3

harmless under the standard for such error outlined in People v Crimmins

Before this Court, defendant contends,

, 36 N.Y.2d

230, 242 (1975).

inter alia

STATEMENT OF AMICUS CURIAE

, that the Second Department

correctly ruled that Joan Porco's nonverbal assertion did not constitute an excited

utterance. Defendant argues that the court erred when it held that, as Joan was

available for cross-examination, the improper admission of that assertion did not

constitute a Sixth Amendment violation but was, instead, a state evidentiary error.

Respondent's view is, of course, that the Second Department erred in its ruling on the

admissibility of the statement as an excited utterance and properly concluded that

there was no Sixth Amendment violation. Amicus will address only this constitutional

question, which is one of significance for prosecutions in New York State: whether

the availability of a witness will render admissible, over a Confrontation Clause

objection, her testimonial, extrajudicial statement when the declarant/witness has no

recollection of the events described in that statement.

The District Attorneys Association of the State of New York (DAASNY) is a

state-wide organization composed of elected District Attorneys from throughout New

York State, the Special Narcotics Prosecutor of the City of New York, and their over

2900 assistants. Members of the Association are responsible for the investigation and

prosecution of violent crimes including homicides, attempted murders and assaults.

DAASNY's experience on issues relating to the criminal law and criminal procedure

4

applicable to the prosecution of such crimes places it in a position to assist the Court's

resolution of the specific issue of statewide concern raised by this appeal: whether the

Sixth Amendment's requirement that a witness testify and subject herself to cross-

examination before her out-of-court statements may be introduced for their truth

mandates that the witness possess a certain level of recollection about the subject

matter of those out-of-court statements.

THE RELEVANT FACTUAL BACKGROUND

On the morning of November 15, 2004, Peter and Joan Porco were found in

their home, having been savagely beaten. Peter was discovered by a colleague who

had come to the Porco's home to check on them after Peter had failed to arrive for

work. He was lying at the foot of the staircase, dead, having been struck anywhere

from 10 to 30 times with an axe. The colleague called the police and then waited

outside of the house for their arrival.

Police personnel entered the house and found Joan, upstairs, on her bed in a

pool of blood. She was still alive. She, too, had been hit on the head, and had

suffered a shattered jaw as well as severe head trauma. An ambulance was called and

while the emergency medical team was treating her, one of the detectives asked her if

defendant, her son Christopher, had committed the attack. Joan responded

affirmatively by both nodding her head up and down and moving her finger in the

same manner. At trial, Joan testified that she had no memory either of the attack

itself or of her identification of defendant as her attacker. Evidence of her

5

demonstrative answer to the detective's question was admitted as an excited utterance

over Confrontation Clause and hearsay objections.

On defendant's appeal renewing these claims, the Appellate Division, Second

Department rejected the constitutional claim as Joan had taken the witness stand and

had therefore been available for cross-examination, a circumstance that eliminates the

Confrontation Clause concerns expressed in Crawford v Washington, 541 U.S. 36

(2004). It did, however, reject the notion that Joan's non-verbal assertive head nod

constituted an excited utterance. The court applied the non-constitutional harmless

error standard enunciated in People v Crimmins, 36 N.Y.2d 230, 242 (1975), and

concluded that "any error in admitting that evidence was harmless in light of the

overwhelming evidence of the defendant's guilt without reference to the error and the

absence of any substantial probability that the error might have contributed to his

conviction." People v Porco

The case is now before this Court on a grant of leave by Judge Smith.

, 71 A.D.3d 791 (2d Dept. 2010). That court then

affirmed the judgment of conviction.

6

POINT

PURSUANT TO THE CONFRONTATION CLAUSE, A DECLARANT/WITNESS'S OUT-OF-COURT STATEMENT IS ADMISSIBLE FOR ITS TRUTH SO LONG AS THE WITNESS TAKES THE STAND AND IS SUBJECT TO CROSS-EXAMINATION, WHETHER OR NOT THE DECLARANT/WITNESS CAN REMEMBER THE EVENTS DESCRIBED IN THAT STATEMENT.

The Sixth Amendment's Confrontation Clause states that "[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him." Prior to 2004, the United States Supreme Court interpreted the Sixth

Amendment to admit out-of-court statements for their truth so long as those

statements bore adequate indicia of reliability. Reliability could be inferred when the

statements satisfied a firmly rooted exception to the hearsay rule, such as when they

constituted excited utterances. Otherwise, hearsay statements were admissible upon a

demonstration that the statements bore particularized guarantees of trustworthiness.

Ohio v Roberts, 448 U.S. 56 (1980). Under the Ohio v Roberts framework, the

prosecution could satisfy that requirement by establishing that the circumstances

surrounding the making of the statement rendered the statement worthy of belief.

Idaho v Wright

In 2004, the United States Supreme Court decided

, 497 U.S. 805 (1990).

Crawford v Washington,

541 U.S. 36 (2004), a case that worked a sea change in this area. In Crawford, the

Court ruled that the Sixth Amendment barred the introduction of "testimonial"

7

hearsay unless the declarant was unavailable to testify and the defendant had had a

prior opportunity to cross-examine the declarant. In other words, the Roberts

reliability test no longer governed; rather the issue was whether the statement was

"testimonial." See also Michigan v Bryant, __ U.S. __, 131 S.Ct. 1143 (2011).

Although the Court declined, in Crawford, to define fully what the term "testimonial"

meant, it provided a more complete definition in Davis v Washington, and Hammon

v Indiana

"[s]tatements 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."

, 547 U.S. 813 (2006). The Court explained that

Id

At the same time, the

. at 823.

Crawford Court also made clear that so long as the

declarant is available to testify, the Sixth Amendment does not bar the introduction of

his or her out-of-court statement. Its admissibility is, instead, governed by state rules

of evidence. 541 U.S. at 59, n. 9 ("when the declarant appears for cross-examination

at trial, the Confrontation Clause places no constraints at all on the use of his prior

testimonial statements[]"). The Court clarified that the Confrontation Clause provides

a "procedural rather than a substantive guarantee. It commands, not that evidence be

8

reliable, but that reliability be assessed in a particular manner: by testing in the crucible

of cross-examination." 541 U.S. at 61.

Thus, the admissibility of an out-of-court testimonial statement over

Confrontation Clause objection turns on the declarant's availability to testify. If the

witness is able to take the stand, then the Sixth Amendment does not bar the

admission of her out-of-court statement. If the witness cannot take the stand, then

that out-of-court statement is inadmissible unless the defendant had a prior

opportunity to cross-examine the declarant. Indeed, the trend of Supreme Court

decisions both preceding and following Crawford

Any review of the cases relevant to the impact memory loss has on

Confrontation Clause analysis with respect to statements made by witnesses who

testify at trial must begin with

makes clear that that test does not

change, even if the witness's testimony reveals that she cannot remember either

making the out-of-court statement or the facts contained in that statement.

California v Green, 399 U.S. 149 (1970). There, Melvin

Porter, who had been arrested for selling marijuana, had told the police that the

defendant was his supplier and testified at a preliminary hearing to that effect. Id. at

151. When Porter testified at the defendant's trial, however, he was evasive on some

subjects and claimed memory loss about certain other events. As authorized under

Section 1235 of the California Code, the prosecutor introduced portions of Porter's

hearing testimony as well as the statements that he had made to the police for their

9

truth. Id. at 152. The California Supreme Court found that Section 1235 violated the

Sixth Amendment and reversed the defendant's conviction. Id

In reversing the California Supreme Court, the United States Supreme Court

reviewed the origins of the Confrontation Clause as well as its own jurisprudence in

this area and noted that, "[v]iewed historically . . . there is good reason to conclude

that the Confrontation Clause is not violated by admitting a declarant's out-of-court

statements, as long as the declarant is testifying as a witness and subject to full and

effective cross-examination."

. at 153.

Id. at 158. The Court held that because Porter had

been called as a witness and was subject to cross-examination, the Sixth Amendment

was not violated by the introduction of his out-of-court statements for their truth. Id

To be sure, in

.

at 168.

Green, the Court had no occasion to address the issue of

whether Porter's "apparent lapse of memory so affected [the defendant's] right to

cross-examine as to make a critical difference in the application of the Confrontation

Clause. . . ." because neither side had raised the question. Id. at 168-69. The Court

therefore declined to rule on that issue. Nevertheless, Green'

The effect of a witness's memory lapse on Confrontation Clause analysis was

squarely raised in

s significance is that it

marks the first time the Court recognized that there might be Confrontation Clause

implications for a witness with a memory lapse different than those for a witness

whose trial testimony was inconsistent with his out-of-court statements.

Delaware v Fensterer, 474 U.S. 15 (1985). There, an expert witness

10

testified that he had examined certain hairs on a cat leash, which the prosecution

contended was the murder weapon, and had come to the conclusion that those hairs

were similar to the victim's and that at least one had been forcibly removed. The

expert explained that there were three methods by which to determine whether a hair

had been forcibly removed, but that he had no recollection as to which method he

had used. Id. at 16-17. The defendant complained that he was denied his Sixth

Amendment right to cross-examine the witness as a result of the witness's memory

loss on this crucial issue. Id

In rejecting the defendant's claim, the Supreme Court noted that, to date, its

Confrontation Clause cases could be divided into two "broad categories": those

involving the admission of out-of-court statements and those concerned with

restrictions imposed either by law or by the trial judge on the scope of cross-

examination.

. at 17.

Id. at 18. The witness's memory loss fell into neither category: the

People were not attempting to introduce the witness's out-of-court statements and the

trial judge had not limited the defense's cross-examination. The Court recognized

that the goals of cross-examination were to test the witness's perception and memory.

But, the Court continued, "it does not follow that the right to cross-examine is denied

by the State whenever the witness's lapse of memory impedes one method of

discrediting him." Id.

"[t]he Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion,

at 19. Indeed,

11

or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the fact finder the reasons for giving scant weight to the witness' testimony."

Id. at 21-22. The Court reasoned that, even where the witness could not remember,

the witness was still required to make an oath and testify in the presence of the

accused, and the fact finder was still able to observe the witness's demeanor under

cross-examination. Id

In

. at 19-20.

United States v Owens, 484 U.S. 554 (1987), the issue before the Supreme

Court was "the significance of a hearsay declarant's memory loss both with respect to

the Confrontation Clause, and with respect to" the federal rules of evidence. Id. at

557 (citations omitted).3

3 The relevant Federal Rules of Evidence were Rule 802, which states that hearsay is

not admissible at trial unless provided by other rules, and Rule 801(d)(1)(C), which permits the introduction of a witness's prior statement, if that statement is "a prior identification of a person after perceiving that person." See 484 U.S. at 557, n. 2.

There, the victim was attacked with a metal pipe and

sustained severe memory impairment as a result. In an interview with an FBI agent

shortly after the attack, the victim identified the defendant as his attacker from a

photo array. At trial, the victim testified that he remembered feeling the blows to his

head and seeing blood on the floor. He told the jury that he also remembered

identifying the defendant to the agent. On cross-examination, however, he admitted

that he did not remember seeing his assailant when attacked and also could not

12

remember whether any of the people who visited him at the hospital might have

suggested the defendant to him as his attacker. Id

The Supreme Court noted that, in both

. at 556.

California v Green, and Delaware v

Fensterer, it had left open the question of whether "a Confrontation Clause violation

can be founded upon a witness' loss of memory." 484 U.S. at 557-58. The Court now

answered it. First, it reiterated that the Confrontation Clause guaranteed the

opportunity for cross-examination, not for effective cross-examination. It then

turned to its statement in Fensterer that this opportunity was not denied when a

witness was unable to recall the basis for his current testimony, as the defendant could

still probe the witness's bias, lack of care, eyesight and his memory in general. The

Court reasoned that those areas for examination were similarly available where the

witness could not explain his past identification. Id. at 559. The Court also said that

the fact that the testimony involved an out-of-court identification did not change the

analysis. That was because the dangers of admitting hearsay testimony were not

present when the declarant was on the witness stand and subject to unrestricted cross-

examination. Id

The Court then addressed the defendant's alternate argument that the

introduction of the witness's out-of-court identification violated Federal Rule of

Evidence 801(d)(1)(C), which removed from the definition of hearsay a prior

identification statement so long as the declarant testified at the trial and was "subject

to cross-examination." The Court rejected the lower court's conclusion that, as a

. at 560.

13

result of his memory loss, the victim was not subject to cross-examination. The Court

ruled that the requirement that the witness be subject to cross-examination was met

when the witness took the stand, was placed under oath and responded willingly to

questions:

"Just as with the constitutional prohibitions, limitations on the scope of examination by the trial court or assertions of privilege by the witness may undermine the process to such a degree that meaningful cross-examination within the intent of the Rule no longer exists. But that effect is not produced by the witness's assertion of memory loss -- which, as discussed earlier, is often the very result sought to be produced by cross-examination, and can be effective in destroying the force of the prior statement."

Id. at 561-62.

Owens must resolve the question as to whether, for Sixth Amendment

purposes, a witness is available to testify even though she has no memory of the crime

or making an identification of her attacker. Owens makes clear that a defendant's

Sixth Amendment rights are protected so long as the witness is called to the stand and

exposes herself to cross-examination, even if her answers are that she cannot recall

anything. While the victim/witness in Owens did not have complete amnesia, he had

so little memory of the salient events that his testimony hardly provided anything

substantive. The victim had no memory of most of the details of his attack, other

than being hit; he had no memory of seeing his attacker; he had no memory of who

had said what to him before he made his out-of-court identification; and he had no

memory of why he thought the defendant was his attacker. His one memory, of

14

making an identification, was so bereft of substantive details that it cannot be credibly

argued that, at the time he took the witness stand, he was in possession of any of the

facts that established the defendant's guilt. If, as the Owens

Crucial to a proper understanding of

Court found, the

defendant's right to cross-examine the witness was satisfied there, a defendant's

confrontation rights are similarly protected when the witness also does not remember

making the identification. The test turns on whether the victim took the stand to

answer questions -- not on the answers to those questions.

Owens is its recognition not only that a

witness is regarded as subject to cross-examination when he is placed on the stand,

under oath, and responds willingly to questions, 484 U.S. at 561, as was the case here,

but that the Confrontation Clause's guarantee of an opportunity is not denied when a

witness testifies as to his current belief but is unable to recollect the reason for that

belief. It is sufficient that the defendant has the opportunity to bring out such matters

as the witness's bias, his lack of care and attentiveness, his poor eyesight, and even

(what is often a prime objective of cross-examination, see 3A J. Wigmore, Evidence

While

§

995, pp. 931-932 [J. Chadbourn rev. 1970]) the very fact that he has a bad memory.

484 U.S. at 559.

Owens is a pre-Crawford case, there can be little doubt that its

conclusion -- that a declarant's memory loss will not bar use of the declarant's out-of-

court statement if he or she is called to the stand – is the law even post-Crawford.

First, Crawford itself iterated that the Confrontation Clause was a procedural, not a

15

substantive guarantee. 541 U.S. at 61. In other words, as long as the mechanism of

cross-examination of the declarant is available to a defendant against whom the

testimonial hearsay is being introduced, the Confrontation Clause is not violated.

This is necessarily true even if the declarant has no specific recollection about the

topic of his statement. The Supreme Court has strongly indicated that this remains

true.

In Bullcoming v New Mexico, 2011 U.S. LEXIS 4790, decided June 23, 2011,

the Supreme Court was faced with a Confrontation Clause challenge to introduction

of a forensic laboratory report of the defendant's blood alcohol level in the absence of

the forensic analyst who prepared the report. A divided Supreme Court concluded

that there had indeed been a Confrontation Clause violation but significantly, in

recognizing that had the analyst testified, the report would have been admissible over

the constitutional challenge, it addressed the impact of the forensic analyst's likely

inability to "recall a particular test, given the number of tests each analyst conducts

and the standard procedure followed in testing." Even with this inability, observed

the Court, the analyst's testimony under oath would have enabled the defendant's

counsel to raise before a jury questions concerning her proficiency, the care he took in

performing his work, and his veracity." 2011 U.S. LEXIS 4790 fn. 7. In other words,

inability to recall the circumstances relating to the events in the extrajudicial statement

will not create a Confrontation Clause problem for testimonial hearsay when the

declarant does testify and offers herself for cross-examination.

16

Critically, this Court, too, has recognized that it is the ability to ask questions

that is the salient issue when addressing admissibility of hearsay offered as a result of a

witness's memory loss. In People v Patterson

"the testimony of a third party non-identifying witness is allowed as evidence-in-chief under the statute only when coupled with the real identifying witness's testimony as to the prior identification (CPL 60.25[2]). It is through this coupling that the testimony of both 'witnesses' forms a complimentary, reliable chain of evidence, linking the acceptance of the prior identification.

, 93 N.Y.2d 80, 83 (1999), this Court

considered whether Criminal Procedure Law Section 60.25 permitted the introduction

of third-party testimony about a prior identification when the identifying witness was

deceased. Pursuant to that section, testimony about an out-of-court identification

may be introduced where the identifying witness testifies that she has made that prior

identification and is "unable at the proceeding to state, on the basis of present

recollection, whether or not the defendant is the person in question[.] . . ." CPL 60.25

(1)(iii). The Court rejected the People's argument that, because the eye witness was

deceased, he was no longer able to state, on the basis of present recollection, that the

defendant was the person who had attacked him and that therefore the statute

applied. In making this ruling, this Court explained that:

The testimony of the third party, who witnessed the previous identification but not the crime, standing alone cannot provide the indispensible safeguards of affording the defendant the benefit of probing cross-examination and the defensive development of reasonable doubt about the identification."

17

Id. at 83 (emphasis supplied)(citations omitted). As this highlighted portion makes

clear, the Court found that the statute provided sufficient protection of the

defendant's rights by mandating that the defendant be permitted to pose questions to

the identifying eye witness. As is obvious, those questions would be unlikely to elicit

much substantive proof as the witness, by definition, has no present recollection of

whether the defendant was, in fact, her attacker. In other words, and in lockstep with

Owens

This analysis resolves defendant's federal constitutional claim. Defendant also

asks this Court to evaluate his claim under Article 1 Section 6 of the New York State

Constitution (Reply Brief at 8-10). That claim is not only unpreserved as defendant

did not raise it in the trial court, but he has raised it here, improperly, for the first time

in his reply brief.

, this Court concluded that the critical determination in protecting a

defendant's rights was not on the quality of answers to the cross-examination

questions, but on the fact that the questions could be posed in the first instance.

People v Ford, 69 N.Y.2d 775, 777 (1987). In any event, this Court

has never held that Article 1 Section 6 is to be given a different or more expansive

interpretation from the Sixth Amendment. Rather, this Court has consistently looked

to the Sixth Amendment in deciding whether a defendant's cross-examination rights

have been protected. See People v Montes, 16 N.Y.3d 250 (2011) (relying on federal

cases in holding that the defendant's confrontation rights were not violated when a

witness could not be recalled to testify about certain information that was not

discovered until after her testimony had concluded); see also People v Nieves-Andino,

18

9 N.Y.3d 12 (2007) (analyzing admissibility of out-of-court statements under

Crawford); People v James

Moreover, the

, 93 N.Y.2d 620 (1999) (looking to federal cases

interpreting 6th Amendment to resolve admissibility of certain out-of-court

statements).

Owens analysis still suggests nothing untoward with the

admission of a testimonial statement under the circumstances presented here. There

was a minority view in Owens, espoused by Justices Brennan and Marshall in their

dissent in Owens, which would require the courts to examine the witness's answers in

order to evaluate whether those answers are sufficiently substantive to "provide the

fact-finder" with "an adequate basis upon which to assess the truth of the proffered

evidence." Owens

To begin, that test was proposed prior to the Supreme Court's ruling in

, 484 U.S. at 570 (dissent by Justices Brennan and Marshall). We

submit that such a test would be unworkable and lead to unfair results.

Crawford. This timing is critical in assessing the viability of the dissenters' proposed

test. When Owens was announced, Confrontation Clause claims were evaluated

under the Ohio v Roberts reliability framework. This, as the Crawford court noted,

was a substantive guarantee and not the procedural assurance that the Clause actually

provided. But, by definition, the proposed test was keyed to the Ohio v Roberts

The

framework.

Owens dissenters dismissed the concern that their test would cause

"countless Confrontation Clause challenges," 484 U.S. at 570, by predicting that it

19

would be the "rare case" in which a witness suffered from total memory loss and that

instead:

[m]ore typically, witnesses asserting a memory loss will either not suffer (or claim) a total inability to recollect, or will do so under circumstances that suggest bias or ulterior motive; in either case, the witness' partial memory or self- interest in claiming a complete memory loss will afford the fact finder an adequate basis upon which to evaluate the reliability and trustworthiness of the out-of-court statement. Even in those relatively few cases where no such basis can be elicited, the prior statement is still admissible if it bears independent "indicia of reliability."

Id. at 571 (emphasis supplied).4 As this highlighted section makes clear, Justice

Brennan was operating under the assumption that prosecutors would be able to

satisfy the Ohio v Roberts

4 It is worth noting that, even with the holding in Owens, criminal defendants have

repeatedly brought Confrontation Clause challenges, all of which have been unsuccessful, based on the quality of the witness's memory. The respondent cites a number of such cases in his brief and we have included a list of others. See, e.g., Flores v Lund, 52 Fed.Appx. 868 (8th Cir. 2002); United States v Roy Spotted War Bonnet, 933 F.2d 1471 (8th Cir. 1991); United States v Keeter, Park and Ahrens, 130 F.3d 297 (7th Cir. 1997); United States v Valdez-Soto, 31 F.3d 1467 (9th Cir. 1994); United States v Knox, 124 F.3d 1360 (10th Cir. 1997); United States v Milton, 8 F.3d 39 (D.C. 1993); Carter v Werholtz, 2011 U.S. Dist. LEXIS 591 (D. Kansas 2011); Salinas v Johnson, 2010 U.S. Dist. LEXIS 98257 (S.D. Tex. 2010); Park v Yates, 2010 U.S. Dist. LEXIS 140585 (C.D. Cal. 2010); Gutierrez v Yates, 2009 U.S.Dist. LEXIS 64789 (N.D. Cal. 2009); West v Rapeleje, 2009 U.S.Dist. LEXIS 121409 (E.D. Mich. 2009); Del Toro v Martel, 2010 U.S. Dist. LEXIS 120554 (C.D. Cal. 2010); Delao v Kirkland, 2009 U.S. Dist. LEXIS 23054 (C.D. Cal. 2009); West v Rapeleje, 2009 U.S. Dist. LEXIS 121409 (E.D.Mich. 2009); Holliday v Symmes, 2009 U.S. Dist. LEXIS 125652 (D.Minn. 2009); United States v Harty, 476 F.Supp. 2d 17 (D.Mass. 2007); Gorman v Merrill, 2006 U.S.Dist. LEXIS 88774 (D.Maine 2007); King v Schriro, 2006 U.S. Dist. LEXIS 42876 (D.Arizona 2006); Arizona v Real, 214 Ariz. 232 (Arizona Ct.App. 2007); People v Cowan, 236 P.3d 1074 (Cal. 2010); State v Juan V., 109 Conn. App. 431 (2008).

reliability test and thus would have other means by which

20

to introduce out-of-court statements. That is no longer the relevant framework and it

necessarily follows that any test grounded in judicial determination of reliability will

no longer satisfy the demands of the Confrontation Clause.

In fact, as a result of Crawford, utilizing this proposed test would work a

significant disadvantage -- and one clearly not anticipated by Justice Brennan -- to

prosecutors. Uncooperative witnesses could simply take the stand and insist that they

did not remember anything. Prosecutors would be powerless to do as Justice

Brennan had suggested and introduce those out-of-court statements that were

otherwise admissible under New York's evidentiary rules as proof of the defendant's

guilt. As a result, guilty defendants would be able to avoid punishment for their

crimes. Simply put, this pre-Crawford test simply should not be applied in a post-

Crawford

But, even had the law not been changed so significantly, the dissenter's

proposed test suffers from several flaws. First, it requires trial judges to separate

legitimate amnesia from feigned amnesia. While Justice Brennan appeared to view

this determination as simple, such an assumption cannot be sustained. It should be

noted that psychiatrists themselves -- experts in the field -- have been grappling with

the difficulties in determining whether an individual truly suffers from amnesia or is

malingering. They also have noted that, while tests have been developed that assist in

that determination, those tests require far more than simply interviewing the subject

and making a conclusion.

world.

See Bourget, Whitehurst, Amnesia and Crime, 35 J. Am.

21

Acad. Psychiatry Law, 469, 477 (2007) (the important issue is how to determine whether

someone is feigning amnesia or is suffering genuine memory loss and despite several

attempts, there is still no clear answer as to how to do this); Reid, Malingering, Journal

of Psychiatric Practice, 226 (July 2000) (noting that a malingerer can continue the

deception for an hour and that analyzing malingering requires the use of various

tests); Cima, Merckelbach, Nijman, Knauer, Hollnack, I can't remember Your Honor:

Offenders Who Claim Amnesia, German Journal of Psychiatry, http://www.gjpsy.uni-

goettingen.de (discussing the difficulties experts have in differentiating between

organic and feigned memory loss given the ease of simulating memory amnesia). In

other words, a trial judge would be poorly suited to make this determination.

Additionally, the difference between total and partial recall is not readily

apparent. Indeed, Owens proves that point. There, the victim of the attack did not

have complete

Thus, even in

amnesia: he remembered being attacked, bleeding, and making the out-

of-court identification. Nonetheless, the dissenters described him as recalling

"virtually nothing" and complaining that his memory loss was so profound that the

person assaulted prior to trial was not the person who testified at trial. 484 U.S. at

566. And, they urged the Court to find that the victim had not been available to

testify.

Owens, the dissenter's proposed test morphed from an

evaluation of whether the witness remembered nothing to whether what the witness

remembered was at all useful to the defense. And, that test will open the floodgates.

22

At the risk of stating the obvious, it must be stressed that any test devised to assess

Confrontation Clause claims will necessarily be applied, not just to the introduction of

out-of-court statements, but to the admissibility of in-court testimony. Indeed in

Fensterer, the defendant's Confrontation Clause attack was not focused on the

admission of out-of-court statements as none were admitted. His complaint was that

he could not adequately test the truth of the expert's in-court conclusion as a result of

the expert's memory loss. Furthermore, all witnesses suffer some memory loss

between the time of the crime and the time that they testify. Trials routinely take

place months, and in some cases, years after the commission of the crimes. Where

defendants have managed to evade arrest for extended periods, trials may well be

delayed for more than a decade. See, e.g. People v Vernace, 96 N.Y.2d 886 (2001) (20

year delay); People v Salcedo, 304 A.D.2d 309 (1st Dept. 2005) (16 year delay); People

v Tsang, 284 A.D.2d 218 (1st Dept. 2001) (20 year delay). Given the passage of time,

the witnesses will have forgotten details, even on key issues. It is also not unusual that

they will be unable to refresh their recollections, even by reviewing prior statements.

If the Confrontation Clause is interpreted to entitle a defendant to a certain quality of

answers, rather than to permit him to pose the questions, then, trial courts will be

mired in constant evaluations as to whether the witness's memory lapses were on such

significant topics that the defendant's ability to obtain a certain quality of answers was

affected. In that case, the court would be asked to rule on requests to strike the

entirety of the witness's testimony as a remedy for the Sixth Amendment violation.

23

Placing the focus of the Sixth Amendment on the quality of answers will affect

the viability of several long-standing evidentiary rules. For instance, pursuant to New

York's past-recollection-recorded exception to the hearsay rules, a memorandum

made of a past fact of which the witness lacks a present recollection may be received

in evidence so long as it is established that the witness observed the matter recorded

at the time it occurred, can testify that the record correctly represented his knowledge

when made and the witness lacks a present recollection of the recorded information.

People v Taylor, 80 N.Y.2d 1, 8 (1992); People v Barber

A holding that the defendant's Confrontation rights are protected so long as

the witness takes the stand, even if that witness suffers from amnesia about the crime,

will not work to tip the scales to the advantage of prosecutors. Again, at the risk of

, 186 A.D.2d 483 (1st Dept.

1992) (where witness testified that he did not remember observing the defendant pull

a gun, his sworn statement made the prosecutor shortly after the crime was

admissible). The availability of that exception will be severely curtailed. And, of

course, the instances in which a prosecutor may introduce out-of-court identification

testimony pursuant to Criminal Procedure Law 60.25 will be similarly limited. Trial

judges will now have to assess whether the witness's lack of recollection of the

recorded events or of the defendant's identity as the assailant is so encompassing as to

render cross-examination "meaningless" under this new test. In those cases, the

People will be unable to introduce the previous writing or elicit testimony about the

witness's out-of-court identification.

24

stating the obvious, a witness's memory loss poses problems for the People in

satisfying their burden of proof. Common sense dictates that jurors will be extremely

hesitant to convict when the People must rely on testimony from witnesses who, at

the time of trial, claim to have little or no memory of the events surrounding the

crime. In the absence of substantial corroborative proof, prosecutors will have

significant difficulties in obtaining convictions, even when they are permitted to

introduce the witness's out-of-court statements.

Furthermore, defendants are not without recourse. As the Supreme Court has

discussed, see Fensterer, 474 U.S. at 21-22, defendants are still permitted to ask all

relevant questions and will most assuredly be able to obtain answers on some topics.

For instance, they can pose questions highlighting the witness's relationship with the

defendant before the crime to establish the witness's bias. They can probe the

witness's character in general to establish an overall lack of trustworthiness. And, they

can highlight to the jury the witness's memory loss and argue that a conviction should

not be based on such a lack of concrete testimony from the witness stand. As noted

supra

Finally, in an effort to find some support of his view of the inadmissibility of

testimonial hearsay even when the declarant testifies, defendant turns to this Court's

decisions on the missing witness charge. Defendant contends that unavailability in

the context of a missing witness charge is logically identical to unavailability for

resolution of

, in many instances, this argument will be persuasive.

Crawford claims such as the one made here. Thus, concludes

25

defendant, since such unavailability includes a witness's assertion of the privilege

against self-incrimination or incapacity, a witness's incapacity due to amnesia also

renders that witness unavailable and her testimonial hearsay inadmissible even if she

takes the stand (Defendant's Brief at 30-31). In pressing this view, defendant

attempts to convince this Court to equate the proverbial apples with oranges. As this

Court has explained:

"The 'missing witness' instruction allows a jury to draw an unfavorable inference based on a party's failure to call a witness who would normally be expected to support that party's version of events. The instruction rests on the commonsense notion that the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause. The rule is best understood by recognizing that the inquiry must be undertaken from the standpoint of the honest litigant. Thus, when a party truthfully presents a version of events, a factfinder would expect that party's friend or ally (if knowledgeable) to confirm it. If a witness that valuable does not appear to support the party's side -- and if there is no good reason for the witness's absence -- it is only natural to suppose (or as the law has it, infer) that the witness cannot honestly help the party."

People v Savinon, 100 N.Y.2d 192, 196-197 (2003) (internal quotations and citations

omitted). Clearly, the underpinnings of the missing witness charge start with the

assumption that the witness actually remembers the subject matter of his testimony.

It then focuses on how to direct the jury on what inferences are to be drawn from the

fact that those memories are not placed before it. Put differently, in the missing

witness context, the question of availability focuses on whether the witness, with a

26

memory of the events at issue, can reasonably be made to appear at trial. That, of

course, is a quite different question from whether the procedural protections of the

Confrontation Clause are offended by producing a witness to court whose memory is

limited.

Moreover, the section of Savinon which defendant cites lends him no aid.

There, the Court stated that it should look to CPL Section 610.70 for guidance in

defining availability. Id

In

. at 198, fn. 4. That section of the Criminal Procedure Law is

concerned with the circumstances under which a witness's out-of-court testimony

from a prior proceeding may be introduced at trial. Section 670.10(c) permits the

introduction of that testimony when the witness is "unable to attend" the proceedings

for a variety of reasons or "cannot with due diligence be found. . . ." In other words,

it deals with the issue of physical unavailability only. Again, that is simply not the case

where the issue is the severity of the physically available witness's memory loss.

Owens, the Supreme Court noted the defendant's argument that the Court's

ruling created an inconsistency between Rule 804 of the Federal Rules of Evidence

which listed, among the definitions of unavailable witness, a witness who testified to a

lack of memory, and Rule 801(d)(1)(C), which removed from the definition of hearsay

a witness's out-of-court identification so long as the witness was available to testify.

The Court explained that there was no such inconsistency. Rather, the drafters had

created a "semantic oddity," 484 U.S. at 563, and that, in fact, as the "two

characterizations are made for two entirely different purposes . . . there is no

27

requirement or expectation that they coincide." Id. at 564. That observation applies

with even more force here. After all, defendant suggests that the language in an

opinion concerning a New York State jury charge must be read in pari materia

In sum, the Appellate Division's determination that defendant's Sixth

Amendment rights were not violated was consistent with Supreme Court law and

wholly correct. This Court should not adopt the test advocated by the dissent in

with

terminology used by the United States Supreme Court in interpreting a constitutional

protection. There should certainly be even less expectation that those

characterizations coincide.

Owens.

28

CONCLUSION

Defendant's judgment should be affirmed.

Respectfully submitted,

JANET DIFIORE Westchester County District Attorney President, District Attorneys Association of the State of New York

By: _________________________________ Susan Axelrod Assistant District Attorney New York County Of Counsel

MORRIE I KLEINBART SUSAN AXELROD Assistant District Attorneys Of Counsel July 2011