Is a 911 call admissible evidence?  We talked about Crawford v. Washington earlier this week; that’s the US Supreme Court decision which held that testimonial statements against an accused could only be be admitted if the defendant had an actual opportunity to cross-examine the declarant, at trial or otherwise.  Left undecided by Crawford was exactly what constituted a “testimonial” statement.  Is a 911 call “testimonial”?  How about an excited utterance?

The first question was resolved somewhat last month in Davis v. Washington, where the Court laid down a test for determining whether a 911 call was testimonial.  Basically, the statements are nontestimonial if their primary purpose is to obtain police assistance to meet an ongoing emergency. They’re testimonial when there’s no such emergency, and the primary purpose of the interrogation is to establish past events potentially relevant to later criminal prosecution.

Keep in mind that a single call can have elements of both.  If, for example, a wife calls 911 to report a domestic violence, the husband leaves during the call, and the operator keeps the wife on the phone to get details of what happened, the latter part will probably fall under Crawford.  (This isn’t my scenario; it’s one given in Davis.)

It’s hard to argue that this doesn’t represent somewhat of a retreat from Crawford’s definition of what constitutes a testimonial statement:  “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” 

And it might not be unreasonable to suggest that Crawford isn’t quite as sweeping as the defense bar initially thought.  There are an awful lot of holes in it.  If the witness testifies at trial, all the prior statements come in, even if the witness can’t remember or won’t testify about them; opportunity to cross-examine is all that’s required.  Keep in mind the opportunity doesn’t need to arise at trial.  For example, if there’s a hearing on a temporary restraining order in a DV case, you’re going to be stuck with the complainant’s prior statements if she shows up at the hearing, even if she doesn’t say a peep:  you had the opportunity to cross-examine her.  Statements by children of alleged abuse, to parents or medical personnel, are almost surely still going to come in under the hearsay exceptions for “excited utterances” or “statements made for purposes of medical diagnosis or treatment,” since it seems fairly clear from Davis that only statements to police are going to be deemed “testimonial.”

That’s not to suggest that Crawford is meaningless, but if I had to guess, I’d say it’s one of those decisions that five years down the road are going to whittled into something less than they initially seemed.

Remember all those fun nights down in the Flats?  Whatever happened to that?

A reminder of what happened with that was served up by the 8th District last week in Kirchner v. Shooters, where the court affirmed summary judgment for the defendant in a case brought by the estate of a 20-year-old who’d gotten drunk, wandered out on the pier by Shooters with the intent to relieve himself, and wound up falling into the river and drowning.  The court held that the “open and obvious” doctrine precluded recovery, and at first blush – or even second or third — it’s hard to quibble with that conclusion:  there’s nothing much more obvious than the dangers of falling into a river. 

The Ohio Supreme Court’s 2003 decision in Armstrong v. Best Buy is usually cited as the source of the open and obvious doctrine, but the theory had been around a lot longer than that:  courts had been systematically throwing out cases for decades on the basis that some danger or other was so blatant that the plaintiff couldn’t recover for injuries caused by it.  Then along came comparative negligence, and some courts started moving toward the idea the whole “open and obvious” thing was a question of fact that had to be hashed out by jurors, balancing the negligence of the landowner in creating the hazard against the negligence of the plaintiff in not apprehending it. 

The Court in Armstrong put a stop to this, holding that the doctrine was based not on how much the plaintiff’s negligence contributed to his injury, but on the concept of duty:  a landowner has no duty to warn a person of dangers which are open and obvious, and since negligence requires a breach of duty, if there isn’t one, there isn’t any negligence.

That sounds nice in theory, but Kirchner reveals some of the problems with it in practice.  The dangers of falling into a river might seem obvious, but not necessarily to a 20-year-old sloshed to the gills.  (Kirchner’s blood/alcohol level was three times the legal limit, a good part of it acquired at Shooter’s, despite the fact he was underage.)  Is it fair to absolve the defendant of a duty to warn the plaintiff of an “obvious” hazard when the defendant’s own conduct might be partially responsible for the plaintiff not appreciating the obviousness of that hazard?

As I said, there’s a fair amount of logic to the doctrine, whether one bases it on a duty-to-warn or on a comparative negligence theory.  Its intellectual coherence is a bit frayed around the edges, though, because it essentially depends on the notion that whether a danger is “open and obvious” can always be determined as a matter of law.  Next week, I’ll take a look at some cases which show the flaws in that reasoning, and allow ways around the open and obvious doctrine.

I’d had a post on Sunday about the death penalty, and I wanted to follow up on a couple of points.  First, the US Supreme Court in Kansas v. Marsh gives an idea of how the Court will be affected by the replacement of Sandra Day O’Connor by Sam Alito.  Although O’Connor was a supporter of capital punishment — she dissented last year from the decision to ban execution of those 18 or younger — she’d become increasingly concerned about the procedural irregularities in applying it.  Interestingly, if you read Souter’s dissent in Marsh, it’s laid out like a majority opinion.  It might’ve been:  the case was originally argued in December, when O’Connor was still on the Court, but had to be reargued in April, after Alito took the bench.  Alito, of course, was part of the 5-man majority in Marsh.

While writing the post on Sunday, I came across a couple of other interesting pieces.  I’d thought that one of the reasons for the decline in the number of death penalties imposed was the creation of the “life without parole” penalty as an alternative.  The latter has been championed by capital punishment opponents for years, and forty-five states have now adopted it. 

As this article in the Harvard Law Review points out, though, the effect hasn’t been the intended one.  Life without parole statutes have had a negligible impact on imposition of the death penalty — the authors study death penalty rates in states with and without life without parole, and find that the overall decline in capital punishment has little to do with the availability of that penalty.  On the other hand, the number of defendants sentenced to life without parole has increased dramatically, and many of them never would have even been eligible for capital punishment. 

The net result of all this is that non-capital defendants are serving longer sentences, while the impact on death sentences is marginal, an effect that surely was not intended.

Another viewpoint on how the death penalty distorts the criminal justice system is offered in this article.  It’s a more general opinion piece than the Harvard article, but the author makes some interesting points.  He notes that in capital cases, unlike ordinary criminal cases, the appeals process delays imposition of punishment.  Because of the high visibility of death penalty cases, efforts are often made to shorten the appeal process and impose more stringent qualifications on post-conviction and habeas corpus remedies.  The result, though, is that restrictions on capital cases work their way throughout the entire criminal justice system:  a contraction in the rights of the capital defendant also contracts those of someone convicted of rape, burglary, and drug possession.

One can certainly make moral and logical arguments for and against the death penalty.  But given the complete absence of evidence that it has any deterrent effect, and the arbitrary nature of its imposition — a twenty-year study of Maryland showed that juries imposed it on less than 6% of those eligible for it — the distorting effects it has on the rest of the criminal justice system makes it hard to conclude that the game is worth the candle.

An old client comes in to you with a fender bender and, against your better judgment, you take it in.  Sure enough, you find that the other driver’s insurance company is particularly nasty — no names, but let’s say theirs rhymes with “balls weight” — and you’re forced to try a case with a whopping $1700 in medical specials.  Sure, the jury gives you $6200, which is $3800 more than you were offered, but you’re not satisfied:  in the spirit of “it’s the principle of the thing,” you file a motion for prejudgment interest.

And that perseverance puts an extra 600 bucks in your pocket — well, $200 in yours, $400 in your client’s — because not only does the judge award you prejudgment interest, the court of appeals affirmed it a few weeks back in Sandifer v. Tighe.  The result isn’t that surprising; the defendant kinda forgot to file the transcript of the hearing the trial court conducted on the issue.  For those of you unversed in appellate practice, your chances of showing that the lower court erred decline dramatically when you don’t let the court of appeals in on what happened in the lower court.

The temptation to write off the result in Sandifer on that basis should be resisted, however, because the Court came to pretty much the exact same result five months ago in Szitas v. Hill  (the decision’s now been reported at 165 OApp3d 439), holding that plaintiff was entitled to prejudgment interest where the specials had been $2200, the insurance company offered $3400, and the jury came back with $7500. 

What’s particularly noteworthy about Szitas is that the trial court had declined to award interest.  The appellate court’s decision, then, was based on “abuse of discretion,” which, loosely translated, means “we’ll uphold the decision unless there was substantial evidence that the judge was foaming at the mouth when he rendered it.”  For that reason, the trial court’s decision is almost invariably affirmed.  But not here.

It’s tempting to think that Szitas and Sandifer represent a trend, and in truth, there seems to be more of a tendency in the past couple of years for our court to affirm awards of prejudgment interest, as they did here, here, and here.  And there’s some good arguments raised in them.  Last year in Meehan v. Johns, for example, the court held prejudgment interest was appropriate where the defendant didn’t concede the plaintiff’s injury, but failed to obtain or present expert testimony refuting it.  This could put you in the driver’s seat — no pun intended — if the insurance company doesn’t get an “independent” medical examination but still contests the nature of the injury, which it almost invariably does.

Still, don’t get carried away.  There are plenty of decisions which uphold denials of prejudgment interest, such as Ready v. Barfield, decided only a month before Sandifer.  The court in Ready decided that the plaintiff wasn’t even entitled to a hearing on prejudgment interest, despite an offer of $3600 and a jury award of almost $10,000.  Then again, the plaintiffs had made a demand of $32,000, based largely on $15,000 in lost wages (as compared to an ER bill, $760 for physical therapy, and another $143 for prescriptions), so maybe the real conclusion in Ready was that if anybody wasn’t evaluating the case realistically, it was the plaintiff.

The bottom line?  It depends on the judge, and it depends on the panel in the court of appeals.  Not that that’s unusual, but probably more so here than in other situations.

There probably has been no case more heralded by the criminal defense bar since the demise of the Warren Court than Crawford v. Washington.  Before Crawford, hearsay in criminal trials was governed by Ohio v. Roberts, which held that the defendant’s right to confrontation was satisfied if an out-of-court statement fell within a “well-recognized” hearsay exception or met “particularized guarantees of reliability.”  That was all washed away by Crawford, where the Court unanimously declared that the only criterion permissible for the admission of testimonial statements was the one demanded by the Sixth Amendment:  actual confrontation. 

A number of Ohio courts, however, have not exactly been rigorous in applying Crawford, especially since it left undecided exactly what constituted “testimonial statements.”  Typical is this 9th District decision which holds that an “excited utterance” is non-testimonial because it falls within an exception to the hearsay rule.  This makes no sense:  if you’re going to hold that only statements which aren’t hearsay are “testimonial,” then you’re back to Roberts, and Crawford is a nullity.  Other courts have employed the prosecutor’s Best Friend, Harmless Error, to avoid Crawford’s consequences, sometimes not even applying the standard for constitutional error; one court fluffed off a Crawford problem by holding that the error didn’t affect a “substantial right,” leaving unanswered how you get any more substantial than the 6th Amendment.

Fortunately, our court here in Cuyahoga County has done a fairly good job of consistently applying Crawford, and there are a number of decisions you might want to have available if you’re going into trial and you know the situation’s going to crop up.  You can start with this decision, which came out only a few months after Crawford was handed down, and struck down the reading of a co-defendant’s confession.  This case reversed a conviction where the police officer testified what an accomplice had told him, and in State v. Iverson the court ruled that the testimony of another police officer and a technician were barred by Crawford.

That last decision is particularly handy for another reason.  Remember I mentioned that the Supreme Court left undecided exactly what constituted a “testimonial statement”?  The lower courts have been wrestling with that since, and probably the most defense-friendly definition was laid out by the 6th Circuit in US v. Cromer, 389 F3d 662:  “any statement made in circumstances in which a reasonable person would realize that it likely would be used in investigation or prosecution of a crime.”  And that’s the test that our court approved in Iverson.

I’ll have some additional stuff on this in the next few weeks, including the application of Crawford to 911 calls and to statements by alleged child abuse victims.

Last Sunday’s piece in the Plain Dealer about the three — or four or five or six or seven — men who may have been wrongfully put on death row in Ohio because of the misconduct of a former county prosecutor came as an interesting juxtaposition with the US Supreme Court’s latest foray into death penalty jurisprudence.  A few weeks back, in Kansas v. Marsh, the Court upheld a Kansas statute which allowed the defendant to be executed if the evidence of mitigating and aggravating factors was equal. 

The decision wasn’t wholly unexpected; after all, the Court has previously held that there’s nothing wrong with imposing upon the defendant the burden of proving that the mitigating factors outweigh the aggravating circumstances, creating the interesting situation where I can’t recover for a fender-bender in small claims court if I can’t prove my case, but the state can kill someone unless he proves that it shouldn’t.  What was more interesting than the result was the dueling opinions, Souter dissenting and Scalia concurring.  Souter argued that the “repeated exonerations of convicts under death sentences” should force a re-examination of what the 8th Amendment could tolerate in terms of capital punishment.  Scalia was having none of it; those exonerations, rather than being an indictment of the system, proved instead that it worked:  the system does eventually weed out the innocent from the guilty, however belatedly. 

This is a popular litany among supporters of capital punishment, a rejoinder to be expected in the face of evidence that scores of people have been wrongfully sentenced to death: the Death Penalty Innocence Project now lists 123 people who were convicted of capital crimes and subsequently exonerated.  This argument has more than a tinge of hypocrisy to it, because those same supporters regularly bemoan the lengthy appeals process available to those on death row.  In this case, though, the delay of “justice” is its saving grace:  of the 39 people freed from death row because they’d been wrongfully convicted, 29 had been there more than ten years.

In this light, what was more interesting about the Plain Dealer article than its discussion of the individual cases was its brief history of capital punishment in Ohio since its restoration in 1980, especially in Cuyahoga County.  The article noted that former Cuyahoga County Prosecutor John T. Corrigan was a strong advocate of capital punishment, and his enthusiasm for it resulted in one out of six residents of the state’s death row coming out of this County.

But that was then, this is now:  the article went on to note that although the number of capital prosecutions has remained steady, the number of death sentences has plummeted in this county.  That is hardly a phenomenon confined to this area; the number of death penalties handed down by American juries has declined to its lowest level since capital punishment was reinstated thirty years ago, and has dropped by almost two-thirds in the past decade.

There are a number of reasons for this, like the availability of alternative sentences like life imprisonment without parole, but a major one appears to be a public increasingly sharing Souter’s concerns about a system “that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.”

Those words are not from Souter, though, but from Justice Harry Blackmun in 1994.  Having tried for two decades “to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor,” Blackmun concluded that those endeavors were in vain, and announced that “from this day forward, I no longer shall tinker with the machinery of death.”  It may be that the American people are coming around to the same view.

Let’s see what’s happened in the past week or so…

9th District affirms murder conviction where victim died 19 months after beating by defendant… 2nd District vacates conviction based on no contest plea to misdemeanor where no “explanation of circumstances” given, as required by RC 2937.07, even though police report in file and defendant had agreed to finding of guilty; under law, defendant entitled to discharge… Good discussion by 12th District on good faith exception to the warrant requirement… 9th District holds that determination that verdict was not against manifest weight of evidence automatically means that evidence was sufficient…

8th District holds court has no authority to modify visitation in a civil protection order, although if divorce filed, that court can modify it… 11th District holds that proof of knee strain in work comp case does not require expert testimony… 8th District holds that court not required to find change of circumstances to modify shared parenting plan; “best interest of child” test is to be employed… 9th District reverses dismissal of complaint for failure to state a claim, holding that promissory estoppel remains an exception to employment at will doctrine.