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Case Update: State v. Arnold

State v. Arnold looked a lot better going into the Supreme Court than it did going out.

According to Arnold's memorandum in support of jurisdiction, Arnold was on trial for domestic violence against his father, Lester.  When the prosecutor called Lester to the stand, though, he took the 5th Amendment.  Not for long; the prosecutor told him he'd have to answer the questions, and the judge told him he'd be held in contempt if he didn't.  Lester then abandoned his refuge in the Constitution and instead sought sanctuary in the favored plot line of soap operas, amnesia.  The prosecutor had him read into the record the statement he'd made to the police, and it was admitted as substantive evidence.

Now, I'm a big believer in the theory that if it sounds wrong, it probably is, and all that struck me as wrong on several levels.

So how'd the Supreme Court uphold Arnold's conviction by a 4-3 vote a couple weeks back?

Not easily.  The case produced five separate opinions, with Connor joined by Pfeifer and Kennedy, French penning an opinion concurring only in judgment, and O'Donnell, Lanzinger, and O'Neill each writing separate dissents.  (That mirrored what happened in the appellate court:  the 3rd District's decision resulted in three opinions as well, one concurring in judgment and one dissenting.)  And there may have been some late vote-switching:  French and two of the dissenting justices repeatedly refer to the "majority" opinion.

Arnold's major problem was that this was a bench trial, and the judge specifically indicated that he did not take Lester's testimony or statement into consideration in finding Arnold guilty.  Can you say "harmless error," boys and girls?  I knew you could.  That's enough for the plurality and for French. 

But there were several bones of contention between the plurality on the one side, and French and two dissenters (Lanzinger would dismiss the case as having been improvidently allowed) on the other.

The 5th Amendment issue.  A witness doesn't have an absolute right to invoke the privilege against self-incrimination.  If the reason for the invocation isn't clear, the judge is supposed to conduct a "complex inquiry" to determine whether there's an actual basis for the witness' concern that he might incriminate himself. 

The plurality admits that the judge didn't engage in an "ideal" inquiry, but as O'Donnell points out, far from being less than "ideal," the inquiry was non-existent.  The plurality sloughs this off, holding that even Arnold's attorney at trial couldn't come up with a valid basis for Lester's assertion of the privilege.  Of course, determining the basis of the assertion is what the "complex inquiry" is supposed to do, and the dissenting judge in the lower court suggested it might be because Lester himself could be charged if he were the aggressor.

Standing.  Can a defendant assert the 5th Amendment privilege on behalf of a witness?  Normally, no, and the plurality concludes Arnold didn't have standing to claim that Lester's rights had been violated.  There is a narrow situation where the defendant does have standing in that situation, and French and O'Neill hang their hat on a 1964 Supreme Court decision in State v. Dinsio, which reversed a conviction because the prosecutor continued questioning the witness after the assertion of the privilege.  Another example is the 8th District's decision in State v. Oldham (discussed here).  There, the witness, the defendant's son, repeatedly invoked the 5th in response to the prosecutor's questions of what happened to the gun the father was accused of discharging.  The court held that the questioning was an attempt to create improper inferences from the witness' refusal to answer.

Confrontation.  Lester's statement to the police was obviously testimonial, so there's a Crawford issue.  Of course, Crawford doesn't apply if the witness is available for cross-examination at trial, so the question becomes whether Lester's assertion of his right against self-incrimination made him "unavailable."  The plurality probably has the better of the argument here:  despite Lester's assertion or the privilege, on cross-examination he couldn't recall making the statement, and couldn't see or hear well during the incident because of high blood sugar and PTSD.  Crawford guarantees the opportunity for cross-examination, not that the cross-examination will be effective.

The statement.  The weakest part of the plurality opinion is its handling of the trial court's allowing the prosecutor to force Lester to read his statement into the record.  Well, it's not the weakest part; it's the non-existent part:  the plurality doesn't go beyond the conclusion that any error is harmless.  As O'Donnell points out, while a prior statement can be used to impeach a witness, the use of it as substantive evidence is clearly prohibited by the rules.  Apart from the confrontation issue, there's a hearsay issue, too, and there's no exception to the hearsay rule which would allow introduction of the statement in that fashion.

So what's the upshot of all this?  Arnold, as a plurality opinion, has no binding force, especially in light of French's disagreement with the plurality's handling of two key issues, Arnold's standing to raise the 5th Amendment, and whether Lester was an available witness under Crawford.  There's some good law nonetheless in the plurality opinion on how a judge should determine the validity of an assertion of the privilege, harmless error, and standing of the defendant to raise a witness' invocation of the privilege.

As for the result, that's a little more iffy; the majority's determination that the evidence was so overwhelming that any error was harmless beyond a reasonable doubt is undercut by the fact that the three dissenters came to the opposite conclusion.  There's no question that the trial judge didn't handle the 5th Amendment issue properly, and that the statement should've never come in as substantive evidence.

Arnold didn't come out as good as it did going in, but it could've come out a whole lot worse.

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