The California bar examination starts tomorrow. Woo-hoo. Good luck to those taking it.
Perhaps in recognition of this event, the Ninth Circuit issued an opinion today that's a good crossover review of various evidence, contitutional law (the Confrontation Clause), and criminal law (habeas) issues. Let's get started studying, shall we? And, for the already-barred amongst us -- and, by "barred", I mean that you're an attorney, not that you're currently incarcerated -- it's a good review.
Around 11:00 a.m. on December 2, 2001, Marcus Winzer allegedly says to his on-again, off-again girlfriend Parrish Harvey -- during an argument -- that "I'll smoke you and your daughter," gesturing to his waistband to suggest that he had (or would obtain) a gun. The argument ends, and around five hours later, Ms. Harvey makes a very calm 911 call and tells the operator the above facts. The district court describes Ms. Harvey's 911 call "one of the calmest" it had ever heard. Then the police come to Ms. Harvey's home, interview her, and she repeats to the officers the above facts, and she is upset and shaking as she recounts these events.
At Winzer's trial, the prosecution wants to introduce (1) the 911 tape, and (2) the officer's testimony about what Harvey allegedly told him. Three questions: (A) Does the 911 tape get admitted? (Hint: It's hearsay, but the prosecution says it's a spontaneous utterance and hence admissible.) (B) Does the officer's testimony get admitted? (Same hint.) (C) If either (A) or (B) is erroneously admitted, does federal habeas relief lie, or is this merely an evidentiary error noncognizable on habeas?
Got your answers? Good. Because it's not just a hypothetical, and the Ninth Circuit helpfully provides us with the actual answers:
(A) Nope. Doesn't come in. Even the trial court got this one right, and Judges Kozinski, Trott, and Malloy (sitting by designation from Montana) are pretty clear that a calm declaration five hours after an event like this doesn't qualify as a spontaneous statement.
(B) Good question. The trial court admitted this testimony as a spontaneous utterance, since (unlike the 911 call) the declarant is now shaking and upset at the time of the statement. And Judge Fischer, from the Central District, agreed, and hence denied relief on habeas. But the Ninth Circuit disagrees. The fact that you're upset when you're making the statement doesn't make it a spontaneous utterance. You've still had hours to ponder the issue and, potentially, fabricate things. That isn't sufficiently reliable.
(C) Yes, hold the Ninth Circuit. Typically evidentiary errors don't get you habeas relief. But Ms. Harvey was in custody (and hence available to be called as a witness) at the time of trial, and by refusing to do so, and by using the officer's testimony instead, the state deprived defendant of his constitutional right to confront the witnesses against him. That's a federal claim. And cognizable on habeas. So not only did the trial court (as well as the district court) err, but that error was, according to the Ninth Circuit, sufficiently crystal clear to just habeas relief, because admitting hearsay evidence of this type conflicts with clearly established federal law and hence justifies relief even under AEDPA.
Get those right? Good. You're better than the trial judge. And even Judge Fischer. You should definitely pass the Bar. Or repass it were you -- absurdly -- to take it again.