Saturday, February 26, 2005

People v. Butler (Cal. Ct. App. - February 24, 2005)

A witness claims at trial that she didn't see anything on the day of the murder, but her testimony in this regard is impeached with several prior inconsistent statements that she made to friends and co-workers in which she allegedly said that she saw the defendant shoot the victim but would refuse to so testify. Does the admission of these prior inconsistent statements violate the Confrontation Clause of the Sixth Amendment under Crawford?

The Court of Appeal in this case concludes that it does not. I agree. The defendant is fully able to cross-examine both the witness -- who will presumably either deny that she made these prior statements or attempt to explain why those statements (rather than her current sworn testimony) were untrue -- as well as each of the individuals to whom these alleged statements were made. That's what the Confrontation Clause requires.

Tangentially, the other interesting thing about this holding -- which the Court of Appeal doesn't mention, but which is nonetheless worthy of comment -- is that, as a practical matter, it may well provide an oft-employed means through which witnesses can avoid retribution for their testimony. Especially in gang-related and other such cases, witnesses are often worried that if they identify the defendant at trial, they will incur the wrath of the defendant (or his associates). This holding means that as long as you've told a plethora of your friends that you did indeed see the defendant commit the crime, even if you recant at trial, the jury will hear your prior inconsistent statements and -- most likely -- vote to convict, on the theory that you had no reason to lie then but perhaps substantial reason (e.g., fear of the defendant) to lie now.

That's hardly a great outcome, of course. For one thing, it's perjury; for another, the jury might erroneously belief your recanted testimony; finally, a defendant facing serious charges who knew a lot about the law might decide to whack you as a means of precluding the introduction of even your prior inconsistent statements. That said, you can see why some people might nonetheless elect this option, and not only recant at trial, but perhaps even let it be known to the defendant in advance that you intend to recant.

The upside of the holding in this case is that, at least in certain cases, the admission of the prior statements may help the jury get at the truth -- and convict a guilty defendant -- notwithstanding the failure of the witness to incriminate the defendant at trial. But one downside of this holding is that it might diminish the willingness of a witness to actually testify against the defendant, as smart witnesses (or their counsel) may increasingly say "You don't need me: Just use my prior statements." Or, additionally, that the police or prosecutors might be satisifed with such inconsistent statements and hence not put forth the necessary efforts (e.g., persuasion, police protection, witness relocation, etc.) that might be necessary in order to accomplish what would be best for all involved -- the truthful testimony of the witness at trial.