I’m seeing a scary trend. An unholy alliance between the legislature and judicial branch dedicated to concocting new laws that make convicting citizens easier. Tiny example: when I started defending criminal cases in 1993, I was permitted two closing arguments; the first closing, then a rebuttal after the state. Not anymore. The accused only get to make one closing argument.
Many technical rules of the court are tipping in favor of the state. Add to this the fact that the legislation itself has gotten out of control, we have more criminal laws on the books than ever before. And, lets not forget that our incarceration rates are through the roof. Oh, and can judges make sentencing decisions? Sort of, as long as they don’t disagree with the mandatory minimum sentences. Yes, the constitution places limits on some of these changes, and one such limitation is found in the Sixth Amendment.
The Six Amendment states that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. This constitutional right is known as the Confrontation Clause, and it forces prosecutors to use live testimony in trial so that the accused may properly cross examine the witness against him, rather than permit prosecutors to admit pieces of paper which cannot be questioned. Recent Confrontation Clause case law from our U.S. Supreme Court has overturned state practices which permit papers to be introduced as evidence against citizens when the admission of such papers will not permit the accused to cross examine such. Massachusetts had a law which permitted the prosecution in drug cases to simply admit a lab report to identify what the drug was–that law was struck down because there is no way for the defendant to challenge the report, the testing procedure, the qualifications of the test operator, etc. (for more info, see my article here, on Melendez-Diaz v. Massachusetts).
Prosecutors like using documents instead of live testimony because defense attorneys cannot effectively cross examine a piece of paper. Defense attorney cross-examinations provide juries a greater level of understanding–and we all know knowledge seems to be something our government seeks to keep out of the juries hands. Don’t get me wrong, I try to keep stuff out too, but I’m not an elected official sworn to seek justice…you know what I’m trying to do. Police work is only easy in a police state, and new laws and new court opinions that make police work easier simply erode what little freedom we have left. I’m not all doom and gloom here, as one recent Fourth District Court of Appeals case shut down a prosecutor and trial judge who permitted written testimony to be given to a jury in violation of the Sixth Amendment.
In Vilseis v. State, the defendant was convicted of burglary of a dwelling and third degree grand theft. 117 So. 3d 867 (4th DCA 2013). Basically, imagine the neighborhood chaos that ensues when a home is burning down to the ground. The homeowner escapes his home and brings his neighbor several expensive items for safe keeping before the fire destroyed them (a portable safe with $60,000 cash, for example…). As you might expect from all this chaos, these items were stolen. The only person who really saw Vilseis do anything was state witness Ruby White. She previously stated in her deposition that she saw Vilseis running from the area with a bag in each hand. But at the jury trial, White mentally lost it, with “uncontrollable chattering and [an] inability to discern where she was or what she was doing prevented her from intelligently answering the State’s questions.” Id. Vilseis’ defense attorney did what any good defense lawyer would do–asked the court to strike the witness, and the court did so, making her “unavailable”. What happens next is the problem; the prosecutor sought to have Ruby White’s sworn deposition transcript entered into evidence instead of her testimony–and the judge allowed it (!?).
Technically, the Confrontation Clause bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Id., quoting Davis v. Washington , 547 U.S. 813, 821 (2006). This sentence begs a couple of questions regarding the written deposition of White which was presented to the jury. First, is the deposition which the state admitted “testimonial?” If it is not, the statement does not violate the Confrontation Clause. The U.S. Supreme Court has not defined “testimonial” per se, but it has found that depositions are just the sort of thing that the Confrontation Clause seeks to prevent from being admitted into evidence. Also, the State claimed that the defense attorney had an opportunity to conduct a cross-examination at White’s deposition. In reality, discovery depositions are not necessarily the time and place for meaningful cross-examination. We defense attorneys use depositions to gather new evidence and the names of new witnesses. If you start cross examining the deponent, you’re not going to get much of anything. The appeals court didn’t buy that line of reasoning either, thankfully.
The appeals court overturned Vilseis’ convictions, but he will be sent back to that same court for another jury trial. It seems like there’s constant pressure to permit the government to utilize paperwork at trial rather than live testimony. This is bad for citizens, bad for freedom lovers, and bad for the Constitution. At least the Fourth DCA didn’t let them get away with it, this time.