Sunday, March 29, 2009

How did this even become a CAAF case? CAAF holds that German police report containing non-testifying witnesses' statements violates Crawford

In contrast to CAAF's opinion in Forney, United States v. Clayton, __ M.J. ___, No. 08-0417/AR (C.A.A.F. March 26, 2009), is delightfully straightforward.

Sergeant Clayton was convicted of various offenses including possession of marijuana with the intent to distribute. As Judge Baker's opinion of the court explains:

At Appellant's court-martial, the military judge admitted into evidence, over defense counsel's objections, a report from the German police pursuant to the business records exception to the hearsay rule. Military Rule of Evidence (M.R.E.) 803(6). The report in question listed the drug evidence collected from the car and the chase route, including "where the narcotics were found, the time when it was found, and the police officer who found it or who took it over from a pedestrian." [Lead German investigator Wolfgang] Held verified that he prepared the report as part of the "regular course of [his] business" and such documents are "always prepared when evidence is received." Mr. Held also testified that, although he counted and recorded the drugs in the report, he personally seized only three items and none of the marijuana listed in the report, saw the rucksack in the car but did not personally seize it from the car, and did not see anything thrown from the car.
Id., slip op. at 7.

The question before CAAF was whether the admission of this report violated Crawford v. Washington, 541 U.S. 36 (2004). The answer to that question seems so obvious that it's difficult to understand how this even became a CAAF case, since that required both the military judge and ACCA to reach the wrong conclusion on that question. (SGT Clayton was tried about six months after the Supremes announced their Crawford decision.)

CAAF provides this summary of how the Crawford issue arises in this case:
Although Mr. Held and one other officer who discovered some of the drugs testified, two other officers listed in the report, as well as the pedestrians who provided the drugs to the officers, did not testify at Appellant's court-martial. Further, only one of the officers who found part of the marijuana at issue in Charge IV and its specification testified, and he discovered it with the help of pedestrians. Appellant did not have the opportunity to cross-examine these potential witnesses. The question becomes whether their statements in the report are testimonial, and thus whether the report's admission as evidence violated Appellant's right to confront witnesses against him.
Clayton, No. 08-0417/AR, slip op. at 9.

CAAF concluded that the statements included in the report were testimonial. "First, the report was prepared in the course of an investigation." Id., slip op. at 10. "Second, the report 'involve[d] more than a routine and objective cataloging of unambiguous factual matters.'" Id., slip op. at 11 (quoting United States v. Rankin, 64 M.J. 348, 352 (C.A.A.F. 2007)). "Mr. Held prepared this report eight days after March 16, 2004, to describe the drugs found in the car and along the chase route, who found them, and where they found them." Id. Additionally, Mr. Held testified not from his original German-language version, but rather from an English-language version that was prepared during the court-martial. "Third, the report and its English translation were created 'with an eye toward trial.'" Id., slip op. at 12 (quoting Rankin, 64 M.J. at 352).

CAAF went on to hold that the report's admission wasn't harmless beyond a reasonable doubt.

Judge Stucky concurred separately to note that he didn't believe that the redacted English-language translation created any additional Confrontation Clause errors that weren't created by the German-language version.


dreadnaught said...

The MJ allows the report in under MRE 803(6). What? Take a look at MRE 803(8). This report appears to clearly be excluded as “matters observed by police officers and other law enforcement personnel.” To allow into evidence police reports as records of regularly conducted activities is dreadful. Is it even necessary to discuss Crawford?

Socrates said...

The proverbial "police report" is the archetype example provided in all law school criminal procedure courses for hearsay that cannot be introduced into a court proceeding. This is Criminal Procedure 101. How did this happen? Crawford is just a smokescreen here. In fact, this case probably got unnecessarily caught up in the complexities of Crawford. Even without Crawford, same result.

Anonymous said...

When I was in Ansbach way back there were issues with the legal system. The German liason/translators had one whole bunch of power, both in police operations and in the court martial system.

At the time, one of the leading CM cases on signing on to doing it the way the german justice system does it was Schnell, from Ansbach. Back in the 70s the German US Army employees were doing just what I expect happened here, they passed on documents and procedure from the Germany police and military system.

Since they really run everything, the career employees have a lot of authority due to knowing everything about how to do everything. 1st Lt Snuffy, hot off the LCS, can't be blamed for allowing this. Capt Shumck, hot off reviewing labor cases at Redstone for three years after spending his first year in Iraq reviewing food service contracts, ditto.

My blame goes to the MJs, who should have put the smack down twenty years ago, and didn't, and never have since.

Part of the issue is that Ansbach, from the late 80s, became a career twilight spot for officers who wanted to sunset in Germany at the same time the bases were closing. Most of the spots elsewhere were set aside for guys still on the rise, so it was easy for an O-5 or 6 to just go with the flow and not tick off the German employees.

Those German employees spend their whole lives in their offices, and the .mil lawyers (and PMs) come and go. Nothing changed while I was there, and I expect it still won't change. It will just take another 30 years for a defendant to push a case and find an ADC willing to push the case and get another smack down.

Anonymous said...

To the previous poster: Ansbach has undoubtedly changed since you were there in the '80s. It's home to the 12th Aviation Brigade and a very busy post, legally and militarily. We have no officers or civilian attorneys hanging out in the twilight of their careers. It's a vibrant enduring community. Of the two career civilians, one is in claims and the other is the process server/translator. The latter was there when I was a TC 13-14 yrs ago, is a true professional. Moreover, the MPs have their own translator who translates most polizei reports. Even if the legal translator did so, it doesn't have an impact on whether it was admitted into court. The case was before my current tour, but obviously, the prosecution sought to use it, the defense objected, and the judge ruled. According to CAAF, the judge erred. Pretty ballsy for the TC to use the business record exception . . . and the argument obviously was persuasive to several smart attorneys. Anyway just wanted to disagree with the characterization of the personnel we put in Ansbach. It is, and has been, for my entire career a very competitive assignment filled with very competent personnel. Some of our very best are stationed there.

Anonymous said...

Good to hear things have changed for the better there in Ansbach.

Were you still in that huge building by the front gate? For all the windows it managed to be dark and full of gloom every day.

Anonymous said...

Note the issues CAAF certified- they were looking at Biz records exception - not Crawford at all. No one had addressed the Crawford issue at trial or at ACCA. Amazing aint it?

Anonymous said...

Anon 1900 - are you saying that none of the DAD attorneys raised the Crawford issue(s)? If true, that's a scary proposition!

Anonymous said...

I am saying that the DAD attorneys raised the issue and CAAF ganted only on the specified issues related to Biz records.