As the dust settles on the end of the term, we look back to examine two of the Court's criminal procedure cases: Smith v. Arizona (applying the Confrontation Clause to expert testimony) and Diaz v. United States (interpreting Federal Rule of Evidence 704(b)) after a brief discussion of AI, political developments, and judicial robes.
As the dust settles on the end of the term, we look back to examine two of the Court's criminal procedure cases: Smith v. Arizona (applying the Confrontation Clause to expert testimony) and Diaz v. United States (interpreting Federal Rule of Evidence 704(b)) after a brief discussion of AI, political developments, and judicial robes.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, we're going to try to march through some of the backlog from the court's term.
Will: This is my favorite part of our recording life cycle, I think.
Dan: Yeah, it's fun. We get to spend a little bit time mulling over and digesting opinions that other people have already forgotten about, I would say.
Will: Yeah, we're not trying to keep up with the takes or the hot takes.
Dan: Yeah. And it's not quite as overwhelming as having to read the transcripts and look at all the briefs and try to figure out what's going on. The court gives us the opinion, we read the opinion, we think about it, we talk about it, and then we move on to the next episode.
Will: Can I ask you something? Actually, one of my colleagues pitched this as an idea that we ought to get nine law professors together who, in some sense, roughly track the Supreme Court in terms of some people on the left, some people are right, some in the middle and we ought to spend a year where we try to write opinions in all the cases that are pretty good and pretty short and pretty sensible before the Supreme Court writes theirs and just look they're all out. And then everybody could judge the court whether or not it was, how it did.
Dan: It would be a lot of work.
Will: Would it?
Dan: I mean, if you could write Holmes style, five paragraph [crosstalk] opinions.
Will: Sure. Whatever, and we get students to help us with them.
Dan: Doesn't this seem very old fashioned though, if you've been reading Adam Unikowsky’s Substack, where he has been advancing the claim that AI, the latest version of Claude I'm a ChatGPT subscriber. I don't know which one you subscribe to.
Will: I actually have paid memberships in both, although I'm starting it for Claude.
Dan: Oh, really? Okay.
Will: ChatGPT is better at children's stories. Which is one of the main things they use it for.
Dan: [laughs] You're too cheap to buy children's books.
Will: No. A couple of years ago, I started making up a series of children's stories for my son that were also political economy, libertarian legal morality tales, so the villain could be eminent domain or historical preservation or deadweight loss from taxation and so on. Anyway, but he became really interested in the characters, and so he always wanted more and more of these stories. Sometimes, you just don't have the choice to come up with one. And then you can plug it into ChatGPT and be like, “Tell a story about—" [crosstalk]
Dan: You are just too lazy to parent your children apparently, you're outsourcing parenting to AI.
Will: I read the stories aloud. [Dan laughs] I come up with the prompts. [laughs] I read the stories aloud, I adjust the prompts, and then, of course, they get the story. And then one of the kids will say, “No, no I want it to be a little different. I want a princess. I want a dinosaur.” And then you can just rerun the story and get new.
Dan: What are you using Claude for?
Will: Legal analysis. So far, I don't understand how to get any value out of it, I got to say.
Dan: Yeah, so he has been able to get it to predict Supreme Court decisions and so forth to analyze who might have written Supreme Court opinions. I couldn't get it to cooperate with me at all. But I guess this art of trying to finesse the AI, convince it to do things it doesn't want to do is a skill I haven't yet developed.
Will: I'm determined not to be a luddite, even though, as I said, I don't currently find this useful. So, yeah, I use it as a chance to try to learn prompt engineering and all that stuff.
Dan: Yeah. Adam's claim is that Claude could do a better job basically, than the Supreme Court is currently constituted.
Will: Look, we could have two parallel shadow courts. We could have a law professor shadow court and an AI shadow court, and then we could see how the opinion courts mean-- [crosstalk]
Dan: The problem is that some of our colleagues might cheat and use the AI to write their law professor opinions.
Will: Look, the Justices might be doing that too for all we know.
Dan: Yeah, I suppose so.
Will: Or their clerks, like under the gun, got to turn around a pool memo. [laughs]
Dan: Oh, yeah, I didn't even think about that. Yeah, I mean, you could just send ChatGPT to SCOTUSblog to the page for the petition and just say, “Write me a memo.” Okay, anything, any relevant development. So, we mentioned last time the slim possibility that Supreme Court reform was going to be back on the nation's agenda when Biden was flailing and trying to figure out how to change the subject after his disastrous debate performance. He leaked that he was going to announce something about Supreme Court reform.
Will: Yeah. Term limits and ethics.
Dan: Yeah. But then that doesn't seem to-- He seems to have decided to not run for president since that happened. So, I guess that's just going to disappear.
Will: I assume so. Although I guess it'll be up to-- you could imagine candidate Harris thinking that the ethics stuff is not a bad issue for her. People seemed to like the way she behaved during some of the confirmation hearings when she was still in the Senate.
Dan: Do you remember the thing where she acted like she had some smoking gun against Kavanaugh? And she was like, “Did you talk to a lawyer from--” what was the firm?
Will: I don't remember. “You're sure, under oath?”
Dan: And he was like, “I don't know. You're sure?” And then he finally said, “No,” and then she just [chuckles] never revisited again. We never got the end of the story.
Will: Yes.
Dan: It was such a–
Will: I got to say, I didn't find that moment super effective.
Dan: It was not effective. It was annoying because-
Will: But I think some people--
Dan: -I wanted to know, left me in suspense.
Will: Some people thought that showed how excellent prosecutors are at something or other. Anyway, you could imagine her wanting to put that issue on the table. It's probably not a good time. I mean, you could also imagine putting the age limits limit on the table now that only one of the two tickets has a super old person on it. That's probably too soon, but, yeah, I assume that's not going to happen. We're not going to go anywhere.
Dan: Yeah. Oh, we've got another Supreme Court hook in presidential politics news, which is that J. D. Vance’s wife is a former clerk for the Chief and then Judge Kavanaugh.
Will: Yeah. And Thapar may be also.
Dan: Yep. Yeah.
Will: But I guess he's not on the Supreme Court. [crosstalk]
Dan: He's not on the Supreme Court--
Will: I understand.
Dan: But I know him, I like him. I think it was Orin Kerr posted something interesting on X, formerly Twitter, the other day, noting that some of the Republican senators that are most aggressively trying to court populism have these super, super, super elite, fancy legal backgrounds which are not very populist. Josh Hawley is a Yale grad and clerk for the Chief, and J.D. Vance, a Yale grad, is married to a clerk for the Chief. And Tom Cotton, Harvard Law grad, probably some others.
Will: Ted Cruz.
Dan: Oh, yeah, Ted Cruz. Of course. Yeah.
Will: Right. So, it's fun. So out of these-- [crosstalk]
Dan: He's Rehnquist clerk.
Will: He is Rehnquist clerk.
Dan: Harvard Grad, Rehnquist clerk.
Will: So, Ted Cruz and Josh Hawley clerked for the Supreme Court. J.D. Vance and Tom Cotton did not.
Dan: So that makes them-- You can be a real populist if you didn't clerk on the Supreme Court, is your thesis.
Will: Yeah. Well, I think there was some story about J.D. Vance, trying to make fun of him for the fact that he was on the Yale Law Journal but then didn't have an editorial board position. He's just a senior editor, and I'm sure nobody cares about. But it was obviously written by somebody who'd gone to Harvard or Yale Law School.
Dan: Yeah. My colleague Conor Clarke was saying there's something in the Vance memoir where he obliquely references a potential clerkship with a judge that he decided to turn down but I don't know.
Will: Did he not clerk at all? I was trying to write.
Dan: I don't believe so. I think he just went and made some money and made some extremely valuable political connections.
Will: Yeah. Clerks [unintelligible [00:07:36].
Dan: [laughs] Yeah.
Will: Yeah. Okay, fair enough. So that's a hook. I also saw that Elizabeth Warren wants to amend the APA in response to our episode last—[crosstalk]
Dan: [laughs] Well, in response to the thing that our episode was in response to—[crosstalk]
Will: No. You don't think we put this on her radar? You think she knew about this--? [crosstalk]
Dan: It probably was already in process, but you never know. Yeah. So, she's working on some legislation to reverse Loper Bright and restore Chevron, which I think is interesting. And I think it's exactly the thing Congress should think about in the wake of Supreme Court decisions that they disagree with. And, I mean, I can imagine depending on how it's written, there would be a whole new round of challenges to it, explicit constitutional challenges, saying that it's violates the nondelegation doctrine and so forth. But at least to the extent that Loper Bright itself recognizes that sometimes the right answer is Congress has delegated to the agency to make its best determination. Congress could do that more explicitly, more often.
Will: For sure. My guess that would tee up both the nondelegation questions, because I think the bill she has would also effectively overrule the major questions doctrine and tee up the Article III question that Justice Gorsuch and maybe Justice Thomas have flagged. And, of course, maybe those overlap because you do them all together, and it amounts to some delegation to the agency of some combination of legislative and judicial power. But that would be fun if she tried it.
Dan: So, it's Article III because of their adjudicative power?
Will: Yeah. Because it's taking away from the courts the ability to decide what the [unintelligible [00:09:10].
Dan: Oh, yeah. To say what the law is and so forth. No, I say that they can say what the law is the law just is this, law is the delegation.
Will: Right. That's where it's nice to do them together, because it's like if the law is, there are no limits on the agency's power other than what the agency says they are. That's a non-delegation problem. If the law is, there are limits, but the courts will not say what they are, then it's Article III problem. So, you just got to figure out what the limit is.
Dan: Okay. One other thing. On Supreme Court reform, a private equity investor decided to give $30 million to launch a center supporting Supreme Court reform at the Brennan Center.
Will: Isn't the Brennan Center already a center supporting Supreme Court reform? Or I guess it's like a subcenter.
Dan: Yeah, I think it's going to be subcenter. The money will fund research, public outreach, and policy advocacy over the next 10 years at the Brennan Center.
Will: So, is that more than the money that Leonard Leo is trying to give to law schools to support non-smart reform? Wasn't Leonard Leo's $25 million-- [crosstalk]
Dan: Probably not. Doesn't Leonard Leo literally at this point control billions of dollars? I thought he had some enormous war chest.
Will: I don't know. He may, but I don't know that he's giving it all to the-
Dan: Probably not.
Will: -academy.
Dan: Yeah.
Will: But I take it this is the good kind of dark money or this is no dark--[crosstalk]
Dan: No, the good dark money is the kind that I get. And so far, none of this has trickled down to me.
Will: None of our episodes have pride to lose yet.
Dan: I'm writing all sorts of stuff about Supreme Court reform. I mean, this guy's got $30 million to give to the Brennan Center. I would have settled for, I don't know, 1% of that. [Will laughs] I mean, maybe after taxes, [Will laughs] so maybe 2%, but we'll see whether those funds promote meaningful change. I'm skeptical about the immediate effects of any expenditure of any kind of funds on a policy initiative like that.
Will: Why?
Dan: I think that you can do stuff that germinates ideas and maybe has really, really long-term effects. I think the Olin Foundation used its money really strategically to implant law and economics and various things across the legal academy and elsewhere. And I think that was potentially quite effective, but it's more of a slow. I'm searching for the right metaphor here.
Will: Well, you can imagine that when you have a $30 million center to support Supreme Court reform in the current political climate, what that really means is just general process delegitimization of the Supreme Court, trying to make people feel like the court needs some reforming. And there are lots of different ways you can do that. I don't know that's what they'll do or whether they'll be more focused on concrete proposals. We should go the Epps route versus the--
Dan: Apparently, so this center, the Kohlberg Center, will advocate term limits for Justices and a stronger code of ethics than the one enacted last year by the Supreme Court.
Will: Right. If you already know what you're going to do, those are your two policy proposals. So, you're not going to spend the $30 million--? [crosstalk]
Dan: No, it's got more. Just hold on—[crosstalk] Hold your horses.
Will: All right, all right.
Dan: Other changes, such as how the court handles emergency cases, sometimes described as the shadow docket, no citation.
Will: Now we're talking.
Dan: Giving Congress legislative tools to respond quickly to rulings by the Justices. I think that's the Ganesh Sitaraman Regulatory Review Act, which I think is good. And constraining the court's ability to curb regulation on the environment, public health, and financial markets, that's probably kind of the Elizabeth Warren Chevron.
Will: Yeah. Okay. Could be.
Dan: It will convene meetings of scholars. Okay. Waiting for my invite. Maybe they'll let you come, [Dan laughs] hold public symposia, publish policy reports, and advocate specific proposals before Congress.
Will: Okay.
Dan: The initiative begins immediately with operations in New York City and Washington.
Will: Okay, great.
Dan: Okay. So, we'll see if any of that inures to my benefit in any way. We need a $30 million gift for your center. I'm a little nervous. You don't have a permanent endowment, right? They could pull the plug on this podcast at any moment, couldn’t they?
Will: I don't think they could do that.
Dan: [laughs]You don't think so?
Will: No.
Dan: Can just shut you down?
Will: No.
Dan: You don't have an endowment.
Will: No, a contract.
Dan: Yeah, well, still, if they do that, then we'll have to start running, pants ads or something.
Will: No, we'll run a bootleg podcast. It'll work.
Dan: No, no. I have audio fidelity standards that must be satisfied, must be maintained.
Will: Fair enough. We got one piece of feedback worth mentioning on our last episode about what color robes the Justices wear from longtime listener Gerard Magliocca, friend of the show, who wrote in, pointing us to some of the historical work done on the Justices robes before Marshall. In particular pointing us to an article in the Supreme Court, the Journal of Supreme Court History by Matthew Hofstedt. The switch to black revisiting early Supreme Court robes from 2021 that offers some pictures and walks through, what some of the early Justices did. There were Justices wearing black robes before Marshall, but it was more of a free for all. And as I was looking into that, I realized I also needed to correct the record in that discussion. I think I said that I had an article where I talked about the black robes issue and whether or not black robes were a rule of law or rule of practice. That's actually an article by Steve Sachs, not by me.
[laughter]
Dan: You guys have such a mind meld that you can't tell where one of you begins and the other ends.
Will: I'm sure Steve can tell. I'm sure he denounces all my heresies all the time. But I may have unfairly tried to take credit for some of his work.
Dan: That's amazing.
Will: So, it's in finding law in the California Law Review.
Dan: Did you remember that or did he note that?
Will: I found it on Westlaw. I spent a while trying to search my own work.
Dan: TI [Baude] and robes [crosstalk] search. AU [Baude].
Will: AU [Baude]. Yeah, yeah. Right.
Dan: In robes.
Will: Sorry about that, Steve.
Dan: Okay, so we have a little bit less in the way of actual substance to talk about. The court has done hardly anything because they've been on vacation. And so, in terms of our backlog, we thought we would focus on two opinions that are in the criminal law, criminal procedure space.
Will: They have it in space.
Dan: And that have some-- Yeah, I like it, too. It's what I teach that have some synergies, as they say. So, case number one, Smith v. Arizona. So, it was about the Confrontation Clause. Confrontation Clause is largely a constitutional rule about evidence, what kinds of evidence the government can bring in and what are the requirements it has to follow if it brings in certain evidence. But then we're also going to briefly talk about another evidence case. This is pure evidence, nonconstitutional case, Diaz vs United States, which is about federal rule of evidence 704(b), which is something that comes up in criminal prosecutions. We'll talk about in a minute. So, if anyone was hoping that we were going to be circling back to some of the really, really heavy hitting cases, I don't know if we have any really, really heavy hitting cases that we haven't gotten to? Will, what do you think?
Will: I mean, what counts heavy hitting? There's like, Fisher.
Dan: Yeah, we're going to talk about that. We're going to do that one soon. We're going to do Harrington, bankruptcy case-
Will: Big case.
Dan: -soon. And then if there's other stuff people want, send us an email. Oh, we got to do. We got to do Moore. We got to do tax.
Will: Sure.
Dan: You don't sound enthusiastic about that. I thought you would like that.
Will: No, I agree.
Dan: You like obscure provisions, right?
Will: I do, but I don't like tax. [chuckles]
Dan: You don't like paying them?
Will: I just don't understand tax law.
Dan: Did you take tax?
Will: I did. I didn't do very well.
Dan: Who'd you take it with?
Will: Anne Alstadsæter.
Dan: Yeah, I could see.
Will: Once we learned about the economic substance doctrine, there's all these rules and then there's this general principle that sometimes the rules don't apply. That just broke my brain.
Dan: You just can't handle that.
Will: I still can't handle it. When I was in practice, I kept trying to figure out a way to tee up cases to challenge the economic substance doctrine as being inconsistent with textualism and modern principles of law of interpretation. And there's some good case law on some of the circuits about it and a circuit split. And then in the Affordable Care Act, Congress actually codified the economic substance doctrine. [Dan laughs] It's just like in there. And so, it makes a lot harder challenge. And then for a while during the Obamacare challenges, I was like, “Well, maybe if anybody's crazy enough to go for the full inseverability, then the economic substance doctrine will go away because it's one of the random things in the bill.” And then four Justices NFIB v. Sebelius, we're suddenly ready to get rid of the economic substance doctrine.
Dan: Oh, I didn't know that all those threads track together. That's interesting.
Will: Yeah. Anyway, yes. We should talk about Moore. We can see what else people want to hear about.
Dan: Okay, so now evidence. Let's do Smith first. It's con law case, so maybe of slightly more interest to people. And I feel like we have to keep having these cases. I think this is the fourth case involving forensic evidence under the Confrontation Clause?
Will: I guess so. So, our story starts with Melendez-Diaz 15 years ago.
Dan: Which is the term, you clerked, right?
Will: Term I clerked. I know it and love it well. And then there are cases afterwards Bullcoming v. New Mexico.
Dan: Do you love it?
Will: Well, I guess yes.
Dan: Yeah.
Will: Yeah. Am I not supposed to?
Dan: Wasn't the Chief in dissent in that one?
Will: Yes.
Dan: Okay. You thought he was wrong.
Will: The Chief is always right.
Dan: [laughs] Well, then you shouldn't love it.
Will: Love is complicated.
Dan: Okay.
Will: I love the court's Confrontation Clause jurisprudence generally. Can I just say that? Because it's one of these areas where Justice Scalia got on the court said, “Here is an area of law that's super woolly, and nobody really knows what the principles are, and also super non-originalist." And he successfully got the court to adopt an originalist principle to revolutionize the doctrine. And one that's not universally conservative. It often works to the advantage of criminal defendants. I just think it's often one of the stock examples of what originalism can do for you. [Dan chuckles] And I feel like Melendez-Diaz was partly a test about how serious was the Crawford revolution? Was the court really going to do this? And 5-4, after a certain amount of hand wringing, the answer is at least five of them are serious.
Dan: Yeah. And so that case stands for the proposition that prosecutors can't just introduce reports by lab analysts about drugs without actually producing the lab analyst.
Will: Right. The classic setup is just, there are some drugs, they look like a white powder, but are they really whatever the charged drug is, are they really drugs at all? You send them to a lab, and while it's really annoying and maybe pointless in many cases, to make the lab expert come into court and say, “Yep, I ran the tests, and it's meth or whatever,” you got to do it.
Dan: And this is potentially quite burdensome in a world where there can be a big lag time between the lab analysis and the trial, and which there can be turnover. This is going to be relevant in a second, and maybe the original lab analyst doesn't work for the government anymore. So, hold the thought for a second. So, then we have Melendez-Diaz, and then we have this other case, Bullcoming v. New Mexico. I think some of the people in the court still were hoping they could wiggle their way out of Melendez-Diaz. In that situation, basically, that I just described arose where Analyst 1 does the analysis, and then for whatever reason, Analyst 1 becomes unavailable. And so, the state decides to fix that problem by bringing a different Analyst to say what the basically more or less to read the report from the previous Analyst. The court says, “No, that's not good enough,” because the first Analyst, even though they're not present in the courtroom, is functionally a witness against the defendant.
Will: And especially in these circumstances, help you see why it's not always pointless to demand they show up. It's like, “Here's a report, we all assume it's all legit,” but then if you learn there's something wrong with the first Analyst, they were fired for some reason, or for some reason they don't want to come testify, or then maybe you want to know what's going on. How sure are we that this particular test is legit?
Dan: So, then the court has this case, Williams v. Illinois. This case is a huge mess.
Will: Yeah.
Dan: I mean this is—[crosstalk]
Will: Let's not try to describe what it's about yet, because we’ll have to circle back to it when we get through this case, but just suffice to say, it's a forensic case about DNA evidence from a rape and the court splits 4-1-4 on what to do with five Justices ruling in favor of the government, but not on any one rationale, because by now, Justice Thomas has adopted his own ship instead of sailing orthogonally to somebody everybody else is doing and then that brings us to Smith.
Dan: Okay. And this is the thing I was trying to figure out, is just at the outset, maybe you want me to ask this question later. Is this case the same situation as Williams?
Will: I have one with same thing.
Dan: Okay. I'm trying to figure out is this basically functionally overruling what the four Justice plurality in Williams wanted to do, which we'll describe to you momentarily.
Will: There are some arguments both ways on that. I'm not sure the answer to that.
Dan: Okay, so what happened here?
Will: This one's a drug case.
Dan: Your favorite.
Will: Drugs?
Dan: Yeah. You don't like drugs, despite you’re libertarian.
Will: I've never done drugs, Dan.
Dan: I know, that's--
Will: But in this case, defendant is accused of possessing drugs. And so, they do a scientific analysis at the Arizona department crime lab, and somebody, Ms. Rast runs the tests, includes their drugs, and writes up a report. And then with three weeks to go, “the state called an audible,” as Justice Kagan says, “replacing Rast with a different government witness,” who's instead going to be the person to come in and testify about what the risks were. And so, we know from Melendez-Diaz and Bullcoming that you can't just introduce Rast's test without Rast, and you can't do what's called a substitute expert. You can't say, “Well, Rast really should be here, and I'm here on behalf of Rast. I am Rast.”
So, the new workaround, which is the workaround of both Williams in here, is the new person shows up as an expert and says, “I'm just going to give you my independent opinion about what these drugs are. I didn't test them. I'm not pretending to have tested them. I'm just going to render my expert opinion what the drugs are. One of the bases for my opinion, one of the things I'll review when considering what they are is this report I read from this nice lady Rast. So, it's my opinion. I'm the one testifying about it. But in the course of explaining my opinion, I will rely upon and tell you about the opinion of this other person who I relied on.” It's kind of the expert workaround.
Dan: And so, what's the reason why that potentially might be a workaround? There's some limitations to the Confrontation Clause. So, it applies to not everything anyone says ever. There's two things. It has to be testimonial hearsay.
Will: Right.
Dan: Right. And so here, hearsay is something that is statement that is made out of court, that's being offered to prove the truth of the matter asserted in the statement.
Will: Right.
Dan: And it turns out there's, for those of you who have studied evidence, there's all other situations where a statement is being introduced indirectly or referred to in court, mentioned, discussed, whatever, but not to prove the truth of that statement, but to serve some other function.
Will: Right. Like what?
Dan: Well, like saying, what's the basis for your opinion, potentially? Like saying that someone said something to show that it's inconsistent with what they're saying now. If witness says x, and then the state calls somebody else to say, well, didn't the first witness say why at the crime scene that statement could be introduced to show, we're not doing Confrontation Clause right now. We're just talking about hearsay in general, but just to show inconsistency, to impeach.
Will: And his motive, another example of this, like Inigo Montoya shows up and says, “My name is Inigo Montoya, you killed my father, prepare to die,” and it doesn't actually matter whether you killed his father.
Dan: Yeah, yeah, sure
Will: The point is, that's evidence that he was trying to kill you.
Dan: Yeah.
Will: So, one of the two serious arguments in this case, there's a nonserious argument that gets rejected in a footnote. But one of the two serious arguments is, look, nobody's admitting Rast's opinion to say it's true. Nobody is saying because Rast said, “This is drugs. This is drugs.” It's only because the new guy, Longoni. Longoni says it's drugs, and he's just telling you because you might want to know. It's important for tell you why he thinks it's drugs. So, he's just telling you a Rast opinion to explain why he's credible, not to tell you that Rast is actually right. That's theory. There's also a theory that the report is not what's called testimonial. And that's not an evidence term, that's a Confrontation Clause term. The Crawford revolution, the idea is there's some statements that are intended for use at trial or something. What the test is also debated to which the Confrontation Clause applies. And other statements that are-- we're not really intended for trial. They're just like statements or language out in the world. And the Confrontation Clause doesn't apply to those because they aren't bearing witness against somebody.
Dan: So, most of the case is going to be about the first one.
Will: Yeah.
Dan: And so, I've got to be honest, I don't even really understand this argument. I mean, I understand it, I think. But I think it's dumb, this idea that you can have an expert come in and you say, “Are these drugs?” The person says, “Yes.” They say, “How do you know?” [chuckles] Because I read this report from somebody else that said they were drugs.
Will: Yeah.
Dan: And then it just strikes me as this bizarre fiction to try to contort ourselves and say that earlier statement is not being offered to prove the truth of something.
Will: Well, yeah. Can we just do it with a different, an easier hypo, maybe? So, somebody says, “I tested these are drugs.” And you say, “How do you know?” And I said, “Look, because they have whatever, a phthalate polygonal cell structure consistent with methamphetamine.” And you say, “Well, how do you know that's the cell structure of methamphetamine? Have you ever personally seen a methamphetamine cell and counted the structure?” And I say, “Well, no, but I read about it in a book and I got a chemistry degree,” [chuckles] and now I say, “Aha, the author of the book needs to come in. That's the real person who's testifying here.” We'd say, “No, I'm allowed to rely on the book.”
Dan: Yeah. Don't you think there's something fundamentally different about explaining your basis for your opinion about a specific, adjudicative fact in the case versus explaining your basis of your knowledge of some more general proposition?
Will: Yes, maybe. I'm sure those are different. You might think they're different because one is testimonial and one is not, that the author of the chemistry book was not writing the book for litigation purposes, and the author of the report is, that's not the issue this case supposedly turns on. But you might think that was the right way to distinguish those two hypos. I do have the intuition they're very different. But once-- [crosstalk]
Dan: I mean, imagine a hypo in the other direction, which is that the state radically liberalizes its evidence expert testimony rules.
Will: Sure.
Dan: Okay. And so now, anybody can be an expert as long as they have some basis for knowledge.
Will: Yeah.
Dan: And so, we just have these lay experts who are experts in figuring out whether someone did a crime, and we call one of them and say, “Do you think this person was defendant, was the person who committed the crime?” They say, “Yes.” They say, “What's your basis for knowledge?” And they say, “Well, it was an out of court statement by an informant who described in detail that this person committed the crime.” Right?
Will: Yeah.
Dan: That doesn't seem like it should work as a workaround of the Confrontation Clause that we would just say, “Okay, that's fine,” because this person was just an expert, and they were only describing that detailed out of court statement by an eyewitness to explain the basis of their opinion. Their whole opinion is nonsense if the thing that they're relying on isn't true.
Will: Well, right. So, with the line Justice Kagan takes, and she was one of the dissenters in this earlier case, we mentioned Williams and is clearly trying to vindicate her earlier view is if the expert's opinion would be nonsense or inadmissible or unsupported, unless the supporting statements were true, then these statements are being admitted for the truth of the matter asserted. It's like a little indirect, but they're admissible if and only if they are true. And that's the work they're doing is by being true. Therefore, it's being admitted and submitting in the Confrontation Clause.
Dan: And that just seems right to me.
Will: Yeah, that would be true of the chemistry book too. And so, then the answer is the chemistry book has to just be exempted on testimonial grounds, because this intuition you have about adjudicative facts makes sense to me that somehow when you rely on statements about the world, that's different. But I'm not totally sure why it's different. And you could even imagine though, the more limited ones, you say to the expert like, “Well, are you sure your eyes were working that day? Are you sure that you just didn't have some weird problem where everything you saw was wrong?” You might say, “Yes, I'm sure, because I got checked out by my doctor that morning.” “Aha, where's the doctor? [laughs] The basis for your claim is, the expert belief of your doctors that you're in sound neurological health.” I'd say, “No, that's—"
Dan: I really think this is different, but I'm trying think I'm struggling to articulate why I think it's different in real time.
Will: Yeah. I mean, I also think it's different to be clear, I'm not pushing this because I think this case is wrong. This case, the way Justice Kagan, the way the majority describes it, seems obviously right. And then one of the natural questions is going to be, “Well, if this is right, what else is right? What else follows?” So, now can we talk about Williams for a sec?
Dan: Okay. Yeah.
Will: Okay. So, in Williams, you have something similar in structure. Once upon a time, somebody found some DNA at a crime scene, and they wrote a report and said, “This is the DNA I found at the crime scene.” And then the report's lying around. Much later, not like in the course of the same litigation, but much later, we find this defendant, we take his DNA, and we compare it to the two and say, “Aha, this is the same DNA as the DNA at the crime scene.” And so, in Williams, they do want to bring in an expert who will say, “This is the defendant's DNA. If you think it's not your DNA, you can disagree with that. And then I looked and checked it against the cold case database, and it was a match. And then the question is, well, do I have to go in and find the person who put it in the cold case database?”
And theory that could apply, in some ways, every fingerprint and DNA database, I'd say, “Aha, this is a match for some evidence that was found that a crime 40 years ago, and the person who put it in the database is dead now.” And you say, “Well, you can no longer use any hits in the database from back then because you can't bring in the person who put it in the database 40 years ago.”
Dan: Yeah, that seems like it should be wrong.
Will: I mean, so Justice Kagan thought they were the same in Williams. Her dissent at the time, I think, was joined by Justice Scalia, Justice Ginsburg, and Justice Sotomayor. She's lost two members of that band, but Sotomayor. And it might be different, like the passage of time makes it seem different, but it's not totally obvious why it's different. There's an amicus brief by Richard Friedman, who is a law professor at Michigan, an expert on the Confrontation Clause, and maintains the blogspot blog, confrontationright.blogspot.com.
Dan: And also, I think, was fairly instrumental in the Confrontation Clause revolution, right?
Will: Yes.
Dan: He did a lot of work that was the foundation for that revolution.
Will: He has many greater intellectual pedigrees than the fact that he has this blog. It's just the blog is a throwback and remains an incredibly useful, early aught Internet style, deep dive on the [unintelligible [00:32:22] and Confrontation Clause. He filed an amicus brief, and in his amicus brief, he was on Smith's side. He did offer the court a path to distinguish Williams and said, “This case is very different from Williams because in this case, the value of the statements at issue, depend critically on the credibility of their maker. We need to know whether Rast is lying or not when she tested the drugs or did a good job testing them.
Whereas when you put DNA into a cold case database without a defendant at hand, even if you were totally unreliable and trying to cheat, that wouldn't help you that much. You wouldn't know whose DNA to put in without knowing that somebody's later going to be found and called an eyewitness and whatever. So, that there's a way in which those statements, their reliability or something is not--
Dan: Should that go to whether it's testimonial maybe, that seems like more-- because it seems like, right now, we're just trying to ask, was this being offered for the truth of the matter asserted?
Will: Right. I mean, and the truth of what? I'm not quite sure what doctrinal box this goes into. The idea is that at least the credibility of the matter asserted is not important to Williams because, even a noncredible person, it would be a huge coincidence if they'd somehow gotten the DNA in there.
Dan: But I mean, the original tech could have totally screwed it up and picked up some hair off the street or, I mean, [crosstalk] any other things. Right?
Will: Yeah. Right. And also, of course, if you were just for like a mystery novel, you want to frame your brother-in-law, so you sneak some of his DNA into some old cold cases, and just wait for decades to pass when somebody will--
[laughter]
So, I don't know that it totally works, but I also don't know that the majority takes a position on this. And I'm sort of confused by it.
Dan: Yeah, I mean, that's what I was going back and trying to figure out. So, I mean, the opinion says, “Hey, we had this opinion in Williams, and, gosh, look how much it's confused the lower courts,” and then it goes on and does the rest of its analysis. But I wasn't sure if that was meant to suggest, now we're solving, answering the questions we weren't able to answer in Williams or not.
Will: Yeah, I think the court now has to have Williams come out the other way, I think. I don't think they've given us any reason to think they come out differently. Maybe the testimonial will go [unintelligible [00:34:38] again, I think both these statements would be testimonial, but it's a little hard to tell. It's also the case-- so, if you imagine a spectrum of how much is the new expert really just there to launder the old expert's opinion? I think this one is pretty far on the bad end of the spectrum. This expert basically [chuckles] is sitting there on the stand reading Rast's report as if it were his, and that seems pretty bad. But I think the principle applies, even if he's not doing that, even if he's just giving his own opinion, and then saying that the reason for his own opinion is because he's relying on these hearsay statements.
Dan: And so, does this make, near impossible to prosecute 40-or 50-year-old cold cases? Because aren't those often going to depend on evidence that was collected at the time and that maybe the people who collected the evidence aren't going to be available.
Will: I mean, at some point, they're all going to die, right?
Dan: Yeah.
Will: Just by mechanical force, they'll be unavailable. I mean, again, maybe there's some way to make it non testimonial-- or I mean, maybe there's a way to distinguish it. Maybe the right answer as a doctrinalist is to say Smith points in the direction of overruling the non-opinion in Williams, but a later opinion could certainly come along and say, “Oh, that's different,” because blah, blah, blah.
Dan: But if they find the murder weapon and then 40 years later, they're able to tie it to the defendant. I mean, you'd have to show chain of custody that the murder weapon was actually found at the scene, etc., etc.
Will: Right.
Dan: How would you show that if you didn't have the officers who had found it and who would written it down in the logs and so forth.
Will: So, here's something, and this goes to some of my bigger confusions with the Confrontation Clause. So, my memory when Jeff Fisher argued Melendez-Diaz 15 years ago, which admittedly is pretty hazy, I don't think I've gone back and listened to the argument since then. My memory is that-- and there were a lot of questions about all these hypos because he was asking the court to really start walking down the road. And one of the things Jeff Fisher is really good at is having mapped out the roads and explaining to the court what the choices would be and how they would get there. My memory is his basic pitch was the prosecution almost always can figure out how to bring these cases. It's just that sometimes they're going to have to bring weaker cases.
So, if you have a 40-year-old chain of custody, it may well be that you just can't prove chain of custody anymore. Now, your case is not like you don't lose just because you can't prove chain of custody. You just have to admit that you can't prove chain of custody—[crosstalk]
Dan: What about these DNA based cold cases, right?
Will: Right.
Dan: Like that often is the only thing, I mean, at least sometimes.
Will: Right.
Dan: And the thing is, I mean, this DNA stuff is fascinating because now they can look at, use the familial matching and I follow the unresolved mysteries subreddit on Reddit, which is a good one. And I'm seeing some of these cold cases decades old, they're now getting cracked at a pretty rapid pace. Frequently, I see headlines about 1978 murder of this 12-year-old and has been solved. And it was some guy who was 20 at the time, and now he's old.
Will: Yeah. All right, so then here's another way to get the cold cases in. If I understand this argument, it's from the SGs amicus brief, is they want to say the new expert can rely on the old stuff basically whenever that's what an expert would do. So, there are some things, there's a database of cold case information or whatever that's generally understood by people in the field to be reliable. And if you were just an expert asked to figure out the truth of the matter, you would just rely on the database. That's what the standard of the field is. In that case, it's fine. But in a case like this, where no expert asked, is this a drug? Would just say, “Oh, look, I found this report [chuckles] written by somebody else who I don't really know and who's been fired,” [laughs] then it wouldn't count. In that sense, you might think of what things would an academic feel they need to run to ground themselves, and what things would they think like, “Okay, this isn't a reliable source. I can accept it.”
Dan: And how do we tie that to the Confrontation Clause?
Will: Well, if the ultimate question is the truth of the matter asserted or something, they'd say in those cases with experts using that database, their expert opinion is admissible without independently testing the validity of the premise, because that's what experts would do. An expert in this field would rely on this generally reliable database without independently testing its truth in this particular case. It's a little weird.
Dan: Yeah. I'm not sure if I'm buying that.
Will: It's a very SG argument, but it has the virtue of drawing the line in the intuitive place. If you want to rely on a generally used database that most people generally use and don't bother to check their notes, fine. And if you want to rely on random out of court statements that are designed in this particular case, that are obviously the real thing at issue, then no.
Dan: In that hypo, the database would still contain inculpatory evidence, right?
Will: Yeah, but the idea would be, it's permissible for an expert to say, I believe your DNA is a match to the crime scene. And the reason I believe that is it's a match to this database that we all generally use. It's a match to the database, and the database is generally reliable, and it's really your DNA.
Dan: But what does the database say? The database says this DNA was found at this other crime scene.
Will: Yes.
Dan: Right. And which is the critical thing we're trying to prove?
Will: Well, both are equally critical that it's your DNA and that the DNA is at the crime scene are equally critical facts.
Dan: Yeah, but I'm just saying maybe it can only get you halfway there.
Will: Yeah.
Dan: I don't know. Yeah. I mean, the thing is, I like these cases a lot. On the other hand, sometimes I wonder whether we need to get off the train. The one that I wondered whether I needed to get off the train was Giles v. California.
Will: Oh, yeah. This is the one where the man kills his wife and then her statements can't be admitted against him.
Dan: Yeah. And the government wants to say, “Well, can we just say he forfeited his confrontation rights by murdering this person?”
Will: Yeah.
Dan: And the court is like, “No, no, no. Only if he murdered her for the purpose of making her unavailable at trial.” [Will laughs] And I just, like-- I don't know.
Will: Also, isn't the question whether he murdered her? So, it's a little weird, how would we figure out whether he forfeited his rights until--
Dan: Yeah, we make all evidentiary rulings, though on the front end by a different standard of proof than we do with that.
Will: But do we make any-- the answer is, if you are guilty of the crime of which you're charged, this evidence is admissible to prove your guilt, and if you are innocent, this evidence is not admissible, that just seems-- if we knew whether you were guilty--
Dan: Couldn't we just give eliminating instruction?
Will: What would it say? [laughs]
Dan: [crosstalk] -we consider this evidence to the extent that you believe he's guilty.
Will: [laughs] I mean, I guess technically, given burdens of proof, if you believe me on a preponderance that he's guilty, you can now consider this evidence and then ask whether this evidence is enough to tip you over to reasonable doubt. But it just seems like it makes a mockery of the system to say because we have provisionally proven your guilt, this evidence could be admitted to-- [crosstalk]
Dan: But I mean, that's a problem even under the pro Confrontation Clause theory, because you still make a threshold inquiry into whether the person killed the person for purposes of making them unavailable. Well, I don't know if it's almost impossible to meet. I mean, I think there would be cases where witnesses are murdered before trial. [crosstalk]
Will: Fair enough. And sometimes the statement would be by out, you murdered a different witness. Sometimes you're on trial for one crime and you murdered four other witnesses and so.
Dan: Yeah.
Will: Yeah, I think we should-- [crosstalk]
Dan: If you're a mob boss and you killed the rat.
Will: Yeah. I think Richard Friedman thought Giles was wrong, or at least recognized that Giles was going to potentially make the Confrontation Clause enterprise unsustainable. So, I actually thought about writing an article before I was clerking like on an originalist attack on Crawford.
Dan: Okay. What would your view have been?
Will: I'm not sure it's right. So, the argument would have been that bear witness has a more formal and technical meaning, which is like the person who actually shows up in court to testify, and that the admission of out of court statements is just controlled by the hearsay rule. Because this all comes from this legend of the trial of Sir Walter Raleigh, where he was--[crosstalk]
Dan: Yeah, [crosstalk] these affidavits or whatever were used against him, and he couldn’t [crosstalk] call my accusers to my face, right?
Will: Right. But the thing is, even taking for granted the account of the trial, there were a lot of different violations going on in that case. [laughs] There were violations of the Confrontation Clause right and the right to compulsory process and the hearsay rules and some of those things were clearly then constitutionalized or reversed by the Sixth Amendment. But it's not obvious that everything that happened in Sir Walter Raleigh's trial is now unconstitutional, is the right inference.
And I think Wigmore and the second Justice Harlan both had opinions saying, “This is just one of those places where the nonconstitutional law of hearsay interacts with the constitutional law of confrontation. So, the nonconstitutional law of hearsay says who has to show up in court. And then the Confrontation Clause says, “When people show up in court and try to impress the jury with their credibility, then you get a chance to try to dismantle their credibility.”
Dan: So, it's just a cross examination, right?
Will: Yes, that's theory. Now, I'm not actually sure it's right. Just one of several reasons I didn't write it up. And this is something that Crawford, and then I think White v. Illinois, they take on these arguments. The Criminal Justice Legal Foundation, which is this nonprofit organization that exists just to file amicus briefs on the government side in criminal cases, where they often don't get any love, in this case and many others, always raises the issue of, it's not too late to say Crawford is wrong as an original matter and sometimes it seems like--
Dan: It seems like that's now not going to happen.
Will: It seems like that.
Dan: This is a 7-2 case.
Will: Yeah.
Dan: It's five and two halves and two halves versus two case.
Will: Two halves and two halves-- Okay. Can we talk about the breakdown--?
Dan: You can't round it to six. I was going to say one other thing, though, but let me just say it's a Kagan opinion with Sotomayor, Kavanaugh, Barrett, and Jackson, and then Thomas and Gorsuch join in part, which we'll talk about. And then it's Alito in dissent with the Chief. But just going back to Crawford, can I just say one other thing that I always thought was super weird about Crawford?
Will: Yeah.
Dan: Which is that in Crawford, they're trying to use this out of court statement by the defendant's spouse against him. And the only reason she doesn't testify is because he asserts the marital privilege, which bars a spouse from testifying without the other spouse's consent.
Will: Yeah.
Dan: And I always just thought that was weird. It's like, why don't we just say, “Well, you could have confronted her, but you're the one stopping her from being able to be confronted with you.”
Will: Oh, I thought you were going to say the opposite. We're going to say, “Well, if spousal privilege stops her from testifying against consent, then why should we be able to make an end run around spousal privilege by just introducing the statements?”
Dan: Well, the spousal privilege didn't apply to the out of court statements.
Will: Right, but isn't that a mistake, like I said, [unintelligible [00:45:18] bad.
Dan: That's just a matter of state law. They were just following state evidence law.
Will: Maybe.
Dan: No, it says that in the opinion.
[laughter]
Will: No, I'm just saying maybe they were wrong what's the evidence law. Maybe the state was-- all right,
Dan: But assume the state was right.
Will: Okay.
Dan: Then why isn't it answer to say, “You want confrontation? Here you go.” And then he's like, “No, no, no I don't want her to talk.” Doesn't that seem--? [crosstalk]
Will: I mean, so I get the intuition. And I think the question of when do you waive your various constitutional rights, especially your criminal procedure rights, by asserting other rights goes into this somewhat. And it's not unreasonable to say, “Look, if you want your Confrontation Clause rights, you should have to let the person testify, I guess.”
Dan: If you want your right to let the person have the person testify, you have to let the person testify.
Will: Well, right, but if you have some independent right not to have them testify, and then it's not obvious that you should forfeit that right in order to make that demand. It feels to me like the argument that was also made in Melendez Diaz that the defense can call these witnesses if they want to. So, one of the arguments they wanted to make is to say, “Look, unless you, the defense, try to bring in the lab tech yourself, you have lost your right to complain about confrontation because you obviously don't really want to testify. You're not trying that hard to get them in.” Now, in some cases, you might try to get them yourself and still be unable to or something, and then that would be a more complicated case. But it's true, in a lot of these cases, the defense does not actually want the person to testify. They just don't want them to testify at all.
Dan: Yeah, and this is the issue you called the stupid issue—[crosstalk]
Will: Yes.
Dan: Yeah. This is footnote 3.
Will: Yes. This was included in the Arizona Supreme Court's opinion. That's another argument for why this was not a Confrontation Clause violation.
Dan: And that the defendant could have subpoenaed the analysis.
Will: Right. And Justice Kagan, in footnote 3 says, “We need not spend much time on that rationale because the state rightly does not defend it. As we held in Melendez-Diaz, a defendant's ability to subpoena an absent analyst is no substitute for the right of confrontation. The Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.”
Dan: Yeah. And that makes sense to me. But I still think it's different from the Crawford situation, where the state is actually trying to meet its burden and the defendant is preventing it from doing so and then trying to have his cake and eat it too. But, okay, so let's go back to this case.
Will: Well, so should we talk about the other opinions and then also let's just talk about the lineup and the future of the clause?
Dan: Yes. So, I gave you the general lineup and so separate opinions, one by Justice Thomas and as we alluded to earlier, he was in the majority for the judgment in that Williams case, but did not agree with the four Justice pluralities rationale, that the statement at issue wasn't being offered for its truth. But he just said-- he has this view that to count as testimonial, the out of court statement has to be formalized in some way. It can't just be notes or just something someone says to somebody else. It has to be a formalized deposition statement that's being prepared for litigation. I don't think he's given us a completely full definition of that, but it doesn't apply to just everything, and it seems to require a written document.
Will: Right. He has this discussion, and there are two old cases, Davis and Hammon, about the Marian Statutes, where constables were basically allowed to investigate the crime and take a bunch of affidavits from the witnesses, and then they'd show up and prosecute the crime with the affidavits. And he says that's one of the things that Confrontation Clause is supposed to forbid. So, if it's like that. And it's in Melendez-Diaz, it was clearly like that in some cases it's not clearly not like that. Then it's testimonial. The majority, by contrast, doesn't totally resolve the testimonial issue. They say, these statements might be testimonial or probably testimonial, but it's unclear what's happening. There was an argument, this line of questioning from Justice Barrett, who was just trying to figure out literally what statements came in.
There's some dispute about whether or not it was the report by Rast or some notes she wrote before she made the report and exactly which parts they were, and the Arizona Supreme Court maybe said some things that maybe don't seem to be true. The majority is applying some test about purpose. Basically, were the statements made in contemplation or the primary purpose of influencing litigation? There's a dispute about whether that's even what the cases up till now has said, but that's something like that as the current doctrine. And Justice Thomas wants something that's, I think, overall, less defendant friendly. Even statements made for the purposes of influencing litigation are okay as long as they're not sufficiently formalized.
So, in your hypo, actually, where the expert on crime detection, Sherlock Holmes, shows up and says, “I think they're guilty,” and the question is why. He says, “Well, I talked to 17 people, and they told me a lot of stuff that made the person seem guilty, and here's what they told me.” I think Justice Thomas would say, “That's probably fine, as long as it was, like, chatting.” [crosstalk]
Dan: Not getting formal reports.
Will: Right or swearing them, saying, “Now give me your testimony. As long as he was just investigating, putting his ear to the ground, it'd be okay.” Justice Gorsuch also does not join the testimonial part.
Dan: He goes in the other direction.
Will: He would like to run the [chuckles] testimonial thing the other way, because, of course, the Crawford revolution is the kind of revolution that Justice Gorsuch wishes he was on the court to have perpetrated. It's like [Dan laughs] I'm a peace with Ramos and all his other Bill of Rights, originalism type things. So, now he's got to figure out a way to take it further. And so, he says, “I'm not sure about this primary purpose test, and I'm not even sure we should have a testimonial requirement, really.” Right?
Dan: Yeah. Basically, it seems to suggest maybe all statements.
Will: Well, all statements that are being introduced by the prosecution against the defendant, like the whole reason--
Dan: I mean, I think he still would buy the truth of the matter part of it.
Will: I think so, yes. But I think he might say, “By dint of being part of the prosecution's case in Chief, it satisfies whatever for the purpose of bearing witness against the defendant.” They wouldn't be introducing it if it weren't against the defendant. That's interesting.
Dan: I don't exactly know how much precisely, but I think my intuition is it would expand the sphere of the Confrontation Clause quite a bit.
Will: Yeah. And I think he would then need some other way to deal with all the, like, I read a chemistry book [crosstalk] hypos, I use this database or whatever. Maybe I don't know what it would be.
Dan: Because he says, “Perhaps a statement bears testimony so long as it explicitly or implicitly relates a factual assertion or discloses information that would sweep incredibly broadly.”
Will: Yes. So, he says, “perhaps,” he says, “I worry,” he’s not committed yet to Confrontation Clause maximalism, but he is putting it on the table. And this means that Justice Barrett, she’s the fifth vote, so to speak, for part three of the opinion because they lose.
Dan: Why isn’t Kavanaugh the fifth vote?
Will: Okay, sure. Both Barrett and Kavanaugh were stressing this issue and asking a lot of questions about that argument. So, okay. The Justice Kagan had to write something that kept them both on board for part three. And then we have Alito and the Chief who have what is, I guess, technically a concurrence in the judgment, but effectively dissent like, right?
Dan: Yeah. Alito's pretty mad, and it's very focused on the law of evidence. Basically, it seems to think this is bringing us back to the bad old days. The federal rules of evidence had come up with a solution for how to deal with expert testimony, and that was working well, and now you're breaking it.
Will: Because I guess it used to be the case that experts had to testify in the hypothetical because there were a lot of underlying facts they didn't know. So, it was like, “Well, what if I told you ABC? Well, then I would tell you, now, is ABC true? I don't know.”
Dan: I mean, to some degree that seems okay, but then the government then has the burden of proving the underlying facts a different way, right?
Will: Right. I get why it seems a little circuitous, but I don't see quite why it's so strange. As I understand it, Justice Alito’s opinion here, it really is tracking the SG's brief. The overall thrust of the SG's brief was the way expert testimony works most of the time in the federal evidence should be fine, and you should not say anything that would imperil the way expert testimony works most of the time. In this case, the person's Longoni went beyond what a responsible person expert federal court could do, they were leaning on the underlying statements too much. And so, you can reverse this case, but you should say that in general, this kind of thing is fine. But so now the court does.
Dan: All right, so it does seem like maybe going to start seeing a little bit less Confrontation Clause cases that are maybe a little bit less narrowly divided if we have seven Justices on the court who are really buying into the project to some degree.
Will: Yeah, six and a half.
Dan: Well, you’re saying Thomas is the half.
Will: Right. I mean, Thomas is buying another project as much as he always have, which is half as much as the current doctrine used to be, when he was a live vote, in Melendez-Diaz or in Williams. That meant there was a lot of room for mischief. But now that Barrett and Kavanaugh are totally on the team, at least for now, and then Gorsuch is threatening to take the team even further. [Dan laughs] Yeah, this is a new equilibrium.
Dan: Andit’snot a situation where Justice Jackson is veering to the right the way she did with Sixth Amendment sentencing, these are two areas, I teach them both in my crim pro adjudication class that have a lot of things in common. They're both areas where Justice Scalia led a formalist revolution that ended up helping defendants and divided the court under lines that don't perfectly track ideology.
Will: Right. Yeah, I guess because Jackson replaces Breyer, and Breyer would have been probably one of the lead dissenters in all these cases.
Dan: He thought this stuff was dumb.
Will: Yes, dumb and kind of anti, in a way like anti-intellectual. It was like, there are real questions about what happened here, what is a good way to figure it out? And there are stupid formal questions about like, is Sir Walter Raleigh's ghost turning over in its grave? And those should be ignored in the pursuit of the technocratic answer. And Justice Jackson, despite her loyalty to his Apprendi skepticism, seems not to have yet decided to wave the flag on confrontation.
Dan: Okay, so do you want to quickly talk about Diaz v. United States? I have a little bit less to say about this one, but-
Will: Sure.
Dan: -some commonalities here, particularly given the role of Justice Gorsuch. Okay, so this is not con law case at all. This is a case about federal evidence law. And basically, there's this rule of evidence, federal rule of evidence 704 (a), that says that overruling earlier practice that basically says, “Witnesses can give testimony that gets at ultimate issues in the case.”
Will: Okay.
Dan: Right. So, someone can say, “Yes, I think this person did it, or whatever.” They can get at the actual ultimate issue. But 704 (b) is an exception to that rule, which prescribes, says you can't have expert opinions in a criminal case about whether a defendant has a mental state or condition that is an element of the crime charged or of a defense.
Will: Okay. And why do we have that exception?
Dan: Apparently because people were mad after the insanity acquittal of John Hinckley after the attempted assassination of President Reagan in order to secure Jodie Foster's love, I believe, unsuccessfully. But I haven't followed their relationship.
Will: That's interesting.
Dan: Since the murder-- yeah.
Will: Right. So, he apparently had somebody come in and say, “Yup, he's insane.” And we didn't like that.
Dan: And the government had somebody saying, “No, he's not.”
Will: Yeah.
Dan: And so, you're not supposed to have somebody come in and just say, “Here's what was in the defendant's head.”
Will: Okay. But you still do have lots of like psychiatrists and stuff for witnesses, right?
Dan: Yes.
Will: So, what do they say it’s right?
Dan: They can say more general things. But it says, and let me just give you the language a little bit more fully.
Will: Yeah.
Dan: In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. So, an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element. So, basically-- [crosstalk]
Will: But they can say, here is what-- if you have this form of psychosis, then you can't form coherent whatever views about x and y.
Dan: No, I don't think you can say they can't.
Will: You say a person with psychosis can't, you can't say the defendant did, I think you say here the-- [crosstalk]
Dan: I don't think you can say that either. I don't think you can say that either, based on what's in this opinion.
Will: Really?
Dan: I don't think you can say this class of people never have this mental state, because that's the same thing.
Will: Okay. I thought you could, as long as you didn't say the defendant was in the class.
Dan: Well, okay.
Will: A person who has psychosis never has mental states. A person who's a p-zombie has no inner life and is not capable of-
[laughter]
Will: -forming mental states. Here are the symptoms of being a p-zombie.
Dan: Yeah, I guess I was imagining you were saying the person is an expert says, “This person is psychotic, and psychotic people don’t have mental states.”
Will: So, what’s interesting is this case is not about any of those mental defenses. This case is about the so-called blind mule defense. So, people are often apprehended crossing the border with drugs hidden in their cars. And then when they’re prosecuted, one thing they often say is, “I didn’t know there were drugs in the car.” Or even I think I knew there were drugs, but I didn't know what kind of drugs would be a defense because you need to know what the drugs are. And then the government wants to bring in somebody who will say, “Oh, come on, you knew.” And so, they have these, I guess, so called experts who are experts in what-- [crosstalk]
Dan: They're basically just police officers.
Will: [laughs] Yes.
Dan: So, which is its own other problem. The case is not really about, but there's all sorts of people who come in, “I'm a gang expert, and I'm going to tell what gangs do.”
Will: And weirdly, or maybe not that weirdly, I don't think the defense is allowed to do this. Like the prosecution gets to bring in police officers who say, “I'm an expert in how gangs work and this is a gang.” And I don't know whether it's just because it's hard to find retired cops who want to do this on the other side, but it doesn't seem like the defense usually gets to bring in. “No, I'm a gang expert. This is not what a gang looks like.”
Dan: Yeah, I don't think there's any rule of evidence that would categorically bar them from doing so.
Will: Yeah. I wonder if judges would apply the rules of evidence in an honest and symmetrical fashion, if they ever did that or not, I may be a little skeptical. Anyway, some expert says, “In my experience, the people who have the drugs almost always know. Not always, but almost always know.” And so then the question is, can they do that or is that an opinion about whether the defendant did or did not have a mental state that constitutes an element of the crime?
Dan: The court says no.
Will: Why not?
Dan: Well, because it's not an opinion about the defendant. It's about a group of people of which the defendant is a member. But we're not saying all those people in that group have this mental state or don't have this mental state.
Will: Because it's most people.
Dan: Yeah.
Will: But it's only admissible because it's about the [chuckles] defendant, right?
Dan: Well, it's only admissible because it is probative of the defendant's guilt.
Will: Isn't this the opposite? I understand that was a confrontation case and this is an evidence case. Isn't this the opposite of Smith? Like at Smith, were like, “The only reason this earlier report is being admitted is because if it's true, then it would be probative.” And so obviously it's being admitted for the truth. And here, the only reason this view about most people is admissible is because it's thought to be probative about the defendant's mental state.
Dan: Yes, but you still, to the extent that the thing we're worried about is someone coming in and just telling us, “Here is what the defendant was thinking,” it's not exactly that. Someone could come in and say, “We've caught a bunch of people smuggling, and it turned out they all almost all of them claimed they were blind mules but weren't actually did know.”
Will: So, if Hinckley’s defense witness, instead of saying, “I've examined Hinckley and I've concluded he's insane,” can say, “Look, I've examined Hinckley and he has these traits, and in my experience, almost everybody with those traits is insane.”
Dan: I think you could say that you could do that.
Will: And the Congress so mad about the first witness.
[laughter]
Will: If you'd said almost all, you said you were 100% sure, that's illegal. But you said you're 99% sure. Well, okay.
Dan: Well, that's not exactly what you're saying. I'm not saying you're 99% sure about this defendant. You're just saying we're just telling you a fact about this larger population and you can draw the inference.
Will: Aren't those the same thing, though?
Dan: No, because there’s all sorts of things. I mean, the government puts on all testimony that gets at somebody's mental state. What we don't want is the witness to say, “Tell the finder fact what was in the person's mind,” but it's totally fine for them to give them all sorts of pieces that they're going to use to cobble together to figure answer that question.
Will: But I just mean as Bayesian saying, I am 99% sure this was in your mind versus 99% of people like you have this in their mind. Those, at least for a Bayesian, are literally the same statement. They're both 99% likely that you're that person and there's some chance you're a weirdo who's not like that.
Dan: That's true. But as a Bayesian, is there that much of a difference between a witness saying this is what that person was thinking versus a witness just giving you other circumstantial evidence that helps you figure out what the person was thinking.
Will: I mean, if circumstantial is the super strong, then maybe not.
Dan: Yeah, but I mean because you seem to be just pushing back on this rule entirely. Right?
Will: Well, I'm just trying to figure out what's going on here.
Dan: Well, what's going on here is we've got a text and we're interpreting the text.
Will: Are we?
[laughter]
Will: Does this turn out about whether?
Dan: I mean, it's relevant to, it's probative of, but it's not a statement. If the thing we're trying to avoid people is coming in and making statements directly about what the defendant was thinking, rather than just statements from which the trier fact can draw inferences to help it figure out what the defendant was thinking, then maybe this is okay.
Will: Maybe if we're going to be textualist about it, I would think the majority is interpreting a rule as if it said something like an opinion that the defendant did or did not have a mental state. This is not an opinion that the defendant had a mental state or not, but it's an opinion on the topic of the defendant's mental state. It's an opinion about--
Dan: But it can't be that it rules out all opinions on the topic because wouldn't that exclude a lot of evidence?
Will: Well, we just learned from Smith, we're [laughs] barely going to exclude all like--
Dan: We're just going to end up excluding everything.
Will: Yeah, that's weird. I forget the details now. There was this other textual issue that came up in the argument that in the briefing, Rule 704 (b) was amended, like the language used to be slightly better for the government. I don't remember exactly what the language was. And then it was amended during one of these cosmetic re-stylings of the rules of evidence. So, the government wanted to say, “Well, look, the old rule was x.” And then we had a pretty good argument in that rule. And now the rules phrasing isn't quite as good for us. But we all know the phrasing wasn't supposed to make any changes, so you should still pretend it's as the old thing, which is an interesting, just textual issue that comes up with all these things that have been rephrased.
Dan: Sometimes seemingly quite substantively. And this came up with Section III. I thought that there was just this cleanup of the US code that was supposed to just be totally non substantive. And isn't that when we accidentally got rid of the-
Will: Yes.
Dan: -provision barring people who had committed insurrection from being in the government and stuff?
Will: Yes, the criminal and civil enforcement provisions.
Dan: Yes.
Will: Yes, exactly. When I write my article on codifiers errors, this will be one of many examples.
Dan: I’m looking forward to that. You have a lot of articles like that-
Will: And that I never write.
Dan: -that you promise that maybe don’t materialize.
Will: Guilty as charged. Justice Gorsuch, Justice Sotomayor, and Justice Kagan dissent, does that mean this is a standard government versus the little guy case?
Dan: No. Because of Justice Jacksons concurrence.
Will: Yeah.
Dan: Where she says, “Actually, this is going to help the little guy.” Defendant loses here, but this maybe will help the little guy because rule 704 applies to both prosecution and defense witnesses. And so, defendants in the future can now bring in experts who can say stuff like, in my experience as an expert, most people who transport drugs don't have any idea what they're doing.
Will: Yeah. Yeah.
Dan: Right.
Will: Yeah. And the future John Hinckleys and all those, I mean, this rule started as antidefendant rule, or this rule started as an act of outrage over an acquittal. So, there's going to be a whole set of defense experts where they can take advantage of this.
Dan: Yeah, I have no idea whether her intuition that this is maybe on net helpful for defendants. I have no idea if that's right.
Will: Yeah.
Dan: My guess is it's probably not, that government is just generally going to better at rounding up experts.
Will: Yeah.
Dan: But maybe.
Will: Yeah, I assume the government is better at running up experts because they have these law enforcement experts in every case. On the other hand, maybe the right thing to ask about is in the set of cases that go to trial with some triable defense, and maybe often there's some sort of expert there. I do still wonder, isn't the real problem just that this is all bullshit evidence, expert evidence?
Dan: Well, there goes our family friendly rating.
Will: Sorry.
Dan: Yeah, I agree that is a real problem. And that's a problem that also underlies confrontation too, which is that some expert lab evidence is very reliable, and we like at DNA mostly, it's pretty good. There's some things wrong with it. It can be misinterpreted. But there's also a lot of other things like ballistics experts, where it's just total apparently a lot of it is just nonsense.
Will: Yeah, I guess that stuff at least seems also nefarious that it seems like it's an expert. I can match hair or I can match bite marks. Like, that seems like a thing because fingerprints are a thing and DNA is a thing. And so, you're like, “Okay, that could be a thing.” Here, I guess I would hope that no jury would think this was real expertise, “I'm an expert in guilty people.”
Dan: I'm sure juries totally eat this up.
Will: This person sure looks guilty to me, but it seems like that's part of the real problem.
Dan: Yeah, I agree.
Will: Yeah.
Dan: And in his dissent, that's something that Justice Gorsuch flags as a problem, the problem of junk science. Yeah, but maybe we should come at that directly. This is a pretty fiery dissent for what is not even a constitutional case.
Will: It's sort of a Gorsuch specialty.
Dan: Well, I mean, he does it in constitutional cases, plenty.
Will: No, but I mean, taking cases that are about the statute of limitations for bringing a Veterans Affairs claim and turning it into a [Dan laughs] separation of powers travesty.
Dan: Yeah. He's quoting Herbert Wechsler and basic principles of criminal law. Just trying to generate outrage about this. I don't know if I have generated a feeling of outrage, but I appreciate the effort.
Will: Me too. Anything else to say about this?
Dan: I don't think so.
Will: Actually, I have one last question about this. So, there was a split. The Ninth Circuit was bad for the defendants, and that's where this case came from. But the Fifth Circuit had the other role. So, until this case was brought, defendants on these blind mule cases in the Fifth Circuit had a slightly better chance. Now, they have a worse chance. Should we think, there's anything wrong with having brought this case to the court? If you're, of course, you represent individual clients, you just have to do whatever you can of the client. But if you were thinking about, if you had somebody, the defender general, or whatever, thinking about the system as a whole, would you have brought this case up to the court? Or would you have said, “Boy, we've got good law on this technical rule of evidence thing in the Fifth Circuit right now,” let's just let that lie.
Dan: I don't know. I mean, I could see believing that maybe the textual argument will just prevail here. It sounded like you were persuaded by the textual argument for the defendant.
Will: Sure.
Dan: You at least sounded receptive to it.
Will: But Justice Gorsuch has my number, [chuckles] I mean, not really.
Dan: [laughs] He should.
Will: If he wants it, I'll give it to him. But you know what I mean? He has my emotional number, so I'm predisposed to be persuaded by this kind of thing. And I do think there's a textual argument for it. So, yeah, so maybe at the time you brought it, you just thought, this is the kind of thing.
Dan: It is not some like preposterous case, right?
Will: But it is something where, again, from the system as a whole, in essence, the rights of defendants of the Fifth Circuit were just gambled against the rights of defendants of the Ninth Circuit. I guess that's how it works, it's no objection.
Dan: It's the certiorari system, and it is this continued problem that I've noted that because these decisions about what cases you're bringing are just made by individual defendants, whereas the government can be more strategic. You get some cases like this. But again, you don't seem to be crediting Justice Jackson's intuition that maybe we're playing 3D chess here, and maybe the defender general would bring this case.
Will: Help yet another set of-- Yeah, that's fair. No, and again, the other point that people would always make is, look, it's not like the government doesn't have the ability to bring a Fifth Circuit case. If this rule is causing such a problem for drug prosecutions in the circuit, I promise the SG knows how to petition for certiorari from the Fifth Circuit. So, the idea that anybody would even think about trying to throw Mr. Diaz under the bus in exchange for some unknown number of blind mules in the Fifth Circuit, it's maybe unrealistic. I think I agree with that. I wanted to run that by you, but I'm persuaded.
Dan: Yeah, my guess is that these defenses don't succeed very often anyways.
Will: Yeah, well, you got to try something.
Dan: Yeah, it's not good to be caught with lots of drugs coming in at the border.
Will: I wouldn't know. I mean, I wouldn't know from personal experience, I have watched a number of those trials, and it does seem not good.
Dan: You may not be an expert, but you at least can rely on hearsay here.
Will: I bet I have as much expertise on this as some of these law enforcement experts.
Dan: Maybe. How many alleged blind mules have you interviewed?
Will: I don't know if I've interviewed them, but, yeah, I definitely have a lot of hearsay from the public defenders I know.
Dan: Yeah. Well, not nothing. Okay, anything else?
Will: No.
Dan: Close this out.
[Divided Argument theme]
Will: Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. If you would like to leave a $30 million gift to endow this podcast, just email us at pod@dividedargument.com.
Dan: Just email me. I promise I'll get the money to Will when as needed. Okay, well, if there's a long delay between this and our next episode. It will because Will has killed me to make me unavailable for podcasting.
Will: Prove it.
Dan: And thus, forfeited his confrontation rights.
Will: Prove it.
[Divided argument theme]
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