Thursday, February 21, 2008

Retrospective application of new rules

When judges strengthen the rule against hearsay to protect the accused’s right to a fair trial, can people who were convicted under the old, lax, form of the rule complain? Does the new rule apply only to future cases (plus the case deciding the new rule), or can it be applied retrospectively?

In the United States of America, Teague v Lane, 489 U.S. 228 (1989) established a general rule for when changes in rules of criminal procedure can be applied retrospectively. The Teague rule is that such changes do not apply to cases that have become final before the new procedure is announced, with two exceptions: first, new rules putting conduct beyond the power of lawmakers to proscribe will be applied retrospectively, and second, watershed rules that implicate the fairness of the trial will be applied retrospectively.

Naturally enough, the interpretation of the Teague rule has generated much discussion and litigation. Yesterday, for example, the Supreme Court decided Danforth v Minnesota No 06-8273 (20 February 2008), and held that the Teague rule is a limitation on the right of Federal courts to overturn State court convictions, and it is not a limitation on the power of State courts to grant relief. That is, State courts may retrospectively apply changes to rules and may grant remedies, outside of the constraints of the Teague rule.

In Danforth the hearsay rule was relevant, underlying the admissibility of a child complainant’s video testimony. The child did not give evidence at trial, but a video recording of an interview with the child was played. In Crawford v Washington, 541 U.S. 36 (2004) the rule against hearsay evidence was strengthened by eliminating an exception based on indicia of reliability of confrontational testimony. The new rule is that hearsay of a confrontational nature can be admissible if the witness (ie, the person whose utterances are sought to be used as evidence) is unavailable and if the defendant had a prior opportunity to cross-examine the witness. “The only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” This new rule is referred to as a new constitutional rule of criminal procedure. It is constitutional in the sense that it is an application of the Sixth Amendment right of an accused to be confronted by the witnesses against him, via the Fourteenth Amendment’s due process guarantee that trials will be fair. The new rule was not, therefore, an invention of the Court arising from its own policy preference, instead its origin was the Constitution itself. The rule was new in the sense of not being dictated by judicial precedent at the time it was articulated. For discussion of the rule, click here.

The Minnesota State Supreme Court in Danforth had held that it was not free, under the rule in Teague, to apply Crawford to the present case. Crawford had been decided after the petitioner’s conviction had become final. The US Supreme Court reversed this decision and remanded the case for further consideration. The Opinion of the Court noted, at pp 26-27 that the question whether there had been a violation of a right was distinct from whether there was a remedy:

“It is fully consistent with a government of laws to recognize that the finality of a judgment may bar relief. It would be quite wrong to assume, however, that the question whether constitutional violations occurred in trials conducted before a certain date depends on how much time was required to complete the appellate process.”

The US Supreme Court held (p 4) that the court below had correctly recognised that it was not obliged to apply Crawford, but held that the lower court was not prohibited from doing so.

So, after all that, it was for the State court to decide whether the new hearsay rule should apply to convictions that had been finalised before the rule was laid down. It may seem a little strange that the Supreme Court did not simply decide that the second exception to the Teague rule required that the new hearsay rule applied retrospectively, because confrontation was necessary to the fairness of the trial. Without confrontation there was no sufficient reliability, and without an opportunity to challenge the reliability of the witness the trial was not fair. Perhaps the answer is that the fairness of a trial requires consideration of all its circumstances: generally speaking, if an accused had fully and freely confessed to a crime, that confession could be sufficient on its own, or together with other non-hearsay evidence, to sustain a conviction.

The case calls to mind differing approaches to interpretation of the Constitution. Richard A Posner, in “Overcoming Law” (1995) p 174 notes that interpretation is as much creation as discovery. Aharon Barack, in “The Judge in a Democracy” (2006) pp 149-152 discusses Old Textualism, saying that “for the true intent of the author it substitutes the intent of the interpreter.” EW Thomas, in “The Judicial Process” (2005) at pp 25-26 says the declaratory theory “assists to absolve judges from personal responsibility for their decisions.” Richard Posner, in “The Problems of Jurisprudence” (1990) at p 299 prefers to recognise that interpretation has plural goals – “fidelity to framers’ intent, certainty, coherence, pragmatically good results.” Was the new rule in Crawford really dictated by the framers’ intent, or would they have recognised that reliability of hearsay evidence can be established by methods other than confrontation?

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