Case o' The Week: Crawford and Kozinski, a Patriotic Pair - Esparza and Testimonial Evidence
Nothing more patriotic for the Fourth of July than a case upholding core constitutional rights (and a remarkable article advocating for greater justice in our system of criminal law and procedure).
United States v. Esparza, 2015 WL 3938093 (9th Cir. June 29, 2015), decision available here.
Players: Decision by Judge Nguyen, joined by Judge Schroeder and DJ Zouhary. Big win for AFD Kent D. Young, Federal Defenders of San Diego, Inc.
|Hon. Judge Jacqueline Nguyen|
Facts: Driving a Chevy, Esparza was stopped at a border checkpoint. Id. The registered car owner was “Diana Hernandez.” Id. Over fifty kilos of marijuana were found in hidden compartments in the car. Id. The Border Patrol sent Hernandez a notice that the car had been seized because of the drug stop. Id. A month later, Hernandez sent the DMV a “release of liability” form and a signed statement claiming that she had sold the car to Esparza before the stop. Id. at *2. At trial, the government successfully admitted these documents despite the fact that Hernandez was available (in the courthouse) but not called to testify. Id. The defense presented evidence that the car had been sold through a different chain of individuals not including Esparza, that Esparza was an unwitting courier, and that Hernandez had created or been given the DMV transfer / release of liability documents only after learning of the border stop. Id. at *3. Esparza was convicted and sentenced to 24 months. Id. at *4.
Issue(s): “The question that we must decide is whether the government’s use of Hernandez’s hearsay statement violated the Confrontation Clause.” Id. at *1.
Held: “We hold that because Hernandez’s statement was ‘testimonial,’ see Crawford v. Washington, 541 U.S. 36 . . . (2004), Esparza had the right to confront her as a witness. His rights were violated because he was not given an opportunity to do so. We also conclude that the admission of Hernandez’s statement was not harmless beyond a reasonable doubt, and thus we vacate Esparza’s conviction and remand.” Id.
Of Note: What is a “testimonial” statement? That’s been the core Confrontation Clause question since Crawford, and it is a question upon which Judge Nguyen spends a fair amount of time. Id. at *4. In a thoughtful analysis, the Court reviews the evolution of “testimonial” from the Supreme Court’s decisions in Crawford, through Davis, Clark, and Melendez-Diaz. Judge Nguyen concludes that Hernandez’s DMV assertions were functionally identical to live, in-court testimony and were therefore testimonial. Id. at *5. It is an accessible Crawford discussion with a welcome “testimonial” holding that leads to an ultimate reversal.
How to Use: The disputed docs were “public records created for the administration of DMV affairs,” complained the government, and thus within a hearsay exception. Id. at *6. Not so here, counters Judge Nguyen, distinguishing Ninth authority that had found DMV docs non-testimonial. Id. Use Esparza for the proposition that the Crawford analysis is context specific, and that docs (like DMV records) don’t necessarily dodge the “testimonial” label just by virtue of their origin. Id. (“That her statement is contained in documents that might otherwise qualify under a hearsay exception for public records makes no difference to our analysis.”)
For Further Reading: Read it and weep (with joy).
|Hon. Judge Alex Kozinski|
In Criminal Law 2.0, 44 Geo. L.J. Ann. Rev. Crim. Proc. (2015), Judge Alex Kozinski has penned a remarkable treatise pondering the injustices of the American justice system.
With exhaustive documentation, Judge Kozinski chronicles our system’s failures: from bad ID’s, to bad experts, from archaic jury procedures to prosecutorial misconduct, from Brady violations to over-incarceration, and the travesty of AEDPA. More importantly, he posits a bevy of reforms that are thoughtful, provocative, controversial, and ambitious (including a shout-out to NorCal CJA Attorney David Shapiro, and some sharp questions for the ND Cal USAO), id. at xxviii.
The piece is funny, frank, and tragic, and is crammed full of welcome resources and recommendations.
This article should be required reading for law school students, judges, and prosecutors. For those of us who defend indigent folks, it is the most inspirational thing you’ll read all year – read it, enjoy it, use it, and most importantly, fight for His Honors’ proposed reforms. Article available here.
Image of American flag from https://s-media-cache-ak0.pinimg.com/originals/4c/b3/47/4cb347149fb092bf0e1b4db0a26c0705.jpg
Image of the Honorable Judge Jacqueline Nguyen from https://en.wikipedia.org/wiki/File:Judge_Jacqueline_Nguyen.jpg#/media/File:Judge_Jacqueline_Nguyen.jpg
Image of the Honorable Judge Alex Kozinski from https://s-media-cache-ak0.pinimg.com/236x/3b/3d/24/3b3d24a7ca3330f8756a02931588d5db.jpg
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org