Tuesday, August 21, 2007

Assistant AG: Edit CI out of video to avoid "confrontation" issues

Do you really have a right to confront your accuser if the government doesn't tell you who they are? That question came to mind today when I saw a request on the Texas DA's message board from a Longview prosecutor asking for help:
We have a case pending where we cannot find a confidential informant. The CI is not crucial to the case as we have a video of the illegal acts by the defendant. Can we play the video, with the CI in it, without calling the CI as a witness? Could we argue that the CI's statements in the video are nontestimonial?

Trial tomorrow... need help.
Upon further questioning from peers, the Longview ADA revealed that he wasn't worried about revealing the informant's identity, but about "his statements in the video as they relate to Crawford and confrontation" - i.e., the right of the defendant to face his accuser.

In other words, the informant apparently played a more significant role in the undercover arrangement than prosecutors had planned to reveal. The informant's statements on tape, though not exculpatory, could lead the defense to claim the charges were brought in part based on the snitch's accusation. Under the confrontation clause in the Constitution, that would mean the defense is allowed to confront him in court and cross-examine his testimony.

I should mention before going on, the Longview ADA could have saved himself a lot of trouble by revealing the CI to the defense earlier and giving them a chance to interview the witness before trial. Now, when they can't produce the CI, prosecutors are caught looking either a) unprepared or b) like they're concealing something.

But more surprising was this suggestion from a forum participant identified as an Assistant AG at the Texas Attorney General's office: "
If the CI does say something cross-Crawford," he suggested, "then you could edit the tape to take it out, possibly."

Hmmmm. Some of you lawyers help me out and tell me if I'm translating the legalese correctly: If the defendant should be allowed to confront the CI-accuser in court (i.e., if evidence on the tape is "cross-Crawford"), the Assistant AG's advice is to edit it out? Really? Not to seek a continuance and find the CI. Not to inform the court the witness isn't available. But to hide the evidence?

I'm not a lawyer; maybe I'm misinterpreting; perhaps that's somehow kosher in legal circles. But something about that doesn't smell right.

As always, I've copied the discussion string onto this Google document in case the association removes the link. UPDATE: See Houston defense attorney Mark Bennett's clarifications in the comments on why this might be okay.


Mark Bennett said...


I don't have a big problem with this at first blush. If the prosecutor edits out that CI, there is no confrontation problem (because the CI's testimony is not being used against the accused). If the prosecutor does not edit out the CI, there may be no confrontation problem (if the CI's words are nontestimonial, which might turn on whether he knew the police were recording him).

Whether the CI is testifying or not, the accused's lawyer should already have asked for and received notice of the identity of the CI (because the CI was present when the alleged crime was committed). The absence of the CI might create a compulsory-process problem. JB, who responded first to the Longview DA, is correct -- the defense might ask for time to find the witness themselves.

If the defense has seen the video and the state offers to redact out the CI's words, the defense could accept (in which case there would be no testimonial statements of the CI admitted, so no confrontation objection) or object (in which case the confrontation objection would arguably be waived, though the objection might be that removing the CI's words would render the balance of the tape meaningless or deceptive).

If the defense hasn't seen the video and the State is trying to hide the CI's part from the defense, that's another kettle of fish entirely.

Gritsforbreakfast said...

Thanks, Mark, I was afraid I was missing some key line of thinking on this, and you've identified it. That's probably why prosecutors get grumpy at me and other non-lawyers looking at their stuff.

Based on your comments, I wonder how it would change your perception if the defense had not seen the tape? As you know, the ADA is not required to disclose evidence to the accused unless its Brady material (exculpatory). DAs in some counties give full access to prosecution files, and others are quite secretive. In this case, I don't know whether the tape was given to the defense or not.

Thanks for walking me off the ledge on this one! sh

Anonymous said...

Wrong. The defense can always use the discovery statute, CCP Art. 39.14, and always get a copy of the videotape prior to trial.

Gritsforbreakfast said...

That's fine and well, Ken, but I think you know that a lot of ADA's play hide the ball with potentially exculpatory evidence. In fact, I saw you scolding someone over that recently on the DA's string. You wrote, "We cannot wear the white hat and will suffer a public relations nightmare if we take the position that we only have to reveal favorable evidence when the trial begins." Yet from that very string it's evident that's how many prosecutors operate. Not all of them, but enough for me to think Texas' discovery laws aren't nearly strong enough to prevent such gamesmanship. best,

Anonymous said...

The discovery laws should be stronger, but the defense bar has resisted making any changes since the prosposed change always includes reciprocal discovery as in federal court.

Gritsforbreakfast said...

Whatever the reason (and the one you've identified is the DA association's negotiating position against open files, not a reason per se), let's not pretend that discovery statute is any great solution when some ADA's think it's ethical to conceal Brady material to coerce pleas.

Brownlee and Bradley's position on the string I linked to, in my mind, splits legal hairs to justify a position of opacity during plea negotiations that serves no purpose other than to maximally coerce a defendant. I believe that kind of behavior leads to wrongful convictions, and Texas weak-as-skim-milk discovery law doesn't prevent that outcome.

Thanks for commenting, btw, and for reading. best,

Sam said...

One last word on the discovery issue. It is up to the Judge presiding over the matter to rule on the discovery requests. Our County (Comal) has a complete open file policy, so musch of one that we photocopy our files and give them to the defense lawyers at the arraignment docket. If the attorneys are court appointed they receive a free copy of any video tapes, if they are retained they are charged $10.00 for the video tape. This system seems to make cases move along well, as everyone is pretty much up to "snuff" early on when it comes to evaluating their case.
With respect to some ADA's hiding the ball on Brady material, do not paint all prosecutors as evil "arms" of the State because of the unethical behavior of some.

Wes said...

I was the poster who made the suggestion about editing out the cross-Crawford statements in the TDCAA forum. My assumption in making the suggestion was that the defense was objecting to the statements made by the CI on the tape (that is what the Crawford case is about). Certainly if they are not asking to have it redacted, there would be no reason to do so, because Crawford does not apply if no objection is made.

The TDCAA forum, unlike the criminal defense lawyers', is open for you to request a clarification on such issues before you post to your blog. Your blog post explicitly accuses me of suggesting that a DA hide evidence, when my posting presumes the opposite--that the defense is aware of the contents of the tape and objecting to it. I know you aren't out to make friends with prosecutors, and your blog suggests you tend to assume the worst about us, but I would have been glad to explain myself in lay terms had I even suspected someone was going to misinterpret me so grossly. I would appreciate your editing your original blog entry to remove the unjustified slur on my ethics.

Gritsforbreakfast said...

Wes, Here's the full text of what you wrote:

"You need to look at what the statement are. Are they really hearsay? If he is just heard talking on the tape, but not making factual representations, or if the statements are not testimonial, then you have neither a hearsay nor a Crawford problem.

For example:
CI: Do you have the dope?
Defendant: Yep
CI: Here's the money.
Defendant: Here's the dope.
CI: Thanks, dude.

None of that is Crawford- or hearsay-implicating.

If the CI does say something cross-Crawford, then you could edit the tape to take it out, possibly.

I think we need more detail on what it is that concerns you about what is said by the CI on the tape."

Where in that statement does it assume the defense knows about tape or that the questioner is responding to a defense objection? I just don't see it from the specific words of your prose.

I'm leaving for the afternoon to spend the day with the missus, who has the day off, but if you can tell me where you said in your original comments that the defense counsel should be or already had the evidence, and I'll be happy to make that correction. I didn't understand your quote to include that caveat. And if it did not and you're only making the caveat now, that's what blog comments are for. Best,

Gritsforbreakfast said...

Oh, and Wes, my assumption was that, as is often the case, the defense counsel hadn't seen the tape but MIGHT object if the Crawford motion was raised. I interpreted your comments in that light, and looking at the whole string I see nothing to either confirm or deny whether defense counsel had access to the tape. I don't think you knew when you gave that advice, though maybe you assumed it and didn't say so. best,

Wes said...

The question I was answering was "What about his statements in the video as they relate to Crawford and confrontation?" Without an objection by the defense, Crawford cannot be raised. Confrontation is a trial issue, not a discovery issue. Anyone who knows what Crawford is about, as all prosecutors should, would understand that Crawford comes into play when you attempt to introduce the tape at trial, and the defense objects under the confrontation clause that the person on the tape is not present to be cross-examined. The presence or absence of a witness at trial is irrelevant if the issue is whether to disclose the contents of the tape or not, so Crawford would have no application in that situtation.

Furthermore, the post directly before mine elaborated on the hypothetical by saying: "If I understand the question, you are not concerned about admisability of the tape under CCP 38.22 and you are willing to identify the CI's voices on the tape... and you gave the defense a copy of the tape at least 20 days ago, etc." I think it would be clear to anyone by the time they read my post that these were the assumptions we were operating under.

Finally, my post first asks whether the statements weren't truly hearsay, such that they would be admissible over an objection. It should have been clear to anyone that the thrust of the thread was how to get the evidence admitted into evidence over an objection. The prosecutor's goal here was manifestly to present beneficial evidence to which he believed the defense might object. My "cross-Crawford" comment, in that context, was saying that if the defendant's objection was proper, you would only be able to get the tape into evidence by editing out the objectionable, i.e. "cross-Crawford" evidence.

Since I wrote the post in a forum for lawyers, my intended audience would have, and did, understand these implications. I realize that as a non-lawyer, you may not pick up on them the way lawyers would.

So please understand, my objection to your handling of the question was not that you misunderstood, my problem with your post is that you accused me of endorsing an unethical tactic without bothering to make sure you did understand. Why not ask the question on the TDCAA forum first, and get clear on it, before posting about it on your blog, out of context, and in an unequivocally negative posture? And then, when Mark Bennett points out the problem with your interpretation, you thank him for "walking you off the ledge" but do nothing to correct in the original post what you now know to be a misstatement of the truth. I'm not asking for an apology, I'm simply wondering why you chose to leave your readers with the misconception with which you provided them when you could easily have posted a correction. Instead you've left it to your readers to seek out the comments.