The certiorari stage is typically too early to write about a case, but White v. Louisiana has already attracted the attention of Evidence professors, and rightly so. State v. White, 243 So.3d 12 (2018), cert. pending, No. 18-8862.

Background

Roderick White was indicted in Louisiana for murder in the January 2015 shooting of NaQuian Robinson. At trial, the principal evidence against White was a videotaped statement given a week after the shooting at the police station by Brandon Coleman. In the statement, Coleman told the police that he, White and "BJ" were driving around Baton Rouge when White spotted Robinson selling CDs. White got out of the car and approached Robinson. Parked nearby, Coleman heard gun shots and saw White firing in Robinson's direction. White then ran back to the car, and Coleman drove off. Later, White admonished Coleman not to talk to the police.

That is what Coleman said at the police station. At White's trial, Coleman took the witness stand and declined to invoke his Fifth Amendment privilege. (He was facing an accessory-after-the-fact charge.) His testimony, however, was quite limited. On direct examination, he testified that he had suffered a serious brain injury in an accident in September 2015 and could not recall the shooting or his videotaped statement. He recognized himself in the videotape; identified his father, who was present for the interview; gave his birthdate and age; and said that he was "seeing somebody … somewhere in Florida" for treatment.

On cross-examination he was asked these six questions:

Q: Mr. Coleman—your father was in that taped statement. You talked to your father. Do you remember that?

A. Nah. I don't remember, but I see he was in there.

Q: Okay. What does your father do for a living? Is he a cop?

A. Yeah.

Q: He's a police officer?

A. Uh-huh.

Q: Okay. And to be clear for the record, you—you were 20 years old in 2015, because you're 22 now, right?

A. Right.

Q: So you were 20 then, right?

A. Right.

Q: But to be quite honest, you have no recollection of any event in January of—the 6th of January of 2015?

A. Yeah. After September, I don't remember nothing.

Coleman's memory loss did not prevent the trial judge from admitting the videotaped statement. (The judge said that excluding the statement would encourage "every witness in America to come in here and say I have a head injury and I don't remember what I said.") White was convicted of murder and sentenced to life imprisonment at hard labor without parole.

On appeal, White claimed that the admission of Coleman's videotaped statement violated his Confrontation Clause rights under Crawford v. Washington, 541 U.S. 36 (2004). The statement, he argued, was testimonial hearsay, and Coleman was not subject to cross-examination due to his memory loss. The Louisiana Court of Appeals rejected the claim. It found that Coleman "was available to testify and, in fact, testified at trial, subject to cross-examination" in which he "only indicated that he did not remember the day the defendant shot Mr. Robinson or that he gave the videotaped statement to police." The Louisiana Supreme Court denied review with two judges dissenting.

On April 11, 2019, White filed a pro se petition for certiorari to the U.S. Supreme Court. Apparently written with the aid of an accomplished jailhouse lawyer, the petition is a gem. Its argument section begins with these words: Unless review is granted, "sometime in the future, after another perhaps forty or fifty years toiling under a hot southern sun in the fields of Angola [prison], Roderick White will die [here] for a crime there is no evidence, subject to cross-examination, that he committed." The petition refers to Coleman as a "potted plant prosecutors put on the stand to introduce testimonial hearsay." It argues that a life-without-parole sentence based solely on Coleman's out-of-court statement "would make Sir Walter Raleigh's judges blush the color of their crimson robes." And it asserts that saying that Coleman "appeared for cross-examination" is like saying that a pianist appeared for a recital if he "showed up, bowed, sat down, and then announced that he had forgotten all the music."

In a footnote, the author apologies for not having performed a 50-state survey, noting that the prison library has only federal and Louisiana reporters.

Three amici have filed briefs in support of White's petition: The National Association of Criminal Defense Lawyers; Prof. Richard Friedman of the Michigan Law School, who has written extensively on the Confrontation Clause; and Charles Nesson of the Harvard Law School and his wife Fern Nesson. The petition also attracted the attention of Jeffrey Fisher of the Stanford Law School, who argued Crawford. Fisher has now entered his appearance for White.

Certiorari

Is White cert-worthy? Some thoughts:

(1) A key passage in Crawford is this:

[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements …. The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.

Coleman appeared at trial, but he could not "defend or explain" his videotaped statement. His memory loss was apparently genuine and total. To say that he "only indicated that he did not remember the day the defendant shot Mr. Robinson or that he gave the videotaped statement to police," as the Louisiana Court of Appeals did, gives new meaning to the word "only," since those are the only days that matter. If testimonial hearsay is inadmissible unless the witness is subject to cross-examination at trial, then the admission of Coleman's videotaped statement at White's trial seems impermissible. (There are two exceptions to the rule that testimonial hearsay is constitutionally inadmissible unless the declarant is subject to cross-examination: (i) dying declarations and (ii) instances in which the defendant procured the witness' unavailability to prevent him from testifying; neither applies in White.)

(2) Douglas v. Alabama, 380 U.S. 415 (1965), which was cited favorably in Crawford, supports White's position. Douglas and his alleged accomplice, Lloyd, were tried separately for assault with intent to murder. Lloyd was tried first and found guilty and then called as a witness at Douglas' trial. He refused to testify, invoking his privilege against self-incrimination. Under the guise of refreshing his recollection, the prosecutor read aloud to the jury, Lloyd's post-arrest confession in which he named Douglas as the shooter. Having heard Lloyd's statement, the jury convicted Douglas of the crime.

On these facts, the Supreme Court concluded that "Douglas' inability to cross-examine Lloyd as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause":

The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

Cross-examining a witness who cannot answer questions because of total memory loss (Coleman) and a witness who will not answer questions because of a privilege assertion (Lloyd) are much the same: Both are exercises in futility.

(3) In its response to White's petition, Louisiana relies heavily on United States v. Owens, 484 U.S. 554 (1988), which, like Crawford, was written by Justice Antonin Scalia. (Louisiana initially waived its right to respond, but the court directed it to do so.) Owens involved the brutal beating of John Foster, a federal correctional counselor. As a result of his injuries, Foster's memory was severely impaired. Two months after the attack, however, he was able to describe the incident to an FBI agent: "[A]fter I was hit I looked down and saw the blood on the floor, and jammed my finger into Owens' chest, and said, 'That's enough of that,' and hit my alarm button." Moreover, during the interview, Foster selected Owens' photograph from a photo array as his attacker. By the time of trial, Foster's memory had worsened. He recalled the FBI interview "vivid[ly]," was certain that he had answered the agent's questions accurately, and remembered choosing Owens' photograph. But he could not confirm that Owens had attacked him or remember if he had even seen his attacker.

The Supreme Court rejected Owens' Confrontation Clause claim. Although Foster was "unable to recollect the basis for [his] past belief" (that Owens had attacked him), defense counsel had the "opportunity to bring out such matters as the witness' bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination), the very fact that he has a bad memory." Foster was "placed on the stand, under oath, and respond[ed] willingly to questions," and that, Justice Scalia concluded, was constitutionally sufficient.

As Prof. Jeffrey Bellin has observed, the language of Owens "sweeps more broadly than the facts of the case." Wright and Bellin, Federal Rules of Evidence §6733. Foster's memory loss was severe but not total; he was not a blank slate. He could recall giving the interview statement and was confident that he had answered the agent's questions truthfully. Defense counsel had an opportunity, albeit limited, to expose Foster's infirmities and to urge the jury to give his out-of-court statement little weight. The same cannot be said in White. Coleman's appearance on the witness stand gave the jury nothing new to weigh.

(4) Had Owens come out differently, it would have called into question several aspects of established evidence law. Consider two well recognized hearsay exceptions: the exceptions for prior statements of identification and for past recollection recorded. The former allows the jury to hear that a witness selected the defendant as the perpetrator from a lineup or photo array, even if the witness cannot identify the defendant at trial, provided the witness is "subject to cross-examination concerning the statement." See Fed. R. Evid. 801(d)(1)(C). In support of including the exception in the Federal Rules, the House of Representatives wrote this: "[a]s time goes by, a witness' memory will fade and his identification will become less reliable," so that allowing the admission of a more contemporaneous identification (e.g., at a lineup) prevents "cases falling through because the witness can no longer recall the identity of the person he saw commit the crime." H. R. Rep. No. 94-355, p. 3 (1975). As long as cross-examination permits defense counsel to probe the circumstances surrounding the making of the out-of-court identification, the identification is admissible.

Much the same is true under the past recollection recorded exception. In the paradigm case, a witness observes the license plate of the getaway car and records it on a piece of paper. At trial, the witness cannot remember the number. If the record is available and the witness testifies that it was made "when the matter was fresh in [her] memory and accurately reflected [her] knowledge," then the record can be read to the jury. See Fed. R. Evid. 803(5). Again the opportunity to cross-examine may be imperfect, but it is constitutionally sufficient.

White is different: Coleman could not testify that his stationhouse statement was accurate when made because he could not recall making it.

(5) Lurking in White is the issue of feigned memory loss. Consider this hypothetical. A witness testifies in the grand jury that he saw the defendant commit the crime. At trial, he claims to have no memory of the incident or of his grand jury testimony. His memory, however, is otherwise unimpaired. After hearing the witness, the trial court finds that his claim of memory loss is contrived. Does the Confrontation Clause permit the introduction of the witness' grand jury testimony?

Courts and commentators have concluded that feigned memory loss is not an impediment to the admission of a witness' prior statement implicating the defendant in a crime. (The cases teach that the trial judge must find that the memory loss is contrived.) Where a claim of memory loss is found to be feigned, the jury has presumably heard enough that it can assess the witness' credibility and make an informed decision about the truthfulness of his out-of-court statement. The witness is not a potted plant. He has been exposed as a liar in the courtroom, and the jury can reasonably determine if he is lying to protect the defendant from the consequences of what he said outside it.

Judge Frank Easterbrook makes the point well in United States v. Keeter, 130 F.3d 297 (7th Cir. 1997). There the witness feigned amnesia, and the trial court admitted his grand jury testimony incriminating the defendants. In upholding the defendants' convictions, Judge Easterbrook wrote this:

[At trial] Long … was a blatant liar—someone whose oath meant nothing to him, who was willing to say whatever was most advantageous at the moment. When he sought personal benefit from assisting the prosecutor, he accused other[s] of crimes; when he sought personal benefit by deflecting [the defendants'] anger, he told whatever lie was most useful. That enabled counsel to ask the jury how reliable Long's out-of-court statement could be, given that Long was willing to lie to the jurors' faces. How much more thoroughly could a witness's credibility be destroyed?

That rhetorical question may overstate the matter, but it underscores that feigned memory loss gives defense counsel something to work with, while genuine memory loss does not.

There is another consideration. If a witness testifies in the grand jury that A committed the crime, but at trial testifies that B was the culprit, then, in virtually every jurisdiction, his grand jury testimony is substantively admissible against A. See Fed. R. Evid. 801(d)(1)(A). The Supreme Court's decision in California v. Green, 399 U.S. 149 (1970) teaches that the Confrontation Clause does not bar its admission. If a witness testifies in the grand jury that A committed the crime and falsely claims memory loss at trial, the outcome should not be different. As Wigmore observed, "the unwilling witness often takes refuge in a failure of memory." Feigned memory loss should not prevent the jury from hearing, and relying upon, what the witness said previously any more than if he had taken refuge in a false story.

Conclusion

In its response to White's petition, Louisiana has tried to muddy the waters. It notes that "[n]o medical report outlining Coleman's condition, abilities or prognosis was ever entered into evidence" and that there was "no ruling by the trial court that [Coleman] even suffered from genuine memory loss." And it argues that White's trial counsel "made no effort to impeach [Coleman] regarding his current state of mind, motives, or character for truth." All of this is largely true, but the Louisiana Court of Appeals decided the case on the assumption that Coleman's memory loss was genuine and total; that is how the case comes to the Supreme Court.

Total memory loss cases are rare, and that alone may persuade some justices to vote to deny White's petition. And there is a line drawing problem here. A ruling for White would require courts to determine when memory loss is so profound that the witness is more like Coleman (in White) than Foster (in Owens) or Long (in Keeter). By contrast, a holding that a witness is subject to cross-examination if he "is placed on the stand, under oath, and responds willingly to questions"—the broad language of Owens—avoids the need to draw lines. Such a holding, however, treats the word "confront" to mean little more than "look at," and that is a dubious result.

The court is scheduled to consider White's petition in October, when it returns to business.

Paul Shechtman is a partner at Bracewell in New York and teaches evidence and criminal procedure at Columbia Law School.