Petition for Writ of Certiorari — Carlos Tapia, Petitioner v. New York

No. 19IN THE

Supreme Court of the United States

________________

CARLOS TAPIA,

Petitioner,

v.

NEW YORK,

________________

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE NEW YORK COURT OF APPEALS

________________

PETITION FOR A WRIT OF CERTIORARI

________________

Christina A. Swarns

David Bernstein

OFFICE OF THE

APPELLATE DEFENDER

11 Park Place

Suite 1601

New York, NY 10007

Daniel A. Rubens

Counsel of Record

Matthew R. Shahabian

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

drubens@orrick.com

Counsel for Petitioner

i

QUESTION PRESENTED

Whether, when a witness’s total memory loss prevents him from testifying about his prior out-of-court

testimonial statement, the witness’s mere presence at

trial is enough to provide the defendant with the opportunity for cross-examination guaranteed by the

Confrontation Clause.

ii

STATEMENT OF RELATED PROCEEDINGS

There are no other court proceedings directly related to this case.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

STATEMENT OF RELATED PROCEEDINGS ...... ii

TABLE OF AUTHORITIES .................................... iv

INTRODUCTION ..................................................... 1

OPINIONS AND ORDERS BELOW ........................ 3

JURISDICTION ........................................................ 3

PERTINENT CONSTITUTIONAL

PROVISION........................................................ 3

STATEMENT OF THE CASE .................................. 4

REASONS FOR GRANTING THE WRIT.............. 10

I.

The Lower Courts Disagree On How To

Apply The Confrontation Clause To Prior

Testimonial Statements In Cases

Involving Memory Loss. ................................... 10

II. The Decision Below Is Wrong. ......................... 14

III. The Issue Presented Is Recurring And

Important. ......................................................... 22

IV. This Case Is An Ideal Vehicle For

Resolving This Issue......................................... 25

CONCLUSION ........................................................ 27

APPENDIX A: Court Of Appeals Opinion

(April 2, 2019) ................................................... 1a

APPENDIX B: Appellate Division Decision And

Order (June 6, 2017)....................................... 41a

iv

TABLE OF AUTHORITIES

Page(s)

Cases

California v. Green,

399 U.S. 149 (1970) ........................................16, 19

Cookson v. Schwartz,

556 F.3d 647 (7th Cir. 2009)..........................12, 21

Crawford v. Washington,

541 U.S. 36 (2004) ........................................ passim

Davis v. Alaska,

415 U.S. 308 (1974) ........................................16, 17

Davis v. Ayala,

135 S. Ct. 2187 (2015)..........................................23

Delaware v. Fensterer,

474 U.S. 15 (1985) ................................................19

Douglas v. Alabama,

380 U.S. 415 (1965) ..............................................18

Goforth v. State,

70 So. 3d 174 (Miss. 2011) ................. 11, 12, 21, 23

Johnson v. State,

878 A.2d 422 (Del. 2005)......................................14

Kentucky v. Stincer,

482 U.S. 730 (1987) ................................................1

v

Mercer v. United States,

864 A.2d 110 (D.C. 2004) .....................................14

Michigan v. Long,

463 U.S. 1032 (1983) ............................................12

In re N.C.,

105 A.3d 1199 (Pa. 2014) .....................................13

People v. Geraci,

649 N.E.2d 817 (N.Y. 1995) .................................24

People v. Sutton,

908 N.E.2d 50 (Ill. 2009)......................................14

Pointer v. Texas,

380 U.S. 400 (1965) ........................................15, 18

Preston v. Superintendent

Graterford SCI,

902 F.3d 365 (3d Cir. 2018) .................................18

State v. Delos Santos,

238 P.3d 162 (Haw. 2010) ....................................14

State v. Gagne,

159 A.3d 316 (Me. 2017) ......................................21

State v. Holliday,

745 N.W.2d 556 (Minn. 2008)..............................14

State v. Nyhammer,

932 A.2d 33 (N.J. App. Div. 2007) ........... 13, 21, 23

State v. Price,

146 P.3d 1183 (Wash. 2006) ................................14

vi

State v. White,

243 So. 3d 12 (La. Ct. App. 2018), petition for cert. pending, No. 18-8862

(U.S.) ..............................................................14, 22

United States v. Calandra,

414 U.S. 338 (1974) ..............................................24

United States v. Ghilarducci,

480 F.3d 542 (7th Cir. 2007)................................12

United States v. Owens,

484 U.S. 554 (1988) .......................... 2, 9, 11, 20, 21

United States v. Torres-Ortega,

184 F.3d 1128 (10th Cir. 1999)............................18

Woodall v. State,

336 S.W.3d 634 (Tex. Crim. App.

2011) .....................................................................14

Yanez v. Minnesota,

562 F.3d 958 (8th Cir. 2009)................................14

Statutes & Rules

28 U.S.C. § 1257(a)......................................................3

Fed. R. Crim. P. 15 ....................................................25

N.Y. Crim. Proc. Law art. 660 ..................................25

N.Y. Crim. Proc. Law § 670.10 ...................................9

vii

Other Authorities

Brief of Richard D. Friedman as Amicus

Curiae, White v. Louisiana, No. 188862 (U.S. May 8, 2019), https://tinyurl.com/yydz99lz ..............................................19

Bureau of Justice Statistics, U.S. Dep’t

of Justice, Felony Defendants in

Large Urban Counties, 2009 – Statistical Tables (Dec. 2013), https://tinyurl.com/yyg3ttte ...............................................23

William Glaberson, Faltering Courts,

Mired in Delays, N.Y. Times, Apr.

13, 2013 ................................................................23

Christopher B. Mueller, Cross-Examination Earlier or Later: When Is It

Enough To Satisfy Crawford?, 19

Regent U.L. Rev. 319 (2007)................................22

Christopher B. Mueller & Laird C.

Kirkpatrick, Federal Evidence (4th

ed. 2019) ...............................................................22

Ann M. Murphy, Vanishing Point:

Alzheimer’s Disease and Its

Challenges to the Federal Rules of

Evidence, 2012 Mich. St. L. Rev.

1245 ................................................................22, 23

J. Wigmore, Evidence (2d ed. 1923) ..........................16

INTRODUCTION

The Sixth Amendment’s Confrontation Clause

guarantees criminal defendants an “opportunity for

full and effective cross-examination.” Kentucky v.

Stincer, 482 U.S. 730, 744 (1987). The Framers included that protection in the Bill of Rights because

they recognized cross-examination’s unparalleled effectiveness as a truth-generating “crucible,” and abhorred the use of “ex parte examinations as evidence

against the accused.” Crawford v. Washington, 541

U.S. 36, 50, 61 (2004).

This case presents a recurring question under the

Confrontation Clause that has divided lower courts:

does the Clause permit introduction of testimonial

out-of-court statements as long as the declarant is

physically present on the witness stand at trial, even

when the declarant can no longer recall the statement

or his basis for making it? Under Crawford, the answer should be straightforward. In that circumstance,

meaningful cross-examination is impossible. To permit a conviction based on such evidence would reduce

cross-examination to an “empty procedure.” Id. at 74

(Rehnquist, C.J., concurring in the judgment).

Yet most courts that have considered this question have come out the other way. In the decision below, a bare majority of the New York Court of Appeals

upheld a conviction that depended on a police officer’s

ex parte eyewitness account of a fight outside a bar as

set forth in his grand jury testimony. By the time of

trial nearly four years later, the since-retired officer

had forgotten everything about the incident, and his

complete memory loss thwarted any possibility of

2

meaningful cross-examination. Relying on this

Court’s decision in United States v. Owens, 484 U.S.

554 (1988), the Court of Appeals nonetheless held

that the officer’s presence at trial categorically foreclosed petitioner’s Confrontation Clause objection.

Numerous federal courts and state courts of last

resort have adopted similar holdings, reasoning that

as long as the witness is present at trial and responds

to questioning, the defendant’s confrontation right is

vindicated. A significant minority of courts, however,

have recognized that a witness’s total memory loss

can interfere with the constitutionally guaranteed opportunity for meaningful cross-examination. The division of authority on this important question warrants

this Court’s review.

The decision below cannot be squared with first

principles of the confrontation right. The Court of Appeals’ holding replicates “the principal evil at which

the Confrontation Clause was directed”: convictions

based on ex parte evidence that is never subjected to

meaningful cross-examination. Crawford, 541 U.S. at

50. It draws an irrational distinction between prior

out-of-court statements that cannot be tested through

cross-examination due to a witness’s total memory

loss, and those that cannot be tested because the witness invokes a privilege or refuses to respond to questioning. And it rests on an overreading of Owens, a

case involving partial (rather than total) memory loss,

and where—unlike here—the defense could at least

use the witness’s impaired memory to cast doubt on

the reliability of his prior identification.

3

Without this Court’s intervention, lower courts

will continue to diverge in their attempts to apply

Crawford to witnesses who, by the time of trial, can

no longer recall anything about their prior out-ofcourt statements. Many courts will persist in upholding convictions founded on evidence the defense has

no opportunity to test through cross-examination.

This case presents an ideal vehicle for the Court to

resolve the question and confirm that an out-of-court

testimonial statement is admissible only if the witness can meaningfully “defend or explain” it at trial.

Id. at 59 n.9.

OPINIONS AND ORDERS BELOW

The decision of the New York Court of Appeals is

reported at 33 N.Y.3d 257, 124 N.E.3d 210, and reproduced in the Appendix (App.) at 1a-40a. The decision

of the New York Supreme Court, Appellate Division,

First Department, is reported at 151 A.D.3d 437, 56

N.Y.S.3d 78, and reproduced at App. 41a-50a.

JURISDICTION

The New York Court of Appeals issued its decision

on April 2, 2019. On June 19, 2019, Justice Ginsburg

extended the time to file a petition for a writ of certiorari to and including July 31, 2019. This Court has

jurisdiction under 28 U.S.C. § 1257(a).

PERTINENT CONSTITUTIONAL PROVISION

The Sixth Amendment of the U.S. Constitution

provides in relevant part: “In all criminal pros-

4

ecutions, the accused shall enjoy the right … to be

confronted with the witnesses against him ….”

STATEMENT OF THE CASE

1. Petitioner was convicted of attempted first-degree assault with a dangerous instrument following a

November 2008 altercation that took place late at

night outside a bar in the Bronx. At some point during

the incident, the victim suffered several slash wounds

to his face and neck. Two police officers witnessed

parts of the attack and arrested petitioner as well as

a man named Torres. The grand jury declined to indict Torres, but in 2012, petitioner went to trial on

several assault charges. As relevant here, three witnesses testified for the prosecution about petitioner’s

role in the attack:

a. Sergeant Charlie Bello testified that at about

3:30 a.m. on the night of the incident, he was driving

southbound to take Lieutenant James Cosgrove back

to the police precinct. Bello observed petitioner “body

slam” the victim in the street and drag him between

two parked cars. App. 2a. Bello “lost visual[]” briefly

while he drove the car to the northbound side of the

street. Court of Appeals Appendix (C.A. App.) 205,

280. The officers then exited the vehicle and ran toward the scene. Bello saw another man, later identified as Torres, “fidgeting with his waistband” and

running toward petitioner and the victim. C.A. App.

205. Bello went to stop Torres while Cosgrove pulled

petitioner off of the victim. Bello testified that the victim was “bleeding profusely from his face and neck”

at that point. App. 2a. Bello observed pieces of broken

glass at the scene, but did not check them for blood or

5

fingerprints, and did not otherwise locate a weapon or

sharp object that could have been used to inflict slash

wounds. Id.

b. The victim testified at trial that he was attacked from behind by two men but could not see either of them until the attack ended. He could not

identify which of the attackers cut him. At some point

during the attack, he felt “something warm … running down … [his] face,” but “could not realize at what

time” he was slashed, and he did not know what object

was used to slash him. C.A. App. 73, 168.

c. A few days after the attack, Lieutenant Cosgrove testified to a grand jury about the events leading up to petitioner’s arrest. By the time of petitioner’s

trial three-and-a-half years later, however, Cosgrove

had retired from the police department and lacked

any memory of the incident. App. 3a-4a. After the trial

court refused to rule out the possibility it would deliver a missing witness charge, the prosecution called

Cosgrove as a trial witness and sought to introduce

his grand jury testimony under the hearsay exception

for past recollection recorded. Defense counsel objected to that request on several grounds, including

that the introduction of the testimony would violate

the Sixth Amendment right to confrontation because

Cosgrove’s memory loss precluded meaningful crossexamination. C.A. App. 326-27, 339; see also App. 3a.

The trial court overruled that objection. C.A. App. 331

(concluding that Cosgrove was “literally subject to

cross-examination by being on the witness stand under oath and passed to [petitioner] as a witness for

cross[-]examination.”).

6

At trial, Cosgrove testified that based on his review of police department paperwork, he knew that

two people were arrested on the night of the incident.

He lacked, however, “any independent recollection of

the circumstances leading to those arrests.” C.A. App.

352. As he put it, “I did midnights for most of my career and a fight outside of a bar doesn’t really stick

out in my mind. I have responded to a lot of them and

I can’t give you a clear depiction of what happened

this night.” C.A. App. 355. Cosgrove was adamant

that reviewing his grand jury testimony did nothing

to refresh his recollection. C.A. App. 354, 357 (testifying that reading his grand jury testimony “didn’t create any kind of a memory”).

The trial court then permitted the prosecution to

read Cosgrove’s grand jury testimony into the record.

That testimony included the following exchange:

Q: Okay. Can you briefly describe the circumstances that le[d] up to that arrest that

night, what you observed?

A: I was in the passenger seat of a parked

Police Department’s vehicle. We proceeded

southbound on Jerome Avenue …. As we

[were] going to East Clarke Place, we noticed

a disturbance in front of a bar. We exited the

vehicle. There was a van between myself and

the crowd of people. Couldn’t see what [was]

going on. As I went around the rear of the

van, I noticed a person standing above another person. The person on the floor was

bleeding and the other person kicking him in

the head.

7

Q: The person that was kicking him in the

head[,] that individual’s name?

A: Mr. Tapia.

C.A. App. 364-65.

On cross-examination, defense counsel questioned Cosgrove on an apparent error in the grand

jury transcript. App. 5a. Cosgrove confirmed that although he had testified before the grand jury under

oath, he had never reviewed the grand jury transcript

to confirm its accuracy. Id. He reiterated that he did

not “remember the incident,” had no “independent

recollection” of the actions described in his testimony,

and could not give any additional details about what

he saw that night. C.A. App. 372, 376-77.

d. The trial court submitted three counts to the

jury: first-degree assault, attempted first-degree assault, and second-degree assault. App. 6a. Each of

those counts alleged that petitioner, acting in concert

with another person, assaulted or attempted to assault the victim with a dangerous instrument—

namely, a sharp object.

The jury deliberated over four days and submitted

sixteen notes, several of which requested instructions

on what it means to act in concert, and one of which

asked for an example to illustrate that concept. C.A.

App. 540-41, 561-62, 580-81, 632. The jurors also sent

notes stating that they were unable to arrive at an

“agreement/understanding” on the first-degree assault charge, C.A. App. 613, and later informed the

court that they had “come to an exasperating

8

stalemate,” C.A. App. 662. Before the court could respond to that last note, the jurors reported that they

had reached a verdict. The jury found petitioner not

guilty of first-degree assault but guilty of attempted

first-degree assault. The court sentenced petitioner to

five years’ imprisonment followed by three years’

post-release supervision. C.A. App. 682.

2. A panel of the New York Supreme Court’s Appellate Division, First Department, affirmed petitioner’s conviction by a 3-2 vote. The panel majority

rejected petitioner’s challenge to the sufficiency of the

evidence, concluding that “the jury could have drawn

a reasonable inference that [petitioner] and Torres

were acting in concert and one or the other caused the

injuries to the victim’s neck and face by using a sharp

instrument at some point in the assault.” App. 44a.

The Appellate Division then held that the trial court

“properly exercised its discretion in admitting Officer

Cosgrove’s grand jury testimony as past recollection

recorded.” App. 45a. The Appellate Division further

concluded that “the admission of this evidence did not

violate the Confrontation Clause since Cosgrove testified at trial and was subject to cross-examination.”

App. 46a.1

1 The court went on to state that “[i]n any event, there was

no prejudice to [petitioner]” from the introduction of Cosgrove’s

grand jury testimony “because it was entirely cumulative of Officer Bello’s testimony.” App. 46a. The Appellate Division

reached that conclusion by mistakenly attributing to Bello testimony that petitioner was “kicking the victim in the head while

the victim was bleeding.” App. 44a. As the New York Court of

Appeals correctly noted, it was Cosgrove’s grand jury account

9

Two Appellate Division justices dissented on the

question of sufficiency. In their view, “the evidence

failed to establish beyond a reasonable doubt, directly

or by inference circumstantially, that defendant carried a dangerous instrument, cut the victim’s face

with it, or was aware that the other attacker intended

to or was cutting the victim with such an instrument.”

App. 50a (Kapnick, J., dissenting in part).

3. In a 4-3 decision, the New York Court of Appeals affirmed. As an initial matter, the majority held

that the prosecution met the foundational requirements for introducing the grand jury testimony as a

past recollection recorded, and that introducing that

testimony did not violate § 670.10 of New York’s

Criminal Procedure Law, which addresses the trial

use of testimony given at prior criminal proceedings.

The majority then rejected petitioner’s Sixth

Amendment arguments, concluding that the “Confrontation Clause is satisfied” when the defendant

has “the right to cross-examine all witnesses” as well

as “the ability to literally confront the witness who is

providing testimony against the accused in a face-toface encounter before the trier of fact”—“even if the

witness’s memory is faulty.” App. 15a-16a. The majority regarded this Court’s decision in United States v.

Owens, 484 U.S. 554 (1988), as foreclosing any Confrontation Clause objection “where a witness was unable to explain the basis for a prior out-of-court

identification due to memory loss.” App. 16a. The majority further observed that in Crawford v.

that “added” to Bello’s trial testimony “that Cosgrove saw [petitioner] kick the victim in the head.” App. 5a.

10

Washington, 541 U.S. 36 (2004), this Court “clearly

maintained the fundamental importance of a witness’s presence at trial.” App. 17a. For those reasons,

the majority treated Cosgrove’s “presence at trial as a

testifying witness” as “preclud[ing] [petitioner’s] Confrontation Clause argument.” Id.

Judge Wilson, joined by Judges Rivera and Fahey,

dissented. In the dissenters’ view, the introduction of

Cosgrove’s grand jury testimony “violated [the Court

of Appeals’] settled decisional law, rooted in the common law, prohibiting the introduction of grand jury

testimony in the People’s case-in-chief.” App. 31a. The

dissenters maintained that the majority’s holding

“turns our common-law and statutory rules on their

head, admitting that the grand jury testimony of a

dead witness could not be offered at trial for the truth

of the matters contained therein, but permitting the

wholesale introduction of prior testimony not subjected to cross-examination if the witness is alive.”

App. 35a. And because Cosgrove’s grand jury testimony was “essential to supporting” the only potentially viable “theory for conviction,” the dissent

concluded that the erroneous admission of that testimony “cannot be said to be harmless.” App. 39a-40a.

REASONS FOR GRANTING THE WRIT

I.

The Lower Courts Disagree On How To

Apply The Confrontation Clause To Prior

Testimonial Statements In Cases Involving

Memory Loss.

The decision below deepens a split among federal

courts of appeals and state appellate courts on

11

whether a witness’s physical presence at trial is

enough to vindicate the defendant’s confrontation

right when intervening memory loss prevents the witness from defending or explaining his prior testimonial statement. Most courts confronting this

question—including the New York Court of Appeals

majority here—have treated this Court’s decision in

Owens, 484 U.S. 554, as establishing a blanket rule

foreclosing a witness’s memory loss from implicating

the Sixth Amendment confrontation right. But a significant minority of courts recognize that the Confrontation Clause demands a meaningful opportunity for

cross-examination that requires more than the declarant’s mere presence on the witness stand at trial.

As those courts recognize, the witness must also be in

a position to provide testimony that would “defend or

explain” the prior statement. Crawford, 541 U.S. at

59 n.9. Only this Court can reconcile that division of

authority.

A. Several courts have concluded that the Confrontation Clause forbids the admission of testimonial

prior statements when the declarant cannot be adequately cross-examined for whatever reason, including due to a complete lack of memory about the

subject matter of his previous testimony. The Supreme Court of Mississippi has squarely held that it

violates a defendant’s confrontation right to admit a

witness’s prior out-of-court testimonial statement

where, by the time of trial, the witness experienced a

“total lack of memory” regarding the events described

in a prior statement. Goforth v. State, 70 So. 3d 174,

186-87 (Miss. 2011). As that court explained, the witness’s lack of memory “deprived [the defendant] any

opportunity to inquire about potential bias or the

12

circumstances surrounding [the witness’s] statement,” such that defense counsel “simply had no opportunity to cross-examine [the witness] about his

statement.” Id. at 186.2

To support its holding, the Mississippi Supreme

Court found “insightful and persuasive” a Seventh

Circuit opinion, Cookson v. Schwartz, 556 F.3d 647

(7th Cir. 2009). There, the Seventh Circuit rejected

the argument that a witness need only be physically

present on the stand because, so long as “the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the

use of his prior testimonial statements.” Id. at 651

(quoting Crawford, 541 U.S. at 59 n.9). To the contrary, as the Seventh Circuit explained, the rest of

footnote 9 in Crawford makes clear that the declarant

must not only be physically on the witness stand, but

must also be “present at trial to defend or explain [the

statement].” Id. (emphasis added); see also, e.g.,

United States v. Ghilarducci, 480 F.3d 542, 549 (7th

Cir. 2007) (suggesting that memory loss can lead to

Confrontation Clause violation when it is “total” or

2 Although the Mississippi Supreme Court framed its holding as an application of the Mississippi Constitution’s confrontation right, it used “Federal caselaw … as [its] guide” on the scope

of the confrontation right, and its holding turned exclusively on

Crawford and federal precedent. 70 S.3d at 183, 186-87; cf. Michigan v. Long, 463 U.S. 1032, 1040-41 (1983) (“[W]hen … a state

court decision fairly appears to rest primarily on federal law, or

to be interwoven with the federal law … , we will accept as the

most reasonable explanation that the state court decided the

case the way it did because it believed that federal law required

it to do so.”).

13

where cross-examination is inadequate to “test[] [the

witness’s] credibility”).

Similarly, some courts have recognized that even

when a witness is physically present in the courtroom,

the witness can be so nonresponsive as to implicate

the confrontation right. The Pennsylvania Supreme

Court addressed a case where the witness—a young

child—testified at trial but “provided virtually no verbal responses on direct examination.” In re N.C., 105

A.3d 1199, 1216-17 (Pa. 2014). In those circumstances, the court held, admitting the witness’s prior

videotaped interview violated the defendant’s Confrontation Clause rights, “for Crawford and its progeny require an opportunity for effective crossexamination which [the defendant] simply did not

have.” Id. at 1216 (noting “any attempt” at cross-examination “would have been, at best, pro forma”).

Likewise, the New Jersey Appellate Division held

that a defendant’s Confrontation Clause rights were

violated where the witness’s prior videotaped statement to the police was admitted, but the witness was

“unresponsive” to questions about her prior statement

and demonstrated a “complete inability to present

current beliefs about any of the material facts” of her

prior statement. State v. Nyhammer, 932 A.2d 33, 4243 (N.J. App. Div. 2007), rev’d on other grounds, 963

A.2d 316, 334 (N.J. 2009) (declining to reach question

of whether the witness’s “silence or unresponsiveness

effectively denied defendant his constitutional right

of confrontation” upon concluding that defense counsel “chose not to cross-examine [the witness] about

[her] core accusations”).

14

B. By contrast, the majority of courts to consider

this issue have ruled, as the New York Court of Appeals did here, that as long as the “declarant of [the]

out-of-court statement [i]s a live witness at trial, [a]

defendant’s Sixth Amendment right to confrontation

[i]s not violated.” App. 2a. These courts read Owens

as categorically foreclosing any argument that a witness’s memory loss can preclude the opportunity for

cross-examination that the Sixth Amendment guarantees, notwithstanding this Court’s subsequent decision in Crawford. See, e.g., Yanez v. Minnesota, 562

F.3d 958, 963 (8th Cir. 2009); State v. White, 243 So.

3d 12, 16 (La. Ct. App. 2018), petition for cert. pending, No. 18-8862 (U.S.); Woodall v. State, 336 S.W.3d

634, 644 (Tex. Crim. App. 2011); State v. Delos Santos,

238 P.3d 162, 177-82 (Haw. 2010); People v. Sutton,

908 N.E.2d 50, 70-71 (Ill. 2009); State v. Holliday, 745

N.W.2d 556, 564-68 (Minn. 2008); State v. Price, 146

P.3d 1183, 1192 (Wash. 2006); Johnson v. State, 878

A.2d 422, 428-29 (Del. 2005); Mercer v. United States,

864 A.2d 110, 114 (D.C. 2004). In these courts’ view,

all that the Confrontation Clause requires is that “the

declarant be available at trial to testify.” E.g., White,

240 So. 3d at 16.

II. The Decision Below Is Wrong.

The New York Court of Appeals erred by concluding that the confrontation right was satisfied here because Cosgrove was “presen[t] at trial as a testifying

witness” and “subjected to cross-examination,” App.

17a—even though his total memory loss rendered

that examination futile. This Court’s seminal decision

in Crawford is clear: a “testimonial” out-of-court

statement cannot be admitted against a criminal

15

defendant—even if it falls under a recognized exception to the hearsay rule—if the defendant did not have

an “adequate opportunity to cross-examine” the declarant about the prior statement. 541 U.S. at 57.

Where, as here, the declarant experiences total

memory loss by the time of trial, the defendant lacks

any meaningful opportunity to subject the prior statement to “testing in the crucible of cross-examination,”

id. at 61, as the Confrontation Clause requires. The

New York Court of Appeals’ contrary decision elevates form over substance by ignoring the fact that

memory loss defeats the entire purpose of cross-examination: the opportunity to “expose [the] accusation as

a lie.” Crawford, 541 U.S. at 62.

A. By virtue of its placement in the Sixth Amendment, the right of confrontation “reflects the belief of

the Framers … that confrontation was a fundamental

right essential to a fair trial in a criminal prosecution.” Pointer v. Texas, 380 U.S. 400, 404 (1965).

“Moreover, the decisions of this Court and other

courts throughout the years have constantly emphasized the necessity for cross-examination as a protection for defendants in criminal cases.” Id. (footnote

omitted). The decision below strikes at the core of that

right by “reinstating the very procedures the common

law deemed illegitimate: trial by declaration or affidavit.” App. 35a (Wilson, J., dissenting).

History makes clear that the constitutionally

guaranteed opportunity for cross-examination requires more than a living, breathing witness who appears on the witness stand, even when memory loss

or some other incapacity renders cross-examination

completely ineffectual. It has long been recognized

16

that the right of face-to-face confrontation on the

stand is a “minor advantage” that is “subordinate” to

the “indispensable” and “essential object” of that

right: “securing the opportunity of Cross-examination.” 3 J. Wigmore, Evidence § 1365 at p.25 (2d ed.

1923) (emphasis added). Or, as this Court has put it,

“Confrontation means more than being allowed to

confront the witness physically.” Davis v. Alaska, 415

U.S. 308, 315 (1974)); see also California v. Green, 399

U.S. 149, 158 (1970) (Confrontation Clause requires

that witness be “subject to full and effective cross-examination”). An “adequate” opportunity for cross-examination means that the witness is at least capable

of “defend[ing] or explain[ing]” his prior statement.

Crawford, 541 U.S. at 57, 59 n.9.

The Confrontation Clause stems from the Framers’ recognition of the injustice and error that result

when a criminal defendant is subject to trial-by-transcript. As Crawford explained, “the principal evil at

which the Confrontation Clause was directed was …

[the] use of ex parte examinations as evidence against

the accused.” Id. at 50. That evil manifested in “notorious” English trials, such as Walter Raleigh’s treason

trial, as well as “controversial” colonial trials where

depositions or private examinations were admitted as

evidence against a defendant who could not cross-examine the declarant on what he previously said. Id. at

43-50 (surveying history).

For this reason, during the debates on Ratification, the Antifederalists objected to the omission of a

right of confrontation in the original Constitution:

“Nothing can be more essential than the cross examining [of] witnesses, and generally before the triers of

17

the facts in question .... [W]ritten evidence ... [is] almost useless; it must be frequently taken ex parte,

and but very seldom leads to the proper discovery of

truth.” Id. at 49 (alterations in original) (quoting R.

Lee, Letter IV by the Federal Farmer (Oct. 15, 1787),

reprinted in 1 Bernard Schwartz, The Bill of Rights:

A Documentary History 469, 473 (1971)). The First

Congress responded by introducing the Confrontation

Clause in what would become the Sixth Amendment.

Id. The Framers appreciated that there is no adequate substitute for testing the accuracy of a witness’s

statement through cross-examination, a process that

requires “the direct and personal putting of questions

and obtaining immediate answers.” Davis, 415 U.S. at

316 (quoting 5 J. Wigmore, Evidence § 1395 at p.123

(3d ed. 1940)).

By “permitting the wholesale introduction of prior

testimony not subjected to cross-examination,” the decision below in effect authorizes trial by ex parte examination. App. 35a (Wilson, J., dissenting). And the

fact that memory loss is involved does nothing to diminish the constitutional violation: “A witness’s lack

of memory at the time of trial does not render such

testimony any more reliable or less threatening to the

rights of the accused than the introduction of that testimony when a witness has perfect recall; indeed, it

has a greater potential to undermine the rights of the

accused ….” Id.

B. The decision below is also irreconcilable with

the settled proposition that a witness’s refusal to answer questions on privilege grounds can infringe a defendant’s Confrontation Clause right. In that context,

this Court has already established that the

18

opportunity for cross-examination requires more than

a witness who is physically present on the stand. In

Douglas v. Alabama, the Court held that the Confrontation Clause is violated where the witness takes the

stand and is subjected to cross-examination by the defense but responds to questions about his prior testimony with an invocation of the privilege against selfincrimination. 380 U.S. 415, 420 (1965). Crawford itself describes Douglas as an example of when a defendant lacks an “opportunity to cross-examine” the

declarant for Confrontation Clause purposes, even

though he was on the witness stand and subjected to

the formality of “cross-examination.” Crawford, 541

U.S. at 57 (citing Douglas, 380 U.S. at 418-20).

Accordingly, under Crawford, “the use of a witness’s prior statement against a criminal defendant

violates the defendant’s Confrontation Clause rights

when the witness refuses to answer any substantive

questions on cross-examination.” Preston v. Superintendent Graterford SCI, 902 F.3d 365, 379 (3d Cir.

2018), cert. denied, 139 S. Ct. 1163 (2019); accord, e.g.,

United States v. Torres-Ortega, 184 F.3d 1128, 113234 (10th Cir. 1999). As the Third Circuit recently held,

when the assertion of a privilege thwarts “[a] full and

fair opportunity to test the veracity of a witness’s

statement,” the Sixth Amendment bars admission of

the prior statement into evidence. Preston, 902 F.3d

at 380.

That same logic should apply where the declarant

has a complete failure of memory on the witness

stand. The fact that the impediment to truth-testing

comes in the form of memory loss instead of a privilege assertion does not change the Confrontation

19

Clause analysis. A complete lack of recall still deprives the defendant of his constitutional right to “try

to expose [the] accusation as a lie” through cross-examination. Crawford, 541 U.S. at 62. As a leading

commentator has put it, “[i]t makes a mockery of the

Confrontation Clause if, though it is a core violation

if the witness does not come to court, the Clause can

be satisfied by putting the witness on the stand

though nothing of any significance can happen once

he is there.” Brief of Richard D. Friedman as Amicus

Curiae at 10, White, No. 18-8862 (U.S. May 8, 2019),

https://tinyurl.com/yydz99lz.

C. The cases that hold a witness’s memory loss

can never give rise to a Confrontation Clause violation—including the decision below—all rest on an

overbroad reading of this Court’s decision in Owens.

See App. 16a-17a. Properly understood, Owens does

not give the prosecution a free pass to introduce prior

testimonial statements over a Confrontation Clause

objection as long as the declarant appears at trial.

Prior to Owens, the Court had left open the possibility that a witness’s memory loss could “so affect[]

[the defendant’s] right to cross-examine as to make a

critical difference in the application of the Confrontation Clause.” Green, 399 U.S. at 168-69; accord Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).

Although Owens offered a partial answer to that question, its holding must be viewed in the context of the

facts of that case: Importantly, Owens did not involve

a witness’s total memory loss, but it did involve a witness whose memory was already compromised at the

time of the prior statement. The witness there, Foster,

was the victim of an assault that impaired his

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memory. By the time of trial, Foster remembered

some details from before and after the attack but

could not recall seeing his assailant. He “clearly remembered,” however, that he had identified the defendant as his assailant during an interview that took

place a few weeks after the assault while he was still

in the hospital. 484 U.S. at 556.

On those facts, the Court upheld the admission of

Foster’s prior identification against a Confrontation

Clause challenge. Noting that the right for an “opportunity for effective cross-examination” is not a guarantee of “cross-examination that is effective in

whatever way, and to whatever extent, the defense

might wish,” the Court held that the requisite “opportunity” is afforded “when a witness testifies as to his

current belief but is unable to recollect the reason for

that belief.” Id. at 559 (quotation marks omitted). It

is instead sufficient that “the defendant has 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.” Id. (citation omitted). Importantly, the defense counsel in Owens was able to use cross-examination as a “weapon” to impugn Foster’s prior

identification, as counsel’s summation “emphasized

Foster’s memory loss and argued that his identification of respondent was the result of the suggestions of

people who visited him in the hospital.” Id. at 560.

Owens thus turned on two critical points: first,

that Foster remembered the circumstances of his prior

identification, and second, that because Foster’s

memory was already impaired at the time of his prior

21

identification, defense counsel was able to emphasize

Foster’s memory loss as a way to undercut his reliability. See App. 36a (Wilson, J., dissenting) (noting

that the jury might take memory loss into account in

weighing testimony “where the witness had a partial

memory and his memory was impaired to some degree

by the attack”). The situation here is entirely different: when a “police officer … testifies truthfully that

he no longer has any recollection because of the passage of time, but who was under oath and testified

truthfully before the grand jury when he did recall the

incident, the jury has no basis to question the accuracy of the testimony based on memory loss.” Id.

In any event, these sweeping readings of Owens

cannot be squared with Crawford, which made clear

that the confrontation right depends on a witness’s

ability to “defend or explain” his prior statement.

Thus, as several courts have

held3—and

3 See Goforth, 70 So. 3d at 186-87 (distinguishing Owens on

the basis that the witness in Owens “vividly recalled” the circumstances of the identification, and defense counsel “was able to

cast doubt upon the identification and asserted that it had been

based upon a suggestion by one of the individuals who had visited the defendant while he had been hospitalized”); Cookson,

556 F.3d at 651-52 (stating that a witness’s “total amnesia” could

render her “unable to defend or explain her statements,” but concluding that the defendant had an opportunity for effective crossexamination because the witness in that case “could remember

the underlying events described in the hearsay statements”); Nyhammer, 932 A.2d at 43 (“[The witness’s] complete inability to

present current beliefs about any of the material facts, or to testify about her prior statements, is distinguishable from a situation where a trial witness for the prosecution simply has a bad

memory.” (citing Owens, 484 U.S. 554)); see also State v. Gagne,

159 A.3d 316, 324 & n.6 (Me. 2017) (Owens permitted introduction of prior statement where witness “explained her loss of

22

commentators have urged4—Owens should not be extended to cases where the declarant’s memory loss

renders cross-examination a meaningless formality.

III. The Issue Presented Is Recurring And

Important.

As reflected by the decisions cited above, the issue

presented here arises regularly in courts across the

country. And the majority rule—that the confrontation right is fully vindicated by the presence of “a live

witness at trial,” App. 2a—has been applied not only

in the context of grand jury testimony, but also (as in

Owens itself) to prior identifications and out-of-court

statements to investigators. See, e.g., White, 243 So.

3d at 16 (videotaped statement). The result is that

New York and many other jurisdictions now routinely

memory of the details of [the] event[]” such that it did not involve

a “complete loss of memory”).

4 See Ann M. Murphy, Vanishing Point: Alzheimer’s Disease

and Its Challenges to the Federal Rules of Evidence, 2012 Mich.

St. L. Rev. 1245, 1269-70 (arguing that Owens rests on “unique”

facts and “has been interpreted too broadly by lower courts,” especially in light of Crawford); 4 Christopher B. Mueller & Laird

C. Kirkpatrick, Federal Evidence § 8:29 (4th ed. 2019) (“Where it

is plain that the witness remembers neither the acts, events, or

conditions reported in the statement nor making the statement

itself, the impediment to full and effective cross-examination is

plain and palpable.”); see also Christopher B. Mueller, Cross-Examination Earlier or Later: When Is It Enough To Satisfy Crawford?, 19 Regent U.L. Rev. 319, 335 (2007) (“‘[F]ull and effective’

cross-examination should mean that the witness has answered

questions about both the acts, events, or conditions reported in

the prior statement and about the statement itself.”).

23

permit defendants to be convicted based on untested

evidence that is tantamount to an ex parte affidavit.

Nor is there anything particularly unusual about

the nature of the memory loss Cosgrove experienced

here, three-and-a-half years after witnessing the

event in question. Witnesses may forget what they

said months or years prior. That lack of recall could

be due to injury, see, e.g., Goforth, 70 So. 3d at 180;

youth, see, e.g., Nyhammer, 932 A.2d at 37; or disease,

see, e.g., Murphy, supra, at 1270-77 (examining intersection of Alzheimer’s disease and the Confrontation

Clause). Or, as in this case, it could be due to a genuine lapse in memory over time for what the witness

considered a routine event. After all, state criminal

proceedings are often marked by extensive delays:

“[M]any of the cases on [the New York Court of Appeals’] docket involve gaps between incident and trial

of several years ….” App. 36a. (Wilson, J., dissenting).5 The predictable result is that witnesses’ memories of critical incidents often fade by the time of trial.

5 Bronx criminal proceedings have long been marked by par-

ticularly egregious delays. See Davis v. Ayala, 135 S. Ct. 2187,

2210 (2015) (Kennedy, J., concurring) (citing Michael Schwirtz

& Michael Winerip, Man, Held at Rikers for 3 Years Without

Trial, Kills Himself, N.Y. Times, June 9, 2015, at A18); see also

William Glaberson, Faltering Courts, Mired in Delays, N.Y.

Times, Apr. 13, 2013 (noting that felony cases in the Bronx have

the longest delays in New York City, such that 7 of 10 cases violate the state’s speedy trial guideline of 180 days, and the borough is responsible for “two-thirds of the defendants [in all five

New York City boroughs] waiting for their trials in jail for more

than five years”). Such delays are not confined to New York City;

they are common in state criminal cases throughout the nation.

See Bureau of Justice Statistics, U.S. Dep’t of Justice, Felony

24

The Sixth Amendment question presented here is

also important because it goes to the heart of the

truth-seeking function of the criminal justice system.

The majority rule harms the administration of justice

by creating perverse incentives: it encourages the government to secure incriminating out-of-court testimonial statements and later use them at trial without

ever affording the defendant a meaningful opportunity to test that evidence through cross-examination. In particular, as this case illustrates, the rule

will encourage prosecutors to lock in grand jury testimony—a form of ex parte testimony taken in “conditions which tend to impair its reliability,” People v.

Geraci, 649 N.E.2d 817, 822 (N.Y. 1995)—and later

use it as trial evidence whenever the witness’s

memory has dissipated over the intervening months

or years.

Encouraging the use of grand jury testimony as

part of the prosecution’s case-in-chief disregards the

important distinction between grand jury proceedings

and criminal trials: “A grand jury proceeding is not an

adversary hearing in which the guilt or innocence of

the accused is adjudicated. Rather, it is an ex parte

investigation to determine whether a crime has been

committed and whether criminal proceedings should

be instituted against any person.” United States v.

Calandra, 414 U.S. 338, 343-44 (1974). If the prosecution has a legitimate need to preserve a witness’s

Defendants in Large Urban Counties, 2009 – Statistical Tables

23 tbl.20 (Dec. 2013), https://tinyurl.com/yyg3ttte (collecting statistics on felony defendants in large urban counties nationwide;

reporting that 22% of violent offenses, and 67% of murder cases,

are not adjudicated until more than one year post-arrest).

25

testimony for later use at trial, it may avail itself of

procedures for doing so, as long as the defendant is

afforded an opportunity for cross-examination. See,

e.g., N.Y. Crim. Proc. Law art. 660 (providing for conditional pretrial witness examinations where the defendant may cross-examine the witness); Fed. R.

Crim. P. 15 (same). But the majority rule here, by “facilitat[ing] … convictions based on testimony that has

not been subject to cross-examination,” is “anathema

to our system of justice.” App. 36a (Wilson, J., dissenting).

IV. This Case Is An Ideal Vehicle For Resolving

This Issue.

This case is an excellent vehicle for clarifying that

a witness’s memory loss about a prior statement can

infringe a defendant’s Confrontation Clause rights.

This petition arises on direct appeal. Petitioner preserved his Sixth Amendment claim at every level of

the state court proceedings, and each of the courts addressed it on its merits. See supra 5, 8-10. There is no

dispute that the prior statement at issue here, which

came in the form of grand jury testimony, is considered “testimonial” for Sixth Amendment purposes.

The New York Court of Appeals issued a lengthy majority and dissenting opinions on the admissibility of

that grand jury testimony, which the court treated as

case-dispositive.6

6 As noted above (at 8-9 n.1), although the Appellate Divi-

sion inaccurately stated that Cosgrove’s testimony was “cumulative” of other evidence, the Court of Appeals recognized that

Cosgrove’s testimony “added the fact that Cosgrove saw defendant kick the victim in the head.” App. 5a. The Court of Appeals

26

Finally, the facts of this case—where a police officer credibly testified that he experienced total

memory loss about his prior statement in the threeand-a-half years between the incident and the trial—

place the constitutional violation in stark relief. It is

hard to imagine a more compelling vehicle for revisiting the notion that memory loss can never inhibit the

constitutionally guaranteed opportunity for cross-examination.

dissent concluded that “the admission of Lieutenant Cosgrove’s

testimony was not harmless error,” noting that the “factfinders

in the proceedings below clearly considered this case a close

question when Lieutenant Cosgrove’s grand jury testimony was

part of the record.” App. 38a, 40a. And even though respondent’s

brief in the Court of Appeals contended that Cosgrove’s testimony was cumulative such that any error in its admission was

harmless, see Resp. C.A. Br. 35-37, the Court of Appeals’ majority opinion did not address that contention. Thus, the prejudicial

effect of the error is at most a question for remand, and in no

way impedes this Court’s review of the constitutional issue presented.

27

CONCLUSION

The petition should be granted.

Respectfully submitted,

Christina A. Swarns

David Bernstein

OFFICE OF THE APPELLATE

DEFENDER

11 Park Place

Suite 1601

New York, NY 10007

Date July 31, 2019

Daniel A. Rubens

Counsel of Record

Matthew R. Shahabian

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

drubens@orrick.com