Opinions on State v. Nay, 2017 Utah Appellate Decision

A No Doubt Common Situation

Imagine a situation where you are caught with an associate and another growing marijuana in your home. Your associate basically gives the exact confession the police want, but you deny any wrongdoing.

Later at trial, your associate claims she cannot remember the details of the confession, and the confession was no recorded. There is only the testimony of the officer who took the confession.

You realize that you may be able to take advantage of the hearsay rule of evidence by having your trials split into two. If your associate is not a party to the case, the evidence will be considered hearsay unless it fits under an exception.

The court rejects your brilliant idea, however, and joins the matters together. You’re ultimately convicted. Though we don’t know what is going on in the minds of the jury, you can safely assume that the hearsay testimony of your associate, along with the the fact that they discovered marijuana growing in your home was enough for the jury to believe you were guilty.

Let’s take that confession out of the equation. Would the jury still have convicted you if there was not a confession that you had been a partner in this illegal operation? Remember that there were three people in your home when you got caught. Is it enough to be a resident in the home where this contraband was found enough to convict you?

The Problem Presented

We have a situation in which a confession of a third party was taken by police and used to convict someone else. That person’s freedoms were removed on the word of someone else, done at a time where it could not be tested or refuted. It was done at a time where it was not possible to observe how persuasively it was given or whether there were any civil rights violations.

A recent Utah Apellate decision appears to kick the can down the road, rather than put a decisive stop to this. An injustice undoubtedly occurred, but it goes unanswered because of procedural reasons.

State v. Nay

In State v. Nay, 2017 Ut. App 3,, the court, in considering whether there was a fair trial, looked to whether the trial court properly followed the joinder rule. Under the Utah Code §77-8a-1, “multiple defendants may be tried together when the charges against each defendant stem from the same act or criminal episode.”  However, this may be overridden if a defendant would experience prejudice by a joinder, such as when certain evidence presented at the joint trial would “have been different or unavailable at a separate trial.”  See Nay at  ¶11.

The question for the court at that point became whether the jail house confession of Hansen (associate from my above hypothetical) prejudiced Nay (you, above). At trial, the only objection made by Nay’s attorney was that the defenses of Nay and Hansen were incompatible and thus joinder was not possible. Nay’s attorney did not go into specifics at the trial level, but did go into specifics on appeal.

Nay’s arguments were these:

  1. Hanson may have been deemed unavailable as a witness in Nay’s trial with regard to the content of her confession because of a lack of memory of the confession.
  2. Because Hanson would be unavailable, the Confrontation Clause would prevent joinder.

The court punted both of these arguments because they were not properly preserved, or in other words, because Nay’s attorney did not specifically state them to the trial court. With respect to the availability of Hanson as a witness, the court stated that even if this argument had been preserved, a lapse in memory does not prevent a proper cross-examination.

With respect to the confrontation clause, the court notes that where “testimonial evidence is at issue… the Sixth Amendment demands what the common law required: unavailability of the witness and a prior opportunity for cross-examination.”  id. at ¶18.  Unfortunately, the court again states that this particular argument was not preserved at trial, so sorry. They do however helpfully add that even if it were preserved, Nay failed to properly show how Hansen would be unavailable.

The Court Gets It Wrong

Despite actually quoting the excellent US Supreme Court Decision of Crawford v. Washington, 541 U.S. 36 (2004), the Utah Appellate court actually expects the defendant to prove why the State’s witness would be unavailable. Before testimony acquired in a police interrogation can be used, the sixth Amendment requires that a witness be unavailable and that the defendant had an opportunity to cross-examine that witness when the testimony was made. The burden is clearly on the prosecution who is seeking to introduce testimony that was gathered outside of a judicial proceeding.

But the Court appears oblivious of this. In the Crawford decision, Justice Scalia describes the genesis of the Confrontation Clause. Pre-trial examinations were a problem in 17th century England, much as they are now. He states that the “most notorious instances of civil-law examination occurred in the great political trial… of Sir Walter Raleigh for treason. Lord Cobham, [his] alleged accomplice, had implicated him in an examination before the Privy Council and in a letter. At Raleigh’s trial, these were read to the jury. [Raleigh disputed the claims], and despite [his] protestations… the jury convicted, and Raleigh was sentenced to death.”  Id. at 44.  It was later lamented by one of Raleigh’s trial judges that justice “has never been so degraded.”  Id. Does this sound familiar? The facts are almost exactly the same.

A decision by a state court only three years after the adoption of the Sixth Amendment “held that… no man shall be prejudiced by evidence which he had not the liberty to cross examine.”  Id. at 49 (internal quotations omitted). This view was supported all throughout the 19th century.

Scalia states two inferences from the above history that courts should apply when interpreting cases on the basis of the Sixth Amendment:

  1. The Confrontation Clause particularly holds power over ex parte examinations which are used as evidence against the criminally accused. “Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices.”  Crawford at 51.  “[E]x parte examinations might sometimes be admissible under modern hearsay rules, but the Framers certainly would not have condoned them.”  Id.  “[I]nterrogations by law enforcement officers fall squarely within” the class of evidence the Sixth Amendment is concerned with.  See id. at 53 (Emphasis added).
  2. That the “Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.”  Id. at 53-4. Of note: “Accomplices confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule” and thus a prior opportunity to confront is a “necessary” condition for admissibility.  See id. at 55-6.

On these inferences, the Supreme Court ruled that the Washington Supreme Court’s decision should be reversed, holding that pre-recorded statements made in a police interrogation of a witness should not have been played for a jury because it was done without the opportunity for the defendant to cross examine the witness.

What Was The Appellate Court Thinking?

In Nay, we have a situation where three individuals charged with the same crime. While the third individual plead guilty to the charged crimes, Nay and Hansen both fought the charges. Hansen had given a previous confession of guilt for both herself and Nay at the police station. This testimony was presented to the jury by way of the detective who received it. Although it was denied by Hansen, both Hansen and Nay were convicted of the charged crimes.

The court rejected Nay’s arguments against the joinder ultimately on the basis that Nay could not sufficiently show that Hansen was unavailable to testify. But that shouldn’t be the inquiry, and it shouldn’t be the responsibility of the defendant.

The court really should have been concerned with whether Nay had a prior opportunity to confront Hansen on the testimony she was giving at the time. The fact that Hansen couldn’t remember that testimony at trial (truthful or not) prevents Nay from really having the opportunity to confront it at the time it was given.

While the court quotes the Crawford decision listed above– a 2004 case which defines how the Confrontation Clause governs ex-parte testimony–they seem to completely miss the point of it0.

. Instead, they support their position of allowing the jail house confession in on the basis of a case from 1985! The court gets hung up on this idea that the forgetful witnesses are still available for cross-examination, instead of the real issue which is that the accused was not present to speak against the damning testimony of the witness when they could remember.

What Would Have Happened If The Testimony Was Barred?

We have to assume that if Hansen’s testimony was not permitted, then the prosecution would have had a much more difficult time proving Nay’s guilt. No statement of guilt by Nay, no accomplice stating Nay’s guilt, and no other proof that Nay was responsible for the drugs present in the home beyond Nay living there.

These things alone, in my opinion, would not have been enough to convict Nay. Nay would have been acquitted.

Injustice Because of Punting

The court, however, did not base their ruling on their interpretation of Sixth Amendment precedent. Instead, they based it on Nay’s “failure” to preserve specific arguments for appeal. Nay’s blanket defense that Nay and Hansen’s defenses were incompatible was insufficient. Nay needed to specifically state why joinder could not be had in this case.

The Appellate Court was able to maintain a conviction in this case by declining to recognize the blatant, inquisitorial practice of the prosecution in this case. Many other defendants will no doubt suffer the same.

What this case should have been about was the fact that the prosecution used untested confessions against a defendant to convict a person of a crime they couldn’t otherwise prove. This is exactly the kind of behavior that the Constitution’s 6th Amendment sought to prevent. Although Nay may actually have been guilty of the things Hansen confessed, it may not always be so. Preserving the protections of the 6th Amendment will prevent our government from overreaching. It may protect you some day from the false testimony of someone looking to escape justice.

So what can we learn from this case as attorneys? If the prosecution is looking to enter jail-house confessions of an accomplice against your client, object on the basis that it violates the Sixth Amendment’s requirement for confrontation.

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