JUDGING CRIMES

While recently clearing a layer of wood-pulp debris from my office ("Don't toss that!  It might come in handy some day."), I came across a law review article by Richard D. Friedman, Framer of the current sixth amendment. 

Friedman has written a few gazillion articles about the confrontation clause -- in fact, it's difficult to find a recent article about the confrontation clause that he didn't write -- but this one was published before the March, 2004 constitutional convention that amended the amendment.  (Surprisingly few delegates showed up.  Only nine, in fact.)

It's about the forfeiture principle, the subject of a forthcoming Supreme Court opinion, Giles v. California, which is featured prominently in Professor Friedman's blog.  The article was published in the Israel Law Review, and it's called "Confrontation and the Definition of Chutzpa."  (For the missing final "h" in khutspe, see this discussion.)

The article has many excellent things to say.  The alternative to Friedman's approach -- the one adopted by New Mexico courts, in fulfillment of their historical mission to preserve the state's late 19th-century culture -- amounts to a double or nothing bet.  If a criminal feels lucky, he might as well commit a second crime by killing or intimidating witnesses to the first.  If he gets by with the second crime, he gets away with the first one, too.

So basically American courts are faced with a choice between (a) entrusting the physical safety of witnesses and the integrity of their own judicial processes to the discretion of violent criminals, in the hope that they won't feel lucky; or, (b) Friedman's recommended robust forfeiture principle. 

Judges find it a very difficult choice, for a reason well stated in the Friedman article I'm fixing to recycle: they prefer to think of the accused's constitutional rights as absolute.  Toward the end of the article, discussing the victimization of children, Friedman includes these paragraphs:

Fourth, if a child's caretakers are genuinely concerned that, no matter what precautions are taken, testifying will cause the child severe trauma, they simply need not require her to do so.  Of course, if absent her live testimony secondary evidence of the prior statement is inadmissible, the probability of securing a conviction against the accused may diminish to the vanishing point.  And, when the accused is in fact guilty, that is a very unfortunate result.  But it is nothing new.  Often prosecutions are lost, or never brought, because the complaining witness is unwilling to testify.  Again, the case of adult rape provides a prime example.

Finally -- a point that will not have universal appeal -- I find disturbing an approach that says to the accused, in effect, "Well, perhaps you have a fundamental right at stake here, but someone else would be hurt if we allowed you to invoke it against the state and yet insisted on prosecuting you".  Perhaps it is too late in this "age of balancing" to argue against such willingness to balance away the rights of accused against the state.  But I prefer viewing the accused's fundamental rights, at least at their core, as truly fundamental and not subject to be balanced away.

Now, Friedman is obviously a very smart guy, and he's an almost infinitely better writer than the average law professor, and I've been told secondhand that he's a good guy -- a true gentleman -- possessed of a fine sense of humor. 

So how come it's not obvious to him, as it is obvious to me, that his approach involves "balancing" quite as much as the approach he deplores?  ("Balancing," in a judicial context, is an euphemism for choosing, of course.  See post 248 and post 332.)  Specifically, he balances away a child's right to protection from the community. 

I know that in the courtroom, we have to pretend that the particular crime charged is the only one the criminal ever committed, but who believes that about a pedophile?  I think it's safe to assume that a man who's sexually attracted to children will experience that attraction about as often as any other man is sexually attracted to objects of his desire, which is to say, roughly, whenever they come within his field of vision.

Volumes of social science data show that child sexual abusers routinely "report vastly more victim-involved incidents than those for which they were convicted."  (That's from "Child Sexual Molestation: Research Issues," National Institute of Justice Research Report (NCJ-163390, June 1997), which apparently isn't available on-line but can be ordered here.)

So it's not just "a very unfortunate result" when a guilty child sexual abuser goes free.  It amounts to sentencing additional children to sexual abuse.   Friedman proposes balancing away those children's rights, too. 

That has consequences for non-pedophile, peace-loving, minding-their-own-business adults, too, as described here.  The rights of those future adult victims of grown-up abused children are also subordinated to Friedman's elegantly simple conception of the sixth amendment.

At the highest level, Friedman also proposes balancing away the rights of the American people, who are guaranteed a republican form of government in their Constitution.  That means a government controlled by the people themselves. 

Why can't the people of the various states have the type of government they want? -- one in which guilty pedophiles are stopped before they re-offend, and punished before they can make child sexual exploitation seem like a low-risk activity for those so inclined.  (Well, okay, punished so that we can gradually restore the vanishing perception that it's a high-risk activity.)

Friedman's point, or rather his assumption, is that these things don't count.  All he's really saying is that the accused's rights shouldn't be balanced against the prosecution's interest in securing the conviction of a guilty person.  Inside the courtroom, no one else has "standing" to intervene in a criminal prosecution, so therefore (it follows, as night follows dawn) no one else has any rights that a judge is bound to respect.

Friedman, in short, accepts the basic assumption on which our current criminal justice system rests, which is that real life and what happens during the course of a criminal trial must be kept strictly segregated, and only the latter counts. 

His uncritical acceptance of the big-picture status quo is certainly one reason for his incredible influence over the judicial guardians of received wisdom.  Last year, for instance, the Ninth Circuit asked him how to rule in a confrontation clause case and meekly did as they were told, giving him credit. 

He advised them (if the court's paraphrase is to be trusted) to base their decision on policy considerations, in order to prevent prosecutors from getting up to tricks (footnote 8).  Policy considerations are so much more preferable than balancing tests, of course.  Intent of the Framer and all that.