In People v. Goldstein,2005 NY Slip Op 09654 (2005), the New York Court of Appeals was confronted by a murder case where the defendant attacked a unsuspecting woman and threw her off a subway platform in front of an oncoming train. There was substantial testimony offered by both the defense and the government's psychiatrists. The Doctors all agreed that the defendant was mentally ill. However, the prosecution’s expert predictable decided that the illness did not render the defendant legally insane. Part of that doctor's testimony included the basis of the Doctor's conclusions. Rather than rely on just the statements of the defendant, this expert felt she should speak to non-testifying third parties who witnessed other things the defendant had done in his life. Those things supported her finding that the defendant was a predator, and not just an ordinary insane individual. Her testimony, which encapsulated the hearsay stories of six other witnesses, came in over defense objection.
On appeal, the Court of Appeals dealt with the junk science part of the case quickly but disconcertingly. It held that, although only a small minority of experts accepts the notion that third party accounts aid in diagnosis, enough find the approach to yield the kind of material that is reliable and widely accepted in the field.
I find that this is the biggest problem with the decision. It is clear in the decision, that the cross-examination of the witness on the issue of widespread acceptance in the field was not deep enough, to explore the level of professional acceptance. Now we will have prosecutors arguing for a rule that "Forensic study into the psyche of a defendant must include a review of the defendants past acts and interviews with witnesses to those acts" whose testimony would never be permissible in the governments' case in chief.
However, the court did not reach that issue here. In fact, it specifically refused to acknowledge that NY Law is the same as the Federal Rule of Evidence 703 with regard to that issue.
The Court of Appeals instead looked at the new federal issue raised by Crawford v. Washington, 541 US 36 (2004). It decided, that under the US Constitution the defendant's conviction here must be overturned. The court cites both the 6th amendment’s language in the confrontation clause and language in the NY State Constitution’ Article I Section 6, however it relied on federal precedent for its decision. (In fact the dissent noted that Crawford, was only recently settled law and that giving it too much weight at this juncture could expose this decision to criticism should the Supreme Court of the United States not go as far as the majority did here. I have no reason to think that this six to one decision would be different if it were decided on state grounds alone. In fact, given the strength of the language in the decision the state constitutional argument might yield an even stronger result.)
The court held that while out of court statements not offered for the proof of the matter asserted are still admissible with proper precaution, the jury could not give the prosecution’s expert any weight unless they also believed the truth of the statements of the out of court declarants. Hence, the evidence had to be hearsay. They then acknowledged that Crawford had done away with the absolute right to offer the statements of witnesses who could otherwise not be cross-examined.
The dissent strongly criticized the majority, noting that even if the jury rejected all the hearsay, the proof was overwhelmingly in favor of conviction. Hence, it called on the majority to apply harmless error analysis to the decision. The majority refused however. It did note how hard this decision might be for the victim’s family to accept. However it noted that the right to cross examine one’s accusers sits at the very base of American liberty and must be upheld in spite of the pain that this decision may cause the victims family. I am happy to see the court at least acknowledged that the victims were going to suffer in a third retrial. However, the same trend can also be scary. Appellate courts are supposed to decide these cases without prejudice and on the law alone. If a court thinks too much about the fallout or the effect of the decision, it could leave its duty on the table and do the popular thing and not the right thing.
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