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Academic
: The Confrontation BlogThe Rae Carruth Case Six Years Later
By Richard D. Friedman
Today, the U.S. Court of Appeals for the Sixth Circuit issued a decision affirming the denial of a petition for habeas made by Carruth (whose legal name is Wiggins). Notably, Carruth did not contest before the Sixth Circuit that the 911 call was admissible and the state did not contest that the subsequent statements were inadmissible under the Confrontation Clause; the only issue for the court, so far as the latter statements were concerned, was whether the error in admitting them was harmless, and the court held that it was.
The case therefore becomes something of a measure of the development of Confrontation Clause doctrine. Presumably Carruth assumed that the court would hold that the 911 call did not violate the Confrontation Clause because of the emergency doctrine of Davis v. Alaska, and presumably the state assumed that the court would hold the later statements to be testimonial, under the other part of Davis (the part governing Hammon v. Indiana) and that under Giles v. California it would not prevail on an argument that Carruth forfeited the confrontation right. Accepting these assumptions as accurate for present purposes, I think they show how the doctrine has gone wrong in a couple of respects.
True, Adams called 911 in dire circumstances, and in that sense the call was one for help (which the statements in the pending Bryant case were not, given that the police were already on the scene when the victim made them). But it is clear that much of what she had to say -- most notably, identifying Carruth and telling about his behavior before and after the shooting ? had little or nothing to do with getting help and was instead a communication of how the grievous assault had been committed and who had played a central role in it. I believe it should be regarded as testimonial, and to the extent Davis persuades a court otherwise that is unfortunate.
The later statements clearly were testimonial. But were they subject to forfeiture? After Giles, presumably not, because, while there was ample evidence that Carruth conspired to kill Adams, there is no showing that he did so with the design of preventing her from testifying in any proceeding. As I've often said, on this blog and elsewhere, I think Giles was a very unfortunate development. In my view, whether forfeiture should be applied in this case should depend in large part on how long Adams remained able to communicate. I analyze the issue at some length in the prior post, though when I wrote that I did not know that Adams had become comatose some time before her death. Adams had no hesitation making accusatorial statements, and the police, among others, had no hesitation in soliciting them. It is conceivable ? I cannot say it is certain ? that there was a window during which it would have been practicable and not inhumane to hold a deposition. There are many examples of this being done, even with victims who eventually died, during the founding era; the Forbes case, discussed in the prior post, is one example.
Full post as published by The Confrontation Blog on February 15, 2011 (boomark / email).
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