Academic

Cert granted in Melendez-Diaz

Posted on March 17, 2008
The Supreme Court granted certiorari today in Melendez-Diaz v. Massachusetts, posing the issue of whether certificates of forensic lab results are testimonial. You can see papers filed in the case so far by clicking here and following the links. The case will be argued in the fall...

Shifting the Burden, Take 3

Posted on March 01, 2008
In a 5-3 decision yesterday in Magruder v. Commonwealth, Virginia joined those jurisdictions upholding a statute that makes certificates of lab reports admissible but provides that the accused may, if he wishes, call the author as a witness. This is an issue on which there is a clear split, and it is ripe for the Supreme Court to decide, perhaps when it decides whether such certificates are testimonial...

?If anything happens to me . . .?

Posted on March 01, 2008
Several readers have asked me about the recent Jensen case in Wisconsin, which has generated considerable national publicity ? including a piece on ABC's 20/20. Mark Jensen was recently convicted of murdering his wife Julie. Among the evidence against him was a handwritten letter that Julie gave to a neighbor in an envelope addressed to the local police department, with instructions that the neighbor give the envelope to the police if anything happened to her...

NACDL brief in Giles

Posted on February 22, 2008
The National Association of Criminal Defense Lawyers has filed an amicus brief on behalf of the petitioner in Giles, and you can see it by clicking here. I'll present my comments in the form of another amicus brief!

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Supreme Court decides that states may apply Crawford retroactively

Posted on February 21, 2008
Last year, in Whorton v. Bockting, the Supreme Court decided that Crawford does not apply retroactively as a matter of federal constitutional law. Yesterday, in Danforth v. Minnesota, 2008 WL 441059, the Court held that states are free to apply broader rules of retroactivity than the constitutionally mandated ones, and so may apply Crawford retroactively...

Petitioner's brief in Giles filed

Posted on February 20, 2008
Here is the brief of the petitioner, the first brief on the merits before the Supreme Court in Giles v. California, No. 07-6053, reviewing People v. Giles, No. S129852, 40 Cal.4th 833, 152 P.3d 433 (Cal. 2007), the case presenting the issue of whether the accused can forfeit the confrontation right with respect to a witness by killing her, even if he did not do so for the purpose of rendering her unavailable as a witness...

Moving to a head on lab reports

Posted on February 20, 2008
Petitioner has filed his reply brief in support of the petition in Melendez-Diaz, the Massachusetts case on lab reports. You can see it by clicking here. The Court has not yet acted in the other pending cases on lab reports, so it appears likely that it is waiting to consider those cases along with this one...

More cert petitions

Posted on February 12, 2008
I have previously written about the pending cert petition in Melendez-Diaz v. Massachusetts. Alert blog reader (I?m adapting a line from Dave Barry there) Richard Klibaner has called attention to a couple of other pending petitions that pose similar issues...

Having it both ways on the declarant's and questioner's perspectives

Posted on February 05, 2008
As my last posting suggested, when courts are considering whether to characterize as testimonial an accusation made to a police agent in a situation that can arguably be considered an "ongoing emergency," they have most often considered the matter from the perspective of the questioner...

Taking the declarant's perspective ? and perspecives on emergency

Posted on January 26, 2008
Blog reader Ryan Scott has called to my attention the decision by the Oregon Supreme Court in State v. Camarena (Jan. 25, 2008), which is interesting in one respect. This is a rather typical domestic violence case involving a 911 call; as in Davis v...

Cert denied in capital sentencing cases

Posted on January 14, 2008
Lyle Denniston tells me the Supreme Court denied cert this morning in the three pending cases raising the question whether the confrontation right applies at the selection phase of capital sentencing. No surprise in view of the fact that the Court didn't act on the petitions Friday; at this time of year, the Court accelerates briefing schedules to fit cases in before the end of term, so it announces grants shortly after the conference on Friday, and waits until Monday to announce denials...

Supreme Court to hear Giles case (updated)

Posted on January 11, 2008
Lyle Denniston reports that the Supreme Court has granted certiorari in Giles v. California. You can read more on www.scotusblog.com. I believe this is excellent news. You can read my prior posting on Giles, and get links to the papers in t he case -- including the brief I put in supporting a grant of certiorari -- by clicking here, and you can see the Court's order by clicking here...

Florida decides that discovery depositions do not qualify as an opportunity for cross-examination

Posted on January 10, 2008
Rocky Sharwell informed me yesterday that the Florida Supreme Court has just issued a long-awaited decision, State v. Lopez, 2008 WL 9979, resolving an intrastate conflict as to whether a discovery deposition constitutes a pre-trial opportunity for confrontation...

Pending cert petitions on capital sentencing

Posted on January 09, 2008
Lyle Denniston, who writes for scotusblog and follows the Supreme Court very closely, has alerted me to the fact that, in addition to the Giles case, discussed in my posting of December 24 (and later updated), there are other Crawford-related petitions before the Court at its conference this Friday, posing the important issue of whether the confrontation right applies at the selection phase of capital sentencing proceedings ? that is, at the proceeding held, after the defendant?s guilt and eligibility for the death penalty have been determined, to decide whether the death penalty actually should be imposed...

Children and forensic interviews, revisited

Posted on January 07, 2008
The Idaho Supreme Court recently issued a decision, State v. Hooper, 2007 WL 4472263 (Dec. 24, 2007), that came to the right result with respect to videotaped statements made by a child during an interview by a forensic examiner at a sexual trauma abuse response (STAR) center, but that also illustrates the dangers in the way the courts are dealing with such statements...

A duty to mitigate with respect to statements made before the crime being charged?

Posted on December 29, 2007
An anonymous reader ? please identify yourselves if possible! ? has offered the following comment in response to my posting on the pending petition in the Giles case: Prof. Friedman, take the following scenario:OJ beats Nicole. Nicole calls the police...

Two pending cert petitions (updated as of Jan. 7)

Posted on December 24, 2007
Currently pending before the Supreme Court are two petitions for certiorari that I hope the Court will grant, because they raise significant issues on which the lower courts are divided. In fact, I have put in amicus briefs in both of them in support of the petitions...

Further developments and thoughts on child witnesses

Posted on October 26, 2007
Yesterday, the Ohio Supreme Court decided State v. Siler. In my view, this is a case of considerable interest, significance, and difficulty.The facts are gruesome and hard to stomach. Brian Siler is charged with murdering his estranged wife Barbara, who was found hanging by a cord in the garage...

Second Brooklyn Symposium now available on-line

Posted on October 16, 2007
Papers from the second post-Crawford symposium organized by Bob Pitler at Brooklyn Law School are available on-line, and you can reach them by clicking here. Though the symposium was held just over a year ago, I believe most of the papers are still timely...

A view of Crawford from a Massachusetts judge

Posted on September 20, 2007
A Massachusetts judge, Davd Lowy, and Katherine Bowles Dudich, who has served as a law clerk for his court, recently published an article titled After Crawford: Using the Confrontation Clause in Massachusetts Courts, 12 Suffolk J. Trial & App. Advoc...

Conflict deepens on expert evidence

Posted on September 12, 2007
I have already commented on issues raised by expert evidence in several posts. See The Not-for-the-Truth End Run; The Expertise End Run and People v. Goldstein; and The Expert Opinion Problem. One of the recurrent issues is whether a statement that is testimonial in nature may be introduced against an accused, notwithstanding the absence of an opportunity for cross-examination, on the ground that it is admitted only in support of an expert?s opinion...

Child Witnesses on the Academic and Judicial Front

Posted on September 07, 2007
Some of the most perplexing issues related to the Confrontation Clause involve statements by children. The Indiana Law Journal has recently published a symposium on the topic, under the sponsorship of Prof. Aviva Orenstein. Her introductory essay, Children as Witnesses: A Symposium on Child Competence and the Accused's Right to Confront Child Witnesses, 82 Ind...

Opportunity for Cross-Examination at Preliminary Proceedings

Posted on August 29, 2007
I am writing this post to invite readers' comments on this set of questions: California v. Green, 399 U.S. 149 (1970), holds that an opportunity to cross-examine at a preliminary hearing satisfies the confrontation right. How, if at all, does this principle affect the conduct of lawyers and courts at preliminary hearings and other pre-trial evidentiary proceedings (such as depositions taken for discovery purposes) not held for the primary purpose of preserving testimony? For example, how often do defense lawyers conduct a full cross-examination ? knowing that if they do not and the witness is unavailable to testify at trial, it may be that the court will admit the earlier testimony and reject a claim of the confrontation right by ruling that the defense already had an opportunity for cross-examination? And how willing are courts to allow a full cross-examination given this possibility?My own slightly educated guess is that usually the prospect of trial admissibility does not cause defense lawyers to conduct extensive cross-examinations at preliminary proceedings, and that if they tried to do so the courts would constrain them...

Ninth Circuit decision in Yida -- on "reasonable means" and unavailability

Posted on August 17, 2007
Yesterday, a panel of the United States Court of Appeals for the Ninth Circuit issued its decision in United States v. Yida, 2007 WL 2325143. This case generated some anticipation because after oral argument the panel issued an order inviting amicus briefs from any interested person...

Standard of review for limitations on cross-examination

Posted on August 03, 2007
Greg May has brought to my attention a significant en banc decision, United States v. Larson, 2007 WL 2192256, issued Wednesday (Aug. 1, 2007) by the Ninth Circuit, addressing the question of the standard of review that applies when an accused contends on appeal that a trial judge?s limitation of questions on cross-examination violated his rights under the Confrontation Clause...

Forfeiture: The Standard of Proof and the Reflexive Case

Posted on July 20, 2007
Here's a post I meant to put up several weeks ago:The Washington Supreme Court has joined the minority of courts that have adopted an elevated standard of proof that a defendant engaged in the wrongful conduct that rendered a potential witness unavailable...

Cert petition by Missouri on the lab report issue

Posted on July 01, 2007
One of the most significant outstanding Crawford-related issues is whether lab reports and other reports routinely prepared as part of the prosecutorial process should be deemed testimonial. If such a report is considered testimonial -- as it should be -- then it may not be admitted against the accused unless the author of the report is subjected to cross-examination...

Can testimony be preserved before arrest?

Posted on April 27, 2007
It often happens that for some time after commission of a crime, especially a homicide, a suspect is not apprehended, yet the state anticipates that eventually there may be an arrest and a trial. Now suppose that a prosecutor realizes that a key witness may not be available by the time of a trial...

Illinois Supreme Court deems statements to clinician and social worker to be testimonial

Posted on April 19, 2007
The Illinois Supreme Court issued a significant decision today in People v. Stechly (and thanks to my former student Brian Koch for pointing it out to me). It holds that a child's statement of abuse made to her mother was not testimonial, but that statements made to a clinical specialist in charge of a hospital child-abuse team and to a social worker at the child's school were testimonial -- and that the error in mischaracterizing these statements was reversible...

Another state decides (at least partially) correctly on lab reports

Posted on April 19, 2007
The Oregon Supreme Court today decided State v. Birchfield (and thanks to Ryan Scott for calling it to my attention even before it was decided!), holding that the trial court violated the accused's right under Article I, sec. 11 of the state Constitution "to meet the witnesses face to face" when it introduced a lab report without presenting the testimony of the criminalist who prepared it or demonstrating his unavailability...

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