Academic

Cert denied in Pendergrass

Posted on June 14, 2010
As reported in a comment by an anonymous reader, the Supreme Court denied cert this morning in Pendergrass v. Indiana. I may have mroe to say on this later. For now, I'll simply say that the basic issue presented by the case -- who must testify as to the results of a forensic lab test -- is an important one that the Court will have to resolve sooner or later.

State's BIO in Pendergrass

Posted on May 11, 2010
The state has filed its Brief in Opposition in Pendergrass v. Indiana. You can read it by clicking here.Sooner or later, the Court is going to have to address the basic issue raised by this case -- whether a prosecutor may prove an event or condition (here, the conduct and results of a lab test) by presenting the testimony of a person who did not observe that event or condition.

State-side amicus briefs in Bryant

Posted on May 11, 2010
The Solicitor General's Office and 36 states have filed amicus briefs on the state's side in Michigan v. Bryant. You can read the SG's brief by clicking here and the states' brief by clicking here. Both briefs, like that of Michigan, take the perspective of the interrogator in determining whether the statement is testimonial...

State's brief in Michigan v. Bryant

Posted on April 29, 2010
The State, which is the petitioner, has filed its brief -- a day early -- in Michigan v. Bryant, the pending case on fresh accusations. You can read it by clicking here. I expect to be filing an amicus brief on behalf of the respondent. So for now I will confine myself to a few short comments...

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More on Bryant

Posted on March 02, 2010
Some more on Bryant: Here, once again, are links to the Michigan Supreme Court opinion, from the court's website and from Westlaw. And here, via Scotusblog, are links to the petition for certiorari and to the brief in opposition.Bryant will give the Court a chance to resolve several important issues in confrontation law...

Cert grant in Bryant

Posted on March 02, 2010
I was out of touch, skiing, yesterday, and am slow in reporting the news that the Supreme Crut granted cert in Michigan v. Bryant; I had previously reported on the state supreme court case. More on this later.

Cert petition on "Who must testify?"

Posted on January 25, 2010
Sooner or later, the Supreme Court will have to resolve the question of who must testify to the substance of a lab test. Indeed, with Briscoe now safely off the Supreme Court's docket, this would be a logical next issue for the Court to tackle; the justices were interested in it both in Melendez-Diazand in Briscoe...

G . . . VR in Briscoe

Posted on January 25, 2010
One June 25, the day the Supreme Court decided Melendez-Diaz, most observers -- including me -- confidently predicted that it would GVR Briscoe -- that is grant the petition, vacate the case, and remand it to the Virginia Supreme Court for further consideration in light of Melendez-Diaz...

Top 50 Criminal Justice and Criminology Blogs

Posted on January 14, 2010
I just received word that Justice City, USA, another blog, listed the Confrontation Blog as one of the top 50 Criminal Justice and Criminology Blogs. I didn't even know there were 50 blogs in the field! But it's an interesting list, which you can find at...

Transcript in Briscoe

Posted on January 12, 2010
The Supreme Court heard argument yesterday in Briscoe v. Virginia. You can read the transcript by clicking here. I will hold substantive comments -- including about the exchange on the word "orthogonal" -- until after the decision.Here are a couple of corrections, though, as to case names...

Reply brief in Briscoe

Posted on December 07, 2009
I have just served and filed the reply in Briscoe. You can read it by clicking here.The argument will be on January 11, at approximately 11 am. I will argue on behalf of the petitioners. Steve McCullough, who became the Solicitor General of Virginia while the petition in this case was pending, will argue on behalf of Virginia...

Briscoe: Bottom side amicus briefs, and argument date

Posted on November 02, 2009
The Solicitor General has filed an amicus brief in support of Virginia in the Briscoe case. You can read it by clicking here. Twenty-six states and the District of Columbia have also filed a brief in support of Virginia, and you can read that one by clicking here...

Respondent's Brief in Briscoe

Posted on October 26, 2009
The Commonwealth of Virginia has just filed its brief in Briscoe v. Virginia. You can read it by clicking here. The reply brief is due November 25, and I believe the argument will likely be held on January 11.

Joint Appendix in Briscoe

Posted on September 03, 2009
For anybody who might be interested, here is a link to the Joint Appendix in Briscoe

Petitioners' Brief in Briscoe filed

Posted on September 01, 2009
I have filed the Petitioners' Brief in Briscoe v. Virginia (U.S., Supreme Court, No. 07-11191) today. You may see it by clicking here.

Cert granted in Briscoe

Posted on June 29, 2009
As some readers already know, the Supreme Court granted cert today in Briscoe v. Virginia, on a petition I filed last year. The petition sought review of the decision of the Supreme Court of Virginia in Magruder v. Commonwealth, 275 Va. 283, 657 S.E...

Melendez-Diaz reversed

Posted on June 25, 2009
Scotusblog reports that Melendez-Doiaz has been reversed, by a 5-4 vote, with Justice Sclaia writing the majority opinion and Justice Kennedy writing a dissent. I will post more when I know more!

An initial reaction to the Melendez-Diaz decision

Posted on June 25, 2009
Here are some early thoughts about the majority opinion in Melendez-Diaz v. Massachusetts, 2009 WL 1789468, and Justice Thomas?s concurrence. I?ll try to write in a few days about the dissent. First, this is a terrific decision. It is the right result, for the right reasons...

Michigan allows judges to bar witnesses wearing the niqab

Posted on June 18, 2009
Nothing today on Melendez-Diaz. But yesterday the Michigan Supreme Court again took an action of interest, though this one I regard as very unfortunate. By a 5-2 vote (with Chief Justice Kelly and Justice Hathaway dissenting) it promulgated an amendment to Michigan Rule of Evidence 611(b) so that the rule now reads:(b) Appearance of Parties and Witnesses...

A nice decision from Michigan on fresh accusations

Posted on June 11, 2009
The wait for Melendez-Diaz must be nearly over ? Monday is another potential decision day. Meanwhile, I haven?t made any new postings for a while because there haven?t been developments that I thought were worth discussion. But now there is a nice decision, by a 4-3 majority of the Michigan Supreme Court, in the area of fresh accusations...

Maybe they forgot about it?

Posted on April 06, 2009
The Supreme Court completed its latest sitting today without deciding Melendez-Diaz v. Massachusetts. The long wait -- the case was argued November 10 -- suggests that something is brewing. Perhaps the Court is still debating the merits of the particular question presented, whether a forensic lab certificate reporting the presence of cocaine is testimonial...

Still no decision in Melendez-Diaz

Posted on March 09, 2009
The Supreme Court has completed this sitting without issuing its decision in the Melendez-Diaz case, in which it will decide whether a forensic lab report asserting that a substance contains cocaine is testimonial for purposes of the Confrontation Clause...

Giles sent down for retrial

Posted on March 02, 2009
Here is a belated report: The Giles case is wending its way back down through the California courts. After the remand from the United States Supreme Court, the California Supreme Court transferred the case back to the Court of Appeals. In February, that court sent the case back for trial...

NRC report on forensic evidence casts further doubt on reliability of lab evidence

Posted on February 18, 2009
In deciding the Melendez-Diaz case, the Supreme Court should not give any weight to whether lab reports are reliable; the essence of Crawford is to make this factor irrelevant. But if the Court were tempted to take reliability into account, a series of recent developments should provide strong caution: Lab reports are not as reliable as people are tempted to believe...

Confrontation and the Niqab

Posted on February 04, 2009
I was interviewed yesterday on a Canadian Broadcasting Corporation radio program, The Current, about a pending case in which a Moslem woman, the complainant in a sexual assault case, wishes to testify while wearing a niqab ? a covering that obscures most of her head but leaves her eyes visible...

Still waiting for Melendez-Diaz . . .

Posted on January 27, 2009
The Supreme Court issued several decisions yesterday, including a couple from November and even one from December. But Melendez-Diaz, which was argued November 10, was not among them. The Court's next open session is February 23, and a decision could come down that day or soon after...

Thoughts on Melendez-Diaz: Certificates of Authenticity

Posted on December 24, 2008
At the Melendez-Diaz argument, Justice Breyer posed one of the most interesting issues that is suggested by the case though not directly presented by it. Suppose that it is critical for the prosecution to introduce Joe Jones?s birth certificate (to use Justice Breyer?s example), or information contained in it...

Thoughts on Melendez-Diaz: The Product of Machines

Posted on December 18, 2008
One of the issues addressed by some of the cases dealing with lab reports, and in the span style="font-style: italic;"Melendez-Diaz/span argument, is the status for Confrontation Clause purposes of the output of the machines that do the testing.br /br /As some courts have noted, the output of a machine is not in itself an assertion that can come within the scope of the confrontation right, or of the hearsay rule...

Eye contact between defendant and witness

Posted on December 04, 2008
This blog focuses mainly on what might be called the hearsay aspect of the confrontation right ? that is, on the question of when the confrontation right precludes the use of out-of-court statements against the accused; that is the aspect of the right that was transformed by Crawford, and so the aspect in which there has been the most dramatic recent development But of course another critical aspect of the Confrontation Clause is the question of what the right of confrontation means if the witness does actually come to court to testify...

Thoughts on Melendez-Diaz: chain of custody, products of a machine, who must testify, etc.

Posted on November 13, 2008
While Melendez-Diaz is pending, I am going to write about various significant issues beaing on it. Here I will write about the chain of custody, products of a machine, who must testify, and other related topics.Chain of custody is not a technical requirement that should be belittled as a mere technicality...

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