Academic

The Melendez-Diaz argument

Posted on November 10, 2008
I have not been able to work much on the blog lately, because of the press of other work. But I attended the argument of Melendez-Diaz v. Massachusetts in the Supreme Court yesterday and I want to report on that. (The transcript is available on the Court's website; you can see it by clicking here...

States' amicus brief in Melendez-Diaz

Posted on October 17, 2008
I previously posted what I thought were all the state-side amicus briefs in Melendez-Diaz -- but I had not received, and was unaware of, one submitted by 35 states plus the District of Columbia. You can see it by clicking here.

Shoddy forensics in LA police lab

Posted on October 17, 2008
I've previously reported on the closing of the Detroit police lab because of a high error rate. Now , according to a story in the Los Angeles Times, an internal report by the Los Angeles Police Department reveals a pattern of shoddy work in the Department's lab -- including two false accusations in fingerprint cases...

Reply brief in Melendez-Diaz

Posted on October 02, 2008
Here is the reply brief for the petitioner in Melendez-Diaz v. Massachusetts, the cased that will determine whether a forensic lab report identifying a substance as cocaine is testimonial for purposes of the Confrontation Clause. The briefs are now all in, and the case will be argued November 10.

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Ineffective assistance and adequacy of a prior opportunity for cross

Posted on September 28, 2008
A reader's question raises an interesting issue on which I haven't given much thought: If a witness testifies subject to cross against an accused at a first trial, which ultimately is thrown out, but then is unavailable at the time of the retrial, in what circumstances (if any) can the accused keep the testimony from the first trial out on the ground that the lawyer there did an inadequate job on cross? If I am wrong in what I say below, I hope readers will correct me, but here is the answer I glean from reading United States v...

Detroit Police Crime Lab closed because of high error rate

Posted on September 25, 2008
My student Brenna Speiser has called to my attention a report by the Detroit Free Press, on freep.com, with this dramatic lead:The Detroit Police crime lab is so riddled with errors that officialsordered an immediate shut down today, saying that the local criminal justicesystem could be at risk...

Respondent-side amicus briefs in Melendez-Diaz

Posted on September 11, 2008
Two amicus briefs supporting hte Commonwealth have been filed in Melendez-Diaz. You can read the brief of the United States by clicking here, and the brief of the National District Attorneys Association and several prosecutors by clicking here.

A legislative response to Giles?

Posted on September 06, 2008
My student Ted Whalen has called to my attention a bill pending in Illinois, which you can read by clicking here, that seems designed to take advantage of the leeway left by Giles (though I suspect it was drafted before the Supreme Court's decision in Giles and was in fact drafted in response to the Illinois Supreme Court's decision in People v...

Respondent's brief in Melendez-Diaz

Posted on September 02, 2008
Here is the brief on the merits of the Commonwealth, as respondent, in Melendez-Diaz v. Massachusetts. I expect I will post some comments on it within a few days.

Reply brief in support of cert in Briscoe

Posted on September 02, 2008
Here, rather belatedly, is the reply brief I filed last month in support of certiorari in Briscoe v. Virginia, challenging Virginia's burden-shifting statute. If the Court decides in Melendez-Diaz (as I bleieve it should) that forensic lab reports are testimonial, then the issue posed by this petition will be presented.

Brief in Opposition in Briscoe

Posted on August 13, 2008
The Commonwealth has filed its Brief in Opposition in Briscoe and Cypress v. Virginia, the case in which I filed a petition challenging Virginia's statute shifting to the accused the burden of producing as a live witness the author of a certificate of forensic laboratory results...

No confrontation issue if the statement isn?t even offered.

Posted on July 18, 2008
That seems obvious enough, but the point arose in an interesting context in United States v. Tucker (8th Cir. Jul. 17, 2008). Tucker assisted her boyfriend Robson in a get-away from a bank robbery, and the critical issue was whether when she did so she knew that he had robbed the bank...

Reflections on Giles, Part 4: The Alito and Thomas opinions

Posted on July 08, 2008
Justice Thomas wrote a brief concurrence in Giles expressing the view that the statement at issue ? made by the victim to a responding officer after an alleged assault ? was not testimonial in nature. He regarded it as indistinguishable from the statement made to a responding officer in Hammon v...

Reflection on Giles, Part 3: What Does It Mean?

Posted on July 02, 2008
The accused has intentionally engaged in serious wrongful conduct that has in fact caused the victim to be unavailable as a witness at trial. What state of mind on the part of the accused with respect to that unavailability will support a finding of forfeiture under Giles? There is some ambiguity about that...

Reflection on Giles, Part 2: Is Giles bad for defendants?

Posted on June 29, 2008
On its surface, Giles appears to be a major victory for defendants. I am not sure that will prove to be right over the long run.1. The Giles test ? however it develops ? may turn out to be rather easily satisfied.We?ll have to see over time how the lower courts, and ultimately the Supreme Court, reconcile the various key passages in the majority opinion and in Justice Souter?s concurrence, which reflects the views of two justices crucial for the majority...

Reflections on Giles, Part 1: History, Dying Declarations, and Forfeiture

Posted on June 27, 2008
As readers of this blog will recognize, I am obviously very disappointed by the result in Giles. It has unfortunate consequences for the theory of the Confrontation Clause. It will complicate litigation. And it will lead to some bad results ? though to what extent it will do so is unclear, depending on how some language in the Scalia and Souter opinions is applied...

Giles vacated and remanded

Posted on June 25, 2008
The Supreme Court decided Giles v. California today. You can see the opinion by clicking here. Giles won; the decision is vacated and remanded, and the forfeiture theory does not apply. I have not had time yet to read the opinion, and so can't say much more (except that I think this is a veyr unfortunate result), but I will add more later, probably later in the day.

Top-side amicus briefs in Melendez-Diaz

Posted on June 23, 2008
Today is the deadline for amicus briefs in support of the petitioner in Melendez-Diaz v. Massachusetts, No. 07-591, the case raising the issue of whether forensic laboratory reports are testimonial within the meaning of the Confrontation Clause. I have filed a brief, which you can see by clicking here...

Petitioner's brief in Melendez-Diaz

Posted on June 19, 2008
While we wait for the Supreme Court to decide Giles, Melendez-Diaz v. Massachusetts, the case that will decide whether forensic lab reports are testimonial, is moving ahead. To see the petitioner's main brief on the merits, filed this past Monday, click here...

Cert petition in a burden-shifting case

Posted on May 30, 2008
In several posts, I have discussed, and railed against, statutes that shift to the accused the burden of producing a prosecution witness, typically the author of a lab report. Yesterday, I filed a cert petition raising this issue, and seeking review of the decision of the Supreme Court of Virginia in Magruder v...

Failure to answer questions on cross

Posted on May 13, 2008
In United States v. Owens, 484 U.S. 554 (1988), the Court ? per Justice Scalia, who also wrote Crawford ? held that the Confrontation Clause permitted introduction of a prior accusation made by the victim, Foster, even though Foster did not remember the incident itself or most relevant events since then...

Reflections on the historical discussion at the Giles argument

Posted on April 23, 2008
I attended the argument in Giles v. California yesterday. The question, for those who have not been following closely, is whether an accused forfeits the confrontation right by murdering a witness, even though he did not do so for the purpose of rendering her unavailable as a witness...

Further thoughts on the Giles argument, from David Salmons

Posted on April 23, 2008
David Salmons of Bingham McCutchen LLP, lead counsel on the DV LEAP amicus brief in Giles, hasalso taken up my invitation to post thoughts on the argument. here they are, without editing by me._________I too attended the argument yesterday in Giles. The Court spent considerable time on the question of whether the common law dying declaration cases preclude California's application of the forfeiture by wrongdoing doctrine in the Giles case...

Transcript of Giles argument

Posted on April 23, 2008
The transcript of the Giles argument is available through SCOTUSblog -- actually, it was avialable yestgerday -- and you may see it by clicking here.

Thoughts from Joan Meier on the Giles argument

Posted on April 22, 2008
Giles v. California was argued today. I attended, but I've been traveling most of the time since, and it won't be til later tonight or tomorrow that I'll be able to post my reflections on the argument. Meanwhile, I invited Joan Meier, of George Washington Law School and DV LEAP, to offer her thoughts...

A preview of Giles

Posted on April 16, 2008
The ABA's Preview of United States Supreme Court Cases asked me to do a write-up of Giles, and you can see it by clicking here. Under the Preview's format, the title of the piece is supposed to be a question of 14-18 words, and I got just under the wire with Does an Accused Forfeit the Confrontation Right by Murdering a Witness, Absent a Purpose to Render Her Unavailable?

Written opinion in Jensen on the "Dying delcaration" point

Posted on April 12, 2008
Judge Bruce Schroeder, the trial judge in the Jensen case, has filed a written memorandum in support of the decision he previously issued orally, deeming Julie Jensen?s letter to be a dying declaration. Because I referred to the oral decision in my brief in Giles ? and in unflattering terms ? the judge has quite appropriately sent copies of the memorandum to counsel of record in the Supreme Court in Giles and to the Court itself...

reply brief in Giles filed.

Posted on April 11, 2008
The petitioner in Giles filed his reply brief yesterday. You can read it by clicking here.

Bottom-side briefs in Giles

Posted on March 26, 2008
Today is the deadline for amicus briefs in support of the respondent state in Giles v. California, and they are streaming in. You can read the brief ofthe National Association to Prevent the Sexual Abuseof Children's National Child Protection Training Center, by clicking here;the National Association of Counsel for Children, and the American Profesisonal Society on the Abuse of Children, by clicking here;Illinois and 36 other states, by clicking here;the Domestic Violence Legal Empowerment and Appeals Project (DV LEAP), California Partnership to End Domestic Violence, Legal Momentum, plus two other organizations and one individual (D...

State's brief in Giles

Posted on March 19, 2008
California, the respondent, has just filed its brief in Giles, the case posing the issue whether a purpose to render the witness unavailable is necessary for forfeiture, even assuming the accused murdered the witness. You may see the brief by clicking here...

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