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

By Richard D. Friedman

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. Indiana. I believe he is right that they are materially indistinguishable; of course, I think that the statement in Hammon was clearly testimonial. But given that he dissented from the decision in Hammon, Justice Thomas?s declaration in Giles is hardly surprising.

More intriguing is the separate concurrence by Justice Alito. He says that, ?like Justice Thomas,? he is ?not convinced? that the statement is testimonial. (Well, if he were entirely like Justice Thomas in this respect, he would be convinced that it was not testimonial.) He expresses sympathy with the dissent?s ?displeasure? with the result in this case, but ?suggests[]s that the real problem concerns the scope of the confrontation right?; he says it is ?not at all clear? that Ms. Avie?s statement is the equivalent of a statement by a witness. Although he is less than definite, Justice Alito sure sounds as if he does not believe this statement is testimonial. But what is notable here is that Justice Alito, like all the justices except for Justice Thomas, joined the majority in Hammon. I suspected from the start that the decision in Davis v. Washington (which included Hammon) was a compromise, from Chief Justice Roberts?s first term, when the Court seemed to be trying hard to achieve consensus (and when Justice Alito was very junior). Justice Alito?s opinion in Giles lends weight to that supposition; it seems likely that he did not like the result in Hammon but went along because other justices who might have been disposed to treat the 911 call in Davis as testimonial were willing to give up that result as part of the overall resolution.

My colleague Chris Whitman, a far more experienced and knowledgeable observer of the Court than I, has raised another issue. She asks whether, given their views, Justices Thomas and Alito should have voted to affirm. I have asked her to write up her thoughts, and sheh as graciously agreed. here they are:

Why are Justices Alito and Thomas concurring rather than dissenting? They see no constitutional infirmity in the decision below:

If the statements admitted are not testimonial, as they believe, there is no reason not to affirm the decision.

Alito and Thomas say that the question of whether the statements were testimonial was not the subject of the cert grant. Yet Justices Brennan and Marshall in capital cases repeatedly voted on the basis of their general death penalty views even where cert was granted on a more narrow issue, and Souter (with others) does the same thing in Eleventh Amendment cases. Perhaps the answer is that Alito and Thomas have decided to accept the majority approach to whether a statement is testimonial as a matter of stare decisis, but their opinions in Giles address the issue and certainly sound as if they are not conceding the point.

Under the circumstances of Giles, the result is not so troubling. Here, a criminal
defendant gets a remand even though a majority of the Justices see no constitutional flaw in his conviction. But could there be a case in which the facts are reversed? What if five Justices see a flaw in the trial below, but two of them vote to affirm the conviction on the grounds that the issue critical to them was not the subject of the cert grant? Would we leave a prisoner in jail although five Justices have expressed the view in his case that there was constitutional error below?

I?m not sure she?s right, but I would be glad to know of any readers? thoughts ? in comments either posted here or sent by e-mail to rdfrdman@umich.edu.

Full post as published by The Confrontation Blog on July 08, 2008 (boomark / email).