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

By Richard D. Friedman

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. The Court has asked for a response from the state in both these cases, suggesting at least that each petition has caught the attention of at least one chambers.

One case is Giles v. California, No. 07-6053, seeking review of People v. Giles, 152 P.3d 433 (Ca. 2007). You can see the petition by clicking here, my amicus brief by clicking here, the state's brief in opposition (without cover) by clicking here, and Giles' reply brief (added since the original posting) by clicking here. Giles presents the issue of whether a purpose to render the witness unavailable is an absolute requirement for forfeiture of the confrontation right. The California Supreme Court thought not, and I agree. I think this is a good case to test the issue, though, and so I submitted my brief in support of the petition even though I basically ? note the caveat below ? agree with the state supreme court's decision.

Giles is a murder case. It is clear Giles killed the victim. He contends he acted in self-defense. The prosecution introduced a testimonial statement made by the victim (Giles? former girlfriend) after a prior incident, accusing him of trying to strangle her. The prosecution invoked forfeiture doctrine to overcome the confrontation right, and Giles argued that there was no evidence indicating that he killed the victim for the purpose of rendering her unavailable as a witness. The California Supreme Court held that there is no purpose requirement for forfeiture, at least in the context of forfeiture by serious intentional criminal conduct; I agree. The petition explains why I believe that to be so, why this is an important issue for forfeiture doctrine and confrontation doctrine more generally, and why this is a good type of case in which to address the issue. I will not repeat those arguments here, except to mention two points.

(1) In Hammon v. Indiana, the state and many domestic violence organizations supported a narrow definition of ?testimonial? in part on the basis that domestic violence victims are often intimidated from testifying. On behalf of Hammon, I contended that the proper response to this argument was not a narrow definition of ?testimonial? but rather a robust doctrine of forfeiture. And Giles is a case in which the Court can start constructing such a definition.

(2) The caveat referred to above is this: I believe that part of forfeiture doctrine must be the principle that the state cannot invoke forfeiture if it did not take reasonable steps available to it to avoid or mitigate the unavailability of the witness for confrontation. This is a complicated issue on which I have commented before. I don?t think the possibility or shape of such a mitigation doctrine is properly presented to the Court in Giles, but I hope that if the Court takes the case it takes care not to dismiss the possibility.

Giles is scheduled for conference on January 11.

The second case is Melendez-Diaz v. Massachusetts, No. 07-591, seeking review of Commonwealth v. Melendez-Diaz, 870 N.E.2d 676 (Mass. App. 2007), an unpublished decision that follows Commonwealth v. Verde, 827 N.E.2d 701 (Ma. 2005). You can see the petition by clicking here, my amicus brief by clicking here, and the amicus brief filed by three other law professors and several defense organizations by clicking here. This one is much simpler: Massachusetts is among the states holding that forensic lab reports are not testimonial. I think this is plainly wrong, and the Supreme Court should resolve the conflict quickly. This is an important theoretical matter, because there is no sound theory of what ?testimonial? means under which lab reports are not testimonial. And it is an important practical issue because of the many thousands of cases involving lab reports each year. I think courts holding these reports to be non-testimonial are motivated largely by faith in the reliability of these reports ? faith that in some cases is misplaced and in any event is inapposite under Crawford ? and by concern about the costs of requiring the authors to testify subject to confrontation. I believe those costs could be significantly reduced by providing for depositions of the authors.

The Commonwealth's response in this case, after the grant of an extension, is due on February 6. If the Court does take the case, it would not be heard until the 2008 term.

Full post as published by The Confrontation Blog on December 24, 2007 (boomark / email).