Academic

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.

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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...

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.

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...

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!

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...

California Supreme Court decision in People v. Cage -- commentary by Jeff fisher

Posted on April 09, 2007
The California Supreme Court issued its decision yesterday in the long-awaited case of People v. Cage. (Thanks to Paul Vinegrad for calling my attention to it.) It treats a statement by a young victim to a police officer, in the station-house and the hospital, as testimonial, and his statement to a doctor, which the court regarded as having been asked and given solely for medical purposes, as non-testimonial...

Jessica Smith's "Emerging Issues": Links Available

Posted on March 29, 2007
Jessica Smith, a member of the faculty at the School of Government of the University of North Carolina at Chapel Hill, has given me permission to post on the blog links to her monograph, Crawford v. Wsahington: Confrontation One Year Later (2005), and to a supplement about to be published, Crawford v...

"A Sixth Sense About Criminal Trials"

Posted on March 24, 2007
The ABA Journal E-Report has a nice write-up on Jeff Fisher, especially emphasizing Crawford and related issues, and discussing how the textually-based arguments that Jeff has made in Crawford and other cases have appealed both to Scalia and to the Court's liberals...

Deepening Conflict on Lab Reports

Posted on March 21, 2007
Yesterday, in State v. March, 2007 WL 828156, the Missouri Supreme Court joined other jurisdictions in holding that a lab report prepared for use in prosecution is testimonial. I believe this result is clearly correct, and appropriately the court did not appear to endure much angst in reaching it...

A Challenge to Maryland v. Craig

Posted on March 21, 2007
Lawyers from Baker Botts in Washington, D.C., have filed a well-crafted petition for certiorari asking the Supreme Court to take another look at Maryland v. Craig, 497 U.S. 836 (1990), which allows child witnesses in certain circumstances to testify against an accused outside his presence by electronic means...