Academic

Three decisions from the California Supreme Court on forensic reports

Posted on October 15, 2012
The California Supreme Court issued three decisions today on the Confrontation Clause and forensic reports.  Two of them divided the court and show how bad things can get in light of the confusion sown by the US Supreme Court's decision in Williams v...

Source of the "targeted individual" test?

Posted on June 21, 2012
I hope to be offering more commentary on Williams within a few days.  Meanwhile, perhaps I can offer a solution to one mystery.  Justice Kagan quite sensibly says that where Justice Alito's "targeted individual" test comes from "is anybody's guess...

Thoughts on Williams, Part I: Reasons to Think the Impact May be Limited

Posted on June 19, 2012
Here is a first installment of preliminary thoughts on Williams. Obviously, I think the result is unfortunate; I think Williams should have won. But the damage to the Confrontation Clause may be much less than I might have guessed it would be given the result...

Petition in Rose denied

Posted on June 18, 2012
I hadn't seen the order list before, but now I have. The etition for certiorari that I filed in Rose was indeed denied. So I guess that this is a conflict that will persist for a while longer; in some states, the Constitution is deemed to prevent child witnesses from testifying attrial from behind a screen, and in some states it isn't...

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Opinions in Williams

Posted on June 18, 2012
You can read the opininos in Williams v. Illinois by clicking here. Commentary from me later.

Williams affirmed without majority opinion

Posted on June 18, 2012
Scotusblog reports that Williams was affirmed 5t-4, with Justice Alito writing for four justices (the Melendez-Diaz and Bullcoming dissenters), Justice Thomas concurring in the result, and the others dissenting. That's all I know for now; I haven't seen the opinions...

BIO and reply brief in Rose v. Michigan

Posted on June 01, 2012
I've been tied up, in large part with grading, but now I'm going to try to catch up on some postings I've been meaning to make over the last few weeks. For starters, here are the Brief in Opposition and my Reply Brief in support of the petition for certiorari in Rose v...

Petition for certiorari on procedure for child testimony

Posted on March 29, 2012
I'm sorry for the delay, but I am posting now a petition for certiorari that I filed on March 8, in Rose v. Michigan, raising issues concerning the procedures for children's testimony. In this case, the child was allowed to testify at trial from behind a screen that quite obviously blocked her view of the accused...

The latest from the European Court of Human Rights

Posted on January 13, 2012
Last month, the Grand Chamber of the European Court of Human Rights decided Al-Khawaja and Tahery v United Kingdom. This is an obviously important decision, and I have thought to write a post about it, but I haven't had time. So I've asked William E...

A (mostly) bad decision from the Fourth Circuit

Posted on December 17, 2011
Several readers have pointed me to a decision made on Thursday by the U.S. Court of Appeals for the Fourth Circuit, U.S. v. Summers, 2011 WL 6276085. Here are a summary and some thoughts.Summers was charged with drug-related crimes. The stuff was allegedly found in a black North Face jacket that he left behind in a chase...

The Cellmark report, and what it shows

Posted on December 15, 2011
Here is the Cellmark report, taken from the public files of the United States Supreme Court in Williams v. Illinois. A few points about it:First, it seems to me that simply looking at the report demonstrates whatever degree of formality any justice is likely to require for a statement to be considered testimonial...

On posting the Cellmark report

Posted on December 14, 2011
I will soon post the Cellmark report, which a friend has gotten for me from the publicly available files of the U.S. Supreme Court.Before doing so, though, I want to note an issue that I had to resolve before posting the report. After I announced my intention on this blog to post it, I was given pause by a call from the Illinois State?s Attorney?s Office, mentioning Illinois criminal discovery rules...

Fifth Circuit allows testimony under pseudonyms

Posted on December 13, 2011
Once again I'm writing on the question of where the Confrontation Clause should be treated categorically and where as a balance.In United States v. El-Mezain, issued on December 7, a unanimous panel of the Fifth Circuit upheld a trial court decision allowing two prosecution witnesses to testify under pseudonym...

Hardy v. Cross -- Supreme Corut decision on required efforts to find an unavailable witness

Posted on December 12, 2011
The Supreme Court issued a summary decision today in a Confrontation Clause case, Hardy v. Cross. Cross was tried on charges of kidnapping and sexual assault. The alleged victim, referred to as A.S., testified at trial, but in a way that the Seventh Circuit, 632 F...

The niqab and the structure of the confrontation right

Posted on December 11, 2011
A few years ago, I posted a couple of messages on the issue of whether Muslim women should be allowed to testify while wearing a niqab, covering the face except for the eyes. One concerned a Canadian case, and the other commented on the adoption by the Supreme Court of Michigan of a rule, unfortunate in my view, meant to authorize trial judges to preclude witnesses from testifying while wearing the niqab...

The Cellmark report

Posted on December 09, 2011
Because the Cellmark report was never formally introduced at the Williams trial, it was never made part of the record. But it is, of course, at the center of the case before the Supreme Court. (One might call it the Hamlet of the Supreme Court case...

Cellmark's record

Posted on December 08, 2011
I have no doubt that Cellmark runs very proficient labs. But blog reader Patsy Myers points out that if you do a search for "Cellmark falsified evidence" you come up with a pretty substantial set of problems that they have encountered in the past. For example, the company has not been immune to professional misconduct affecting multiple cases...

The Williams argument

Posted on December 07, 2011
On Tuesday, I attended argument of Williams v. Illinois in the Supreme Court. Here are some reactions. You can find the transcript by clicking here. The audio recording is not yet available.Perhaps the most interesting aspect of the argument was the comments by Justice Kennedy, author of the dissents in Melendez-Diaz and Bullcoming, indicating that he thought the state?s case was weak, weaker than in those cases...

Thoughts on the brief of the New York DA and OCME in Williams

Posted on December 05, 2011
I am going to try over the next several days to post (rather belatedly) a series of entries analyzing some of the arguments made by the state-side briefs in Williams. I?ll begin with the brief filed on behalf of the New York County DA?s Office and the New York City Office of the Chief Medical Examiner (OCME); I?ll refer to this as the New York brief...

Anticipating the Williams argument

Posted on December 04, 2011
Williams v. Illinois will be argued on Tuesday. Here is a link to a piece on it by Erwin Chemerinsky, and here is a link to an Op Ed piece in the New York Times by Jeff Fisher. I think Chemerinsky accepts too readily prosecutors? predictions of difficulties that would be created by a win for Williams, and he fails to take into account the fact that numerous states have long operated without undue difficulty under the regime that Williams seeks to establish as a matter of constitutional law...

Williams reply brief

Posted on November 23, 2011
Sorry, I've been slow in posting the reply brief in Williams v. Illinois, but here it is.Happy Thanksgiving to all!

Coping with the Melendez-Diaz line

Posted on November 06, 2011
I'm attaching the draft of a short piece I've written on potential responses jurisdictions may take to the Melendez-Diaz line of cases. I expect to make changes in this, as I go along. Comments are welcome.

Bottom-side amicus briefs in Williams

Posted on October 26, 2011
Today was the due date for amicus briefs supporting the state in Williams v. Illinois. At least three were filed.You can read the brief of the United States by clicking here.You can read the brief of 42 states, the District of Columbia, and Guam, all under the leadership of Ohio, by clicking here...

State's brief in Williams

Posted on October 20, 2011
The State filed is brief in Williams v. Illinois yesterday, and you can read it by clicking here. I hope to offer comments on it soon.

Arkansas holds confrontation right applies to jury fact-finding in sentencing

Posted on October 16, 2011
In Vankirk v. State, 2011 Ark. 428, 2011 WL 4840620 (Oct. 13, 2011), the Arkansas Supreme Court has held that the confrontation right applies to sentencing proceedings conducted before a jury, in non-capital as well as capital cases. The logic of the opinion actually appears to apply to all sentencing proceedings, but in an apparent attempt to avoid conflict with other cases the decision is limited to proceedings before a jury, though the court does little to defend the distinction, and I believe it is a hard one to maintain...

A nice decision in a Williams-like case

Posted on September 30, 2011
Yesterday, the Court of Appeals of Maryland issued its decision in Derr v. State, 2011 WL 4483937, a case very similar to Williams. This is a very useful opinion, rejecting numerous theories offered by the State that we may see once again in Williams...

Top-side amicus briefs in Williams

Posted on September 15, 2011
I've been slow to post the amicus briefs favoring the petitioner in Williams v. Illinois, but here they are:1. One by the Innocence Network, which you can see by clicking here.2. One by the Public Defender Service for the District of Columbia and the National Association of Criminal Defense Lawyers, which you can read by clicking here...

Petitioner's brief in Williams

Posted on August 31, 2011
The petitioner has filed his brief in Williams v. Illinois, and you can read it by clicking here.

Melendez-Diaz held not retroactive, in Melendez-Diaz case

Posted on July 29, 2011
Here's an irony of sorts. The Massachusetts Supreme Judicial Court has held the rule of Melendez-Diaz not to be retroactive -- and it did so in Commonwealth v. Melendez-Diaz, 2011 WL 3000275 -- yes, involving a prior conviction of the same Luis Melendez-Diaz.

Initial thoughts on Williams

Posted on July 09, 2011
In Williams, the state presented the testimony of a DNA expert that in her opinion, based on a Cellmark report on DNA found in a crime scene sample and on a report by the Illinois State Police on DNA found in a swab taken from the accused, that the accused was the source of the DNA found in the crime scene sample...

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