Academic

A significant decision on remote testimony

Posted on June 23, 2020
Yesterday, the Michigan Supreme Court issued its decision in People v. Jemison, a case that I have mentioned in a prior post and in which I appeared as amicus.  The opinion, by Chief Justice McCormack (a former colleague and co-author of mine) is excellent ? and it was unanimous, with one justice not participating...

The dying, blinking witness

Posted on June 04, 2020
Chris Miller, an excellent former student of mine, has pointed out Woods v. Cook, a recent Sixth Circuit opinion of interest by Judge Sutton, who is sensitive to Confrontation Clause issues.  This was an ?eye blink? case:  A shooting victim, Chandler, was grievously wounded, and was able to communicate only by blinking his eyes...

Remote testimony and the coronavirus crisis

Posted on May 04, 2020
The coronavirus crisis has created increased interest in the subject of remote testimony ? testimony in which the witness is not in the courtroom but rather testifies from a remote location, with the testimony electronically transmitted to the courtroom...

Laird Kirkpatrick on forensic reports

Posted on September 04, 2019
I previously posted an entry about Stuart v. Alabama and Justice Gorsuch's dissent from the denial of certiorari in that case.  Laird Kirkpatrick, who for decades has been one of the nation's outstanding Evidence scholars, has written a very fine analysis of that dissent and what it, and other auguries, suggest about the law governing the Confrontation Clause implications of forensic reports...

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BIO and reply in support of petition in White v. Louisiana

Posted on August 28, 2019
I previously blogged about White v. Louisiana, in which a cert petition is pending.  You can find the documents here.  They now include the State's Brief in Opposition and the Reply Brief in support of the petition.  The case has gotten a good bit of attention...

Important DC Circuit opinion on unavailability

Posted on August 21, 2019
Yesterday, the U.S. Court of Appeals for the D.C. Circuit issued an opinion, in U.S. v. Burden, that may be important in determining unavailability of a witness.  I consulted informally with Burden?s counsel during the appeal, so I will be constrained in making comments until I am confident this issue is resolved in the case...

Julien v. State, 2019 WL 2750591,

Posted on July 03, 2019
Julien v. State, 2019 WL 2750591, a decision issued yesterday by the Texas Court of Appeals, First District, shows how vulnerable the law of confrontation is with respect to fresh accusations.  As in Hammon v. Indiana, this was a domestic violence case, involving a statement made in the house by the complainant a considerable time after the alleged incident to responding police officers; here it was three hours later because, unaccountably, that is how long it took to respond to repeated 911 calls...

White v. Louisiana: a cert petition to watch

Posted on May 28, 2019
White v. Louisiana, No. 18-8862, may provide the Supreme Court with an opportunity to begin clarifying and repairing the doctrine governing prior statements of a witness who takes the stand at trial but who has insufficient memory to allow a genuine opportunity for cross...

A reminder that an excited utterance can be testimonial

Posted on April 27, 2019
People v. Allen, a decision handed down yesterday by a justice of the Supreme Court of New York (the trial court of general jurisdiction) for Queens County provides a useful reminder that a statement may be testimonial even though it fits within the malleable hearsay exception for excited utterances...

A belated assessment: People v. Sanchez

Posted on April 26, 2019
    I realize I never posted anything about the California Supreme Court?s 2016 decision in People v. Sanchez, 63 Cal.4th 665, 374 P.3d 320, 204 Cal.Rptr.3d 102 (Cal. 2016).  This case deals with the Confrontation Clause implications of expert testimony...

Objecting to hearsay, and forgetting about the Confrontation Clause

Posted on April 26, 2019
Before Crawford, it was not surprising that defense counsel sometimes failed to make Confrontation Clause objections; it wasn't clear what the Clause added to hearsay law.  But now counsel really should be more careful.  And yet some fail to do so...

A new and interesting case on the not-for-truth end run

Posted on February 15, 2019
Stu Dedopoulos, a blog reader who diligently keeps me informed, has told me about Orlando v. Nassau County District Attorney?s Office, an interesting Second Circuit case decided this week.  In a 2-1decision, the majority (Circuit Judge Droney, joined by Circuit Judge Jacobs), upheld a Confrontation Clause on habeas...

First word from Justice Gorsuch on the Confrontation Clause

Posted on November 19, 2018
The Supreme Court today denied certiorari in Stuart v. Alabama, No. 17-1676.  I believe there is good news and bad news here. Stuart was charged with vehicular homicide, by drunk driving.  The State introduced a blood test through the testimony of a supervisor in the lab who had nothing to do with preparation of the report -- and who, in fact, was not even employed at the lab at the time of the report...

Continuing confusion on lab tests

Posted on May 01, 2018
Stu Dedopoulos, who does a wonderful job of keeping me informed, has brought to my attention the decision of the supreme court of his home state of New Hampshire, issued today, in State v. Watson.  It provides a good opportunity to comment on the sad state of affairs regarding forensic lab tests...

Autopsy reports -- still waiting for clarification

Posted on March 09, 2018
Last May, I posted a discussion concerning the treatment of autopsy reports under the Confrontation Clause.  The principal issue is when, or whether, such reports should be considered testimonial.  A secondary issue, which arises in other contexts, is whether, assuming a report is testimonial, the prosecution can present secondary evidence concerning the contents of the report on the ground that it supports the opinion of an expert testifying live at trial...

Another look at the Craig-Crawford disjuncture?

Posted on September 15, 2017
Crawford did not purport to disturb Maryland v. Craig, 497 U.S. 836 (1990), which allowed a prosecutor in some circumstances to present the testimony of a child by electronic transmission from a place outside the physical presence of the accused.  But Craig was based on the flexible approach to the Confrontation Clause of Ohio v...

Scotusblog piece on the effects of Melendez-Diaz

Posted on September 15, 2017
Scotusblog recently ran a piece by Andrew Hamm titled Looking back at predictions in Melendez-Diaz v. Massachusetts.  Here is a link. I think it's fair to say that this article bears out the conclusion that, despite the dire predictions made by Justice Kennedy of how devastating Melendez-Diaz would be to the criminal justice system, the actual effect has been rather modest...

An issue to be resolved: The treatment of autopsy reports

Posted on May 30, 2017
This blog has remained dormant for some time, it part because I have been distracted by other work and in part because there haven't been all that many developments that I have thought are worth reporting on.  But I will try to begin posting again more frequently...

Third petition on surrogate experts

Posted on December 23, 2015
Tim Provis, counsel for the petitioner in Roalson v. Wisconsin, No. 15-6037, which presents an issue similar to Griep and Katso, has kindly provided me with copies of the papers on cert.  Here are links to the Petition, the State's Brief in Opposition, and the Reply Brief supporting the Petition.

New cert petitions on the "expert witness end-run"

Posted on November 26, 2015
At least two cert petitions are currently before the Supreme Court on the question of whether, or when, a prosecution may present the substance of an out-of-court testimonial statement through an in-court witness who bases an opinion in part on that statement...

Audio of public radio show on Ohio v. Clark

Posted on June 22, 2015
Joan Meier, who commented last week on this blog, and I appeared on Friday on a Los Angeles public radio show, discussing Ohio v. Clark. If you're interested, you can listen to it by clicking here.  By the way, Joan cited favorably a recent book by Ross Cheit,  The Witch Hunt Narrative: Politics, Psychology, and the Sexual Abuse of Children...

Ohio v. Clark: Some Initial Thoughts

Posted on June 19, 2015
A few thoughts on the decision in Ohio v. Clark:1.  The result is totally unsurprising, and I was not even surprised by the unanimity as to the result; it was difficult at argument to perceive that any justice thought the statement was testimonial...

Clerk reversed

Posted on June 18, 2015
The Supreme Court decided Ohio v. Clark today.  You can see the opinions here.  The result is a 9-0 reversal in favor of the State.  No particular surprise there.  Justice Alito wrote the majority opinion.  Justice Scalia, joined by Justice Ginsburg, wrote separately, concurring only in the judgment, and Justice Thomas did the same...

Civil Confrontation

Posted on May 19, 2015
The Confrontation Clause, of course, only applies in favor of a criminal defendant.  But it has long appeared to me that it reflects a broader principle in common-law adjudication, that ordinarily at least a party should have a chance to cross-examine those who testify against the party...

Remote testimony

Posted on March 28, 2015
Here's a belated report on a recent development in a long-standing issue.  Last month, the Supreme Court denied certiorari in New Mexico v. Schwartz, No. 14-317.  The petition presented the issue whether the confrontation right bars the presentation, over the accused's objection, of testimony taken, by two-way video, from a witness in a remote location...

Statements made in the absence of interrogation

Posted on March 28, 2011
Bryant concerns statements made in response to police interrogation. It remains clear, however, that interrogation is not a requirement for a statement to be considered testimonial in nature. So how is the question of whether a statement is testimonial to be made if the statement is not testimonial? The principal theoretical issue that divided the majority and the dissent in Bryant ? from whose perspective should the determination of whether a statement is testimonial? ? does not arise if there is no interrogation: The choice must be made from the perspective of the speaker...

Due process confrontation rights

Posted on March 13, 2011
A California lawyer has written me raising an important issue on which I don't believe I've written. I'll only offer a few thoughts, because I'm sure others have thought more about this. The lawyer writes:I am interested in any resources you know of which deal with the question of cross examination rights being denied in domestic violence, restraining order courts...

Linda Greenhouse on Scalia and Bryant

Posted on March 11, 2011
Linda Greenhouse of Yale Law School, and formerly the long-time Supreme Court correspondent of the New York Times, has written an interesting piece on Justice Scalia and Bryant. You can read it by clicking here.

Doesn't the Confrontation Clause apply in Kansas?

Posted on March 11, 2011
Gee, I realize that some prosecutors are holding out hope that Melendez-Diaz will be confined or even overruled in Bullcoming, but it is the law, and I would have thought that by now word would have reached Kansas. But John Collins, director of the Michigan State Police Laboratory, has passed on this article from the Wichita Eagle, Bill lets forensic experts report in writing, skip testifying...

Confrontation, the Journalist's Privilege, and Harmless Error

Posted on March 10, 2011
Focus on Crawford-related issues should not obscure the fact that many significant Confrontation Clause questions concern the scope of the accused?s right to cross-examine a witness who actually testifies at trial. Adam Liptak of the New York Times has alerted me to an interesting decision issued yesterday by the Second Circuit in United States v...

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