Academic

Child Observers and Bryant ? a GVR

Posted on March 07, 2011
This morning, the Supreme Court GVRed ? granted, vacated, and remanded ? the case of Allshouse v. Pennsylvania, No. 09-1396, for reconsideration in light of last week's decision in Michigan v. Bryant. Allshouse involves statements by a four-year-old to a child protection agency worker investigating allegations of abuse...

Paul Vinegrad on "Government Coercion & The Confrontation Clause: Getting To The Heart of The Matter"

Posted on March 06, 2011
Blog reader (and retired prosecutor) Paul Vinegrad has asked me to put the following post on the blog. I?m happy to do it, though as usual I disagree with just about everything Paul has to say, creative though it is. Paul?s post begins after the first row of x's and after the second row I present my own comments in response...

Impressions of the Bullcoming argument

Posted on March 03, 2011
I attended Wednesday?s argument in Bullcoming v. New Mexico. Recall the facts in brief: The analyst who performed a test on Bullcoming?s blood was on unpaid leave at the time of trial. Instead of presenting his live testimony at trial, the state presented his report through a supervisor from the lab who had not observed performance of the test...

Preliminary thoughts on the Bryant decision

Posted on March 02, 2011
Here are some preliminary observations on the opinions in Michigan v. Bryant. First, a brief review of the facts.Responding to a 911 call, police found Anthony Covington on the ground near a service station in Detroit, profusely bleeding from a gunshot wound...

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Bryant reversed

Posted on February 28, 2011
I have been out of electronic contact most of the day; presumably many readers already know that the Supreme Court reversed the decision in Michigan v. Bryant. A very unfortunate result. The vote was 6-2, per Justice Sotomayor (a surprise to me); the basis of the decision was that the primary purpose of the statements was to resolve an ongoing emergency (also a surprise to me)...

The Rae Carruth Case Six Years Later

Posted on February 15, 2011
Nearly six years ago, I wrote a long post, Forfeiture, the Prosecutorial Duty to Mitigate, and Rae Carruth. Carruth is the former NFL player who has been convicted of conspiring to kill his pregnant girlfriend, Cherica Adams; the prosecution's theory was that he stopped or slowed down his SUV in front of Adams's car while, by prearrangement, someone from another car pulled up alongside Adams and shot her...

Melendez-Diaz acquitted

Posted on February 11, 2011
As some readers already know, Luis Melendez-Diaz was acquitted yesterday on retrial of the case that made him famous within the circle of people that pay attention to developments related to the Confrontation Clause. Here is a report on the outcome. A chemist from the Massachusetts Department of Public Health did testify live as to the lab reports -- but I don't know whether this was the same chemist who performed the test, or whether his conclusions were challenged by the defense...

Reply brief in Bullcoming

Posted on February 09, 2011
You can read the reply brief in Bullcoming, which was just filed, by clicking here.

"Pure Cold Case" Prosecutions & The Confrontation Clause: What Does The Future Hold?

Posted on January 26, 2011
Paul Vinegrad has asked me to post the following, under the above heading; it is too long to fit in this blog as a comment. I?m glad to do so, and offer my comments after Paul?s post.Prof. Friedman, could you provide an analysis of the following scenario and commentary on my suggested formulation:An NYPD DNA expert (X) writes an unsworn report...

Machines and human witnesses

Posted on January 20, 2011
Paul Vinegrad has posed a question to me as a comment to an ealrier post. It?s sufficiently interesting that I?ll answer it here. Paul?s question:Prof. Friedman, your thoughts on the following hypothetical would be illuminating:Cop arrests suspect for DUI...

Two more bottom-side amicus briefs in Bullcoming

Posted on January 20, 2011
In addition to the brief of 33 states and the District of Columbia, which I earlier posted, two other bottom-side amicus briefs were filed in Bullcoming. You can read the brief of the National District Attorneys Association and other organizations by clicking here, and the brief of the New Mexico Department of Health Scientific Laboratory Division by clicking here...

Michigan ? a state that does it right.

Posted on January 20, 2011
Last month, shortly after I posted results of the study of Michigan trial transcripts done by students under my supervision, Mark Dwyer, the long-time and very capable Chief of the Appeals Bureau in the District Attorney's Office and a regular reader of this blog, asked:If your reports let you answer, I think it would be interesting to know in how many of the DNA cases the witness or witnesses who testified were present at every stage of the DNA processing...

States' amicus brief in Bullcoming

Posted on January 17, 2011
Thirty-three states and the District of Columbia have filed an amicus brief in Bullcoming. You can read it by clicking here. And here are some comments by me.The brief is well-written. (Mike Chamberlain of the California Attorney General's office took the lead in writing it...

State's brief in Bullcoming

Posted on January 11, 2011
The State has filed its brief in Bullcoming v. New Mexico, and you can read it by clicking here. I expect to offer some comments on it later.

Justin McShane on the state's Bullcoming brief

Posted on January 11, 2011
Justin McShane of Harrisburg, PA, has attempted to comment on the State's brief, but each comment is limited to about 4000 characters, and he had more to say than that, so I'll post his comments here. I hope to add my own comments tomorrow, but meanwhile here is what Justin has to say:Disclosure: I was one of the amici that filed a brief in support of Bullcoming with NACDL/NCDD...

A cert petition on the scope of unavailability

Posted on December 23, 2010
Along with local counsel in Maryland, I filed a cert petition this week in Benitez v. Maryland, concerning how unavailability should be determined for purposes of the Confrontation Clause. You can see the petition by clicking here. I will try to post a link to the decision that it seeks to review (by the Maryland Court of Special Appeals), but that may take some time.

Top-side amicus briefs in Bullcoming

Posted on December 08, 2010
Top-side amicus briefs ? that is, the ones in support of the petitioner ? were filed yesterday in Bullcoming v. New Mexico. Here they all are.To see the brief filed by five evidence professors, under the lead of Jennifer Mnookin, click here.To see the brief of 26 defender organizations, led by the Public Defender Service for the District of Columbia, click here...

Is there a multi-witness problem with respect to forensic lab tests?

Posted on December 07, 2010
While litigating Briscoe v. Virginia, I conducted ? through a research assistant, Andrew Mackie-Mason, now a student at the University of Chicago ? a study of transcripts of Michigan drug trials. Michigan adheres to constitutional procedures with respect to forensic lab results; it does not allow prosecutors to prove such results, over the objection of the accused, by introducing the lab report without presenting the testimony, subject to confrontation, of the author...

Petitioner's Brief and Joint Appendix in Bullcoming

Posted on December 01, 2010
Jeff Fisher, for the Petitioner, has filed the opening brief on the merits in Bullcoming v. New Mexico, the case involving a surrogate witness to a lab test. You can read it by clicking here. And you can see the Joint Appendix by clicking here. Amicus briefs supporting the Petitioner are due on Tuesday, December 7.

Retaliatory killing and forfeiture

Posted on November 20, 2010
A couple of people have pointed out to me the decision of the Sixth Circuit yesterday in United States v. Hendrickson. There are numerous interesting features of the case, but I'll focus on just one: The defendant was charged with killing two people in retaliation for providing information against him in a prior case...

Audio recording in Bryant

Posted on October 11, 2010
I just learned from Scotusblog that the Supreme Court is now making audio recordings of arguments available the week of argument. You can hear the argument in Bryant by clicking here.

Reactions to the Bryant argument -- Part 2

Posted on October 07, 2010
Here are further comments on the Bryant argument.The consequences of holding this statement non-testimonial ? Justice Ginsburg asked an important question: What if the speaker had survived? Lori Palmer, for the state, answered straightforwardly that this would not alter what happened at the time of the statement, so in her view it would still be non-testimonial...

Reactions to the Bryant argument -- Part 1

Posted on October 06, 2010
I will not make any prediction on the ultimate outcome of Bryant, but here is a first installment of reactions to the argument. More to follow later, but I?m posting this so I don?t have to wait til I?ve written everything.More than in any previous argument in the Crawford line, in this one the Court was really focusing on the basic questions that go into determining what makes a statement testimonial for purposes of the Confrontation Clause...

Bryant Transcript

Posted on October 05, 2010
The Supreme Court held argument today in Michigan v. Bryant. You can read the transcriupt by clicking here. I will post some comments on the argument, tonight or tomorrow.

Bryant argument on Tuesday

Posted on October 03, 2010
Michigan v. Bryant will be argued in the U.S. Supreme Court on Tuesday. I will be second chair to Peter Van Hoek, lead counsel for respondent Bryant. Here are a few thoughts in advance of the argument. These are my own views entirely, and none should be attributed to Bryant or to Peter...

Cert grant on the surrogate witness issue

Posted on September 28, 2010
I just realize I didn't post the first part of this message a few hours ago, when I thought I did!The Supreme Court granted cert today in Bullcoming v. New Mexico, No. 09-10876. This is likely to be a very significant follow-up to Melendez-Diaz, posing the issue of whether forensic lab results may be introduced through a surrogate witness...

Decision on remand in Briscoe

Posted on September 16, 2010
The Virginia Supreme Court today issued its decision in Briscoe on remand from the United States Supreme Court. You can read it by clicking here">. The court held that the former Virginia statutory scheme (under which the defendant had to call a lab analyst as his witness if he wanted to examine the analyst) was unconstitutional...

State's reply brief in Bryant

Posted on July 19, 2010
The state has filed a reply brief in Michigan v. Bryant. Like its main brief, the reply is refreshingly short. You can read it by clicking here. Below is a summary of the three points made by the brief, and my thoughts on each.First, the state argues that the perspective for judging whether a statement is testimonial should be an objective one...

Bottom-side amicus briefs in Bryant

Posted on June 24, 2010
Yesterday was the due date for amicus briefs supporting the respondent (the defendant) in Michigan v. Bryant. I filed one, which you can read by clicking here, and the National Association of Criminal Defense Lawyers filed another, which you can read by clicking here...

Respondent's brief in Bryant

Posted on June 17, 2010
Here is the brief, filed yesterday, of respondent Bryant in Michigan v. Bryant. Amicus briefs supporting Bryant are due on the 23rd. I expect to file one.

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