People v. Courson, 2005 WL 249988 (Tex. Ct. Apps. Feb. 3, 2005), holds that the defendant failed to preserve a confrontation issue by making an objection at trial. I wonder whether the court was too stringent in this case. It appears that the trial was held before Crawford was decided. As the court says, the confrontation right "is neither new nor novel." True, but the statement at issue was one made by the defendant's wife to the police after a domestic dispute. (The case did not involve that dispute; this was a shaken-baby case.) Assuming that the statement clearly fell within the excited utterance exception as Texas courts have applied that exception, a defendant not anticipating Crawford would have had little reason to make an objection; this is one context in which the chance of exclusion was minuscule before Crawford but is substantial now.
2 comments:
Two comments:
1. What are you doing posting commentary on the blog at 4:38 in the morning? Trying to make the rest of us feel guilty because we sleep occasionally?!
2. I've been telling my students for years that whenever a prosecutor offers an out-of-court statement, defense counsel should respond:
"ObjectionhearsayobjectionCOnfrontationClause" -- as if it was one word. So I have little sympathy for an attorney who, in a trial prior to Crawford, "didn't know" he or she should make a Confrontation Clause objection.
Cliff Fishman
Catholic University
Thanks to Andrew for those citations. Clifford has certainly been teaching his students prudent practice, though I can imagine some judges as having regarded the objection as frivolous before Crawford. I think counsel probably shouldn't be held to the standard of Fishman-tuaght lawyers.
As for the tmie of my posting, if it is any comfort, at 5:30 pm I was asleep on the couch in my office.
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