Wednesday, September 21, 2005
Hammon: papered and ready for Conference
I have previously posted my petition for certiorari in Hammon v. Indiana
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6 comments:
I'm, sure I could make a full career of responding to Paul Vinegrad on the subject of whether a statement there is a per se rule that only statements to governmental agents can be deemed testimonial, but I believe I have said so much already on the blog on this subject, in response to Paul and otherwise, that I will restrain myself. I also do not want to litigate Hammon through the blog. So I will limit myself to saying: (1) Hammon does not raise the issue of statements to private people, because the statement there was made to a police officer. I don’t think there was any reason to mention Dutton in my papers supporting Supreme Court review of Hammon. (2) Yes, there are snitches, just as there are undercover cops. I think statements to either stand on about the same footing with respect to whether they are testimonial. Most inmates and confederates are not snitches or undercover cops, and so statements to them acknowledging or reflecting culpability of the speaker, as well as implicating another – as was the case in Dutton and as is usually the case with respect to conspirator statements – are not made with the anticipation of evidentiary use. If the speaker did have this anticipation, in most circumstances the statement would not be made. This situation has nothing to do with that created by a complainant’s statement to a private social worker accusing another person of having committed a crime against her.
Friedman: "Most inmates and confederates are not snitches or undercover cops, and so statements to them acknowledging or reflecting culpability of the speaker, as well as implicating another – as was the case in Dutton and as is usually the case with respect to conspirator statements – are not made with the anticipation of evidentiary use."
What about the overarching implication from the Fourth Amendment line of cases, including Hoffa v. U.S., and Illinois v. Perkins, that everyone could be a snitch? "In Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), '[t]he argument [was] that [the informant's] failure to disclose his role as a government informant vitiated the consent that the petitioner gave' for the agent's access to evidence of criminal wrongdoing, id., at 300, 87 S.Ct. 408. We rejected that argument, because 'the Fourth Amendment [does not protect] a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.' Id. at 302, 87 S.Ct. 408." Ferguson v. City of Charleston, 532 U.S. 67, 94 (2001)(Scalia, J., dissenting). Couldn't the same notion of "trust no one" be said of the context here?
Vinegrad: "Prof. Friedman argues that whether or not a statement is "testimonial" depends exclusively upon "the expectation of a reasonable person in the declarant's position."
Well, under that formulation could a plausible argument be made that a reasonable person in Williams' position (i.e., an inmate charged with murder) might "expect" that a fellow prisoner (presumably charged with serious crimes) might act as a "snitch," by telling the authorities about Williams' accusation in exchange for leniency on his case? Snitches are common in a prison setting. All prisoners can tell you what a "snitch" is and what one will do to help himself."
I would argue this is already the case, as a matter of law, despite its origin in Fourth Amendment jurisprudence, as established by the Hoffa line of cases.
Just thought I'd throw a recent law school graduate's two cents into this argument. I took Crim Pro late in the game, so it's still somewhat fresh. Plus, I always enjoy brewing up amalgamated constitutional arguments. Why not add a pinch of Fourth Amendment to the Sixth Amendment analysis here, right?
The Fourth Amendment point is an interesting one, but I don't think it alters the situation much; if anything, it supports my view. These cases say that the Fourth Amendment doesn't protect the wrongdoer's mistaken view that the listener is not a snitch. Thus, the suggestion is that the wrongdoer-speaker presumably does not believe the listener is a snitch -- which, as I have argued, means that these statements are not testimonial. If the accused confesses to a snitch, not knowing he's a snitch, the Fourth Amendment doesn't protect him from use of the statement, and I'm saying that if a confederate of the accused confesses to a snitch, not knowing he's a snitch, the Sixth Amendment doesn't protect the accused from use of the statement. Sems perfectly compatible to me.
Friedman: "These cases say that the Fourth Amendment doesn't protect the wrongdoer's mistaken view that the listener is not a snitch. Thus, the suggestion is that the wrongdoer-speaker presumably does not believe the listener is a snitch -- which, as I have argued, means that these statements are not testimonial."
Doesn't this analysis blur the line between an objective test and a subjective test? Hoffa and its progeny rejected the declarant's subjective belief, or trust, that the "snitch" was not a "snitch." Instead, in the Fourth Amendment's rubric of "reasonable expectations," the Court held that such trust was an objectively unreasonable expectation. It does not matter whether the confederate of the accused knows or does not know he's confessing to a snitch, because under Hoffa, it is reasonably expected that everyone will turn out to be a snitch, or "witness against" the accused in Sixth Amendment terms. Therefore, at least as far as the Hoffa logic applies, the expectation of a reasonable person in the declarant's position could not be that the listener was not a snitch.
Hi Professor. This is the coolest damn blog I've ever read. I am a recent law school graduate and am working as an appellate defender. I have a Crawford issue coming up and can't wait to go through this blog with a fine-toothed comb.
Greetings from an Ohio Law Student!
This past summer I had a Crawford issue for my Advanced Appellate Advocacy class, and I really enjoyed researching the issue. My professor for my current Evidence class pointed me to this blog after I kept discussing Crawford with him. I really like the idea of your blog and will attempt to read through it (in between reading from my casebooks).
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