Saturday, December 24, 2005

Petitioner-side briefs filed in Hammon and Davis

The briefs for the petitioners and supporting amici in Hammon v. Indiana and Davis v. Washington were filed on December 22. You can see the brief I filed for the petitioner in Hammon by clicking here . For the petitioner's brief in Davis, filed by Jeff Fisher, click here. For the amicus brief filed in both cases by the American Civil Liberties Union and its Indiana and Washington affiliates, click here. For the amicus brief in Hammon of the National Association of Criminal Defense Lawyers and the Public Defender Service for the District of Columbia, click here, and for the amicus brief filed in Davis by the same two organizations and also the Washington Association of Criminal Defense Lawyers, click here.


Paul Vinegrad said...

Rich -

I am quite suprised by your brief in Hammon.

In all of your extensive writings, you never proposed a test that defined a testimonial statement by reference to whether it was an accusatory statement made to a known police officer. (Others, including Prof. Mosteller, advocated this view; but, heretofore, it was not your paradigm.)

Perhaps, you wanted to maintain a united front with Davis and amici?

Nevertheless, at least you returned to your roots by stating: "The best standard is whether a reasonable person in the position of the declarant would anticipate use of the statement in investigation or prosecution of a crime."

Well, why two standards?:

One that focuses upon the content of the statement (i.e., being "accusatory"), and one that focuses on the state-of-mind of a reasonable declarant?

Is not some degree of credibility lost by throwing both tests at the Court?

Moreover, if the accusatory content of the statement is the test, couldn't the Court have used that test in Crawford?

The Court could have simply concluded that Sylvia Crawford's statement was an accusation made to know police officers. And, as such, was prohibited from being used against her husband by the Clause. End of issue.

Isn't the fact that the Court didn't choose this as its rationale highly significant?

Isn't the fact that the Court, instead, choose to focus upon the formality of the setting in which the statement was obtained, and, in the case of informal settings, the "practice" that the government used to produce the statement, contrary to your "accusatory" approach?

Since at least two of the formulations mentioned in Crawford referenced the declarant's state-of-mind, and since that has always been your perspective to one degree or another, would your argument have been more persuassive (and, I dare say, genuine)if it continued along those lines?

I know that you are refraining from discussing this issue until the cases are decided. Nevertheless, any comments you have regarding your sudden theoretical switch would be welcome.

Happy Holidays.


Richard D. Friedman said...

As I've said, I'm not going to engage in extensive open discussion on this issue while the case is pending. But in response to Paul's quesions, I have not switched at all. As I think the brief makes clear, we are arguing that one set of conditions is sufficient for a statement to be treated as testimonial, not that it is necessary. There are many other types of statements not satisfying those conditions that should still be deemed testimonial.

Merkys said...

Hi Prof Friedman,

I cannot open your brief. Would it be possible for you to post it as a .pdf as well?



Anonymous said...

Professor Friedman (or anyone who knows)...

when are the other side's brief's due in the hammon and davis cases?